A new ICJ report shows that the constitutional reform process in Egypt has failed to meet international principles of inclusive participation and transparency, thereby undermining the transition to democracy.
“The Egyptian authorities, including the Constituent Assembly, have failed so far to meet the aspirations of the Egyptian people to adopt a Constitution that establishes the rule of law, recognizes and protects universally accepted human rights without restriction, guarantees the independence of the judiciary in all circumstances, and ensures the effectiveness of democratic institutions,” said Wilder Tayler, ICJ Secretary General.
The ICJ is calling upon the Egyptian authorities to address the challenges currently facing the constitutional reform process, as a matter of urgency; ensure that this process is in full compliance with international standards of inclusive participation and transparency; and guarantee that the new Constitution fully conforms with the rule of law and international law, including human rights standards.
The ICJ report Egypt’s new Constitution: a flawed process; uncertain outcomes details how, in overseeing the process leading to the adoption of a new Constitution, the Supreme Council of Armed Forces (SCAF) failed to ensure the rights of Egyptians to take part in public affairs and to meaningfully participate in the drafting and adoption of a new Constitution.
“Instead of paving the way for a clear and participatory reform process, the SCAF consistently opted for opaque, rushed and non-consensual policies that aimed to shield the armed forces from any form of accountability and that have severely undermined both the legitimacy of the process itself and its outcomes,” Tayler added.
Even though the administration of President Morsi replaced the SCAF on 30 June 2012, the constitution-making process continues to be carried out under the legal framework enacted by the SCAF.
The report also describes how several judicial decisions, in particular the dissolution of the first Constituent Assembly, by a decision from the High Administrative Court, and the dissolution of the People’s Assembly, following a decision by the Supreme Constitutional Court, have contributed to the confusion and uncertainty regarding the drafting of a new constitution.
As a result of this confused process, the draft of the new Constitution, published by the Constituent Assembly on 14 October 2012, has failed to provide for effective guarantees to reinforce the protection of human rights and the supremacy of the rule of law, including by ensuring that the powers of the State are not exercised arbitrarily.
“The draft Constitution does not sufficiently incorporate the rule of law and international law, including human rights standards. This is particularly evident as regards the accountability of the armed forces and their subordination to a legally constituted civilian authority, the content and scope of constitutional human rights, and the compliance of the whole judicial system, including the Office of the Public Prosecutor and the Constitutional Court, with international standards of independence, impartiality and accountability,” said Said Benarbia, ICJ Senior Legal Adviser for the MENA programme.
The report sets out urgent institutional and legal reforms that, together with sufficient political will, may help ensure a clean break with the practices and policies of Mubarak’s regime and the transition to a genuine democracy in Egypt.
Contact:
Saïd Benarbia, Middle East & North Africa Senior Legal Adviser, ICJ, t +41 22 979 3817; e-mail: said.benarbia(at)icj.org
Alice Goodenough, Middle East & North Africa Legal Adviser, ICJ, t +41 22 979 3811; e-mail: alice.goodenough(at)icj.org
During three days, from September 26 to 28, 2012 in Rabat, the ICJ ESCR Programme and the MENA Regional Programme organized two events in collaboration with the OMDH (Organisation Marocaine des Droits Humains).
ICJ Commissioner Mr. Roberto Garreton supported the three-day programme. The first two days were dedicated to a workshop gathering 30 representatives of human rights NGOs, service providers, consumer protection groups, lawyers and academic experts.
The participants were trained and had discussions on the opportunities, the challenges and the remedies that the Moroccan legal and institutional framework offers to individuals and groups seeking justice for violations.
Discussions also concerned the legal reforms undertaken in the country and how they will impact the ability for victims of human rights violations to access justice.
The participants particularly welcomed the workshop setting and focus that brought together a variety of groups working in relevant areas.
On the third day, 28 September 2012, a symposium attended by civil society actors, lawyers and academia as well as by members of the judiciary and of the Conseil National des Droits de l’Homme was the opportunity to discuss the role of judges in the realization of economic, social and cultural rights.
The two events are part of a project that will involve further research and consultation on access to justice for ESCR in close collaboration with national civil society.
Background of the Workshop
With national projects such as the one in El Salvador, the ICJ programme on Economic, Social and Cultural Rights aims at contributing to improve accountability for human rights violations and access to justice for all, including for victims of threats against and violations of economic, social and cultural rights.
The ICJ has embarked on research processes at national level to identify obstacles and opportunities for access to justice, as well as on consultation and collaboration processes with national allies to define strategies to address gaps.
Depending on the needs identified, the ICJ will support the implementation of recommendations and steps that includes trainings and legal interventions.
The ICJ called on the UN Human Rights Council to request the Security Council to immediately refer the situation in Syria to the International Criminal Court. Watch the webcast of ICJ’s statement.
As a matter of urgency, the Security Council should take other effective measures to protect civilians and address the humanitarian crisis in Syrian cities and villages, the ICJ urged. The ICJ delivered its oral statement on 17 September 2012 in the course of the general debate on situations requiring the Council’s attention, during the course of the 21st regular session of the Human Rights Council.
On 14-15 September 2012, the ICJ participated in the Tunisian “Open Dialogue with Civil Society”, organized by the National Constituent Assembly (NCA).
The ICJ took the opportunity to present key recommendations to ensure constitutional and other legal guarantees for an independent, impartial and accountable judiciary in Tunisia. The ICJ therefore called on the NCA to:
Ensure constitutional and legal provision for an independent High Judicial Council, with full competence to oversee the judiciary;
Adopt a Statute of Magistrates that ensures the independence and impartiality of judges and guarantees their conditions of service, appointment, mandate, promotion and discipline, in accordance with international standards;
Guarantee, in the Constitution and the law, the independence of the Office of the Public Prosecutor, including by ending the authority and control of the Minister of Justice over prosecutors;
Limit the jurisdiction of military tribunals only to military offences and military personnel; and
End the jurisdiction of military courts and military prosecutors to investigate and rule on cases involving violations of human rights, including those involving the armed and security forces.
The ICJ’s legal memorandum The Reform of the Judiciary in Tunisia, which examines the current legal framework governing the judiciary and contains a detailed set of recommendations for ensuring an independent judiciary in line with international law and standards, was submitted to the NCA (see below).
For more information:
Saïd Benarbia, Middle East & North Africa Senior Legal Adviser, ICJ, t +41 22 979 3817; e-mail: said.benarbia@icj.org
On 9-10 September 2012, the ICJ participated in a conference on “the independence of the judiciary in Egypt in light of the constitutional reform process and international standards”.
The conference, organized jointly by the ICJ, the Hisham Mubarak Law Centre and the Egyptian Organisation for Human Rights, was attended by international and national experts, including Justice Ian Binnie, a former judge of the Supreme Court of Canada, Justice Ketil Lund, a former judge of the Supreme Court of Norway and Wilder Tayler, Secretary General of the ICJ.
The conference addressed the following topics: the independence of the judiciary; the statute for judges; the High Judicial Council; the Supreme Constitutional Court; military and security courts and the independence of the judiciary; and the independence and impartiality of the office of the public prosecutor.
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A new ICJ report shows that the constitutional reform process in Egypt has failed to meet international principles of inclusive participation and transparency, thereby undermining the transition to democracy.
