In January 2014, ARTICLE 19 analysed Draft Constitution of the Arab Republic of Egypt of 2 December 2013 (Draft Constitution) from the perspective of international human rights standards, in particular on freedom of expression and freedom of information.
The Draft Constitution, prepared pursuant to Article 29 of the Constitutional Declaration of 8 July 2013 by a 50-member committee, will be voted on in a referendum scheduled for 14 January 2014.
The ARTICLE 19’s review comes two months after the legal analysis of an earlier version of the Draft Constitution. It builds on ARTICLE 19’s broader work to promote freedom of expression and freedom of information in Egypt and in the MENA region more generally, especially since the beginning of the first wave of the Arab Awakening. It is also presented against the backdrop of an apparently deteriorating human rights situation under the military-backed government, which causes serious concern from the perspective of civil and political rights.
The purpose of the analysis is to emphasise the positive aspects of this Draft Constitution, draw out its negative features through the prism of those international human rights law standards, and present recommendations for its improvement. ARTICLE 19 raises many of the same points of concern as it did in its previous analysis of the earlier Draft Constitution.
Overall, one major flaw of the text remains its apparent adherence to the notion of citizenship as a requirement for the exercise of human rights that should be enjoyed by all. In order to address this and other problems with the Draft Constitution, ARTICLE 19 offers a series of recommendations.
Summary of recommendations
1. The Constitution should, in its Preamble, omit any references to citizenship as a condition for the enjoyment of human rights;
2. The Constitution should state that the rights and freedoms – guaranteed by the Constitution – should be interpreted in line with the international human rights treaties binding on Egypt. It should also include a dedicated provision on the status of international law in the Egyptian legislation. In particular, it should state that international law should have primacy over internal law and cannot be invoked to justify a failure to adhere to international law;
3. The Constitution should exclude reference to the “duties” of the people of Egypt in the Preamble;
4. The Constitution should ensure that provisions concerning the rights related to sovereignty does not present an obstacle to the ratification of human rights treaties;
5. The Constitution should state that treaties can only be repealed modified or suspended in the manner provided for the particular treaty itself;
6. The Constitution should protect the right to freedom of expression as encompassing the right to seek, receive and impart information and ideas of all kinds, regardless of frontiers;
7. The Constitution should specify that freedom of expression is protected through all media, including internet-based media;
8. The Constitution should provide that any advocacy of hatred (on a ground of discrimination recognised in international law) that constitutes incitement to discrimination, hostility or violence shall be prohibited by law;
9. The Constitution should grant the right to freedom of information to all people, irrespective of citizenship status. It should also provide that state bodies should recognise the principle of maximum disclosure and have a duty to proactively disclose information in the public interest and that freedom of information applies to all information held by public bodies;
10. The Constitution should include a provision governing limitations on freedom of information which should meet the requirements of Article 19(3) of the International Covenant on Civil and Political Rights in doing so indicate that limitations must be justified on the basis of the “harm” and “public interest” tests;
11. The Constitution should not disadvantage or prejudice newspapers and media outlets which are not Egyptian;
12. The Constitution should require the state to promote pluralism, as well as independence, within a framework of self regulation for the print media, and to have in place policy and regulatory framework for the media, including internet-based media, which promotes pluralism and equality;
13. The Constitution should provide explicit protection for freedom of the media. In particular, it should protect the following elements of media freedom:
- There should be no prior censorship;
- There should be no licensing or registration system for the print media;
- There should be no licensing of individual journalists or entry requirements for practicing the profession;
- The independence of all bodies with regulatory powers over the media, including governing bodies of public media, should be guaranteed;
- The right of journalists to protect their confidential sources of information;
- Journalists should be free to associate in professional bodies of their choice.
14. The Constitution should provide that the right to equality is guaranteed to all individuals, regardless of citizenship status. It should also expressly protect the equal enjoyment of all of the rights contained in the Constitution without distinction of any kind. Further, it should encompass an equality provision which prohibits discrimination on the grounds including: national origin, property, birth, political or other opinion, sexual orientation and gender identity;
15. The Constitution should remove provisions on the family and the place of women as they may be relied upon to justify discriminatory practices, particularly against women, and replace them with a provision explicitly stating the obligation on the state to achieve the elimination of discriminatory practices and attitudes;
16. The Constitution should protect the right to organise and participate in peaceful assemblies and should impose a positive obligation on the state to promote the exercise of freedom of peaceful assembly. The right to peaceful assembly should be guaranteed irrespective of citizenship status. Any restrictions on the right to peaceful assembly should be in accordance with the three-part test under Article 22 of the the International Covenant on Civil and Political Rights;
17. The Constitution should not protect freedom of peaceful assembly in private in the same provision as freedom of peaceful assembly generally, and instead protect the right to privacy comprehensively in a separate provision;
18. The Constitution should not establish a State religion or privilege one religious legal system, such as Sharia, over any other, and remove any references to any specific religious beliefs unless they are symbolic and confined to the preamble.