Feb 1, 2013
In a new report, the ICJ calls on the authorities, especially the National Constituent Assembly, to elaborate and adopt a constitution that takes account of the full range of views of the Tunisian people and adheres to international law and standards.
Released today, the report, Enhancing the Rule of Law and guaranteeing human rights in the Constitution, comes as the ICJ concludes a high-level mission to Tunisia. It analyzes the constitutional reform process in Tunisia and sets out recommendations for legal and institutional reforms aimed to ensure a Constitution that reflects international law and standards.
Through its report, the ICJ calls for the Constitution to be amended to: fully guarantee the separation of powers; ensure the accountability of the security services and armed forces and their subordination to a civilian authority; bring the judicial system in line with international standards of independence, impartiality and accountability; end the use of military courts to try civilians and cases involving human rights violations; incorporate a comprehensive Bill of Rights; recognize the right to life as an absolute right, and abolish the death penalty; and provide effective mechanisms for the protection of human rights and ensuring the right to a remedy.
“The constitution-making process has been clear, certain and transparent, representing a clean break from the practices and policies of President Ben Ali’s regime,” said Said Benarbia, ICJ Senior Legal Adviser of the Middle East and North Africa Programme. “However, while the draft Constitution broadens the separation of powers and human rights provisions of the 1959 Constitution, it should be comprehensively amended to reflect international law and standards and to meet the democratic aspirations of the Tunisian people expressed during the uprising.”
The ICJ mission (27 January – 2 February 2013), led by ICJ Commissioners Justice José Antonio Martín Pallín and Dr. Gustavo Gallón, met with the President of the NCA, Mustafa Ben Jaafar, the Minister of Human Rights and Transitional Justice, Samir Dilou, the Minister in charge of relations with the NCA, Abderrazak Kilani, the respective Presidents of the NCA Committee on Rights and Freedoms, Farida Labidi, and the Committee on Ordinary, Administrative, Financial and Constitutional Justice, Fadhel Moussa, as well as high-ranking officials from the Ministry of Justice. The delegation also met with the President of the Bar Association, Monsieur Chawki Tabib, members of the judiciary and the legal community and civil society.
Contact:
Said Benarbia, ICJ Senior Legal Adviser of the Middle East and North Africa Programme, m: 216 21 765 152, e-mail: said.benarbia(at)icj.org
Tunisia-Constitution report-publications-2013 (full report, in pdf)
Tunisie-Rapport Constitution-press release-2013-FRA (full text, in pdf)
Tunisie-Rapport Constitution-publications-2013-FRA (full report, in pdf)
Photo credit: © Copyright Remi OCHLIK/IP3
Dec 14, 2012
The ICJ today expresses its grave concern regarding the draft Constitution and the constitutional referendum to be held on 15 December 2012 and 22 December 2012.
The ICJ calls upon the Egyptian authorities to ensure the right of Egyptians to fully participate in the constitution-making process in pursuit of their democratic aspirations.
In a new legal briefing paper, the ICJ analyses key provisions of Egypt’s draft Constitution in light of international human rights and rule of law standards.
“The draft Constitution falls short of international standards, including those concerning the accountability of the armed forces, guaranteeing the independence of the judiciary, and recognizing universally accepted human rights,” said Said Benarbia, ICJ Senior Legal Adviser of the Middle East and North Africa Program. “Further, in the context of deep political instability, providing only two weeks for the public to consider the draft Constitution undermines the right of all Egyptians to make an informed decision about the basic framework of governance and law for their society.”
While the draft Constitution extends the language of Egypt’s 1971 Constitution on human rights, the definition and scope of several human rights are still inconsistent with Egypt’s obligations under international law, the ICJ says.
The draft continues to subject these rights to the limits of laws, without any reference to the content and scope of these limits and whether or not they are necessary in a democratic society.
Such limitations also undermine the constitutional guarantees for the independence of the High Judicial Council, the Constitutional Court and the office of the Public Prosecutor, the ICJ states.
In addition, the draft Constitution perpetuates the use of military courts to try civilians.
“In light of these shortcomings and the failure of the process to meet international standards of inclusive participation, the draft Constitution should be withdrawn, and sufficient time should be given for the drafting of a new constitution that fully represents the views of all Egyptians,” Benarbia added.
Contact:
Saïd Benarbia, Middle East & North Africa Senior Legal Adviser, ICJ, t +41 22 979 3817; e-mail: said.benarbia(at)icj.org
Egypt-Constitution reform process-Analysis brief-2012 (full text in pdf)
See also Egypt: a flawed constitutional reform process
Photo by Pan African News Wire
Nov 23, 2012 | News
The ICJ expressed its grave concerns regarding the new Constitutional Declaration issued by President Mohamed Morsi on 22 November.
The President’s unilateral imposition of a constitutional framework on the Egyptian people, under which Constitutional Declarations, decisions, laws and acts taken by the President are shielded from any judicial review, undermines basic rule of law principles.
“Rather than establishing the rule of law and meeting the democratic aspirations of the Egyptian people, President Morsi perpetuates the practices of the old regime by denying the rights of Egyptians to fully participate in the conduct of public affairs and to challenge executive decisions and actions”, said Said Benarbia, ICJ Senior Legal Advisor for the MENA Programme. “The Egyptian authorities must change course to ensure that the new Constitution is in line with international rule of law and human rights principles, and that the drafting and adoption process is transparent and inclusive.”
Under the Declaration, the President has arrogated to himself sweeping powers “to protect the goals of the revolution, including by tearing down the structure of the former regime, excluding its symbols in the state, society and the judiciary, and purging the Sate institutions”. All decisions taken by the President, since he took office and until a new Constitution is adopted and a People’s Assembly is elected, are characterized as “final and binding and cannot be appealed by any way or to any entity. Nor shall they be suspended or cancelled and all lawsuits related to them and brought before any judicial body against these decisions are annulled”.
The ICJ also expresses its concern about the impact of the new Constitutional Declaration and the decision of President Morsi to dismiss the Prosecutor General on the independence of the judiciary.
Under international standards, all disciplinary, suspension or removal proceedings against members of the judiciary must be determined in accordance with well-established procedures that guarantee the right to a fair and transparent hearing and to an independent review.
Only an independent body can ensure the fairness of these proceedings, the ICJ stresses.
In a report published last week, the ICJ described how the Egyptian authorities have failed to ensure the drafting of a new Constitution in compliance with international principles of inclusive participation and transparency. The report concludes that the draft Constitution conflicts with Egypt’s obligations under international human rights law.
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
Nov 20, 2012 | News
The ICJ today called on the Israeli authorities to immediately end their military attacks in the Gaza Strip.
Nov 13, 2012 | News, Publications, Reports
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
Egypt-Flawed constitutional reform process-report-2012
Photo by Reuters
