Egypt: New Constitution Mixed on Support of Rights

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Nov 30, 2012 Egypt
[Logo of Human Rights Watch.] [Logo of Human Rights Watch.]

Egypt: New Constitution Mixed on Support of Rights

By : Jadaliyya Reports

[The following statement was issued by Human Rights Watch on 30 November 2012.]

The final draft of a constitution approved on 29 November 2012 by Egypt’s 100-member constituent assembly protects some rights but undermines others. The constitution, approved in the midst of a political standoff between the president and the judiciary, provides for basic protections against arbitrary detention and torture and for some economic rights but fails to end military trials of civilians or to protect freedom of expression and religion.

The constitution drafting process has been extremely contentious, and a number of assembly members resigned in protest over what they said was the failure of the dominant Islamist factions to compromise on key issues, including the place of religion in affairs of state. The decision comes on the heels of President Mohamed Morsy’s controversial 22 November Constitutional Declaration immunizinghis decrees from judicial review.


“The decision of constituent assembly leaders to move a flawed and contradictory draft to a vote is not the right way to guarantee fundamental rights or to promote respect for the rule of law,” said Joe Stork, deputy Middle East and North Africa director at Human Rights Watch. “Rushing through a draft while serious concerns about key rights protections remain unaddressed will create huge problems down the road that won’t be easy to fix.”

Article 60 of the 30 March Constitutional Declaration issued by Egypt’s military rulers in March 2011 states that a referendum on the constitution shall take place 15 days after the constituent assembly approves a draft. Judges in numerous circuits around the country have gone on strike to protest Morsy’s Constitutional Declaration. It is not clear whether they will agree to supervise the referendum, as required by law.

Human Rights Watch wrote to the constituent assembly on 8 October outlining key concerns about various rights provisions based on a review of a 27 September draft of the constitution. There have been some improvements in the final draft, such as in the prohibition against torture and the deletion of other provisions incompatible with human rights law that would have unduly restricted free expression or the practice of religion, Human Rights Watch said.


Human Rights Watch has reviewed Chapter II of the final draft, entitled Rights and Freedoms, and followed the televised session in which the constituent assembly voted on each of these provisions. The rights chapter provides for strong protection against arbitrary detention in article 35 and torture and inhumane treatment in article 36, and for freedom of movement in article 42, privacy of communication in article 38, freedom of assembly in article 50, and of association in article 51. But the latest draft, unlike the earlier version, defers to objections from the country’s military leadership and has removed the clear prohibition of trials of civilians before military courts.

Key concerns include the following:

Protection of Rights

Article 81 states that no law may limit the essence of the rights and freedoms set out in the constitution but goes on to say that “these rights and freedoms shall be exercised insofar as they do not contradict the principles set out in the Chapter on State and Society in this constitution.” The provisions in that chapter include article 10, which states that, “The state and society shall commit to preserving the true nature of the Egyptian family,” and article 11, which states that “the state shall protect ethics and morals and public order.” The language in both these provisions is overly broad, open to interpretation, and available to justify wide-ranging limitations on key rights, Human Rights Watch said. It appears to place the “true nature of the family” and morals and public orders above fundamental rights.

Freedom of Expression


Article 45 protects freedom of expression without stating what legitimate limitations are permissible and how to balance this right against article 31, which states that “the individual person may not be insulted,” and article 44, prohibiting “the insulting of prophets.” Articles 31 and 44 are not legitimate limitations on freedom of expression under human rights law, and they would appear to make difficult, if not impossible, any meaningful reform to existing penal code provisions that criminalize “insult” and defamation, provisions frequently used in the past to prosecute critics of the government. Criminal prosecutions on charges of “insulting the president” or “insulting the judiciary” have increased since Morsy took office.

Freedom of Religion

Article 43 on freedom of religion limits the right to practice religion and to establish places of worship to Muslims, Christians, and Jews. Previous drafts had provided for a general right to practice religion but limited the establishment of places of worship to adherents of these three Abrahamic religions. Article 43 discriminates against and excludes followers of other religions, including Egyptian Baha`is. Under former President Hosni Mubarak, security forces would frequently arrest religious minorities including Shia, Ahmadis, Bahais, and Quranists because of their beliefs.

Military Trials of Civilians


The final draft fails to limit military trials of civilians, backtracking on language in the rights chapter in drafts as recently as 11 November, article 75 of which stated that, “No civilian shall be tried before the military justice system.” Assembly members deleted this language after military justice officials formally objected. Article 198 of the final draft now provides that “civilians may not be tried before the military justice system except for crimes that harm the armed forces, and this shall be defined by law.” This leaves intact the military’s discretion to try civilians under the Code of Military Justice.

Women’s Rights

One positive development is that the final draft no longer includes what had been article 68 in earlier drafts on women’s rights, which stipulated that equality for women would be subject to conformity with rulings of Islamic law, a provision strongly promoted by Salafi members of the assembly. However, the draft no longer lists “sex” as one of the grounds for prohibiting discrimination, as no grounds are named. Article 30 now states that “citizens are equal before the law and equal in rights and obligations without discrimination,” without specifying whom this provision covers. Read together with article 10, the failure to specify discrimination on the grounds of gender becomes problematic, Human Rights Watch said. Article 10 says:

The state shall provide free motherhood and childhood services and shall balance between a woman’s obligations toward the family and public work. The state shall provide for special care and protection for single mothers, divorced women and widows.

The state’s role should be confined to ensuring equality and non-discrimination, without interfering with a woman’s choices about her life, family, and profession or to justify discrimination on that basis, Human Rights Watch said. In addition, language prohibiting trafficking of women in a previous draft has been excluded from the final draft.

Status of International Obligations

Article 145 states that the president shall sign treaties and that they must be ratified by the upper and lower houses of parliament, and goes on to say that, “No international treaty that contradicts the provisions of this constitution shall be signed.” Human Rights Watch had urged members of the Assembly to include a provision directly incorporating human rights as defined by international treaties ratified by Egypt into Egyptian law to strengthen the basis for amending many domestic laws that restrict rights. In January, Human Rights Watch published a report urging parliament to amend many repressive laws, saying that reforming these laws should be a legislative priority.
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Feb 16, 2011 Lebanon
Jadaliyya Reports By :
Jadaliyya Reports

Past is Present: Settler Colonialism Matters!

On 5-6 March 2011, the Palestine Society at the School of Oriental and African Studies (SOAS) in London will hold its seventh annual conference, "Past is Present: Settler Colonialism in Palestine." This year`s conference aims to understand Zionism as a settler colonial project which has, for more than a century, subjected Palestine and Palestinians to a structural and violent form of destruction, dispossession, land appropriation and erasure in the pursuit of a new Jewish Israeli society. By organizing this conference, we hope to reclaim and revive the settler colonial paradigm and to outline its potential to inform and guide political strategy and mobilization.

The Israeli-Palestinian conflict is often described as unique and exceptional with little resemblance to other historical or ongoing colonial conflicts. Yet, for Zionism, like other settler colonial projects such as the British colonization of Ireland or European settlement of North America, South Africa or Australia, the imperative is to control the land and its resources -- and to displace the original inhabitants. Indeed, as conference keynote speaker Patrick Wolfe, one of the foremost scholars on settler colonialism and professor at La Trobe University in Victoria, Australia, argues, "the logic of this project, a sustained institutional tendency to eliminate the Indigenous population, informs a range of historical practices that might otherwise appear distinct--invasion is a structure not an event."[i]

Therefore, the classification of the Zionist movement as a settler colonial project, and the Israeli state as its manifestation, is not merely intended as a statement on the historical origins of Israel, nor as a rhetorical or polemical device. Rather, the aim is to highlight Zionism`s structural continuities and the ideology which informs Israeli policies and practices in Palestine and toward Palestinians everywhere. Thus, the Nakba -- whether viewed as a spontaneous, violent episode in war, or the implementation of a preconceived master plan -- should be understood as both the precondition for the creation of Israel and the logical outcome of Zionist settlement in Palestine.

Moreover, it is this same logic that sustains the continuation of the Nakba today. As remarked by Benny Morris, “had he [David Ben Gurion] carried out full expulsion--rather than partial--he would have stabilised the State of Israel for generations.”[ii] Yet, plagued by an “instability”--defined by the very existence of the Palestinian nation--Israel continues its daily state practices in its quest to fulfill Zionism’s logic to maximize the amount of land under its control with the minimum number of Palestinians on it. These practices take a painful array of manifestations: aerial and maritime bombardment, massacre and invasion, house demolitions, land theft, identity card confiscation, racist laws and loyalty tests, the wall, the siege on Gaza, cultural appropriation, and the dependence on willing (or unwilling) native collaboration and security arrangements, all with the continued support and backing of imperial power. 

Despite these enduring practices however, the settler colonial paradigm has largely fallen into disuse. As a paradigm, it once served as a primary ideological and political framework for all Palestinian political factions and trends, and informed the intellectual work of committed academics and revolutionary scholars, both Palestinians and Jews.

The conference thus asks where and why the settler colonial paradigm was lost, both in scholarship on Palestine and in politics; how do current analyses and theoretical trends that have arisen in its place address present and historical realities? While acknowledging the creativity of these new interpretations, we must nonetheless ask: when exactly did Palestinian natives find themselves in a "post-colonial" condition? When did the ongoing struggle over land become a "post-conflict" situation? When did Israel become a "post-Zionist" society? And when did the fortification of Palestinian ghettos and reservations become "state-building"?

In outlining settler colonialism as a central paradigm from which to understand Palestine, this conference re-invigorates it as a tool by which to analyze the present situation. In doing so, it contests solutions which accommodate Zionism, and more significantly, builds settler colonialism as a political analysis that can embolden and inform a strategy of active, mutual, and principled Palestinian alignment with the Arab struggle for self-determination, and indigenous struggles in the US, Latin America, Oceania, and elsewhere.

Such an alignment would expand the tools available to Palestinians and their solidarity movement, and reconnect the struggle to its own history of anti-colonial internationalism. At its core, this internationalism asserts that the Palestinian struggle against Zionist settler colonialism can only be won when it is embedded within, and empowered by, the broader Arab movement for emancipation and the indigenous, anti-racist and anti-colonial movement--from Arizona to Auckland.

SOAS Palestine Society invites everyone to join us at what promises to be a significant intervention in Palestine activism and scholarship.

For over 30 years, SOAS Palestine Society has heightened awareness and understanding of the Palestinian people, their rights, culture, and struggle for self-determination, amongst students, faculty, staff, and the broader public. SOAS Palestine society aims to continuously push the frontiers of discourse in an effort to make provocative arguments and to stimulate debate and organizing for justice in Palestine through relevant conferences, and events ranging from the intellectual and political impact of Edward Said`s life and work (2004), international law and the Palestine question (2005), the economy of Palestine and its occupation (2006), the one state (2007), 60 Years of Nakba, 60 Years of Resistance (2009), and most recently, the Left in Palestine (2010).

For more information on the SOAS Palestine Society 7th annual conference, Past is Present: Settler Colonialism in Palestine: www.soaspalsoc.org

SOAS Palestine Society Organizing Collective is a group of committed students that has undertaken to organize annual academic conferences on Palestine since 2003.

 

[i] Patrick Wolfe, Settler Colonialism and the Transformation of Anthropology: The Politics and Poetics of an Ethnographic Event, Cassell, London, p. 163

[ii] Interview with Benny Morris, Survival of the Fittest, Haaretz, 9. January 2004, http://cosmos.ucc.ie/cs1064/jabowen/IPSC/php/art.php?aid=5412