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To amend the constitution

Youssef Sidhom

26 Jan 2013 10:38 am

Problems on hold

Last week I began a series of articles to highlight the objections posed by the Orthodox, Catholic, and Evangelical Churches in Egypt to the country’s new constitution. The Churches

wrote down these objections in a document which they jointly issued and handed on 24 December to Judge Mahmoud Mekki, who was then Vice President of Egypt, in order for him to refer it to the national dialogue. The Document, which expressed a unified vision vis-à-vis the constitutional articles which many sectors of Egyptians deem alarming, cited the constitutional texts in question, the objections against them, and the alternatives proposed. Last week’s reading tackled the two important issues of founding an Islamic State and the sway of a mono-dimensional [Islamist] culture. Today, we resume our reading of the Document:
On jeopardising equality and equal opportunity before the law
Article 33 reads: “All citizens are equal before the law. They have equal public rights and duties without discrimination.” This article is prime among the constitutional articles which give rise to fear and anxiety among Egyptians. Equality and equal opportunity always figured highly in earlier Egyptian constitutions, and ‘discrimination’ was always spelt out. Not so in the new constitution. The Document says: “Why was the commitment to ‘non-discrimination based on gender, religion, creed, colour, language, opinion, social status or disability’ omitted from the new constitution? This contradicts all earlier Egyptian constitutions, and could potentially lead to laws which, basing upon radical juristic opinions, would ban women and Copts for instance from holding certain posts. Under earlier constitutions, there always was the assurance that the Constitutional Court would guarantee that non-constitutional laws would not be passed. But the very independence of this court is now under fire, and there are menacing attempts [by the powers that be] to dominate its panel.” 
The Document suggests that Article 33 should read: “All citizens are equal before the law. They have equal public rights and duties without discrimination based on gender, ethnicity, race, colour, language, religion, creed, opinion, social status, wealth, or disability. The State is committed to end all sort of discrimination and ensure equal opportunity for all citizens, and to combat the customs, traditions, and social and cultural norms which entrench discrimination and favouritism.”
On the violation of the principles of criminal legitimacy
Article 76 reads: “Penalty is personalised. Crime or penalty are [determined] in accordance with legal or constitutional texts. No penalty is inflicted except by a judicial sentence. Penalty is inflicted only for acts committed after a law has come into force.” The Document demands the omission of “penalty is inflicted in accordance with a constitutional text” and suffice with the stipulation that penalties are inflicted in accordance with a legal text. The Document explains that it is unheard of in any constitution in the world that crime and penalty are determined according to constitutional text. This odd text unveils a will to empower judges to issue verdicts based on the rules of Islamic sharia, as stipulated in Article 2 of the constitution and interpreted in Article 219, without referring to the Penal Law. This constitutes a serious threat to the rights and freedoms of Egyptians and to legal and judicial stability.
On the onslaught against judicial immunity and independence
Article 176 stipulates that: “The Supreme Constitutional Court (SCC) is made up of a president and ten members. The law determines the judicial or other bodies that nominate them and regulate the manner of their appointment and qualifications. Appointments take place by a decree from the President of the Republic.” The Document demands the amendment of the article to read: “The head and members of the SCC cannot be dismissed from their posts, and the law determines the qualifications they should hold as well as their rights, immunity and disciplinary action to be taken against them before the court. They should be appointed from the list of candidates in accordance with the law by a decree from the President of the Republic and following the approval of the SCC’s general assembly.” The Document justifies its demand for amendment by explaining that Article 176 as well as the transitional rule stipulated in Article 233, which dismisses eight judges from the panel of the SCC, is the epitome of perennial constitutional despotism. In an act which reeks of settling accounts, Article 176 was enacted to usurp the SCC’s independence in retaliation to the SCC ruling last April that the elections law which had voted in the People’s Assembly (PA)—the lower house of Egypt’s parliament—were non-constitutional, and that the PA should be dismissed. For its part, the constitution should endorse judicial independence in general and the SCC’s in specific, especially considering its role in ensuring justice, democracy, human rights and confronting despotism and corruption.
On restricting freedom of the press
Article 48 stipulates: “Freedom of the press, printing, publication, and mass media is granted. The media is free and independent to serve the community and to express the different trends in public opinion, and contribute to shaping and directing it in accordance with the basic principles of the State and community; and to maintain rights, freedoms and public duties, respecting the sanctity of the private lives of citizens and the requirements of national security. The closure or confiscation of media outlets is prohibited except upon court order. Control or censorship over the media is prohibited, with the exception of specific censorship that may be imposed in times of war or public mobilisation.” The Document points out that freedom of the press and the rule of the law are the basic guarantees for citizenship rights, justice and democracy. The text of Article 48 includes elastic, vague clauses that allow the issuance of decisions which restrict press and media freedom, especially when it comes to linking the freedom of the press with the basic principles of the State and the community. This opens the door, the Document highlights, to render the freedom of press captive to the opinion of religious scholars and the will of the ruler. The document accordingly suggests the amendment of Article 48 to read: “Freedom of the press, printing, publication, and mass media is guaranteed. Control or censorship, official warning, closure, or confiscation is banned, with the exception of restricted censorship in times of war or public mobilisation, within the measures necessary to preserve the safety and security of the citizens, and the independence of the nation and unity of its lands.”
This is not the end of the story. Other constitutional articles that threaten to work as a trap for Egyptians will be reviewed in upcoming articles. 
WATANI International
27 January 2013


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