On The Parliamentary Agenda: Nine Issues To Anchor Democracy And The Rule Of Law
After more than two years without a legislature, the Egyptian parliament is finally preparing to exercise its legislative and oversight authority amid numerous complex political and economic challenges. This requires the parliament to prioritize the restoration of and support for the foundations of the rule of law and abide by constitutional provisions, to ensure these challenges can be effectively confronted.
This parliament was elected in the midst of unprecedented political shifts, most importantly a rising wave of terrorism and political violence, an obvious deterioration in the human rights record, and a raft of legislation adopted in the absence of a parliament, some of which contravene both the letter and spirit of the constitution and much of which infringes citizens’ basic rights.
In this context, the undersigned organizations urge the parliament to look closely at the laws adopted over the past five years that show not even a minimum regard for individual rights and liberties and violate constitutional provisions. We stress that restoring stability is impossible without mutual understanding and constructive dialogue among all peaceful civil and political actors, including rights groups and the parliament. We thus offer specific recommendations on nine issues in this memorandum, which we hope will shape and direct the parliament’s agenda and priorities in its first session. The goal is to anchor the pillars of democracy and stability in light of respect for the constitution and international human rights commitments, which successive Egyptian governments have vowed to honor.
I. The incoming parliament must ensure respect for the constitution and review all laws issued by decree since the adoption of the constitution
New MPs begin their work by taking an oath to protect and defend the constitution, the framework governing the operation of all state institutions, including the parliament. Under Article 156 of the constitution, the parliament must review all laws issued by presidential decree since the adoption of the constitution in 2014 within the first 15 days after it convenes.
As such, the undersigned organizations recommend to MP-elects that they insist on the strict application of the provisions of this article and refuse to heed dangerous, recent statements that the article only applies to the parliament convened in an extraordinary session, not this parliament. The text of the Article 156 is plain, clearly distinguishing extraordinary sessions (in paragraph one) from the absence of any parliament at all (paragraph two). The article also places clear restrictions on the issuance of laws by decree in the first case—when the parliament is not in session—while it places no restrictions in the second case. This indicates that the framers intended to make a qualitative distinction between the two cases; otherwise, they would have covered the two cases in one paragraph without providing additional stipulations.
If the parliament begins its session by disregarding the provisions of the constitution, it would be an extremely negative sign and exacerbate indifference to public affairs, demonstrated in the sharp decline in voter turnout during the elections.
According to the constitution, the parliament also has absolute freedom to exercise oversight over all laws issued in its absence, whether under interim President Adli Mansour or current President Abd al-Fattah al-Sisi. The parliament should not allow the continued enforcement of laws that violate the constitution, especially if they were issued prior to the adoption of the new charter. The incoming parliament should therefore review some laws issued by Adli Mansour under the constitutional declaration of July 8, 2013, first and foremost the protest law and the two counterterrorism laws.
II. The incoming parliament must guarantee a comprehensive engagement with terrorism, not limited to solely security approaches
The Egyptian state and society are facing an unprecedented wave of terrorism, in which hundreds of civilians and soldiers have been killed on a nearly daily basis. These ongoing attacks demonstrate the inadequacy of official counterterrorism policy, based exclusively on military and security approaches that do not address the roots of terrorist thought and the reasons for its spread. In this context, the parliament must forge a societal and political consensus among peaceful civil actors that brings everyone into the fight against terrorism. We believe this can be accomplished by:
-Repealing the counterterrorism law and the law on terrorist entities and removing those provisions that permit an unacceptable expansion in criminalization or curtailment of fundamental liberties, such as freedom of expression, the right of peaceful assembly, or constitutionally protected due-process guarantees, or other reservations to the law noted by organizations in statements and detailed legal memorandums.
-Reviewing statutory restrictions on a set of constitutionally protected civil and political rights—particularly the protest law, the political parties law, and laws regulating universities—and amend them to allow the participation of peaceful currents, an action that constitutes the cornerstone for any effective engagement with the ideologies that nourish violent extremism and would provide a space for peaceful civic and political participation as an alternative to armed violent groups.
-Amending Article 126 of the Penal Code, insofar as it contravenes Article 52 of the constitution, which states that torture of all kinds is a crime not subject to a statute of limitations. The amended text must include all the forms of torture enumerated in Article 1 of the UN Convention Against Torture. That document does not limit torture to actions committed to extract confessions, but includes in the definition of torture actions performed to obtain information or a confession from a third person, to punish a person for an act he has or is suspected of having committed, or to intimidate or coerce. Amending this article would also end impunity for perpetrators of torture crimes; currently higher courts consider such crimes to be acts of cruelty for which the law prescribes fines.
-Repealing the most recent amendment to Article 78 of the Penal Code, which entailed an unjustified increase in sentences for ill-defined acts formulated in broad terms that are likely to spur differences over their intended meaning. These include acts such as “harming the national interest” and “infringing public security and peace,” where the article in question does not define the actions that constitute such crimes. Moreover, criminal jurisprudence recognizes no concrete definition of infringements of ‘public peace’; such a concept could be applied to all crimes, thus allowing broad applications and interpretations, which is inimical to established constitutional precedent.
-Reviewing and amending all legislation that entails clear discrimination on the basis of religion or infringes freedom of conscience or other related religious freedoms, and combating hate speech, religious discrimination, and incitement to violence against citizens based on their religious or sectarian affiliations, actions in which some representatives of official religious institutions are unfortunately implicated. The most important of these statutes is the law regulating the construction of churches—which the parliament is scheduled to complete in its first session—and provisions related to blasphemy in the Penal Code, which are a tool to violate citizens’ right to express their religious opinions.
-Improving security capacities and focusing the efforts of the security establishment on fighting terrorism instead of continuing to waste resources harassing peaceful political dissidents.
III. The incoming parliament must strengthen the independence of the judiciary and the justice establishment
The division of powers between the executive and judiciary and an impartial Public Prosecution acting as the investigating authority is the prime guarantee not only for justice and an end to systematic impunity, but for an end to acts of retaliatory, vigilante violence. This requires:
-Issuing decrees with the force of law to amend the Code of Criminal Procedure to ensure two degrees of criminal litigation instead of one; issuing a law to end the secondment of judges to executive bodies, in accordance with transitional constitutional provisions; and setting rules for the appointment of the public prosecutor that are consistent with the constitution.
-Amending the judiciary law to guarantee financial and administrative independence for the judiciary by removing from the purview of the Justice Ministry—part of the executive—all matters related to appointments, transfers, promotions, pensions, and inspections of the judiciary and transferring these authorities to the Supreme Judiciary Council. The latter should be encouraged to draft a plan to promote judicial independence and improve performance, which requires reforms necessary to ensure that the judiciary is protected from the type of political and security interference in the judicial process that has increased markedly over the past three years.
-Amending the law regulating experts’ acts before judicial bodies, in force since 1952, to ensure the independence and fairness of experts and forensic physicians.
-Reconsider the law regulating the military judiciary to ensure that civilians do not stand before military courts and are guaranteed their right to appear before their natural judge.
-Repealing the law to secure and protect public and vital facilities, which has made a huge number of public facilities subject to the rules governing military facilities, thus so expanding the jurisdiction of the military courts to endanger the right of citizens to a fair trial and exacerbate the current crisis of the justice system in Egypt.
IV. The incoming parliament must act to initiate the process of transitional justice
This parliament should lay the groundwork for the shift from an exceptional transitional phase to stability. This requires prioritizing transitional justice, which has faced many stumbling blocks and is still pending five years after the revolution of January 25, 2015. In this context, we urge the assembly to:
-Finish drafting the transitional justice law in accordance with the provisions of the constitution and put it up for social debate in a timely manner. It must also swiftly issue a law to protect witnesses and reporters and refer to proposals submitted by civil society organizations.
-Form a fact-finding commission that can overcome obstacles faced by its predecessors. The commission should include families of persons harmed by human rights violations since 2011 and representatives of civil society. The parliament must lift all impediments to the commission’s work, require various state institutions and their sovereign agencies to submit the necessary information and documentation, and take effective measures to secure adequate protection for witnesses. The commission must conduct its business with transparency and keep the public informed through the phases of investigation and through its final findings.
-Establish participatory mechanisms to oversee and guarantee the actual implementation of the commission’s findings and recommendations and bring persons responsible for grave human rights violations to justice regardless of their positions, along with all persons involved in all acts of political violence. Persons implicated both within and outside state bodies should be treated equally.
-Reject laws by decree that permit settlements in illicit gains cases during the investigation phase and without any kind of sanctions. Laws regulating the retrieval of assets smuggled abroad should also be reconsidered.
V. Take measures necessary to enforce economic and social rights enshrined in the constitution
The parliament must take the necessary legislative measures to enforce the set of economic and social rights enshrined in the constitution and ensure the efficacy of these provisions. This requires a review of all laws issued by decree after the constitution, many of which clearly trample these rights or diminish safeguards for their exercise. In this context, we urge the assembly to:
-Reject recent amendments to income tax laws, which clearly contravene the principle of fair taxation, as a prelude to future amendments.
-Reject the recent investment law, which increased the privileges and concessions granted to investors at the expense of transparency and social justice.
-Reject laws by decree that in practice immunize contracts concluded by the state from judicial review, as well as those that give the president the right to dismiss the heads of independent bodies and oversight agencies, in a flagrant infringement of internationally recognized standards of transparency.
-Reconsider the most recent amendments to the social housing law (housing for the poor) to ensure it does not violate the constitution and enable the state to perform its role of providing housing for limited-income groups.
VI. The incoming parliament must animate constitutional articles on equality and promote the rights of women
The current constitution includes unprecedented guarantees for equality and non-discrimination. It also contains special guarantees for women, affirming their right of equality in all fields, their right to appropriate representation in legislative bodies, and their right to hold public office and be appointed to judicial and other bodies. For the first time, it also obligates the state to combat all forms of violence against women.
In light of these unprecedented constitutional guarantees, the parliament must translate these constitutional articles into legal guarantees that realize state commitments and ensure that citizens—especially women—enjoy their rights to equality and non-discrimination. To that end, we urge the assembly to:
-Complete the process of reforming articles related to sexual crimes in the Penal Code, especially sexual assault and rape, and issue a law to protect women from domestic violence.
-Issue a law establishing an anti-discrimination commission, as provided for in the constitution, while guaranteeing the allocation of adequate resources to the commission, giving it the authority to receive and investigate complaints, and guaranteeing its independence.
-Issue clear legislation to enact constitutional guarantees for women’s right to hold judicial positions, especially in the State Council, Public Prosecution, and criminal courts.
VII. The incoming parliament must animate constitutional articles on children and the protection of their rights
The current constitution provides unprecedented protections for children’s rights. Article 80, proposed by civil society organizations that work in child rights, was formulated after four hearings between children and the constituent assembly, but proposed statutory changes seek to undermine these gains. These include proposed amendments to the Egyptian child law (Law 126/2008), proposals to increase sentences for children up to and including death and hard imprisonment for some crimes, and proposals to reduce the legal age to under 18, in violation of all international norms. As such, we ask the assembly to:
-Protect the gains represented by Article 80 of the Egyptian constitution and ensure they are respected; the parliament should require the government to enforce legal provisions on children and amend its implementing regulations to comport with the protective aspects set forth in the law.
-Monitor judicial sentences’ treatment of child defendants in political cases as victims of exploitation rather than criminal lawbreakers.
-Support civil society’s role in monitoring law enforcement by animating the general and subsidiary child protection committees, supporting the independence of the National Council on Child Rights, and again making it subordinate to the prime minister.
VIII. The incoming parliament must take the necessary measures to ensure Egypt’s accession to several international human rights conventions
The constitution gave special attention to international human rights legislation and considered rights conventions ratified by the Egyptian government to be part of domestic law. In line with this admirable direction, the House of Representatives must ratify several conventions not ratified by previous Egyptian governments and lift reservations to other conventions, to contribute to the development of domestic legislation and provide guarantees for basic constitutional rights. In this context, the assembly should:
-Ratify the optional protocol to the Convention Against Torture and declare Egypt’s commitment to Articles 21 and 22 of the convention, which guarantees that Egyptian citizens and any country party to the convention can lodge complaints with the Committee Against Torture in the event that the Egyptian government does not fulfill its obligation under the convention.
-Ratify the Convention for the Protection of All Persons from Enforced Disappearance.
-Ratify the optional protocol to the International Covenant on Civil and Political Rights and the optional protocol to the International Covenant on Economic, Social, and Cultural Rights.
-Ratify the optional protocol to the Convention on the Elimination of All Forms of Discrimination against Women and lift reservations to Articles 2, 16, and 29 of the convention.
-Ratify the third optional protocol to the Convention on the Rights of the Child.
Ratify the Rome Statute establishing the International Criminal Court.
-Ratify the optional protocol to the African Charter on Human and Peoples’ Rights establishing the African Court on Human and Peoples’ Rights.
IX. The incoming parliament must ensure the independence of the media and put an end to hate speech and incitement
The recent period has witnessed an alarming increase in the tenor of religious and sectarian hate speech and incitement, smear campaigns against political opponents, assaults on personal freedoms, and incitement to violence by the media. In this regard, the undersigned organizations urge the House of Representatives to be guided by draft laws previously submitted by media and human rights experts during their discussion of a draft law to restructure and regulate the state-owned and private media.
1. Association for Freedom of Thought and Expression
2. Cairo Institute for Human Rights Studies
3. Center for Egyptian Women’s Legal Assistance
4. Egyptian Association for the Advancement of Childhood Conditions
5. Egyptian Center for Economic and Social Rights
6. Egyptian Commission on Human Rights
7. Egyptian Initiative for Personal Rights
8. Egyptians Against Religious Discrimination
9. Habi Center for Environmental Rights
10. Haqanya Association for Rights and Liberties
11. Hisham Mubarak Law Center
12. National Coalition for the Rights of the Child
13. New Woman Foundation