What is issued by the Constituent Assembly to draft the constitution is shocking and does not live up to the level of constitutional provisions protecting the rights and freedoms

 Cairo, on November 11, 2012

 What is issued by the Constituent Assembly to draft the constitution is shocking and does not live up to the level of constitutional provisions protecting the rights and freedoms

The Arab Center for the Independence of Judiciary and the Legal Profession (ACIJLP) expresses its deep concern over the draft of the Egyptian constitution that have been announced and published on Sunday, 11/11/2012.

The ACIJLP has many concerns about whether the provisions of the draft of the constitution referred to provide an actual protection of constitution and the obligation to take legislative and administrative measures to ensure judicial protection of these rights and to ensure the practice of these rights and freedoms.

After reviewing the relevant provisions of the rights and freedoms contained in the draft of the constitution, it appears that many of these provisions, as a result of the amplification of such provisions, are understood as a guiding provisions which d not obliged the legislator to do something, a matter which makes those rights contained in these provisions lack content and lack any legislative or judicial or administrative measure to protect and ensure its exercise, such as using the expressions "ensured - guaranteed" as a substitute for expressions related to the protection of rights. This will contradicts with the meaning of the constitutional document, which means the obligation of all state authorities.

The ACIJLP is increasingly worried about the fact that the draft of the constitution, especially Article 75 will suspend exercising all the rights and freedoms set forth in Chapter II of the draft of the constitution which does not contradict with the basic provisions of the state and society in the Constitution. These provisions contained in Chapter I and its provisions use terms predominated by Phraseology and amplification, a matter which represents a serious threat to all rights and freedoms set forth in Chapter II of the draft of the constitution. This threat is represented in giving broad discretion to the normal legislator to impose restrictions on the exercise of public rights and freedoms and to limit the scope of the exercise of these rights.

The ACIJLP also refers to the existence of many contradictions between the Articles of the draft of the constitution in their entirety, but the contradiction increases to include the provisions of one article, such as Article 50 which provides for the freedom to establish trade unions and then the article provides for the establishment of one trade union for each profession.

The ACIJLP also expresses its astonishment because articles of the Constitution address many of the provisions, which do not live up to the level of constitutional provisions not even ordinary legislation, though such provisions are similar to regulations of the laws and the ordinary legislation in terms of its draft and provisions, including, for example, Article 52 of the the draft of the constitution which provides for the participation of citizens in public life. The provisions of the said article address many of the details which are not commensurate with the technical wording of the constitutional provisions, which replaced the executive regulations of the legislation and ordinary laws as mentioned before.

The ACIJLP is also astonished because the provisions of the draft of the constitution tackles interim problems faced by the government, such as eradicating illiteracy in the provision of Article 56 of the draft, and this is not the place of constitutional provisions, and otherwise there is a need for provisions addressing all problems such as security, traffic, infrastructure, housing and other.

The draft of the constitution is free of those provisions which refer to criminalize crimes against humanity, the crimes that might be committed by regimes themselves against their people, moreover, the draft of the constitution ignores the respect to international conventions and commitments related to the protection of human rights and ignores its status in the hierarchy of the domestic legislation.

The ACIJLP believes that the draft of the constitution adopts the same philosophy and approach of the Constitution of 1971 in terms of giving the ordinary legislator full unconditional authorization to regulate the exercise of these rights through use of the phrases such as "according to the provisions of the law - in cases specified in the law - within the limits of the law ..... etc." This matter could threaten public rights and freedoms contained in the heart of the constitutional provisions to the extent that ordinary legislator become able to impose several restrictions on the exercise of the rights guaranteed by constitutional provisions, a matter which deteriorate it from the level of organizing rights to a lower level. Instead the constitutional legislator restricts the legal legislator regarding the sanctity of rights and freedoms so as not to violate or restrict such rights, the legislator did the opposite and restricted himself under the same law issued by the legislative authority, and thus the Constitution lower its position in the legislative hierarchy as the father of laws, making the law which is represented in ordinary legislation override the constitutional provision. This matter contradicts the principle of superiority of constitutional provisions in the legislative hierarchy.

The ACIJLP believes that the Constituent Assembly, while drafting articles and provisions relevant to the judiciary in general, and the Supreme Constitutional Court in particular, does not give the international principles, standards and conventions relevant to the independence of the judiciary any consideration, and the drafting of articles and provisions regulating the judiciary is free of controls and standards guaranteeing and protecting the independence of the judiciary.

The ACIJLP points out that the draft of the constitution relevant to the Supreme Constitutional Court is shocking in its provisions shocking and limiting the role of the Supreme Constitutional Court  because  it gives the president the right to appoint the president and members of the Supreme Constitutional Court, unlike what was happening regarding the jurisdiction of the General Assembly of the court to appoint its members, and the increasing demands of its jurisdiction to appoint the President of the Court as well. However, the draft contradicts this role and adds to the President of the Republic the power to appoint the President of the Court the power and the members of the Court.

The ACIJLP is also worried especially because the reading of Article 184 indicates that the draft of the constitution eliminating the judicial mechanism entrusted with the protection of the Constitution itself, shrinking its powers and reluctant its role in protecting the Constitution and monitoring the conformity of legislation with the provisions, values ​​and concepts of the Constitution. Article 184 which protect the electoral laws of censorship subsequent to constitutionality, in a precedent which recalls the notorious provisions of Article 76 of the Constitution of 1971, which protects the decisions of the Supreme Committee for the presidential elections from appeal. Moreover, the draft of the constitution gives the president the discretionary power to refer laws relevant to parliamentary or local elections to the Supreme Constitutional Court to exercise prior censorship, a matter which does not only cause a serious breach of the role of the constitutional Court in the constitutional control over the laws, but also breaches the principles of equality and equal opportunities.

The ACIJLP is concerned that there will be ambuscade and approach to eliminate the Supreme Constitutional Court and attempts to curtail its role.