Egypt’s new Constitution: A flawed process; uncertain outcomes
Also published on www.icj.org, ICJ International Commission of Jurists
2) The Constitution and the legacy of human rights violations
Both under the rule of President Mubarak and the SCAF, the State of Egypt has failed to meet its obligations under international law to respect, protect, promote and fulfil human rights. The lack of adequate constitutional guarantees consistent with international standards, combined with a legal framework that has severely restricted the enjoyment of human rights, in particular the Emergency Law, have contributed to exacerbating human rights abuses. These abuses include, among others, cases of torture and other ill-treatment, arbitrary arrest and detention, unlawful killings, violations of freedom of assembly, association and expression, and a failure to respect and ensure basic economic, social and cultural rights. During its mission to Egypt, the ICJ heard from individuals who were involved or suspected of being involved in peaceful protests and were targeted by law enforcement and military officials. These individuals reported that they were subjected to arbitrary detention, torture and other ill-treatment, and the disproportionate use of force, including lethal force, by law enforcement officers.
Female detainees reported being subjected to “virginity tests” carried out by military officers. One of them reported: “I was in Tahrir Square on March 9th when army officers arrived and grabbed me from behind and dragged me, with other protesters, into the Egyptian museum. In the museum they started electrocuting and torturing us for almost seven hours. We were then taken to another area where there were weapons laid out. Photos were taken of us with the weapons. After the pictures were taken we were put on a bus and were beaten and tortured the whole night. Then we were taken to prison. In the prison, I was made to eat dirt and all the time subjected to electric shocks. I was searched and all my belongings were taken. I was told to remove all my clothes so that I would be completely naked with a female army person and a male officer. There were many men around though. The officer put his hands in me for more than 5 minutes.“ The detainee was charged by a military court with “violence and thuggery”. She was given a one year suspended sentence. Other detainees reported being subjected to beatings and the use of electric shocks while in military custody in Cairo. One of them told the ICJ that “People were ready to confess to anything to escape the nightmare”. Article 57 of the 1971 Constitution stated: “Any violation of individual liberty or of the inviolability of private life of citizens or of any other rights or liberties guaranteed by the Constitution and the law shall be considered a crime, whose criminal and civil prosecution is not subject to the statute of limitations. The State shall grant a fair compensation to the victim of such violation.” Despite this provision, victims of human rights violations rarely, if ever, obtained remedy and reparation under the regime of former President Mubarak. This absence of accountability continued throughout the revolution. In meetings with the ICJ, family members of victims reported the difficulties they encountered in attempting to learn the whereabouts of victims and/or the circumstances surrounding their deaths. Both victims and family members also reported difficulties in filing cases against law enforcement officers. They also reported that they did not receive any of the compensation promised to them.81. A number of individuals stated that they had been given un-cashable checks, while some received medals for family members declared as martyrs of the revolution.
However, in meetings with the ICJ, the former Minister of Justice, Councillor Adel Abdullah, argued that the government attached: “special importance for the martyrs and the injured of the revolution. The Prime Minster has established a fund for this and established a national council responsible for the country’s martyrs and injured. People have already been compensated and the injured are being treated. Special cards have been given to the injured so that they can be given jobs in the ministries, and other privileges, for example, free membership of sports clubs, university tuition and transport.” The former Minster also argued that the lack of investigations is due to the fact that “the office of the general prosecutor is actually fraught with a lot of complaints. Some of them turn out not to be true. However, it takes time to go through them all, especially violations against protestors and corruption cases.” In spite of these assertions, the Egyptian authorities have failed so far to take any effective measure to address and investigate serious human rights violations committed under the rule of former President Mubarak and the SCAF, or to break the cycle of impunity that has prevailed over these violations, including by guaranteeing victims the right to effective remedies and to reparation, and ensuring the nonrepetition of these violations. Critically, those responsible for such violations were either not held to account or were given inadequate sentences. On 11 March 2012, a military doctor alleged to have carried out “virginity tests” on female protestors, was acquitted by a Cairo military court on the basis of inconsistencies in witness testimony. The Court also found that the tests never took place. However, in June 2011 Major General Abdel Fattah Al-Sisi of the SCAF admitted that “virginity tests” had been carried out on female detainees in March of that year, while attempting to justify these tests as protecting the army against possible allegations of rape.82 Further, on 27 December 2011, the High Administrative Court issued a ruling halting the use of “virginity tests” on female detainees in military detention facilities.83 The rights of victims of human rights violations to truth, to a remedy and to reparation must be enshrined in the new Constitution in accordance with international law and standards. As a well-established principle of international law, based on international Conventions and jurisprudence,84 the right to a remedy and to reparation encompasses the following:
- the right to vindicate one’s rights before an independent and impartial body;
- the right to a prompt, impartial, thorough and independent official
- the right to know the truth about “past events and about the circumstances
- and reasons which led, through systematic, gross violations of human rights,
- to the perpetration of heinous crimes”;85
- the right to cessation and guarantees of non-repetition; and
- the right to, restitution, compensation, rehabilitation and satisfaction.86
Separate from the rights enumerated above, States also have the obligation to prosecute and punish perpetrators of gross human rights violations.87 Egyptian authorities must address the legacy of human rights violations in Egypt by effectively investigating and prosecuting cases of gross human rights violations committed during and after the rule of President Mubarak. The Constitution should also provide for effective, independent mechanisms to protect human rights against any abuse, including a comprehensive, independent and impartial transitional justice strategy.
ii. The Constitutional Court and Human rights
a. Supremacy of the Constitution and the Constitutional Court
The supremacy of the Constitution and the ability to uphold and enforce the provisions of the Constitution is a fundamental underpinning of the rule of law and separation of powers. In particular, through its supremacy, the Constitution, as the embodiment of the will of the people, is elevated above other laws and consequently above the legislator.88 In this system, the body charged with oversight of the Constitution must ensure that all legislation and executive actions are in accordance with the Constitution. Neither the 1971 Constitution nor the Constitutional Declaration provide for the supremacy of the Constitution. This should therefore be set out explicitly in the new Constitution.
In order not to undermine the separation of powers, it is essential that the enforcement mechanism is independent from the executive and legislative branch. In addition, in order to ensure that the provisions of the Constitution are enforced in practice, full access to this mechanism must be guaranteed.
In Egypt, Articles 174 to 178 of the 1971 Constitution provided for a Constitutional Court. In particular, Article 175 provides: “The Supreme Constitutional Court has the exclusive competence to control the constitutionality of laws and regulation and to interpret the legislative texts in the manner prescribed by the law.” Article 178 continues: “The law shall regulate the legal effects of a decision declaring the unconstitutionality of a legislative text.” This is expanded upon in the Supreme Constitutional Court Law (the SCC law), which details the precise competences of the court as follows: “i) exercise judicial review over constitutional issues with respect to laws and regulations; ii) resolve issues of jurisdiction among judicial bodies or other judicial forums; and iii) determine a final judgment in cases where two or more judicial bodies have produced contradictory judgments of the legality of texts.”89
Article 48 of the SCC law states: “Judgments and decisions of the Court are final and irreviewable.” In addition, Article 49 makes clear that the SCC’s decisions “bind public authorities and individuals”. Further, “A provision held as void, whether in a law or regulation, shall cease to apply as of the day following its publication”. However, under the SCC law, the Court is limited to the ex post facto consideration of the legality of texts, since its mandate is “to provide the definitive interpretation of laws, enacted by the legislature, and presidential decrees with the force of law issued in accordance with the Constitution if, during the course of their application, there arises divergent points of view, and they have an importance that necessitates their uniform interpretation”.90 In spite of these constitutional and legislative guarantees, the role of the SCC in upholding the rule of law and protecting human rights has been limited. This is due in part to the fact that, under Article 73 of the 1971 Constitution, the President was empowered to “ensure sovereignty of the people, respect for the Constitution and rule of law,” a competence similar to that of the SCC. This provision goes beyond requiring the President to respect the Constitution and instead makes the President an arbiter of whether the Constitution has been infringed, as well as responsible for upholding the separation of powers. In addition, on several occasions the SCC has failed to address the serious human rights challenges under former President Mubarak’s regime. For example, the SCC has ruled that emergency and security courts were constitutional and ”did not consider petitions on the constitutionality of transferring civilians to military courts”.91 In addition, some politically sensitive cases have remained under consideration by the SCC for many years, thereby undermining its effectiveness in upholding human rights and the Constitution.92 A serious element that also undermined the authority of the SCC was the insufficiency of the guarantees of its independence. The 1971 Constitution provided for an independent SCC (Article 174) with Constitutional guarantees of irremovability for its members. They cannot be dismissed from office and only the Court can hold them to account.93 Under Articles 19 and 20 of the SCC law, disciplinary proceedings against them are referred by the President of the Court to the Court’s committee of provisional affairs and then to the Court’s General Assembly. Further, in terms of its financial independence, the court has: “an annual independent budget to be prepared in alignment with the public budget of the State”.94 However, these guarantees have been undermined by the comprehensive control the executive has over the selection and appointment of the members of the courts. Former Article 5 of the SCC law gave the President unrestricted discretion in appointing the Chief Justice of the SCC. This power, combined with the President and Chief Justice’s role in appointing the other members of the Court, opened the SCC up to interference from the executive. Article 5 provided: “The President of the Republic appoints the Chief Justice of the Court by a presidential decree. Members of the court are also appointed by a presidential-decree after consulting with the Supreme Council of the Judicial Bodies; from among two candidates, one is chosen by the general assembly of the Court, and the other by the Chief Justice. At least two thirds of the appointees to the bench must be chosen from the other judicial bodies. The presidential decree that appoints a member shall indicate his position and seniority.” Amendments to Article 5 in 2011 limited the President’s selection of the Chief Justice to among the three oldest vice-presidents of the Court and required the approval of the SCC’s General Assembly. In addition, Article 183 of the Draft Constitution provides that the members of the SCC are irremovable and selected on the basis of recommendations by the general assemblies of the SCC, the Cassation Court, the State Council and the Courts of Appeal, in accordance with the law. Indeed, the four articles in the Draft Constitution dedicated to the SCC (Articles 182 to 185) defer to the law to determine the procedure before the SCC, the selection of its members and the effects of its decisions. These articles perpetuate the provisions of the 1971 Constitution whereby the competences, guarantees of independence and mechanisms of access to the SCC are set out only in subsidiary legislation (the SCC law) and not in the Constitution itself. Such provisions have the potential to undermine the authority of the Court as these laws can be easily amended or repealed. The more guarantees relating to the SCC that are enshrined in the Constitution, the greater the protection for the Court against any attacks that aim to undermine it. Therefore, in order to ensure the SCC can fulfil its role in the future, the new Constitution should provide for detailed guarantees for the formation, functioning and legal status of the SCC, including the independence and immunity of its members, as well as increased democratic and representative procedures for the selection of its members. Given the role played by a Constitutional Court in terms of upholding human rights and guaranteeing constitutional principles, including the rule of law and separation of powers, the SCC must be afforded sufficient guarantees of independence. This concept has been confirmed, for example, by the Council of Europe, whose recommendation on judicial independence, efficiency and responsibilities states: “This recommendation is applicable to all persons exercising judicial functions, including those dealing with constitutional matters.”95 Similarly, the Inter-American Court has upheld the importance of guarantees of independence for Constitutional Court judges.96 In the context of the dismissal of eight judges of the Constitutional Court of Ecuador by the National Congress, following an irregular impeachment procedure, the Inter-American Commission stated: “It is clear that the various international human rights agencies and courts agree that heightened stability in the tenure of judges, and the resultant ban on their free removal, is an essential part of the principle of judicial independence.”97 In addition, the Constitution should ensure that the decisions of the SCC are binding on the other branches of government and are enforced. The requirement for decisions of the SCC to be binding is founded on the rule of law and on the principle of legal certainty. As the Inter-American Commission on Human Rights affirmed in a case involving the non-compliance of the Executive and the armed forces of Ecuador with a decision of the Constitutional Tribunal of Ecuador: “the noncompliance with the judicial decisions not only affects legal certainty but also threatens the basic principles of the Rule of Law”. The Inter-American Court on Human Rights, went on to hold: “the implementation of judgments should be governed by those specific standards that enable the realization of the principles of, inter alia, judicial protection, due process, legal certainty, judicial independence, and rule of law. The Court agrees with the European Court of Human Rights upon considering that to achieve full. effectiveness of the judgment, its implementation should be complete, perfect, comprehensive, and without delay.”98 The Constitution should also expand the competence of the SCC and empower the Court to address, among other issues, disputes between State bodies concerning their competences and the constitutionality of legislative provisions as regards human rights and freedoms recognized by the constitution. In addition, the Constitution should ensure comprehensive mechanisms to guarantee full access to the SCC.
b. Access to the Constitutional Court
In Egypt, under the SCC law cases may only be referred to the SCC by other courts when the latter determine that the constitutionality of a legislative provision (laws or regulations) is involved in a case. Moreover, if one of the parties challenges the constitutionality of a given provision, the court suspends the hearing while it assesses this challenge. Accordingly, the court can require that the applicant file an application before the SCC.99 Consequently, citizens do not have direct access to the SCC as regards constitutional issues. Although Egypt is not unique in prohibiting direct access to the court by individuals, a right of individual access to the SCC will help ensure the protection and enforcement of rights and freedoms enshrined in the new Constitution. Under former President Mubarak’s rule, there was a distinct lack of enforcement of the rights enshrined in the 1971 Constitution. One particular obstacle in this regard was the fact that citizens were forced to rely on regular courts as gatekeepers. Therefore, where courts lacked independence, they could prevent the review of unconstitutional legislation or executive action. Even when judges are willing to transfer cases, where the judiciary lacks sufficient independence, the obstacles and costs for individuals trying to enforce Constitutional rights are likely to increase. Direct access rights enshrined in the new Constitution could therefore represent a substantial improvement in terms of the enforcement of human rights in Egypt. One significant example in this regard is the South African Constitution, which provides for a variety of mechanisms for Constitutional review, including referral by the President or by the Premier of a province for abstract review. Further, Article 167(7) of the South African Constitution also permits an individual “when it is in the interests of justice and with leave of the Constitutional Court, a) to bring a matter directly to the Constitutional Court; or b) to appeal directly to the Constitutional Court from any other court”.100