London — President Mohamed Morsy's Constitutional Declaration granting his decrees and laws immunity from judicial review even if they violate human rights until mid-2013 undermines the rule of law in Egypt.
If Morsy were to pass a law violating human rights, victims would have no means to challenge the law on the basis of rights set out in the March 30 2011 constitutional declaration. It also appears to give the president the power to issue emergency-style "measures" at any time for vague reasons and without declaring a state of emergency.
The president also issued a law providing for new investigations of those responsible for violence against protesters.
But the law also creates a new court to prosecute people under vaguely defined and overly broad laws dating from ex-president Hosni Mubarak's rule which have historically allowed for abuse, including prosecuting people for insulting the president or the judiciary. Morsy also announced measures that seem to interfere with the independence of the judiciary.
"Egypt is in serious need of judicial reform but decreeing that the president rule by fiat is no way to achieve it," said Sarah Leah Whitson, Middle East and North Africa director at Human Rights Watch.
"Egypt's president now has more power than last year's military rulers who used their position to violate human rights. And President Morsy has exempted himself from any independent judicial review."
The president's constitutional declaration also extends for two months the mandate of the assembly drafting a new constitution and appoints a new public prosecutor.
Morsy has argued that these measures are temporary; article 2 provides that it only applies until the adoption of a new constitution and the election of a new parliament.
Given the two-month extension for a draft constitution and the six-week parliamentary election process that will only follow the adoption of the constitution, a new parliament is unlikely to be elected before July 2013.
The president assumed legislative powers on August 11, when he dismissed Supreme Council of the Armed Forces (SCAF) Generals Hussein Tantawi and Sami Anan and took over legislative authority from the council.
The SCAF had itself taken over legislative authority after the Supreme Constitutional Court dissolved parliament in June 2012. The president has issued at least 10 laws, many of them amendments, on issues including education, pretrial detention for journalists, trade unions, and health insurance for children.
The two-month extension until February 12 of the deadline for the constituent assembly to submit its draft constitution was not entirely unexpected, since the recent deadlock over certain provisions had made it unlikely that the assembly would finalize a draft before its mandate was due to expire on December 12.
Article 5 of the declaration states that no court may dissolve the Constituent Assembly or the upper house of parliament. This suspended several ongoing court challenges to both bodies before administrative courts.
Law 96 of 2012, "On the Protection of the Revolution," issued by Morsy on the same day, establishes a dedicated court and prosecution office for crimes of violence against protesters by those who "held office under the previous regime."
However, article 4 of this law lists additional charges of the penal code that this court will hear, which include "insulting and resisting the authorities, destruction of public property, impeding transportation, press crimes, intimidation and terrorizing." These chapters include provisions that criminalize political speech, such as insulting the president or military, and free assembly, such as impeding traffic or blocking the work of public institutions.
"The last thing Egypt needs is a special court to hear assembly and speech offenses; there's been a spike in criminal defamation prosecutions that violate free expression as it is," Whitson said. "President Morsy should amend the law to restrict the work of the court to exclude prosecutions under vague Mubarak-era penal code provisions which invite abuse."
Background on the Constitutional Declaration
Article 2: No Challenge or Oversight of President Morsy
The most concerning feature with regard to human rights in the declaration is the provision putting the president's laws and decrees beyond judicial review, Human Rights Watch said.
Article 2 of the Constitutional Declaration states that "the Constitutional Declaration, laws and decrees issued by the president from June 30, 2012 until the constitution comes into effect and a new People's Assembly is elected will be final and self-executing, and not subject to legal challenge in any way or before any party. Such decrees cannot be challenged by suspension or annulment."
However, article 2(3) of the International Convention on Civil and Political Rights, which Egypt has ratified, obligates state parties to "to ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy" and that "any person claiming such a remedy... have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State" and that each state party must "develop" judicial remedies for rights violations and ensure such remedies are enforced.
"If President Morsy issues laws or decrees that violate human rights, victims will have no recourse to the courts to challenge such laws and be compensated for any damages suffered," Whitson said. "This decree is particularly troubling at a time when Egypt is struggling to establish respect for the rule of law and to deal with a legacy of impunity."
Morsy has in effect granted himself more power than the SCAF possessed during the year-and-a-half they ruled Egypt, since lawyers could challenge decrees and laws passed by the SCAF before administrative courts on behalf of victims of the laws.
In November 2011, an administrative court declared the SCAF elections law unconstitutional for discriminating against the right of Egyptians abroad to vote and ordered the SCAF to amend it to end the discrimination.
Yet now, no one can challenge Morsy's decrees and laws in court, no matter how bad they are, Human Rights Watch said. For example, on September 23, the president issued presidential order No 1/2012 appointing 3,649 judges to Emergency State Security Courts (ESSC), notorious courts that have operated during Egypt's 31-year state of emergency and violated basic due process guarantees.
Article 19 of the Emergency Law, which is no longer in force since the state of emergency expired on May 31, allowed trials referred to ESSC during the state of emergency to continue even after the state of emergency has ended; there are only eight trials still pending before these courts.
Lawyers from the Egyptian Initiative for Personal Rights filed a case before the administrative courts on October 3 challenging the decree appointing additional judges to the emergency courts on the grounds that there was no need for that many judges to sit on these courts at this time and that the president did not have the authority to issue such an order outside of a state of emergency.
Article 2 of the Constitutional Declaration effectively suspends that case or review of the decree appointing new emergency court judges, with the risk that the president will now seek to allow new cases before these security courts.
Egyptian and international observers have condemned article 2. On November 23, the Office of United Nations Human Rights Commissioner for Human Rights issued a statement saying that it was "very concerned about the possible huge ramifications of this declaration on human rights and the rule of law in Egypt."
The Forum of Independent Human Rights Organizations, a coalition including all major human rights groups in Egypt, issued a statement and filed a lawsuit before the court of administrative justice challenging the president's right to issue the declaration.
Article 6: The President May Take "All Necessary Measures" to Protect the Revolution
Article 6 states that, "If there is a danger that threatens the January 25 revolution, the life of the nation, national unity, or the safety of the nation, or impedes a state institution from performing its role, the president can take all necessary measures to address this danger as defined by law."
The provision effectively allows the president to take "all necessary measures," which are not subject to any judicial or legal review, in the name of vague and arbitrary standards of protecting the revolution or "national unity."
The overly broad and vague language of this provision recalls that of article 1 of Law 162, Egypt's infamous Emergency Law in force for 30 years under Mubarak, which states that "a declaration of a state of emergency is permitted whenever a threat to security or public order in the lands of the republic or one of its regions exists."
In both cases, the conditions under which a president can "take all necessary measures" are overly broad and do not meet the international standard set out in the ICCPR, which Egypt is bound by.
That standard is that a state of emergency must be clearly and publicly declared, should only be announced "if an emergency arose threatening the life of the nation" and that it should be strictly limited in time and geographical scope to the extent strictly required by the exigencies of the situation, and that any limits on human rights protections applied under it should be clearly and narrowly identified, strictly necessary, and proportionate.
Morsy's powers appear now to be even less restricted than Mubarak's were under the previous Emergency Law, as he does not have to declare a state of emergency to be able to use what amount to emergency powers, which are not subject to any judicial control.
Article 3: Dismissal of the Public Prosecutor
Article 3 of the Constitutional Declaration dismisses Abdelmeguid Mahmoud as public prosecutor and appoints a new public prosecutor, Talaat Ibrahim Abdallah, for a period of four years, despite the fact that under Egypt's current judicial authority law, the president does not have the right to dismiss a sitting public prosecutor.
Mubarak had appointed Mahmoud who, in his capacity as head prosecutor, had protected Mubarak's police force against complaints of abuse, Human Rights Watch said. In a January 2011 report, Work on Him Until he Confesses, Human Rights Watch documented the failure of the public prosecutor to effectively investigate and prosecute complaints of torture, contributing to widespread impunity for torture and police abuse.
The failure of the prosecution to effectively investigate and gather sufficient evidence on the killing of protesters during the January 2011 uprising was a factor that led to the acquittal of senior ministry of interior officials and dozens of police officers in more than 20 different trials.
Regardless of Mahmoud's personal record, the dismissal of members of the judiciary, which in Egypt includes the public prosecutor, should occur only for serious misconduct or incompetence, following a transparent, fair, and impartial review by an independent body, Human Rights Watch said.
Egypt's judicial authority law further regulates the appointment and dismissal of the public prosecutor by limiting that right to the Higher Judicial Authority and does not grant the president the right to dismiss sitting public prosecutors. With the declaration, Morsy granted himself the right to dismiss and appoint prosecutors.
General Comment number 32 of the United Nations Human Rights Committee, the experts who provide the definitive interpretation of the ICCPR, states that:
Judges may be dismissed only on serious grounds of misconduct or incompetence, in accordance with fair procedures ensuring objectivity and impartiality set out in the constitution or the law.
The dismissal of judges by the executive, e.g. before the expiry of the term for which they have been appointed, without any specific reasons given to them and without effective judicial protection being available to contest the dismissal, is incompatible with the independence of the judiciary.
According to the UN Basic Principles on the Independence of the Judiciary adopted by General Assembly resolutions 40/32 of November 29, 1985, "A charge or complaint made against a judge in his/her judicial and professional capacity shall be processed expeditiously and fairly under an appropriate procedure.
The judge shall have the right to a fair hearing." In addition, the Basic Principles state that judges may be suspended or removed only for reasons of incapacity or behavior that renders them unfit to discharge their duties.
Article 1: Trials for "Crimes of the Revolution" and Law 96 of 2012
Article 1orders new investigations and retrials for the crimes of killing and injuring protesters since January 25, 2011. This comes after four months of fact-finding by a committee set up by presidential decree on July 5, 2012, which was tasked with investigating violence against protesters and reviewing the response of state institutions.
The committee is yet to issue its final report but has reportedly succeeded in obtaining new evidence and identifying new suspects.
However, Law 96 of 2012, "On the Protection of the Revolution," issued by Morsy on the same day as the Constitutional Declaration, established the procedure for these new trials and provides for pretrial detention of up to six months for those charged with assaulting protesters and for certain violations of the penal code, far beyond the 45-day limit provided for under Egyptian law.
Law 96 states that new investigations shall take place with respect to the crimes of "violence against protesters, assault using force or threats or terrorizing the personal freedom of the citizens and other freedoms and public rights protected by the constitution and by law ... committed by those who held positions of political or executive authority under the previous regime [since January 2011]."
The law establishes a specialized court and prosecution office to deal with these cases and states in article 2 that retrial can occur in cases where "new evidence or new circumstances come to light related to incidents already referred to trial." Article 14(7) of the ICCPR states that "no one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country."
A number of incidents of violence against protesters over the past year have not been properly investigated, Human Rights Watch said. In others, the prosecution has indicted only one police officer, such as the Mohamed Mahmoud protest in November 2011 which left 45 protesters dead, or none at all, such as the December 2011 protests or the May 2012 Abbasiyya protests.
Article 4 states that this new court can prosecute those accused of certain violations of the penal code; it includes an additional set of crimes that are considered "crimes against the revolution" for purposes of this court, including penal code provisions on "insulting and resisting the authorities, destruction of public property, impeding transportation, press crimes, intimidation and terrorizing." These chapters include provisions that criminalize political speech, such as insulting the president or military.
International law strongly protects such speech. Criminal defamation in Egypt's penal codes is one of the biggest impediments to freedom of expression in Egypt, and Human Rights Watch has frequently urged reform of these provisions used under Mubarak to stifle speech by decriminalizing expression.
This declaration does nothing to protect freedom of expression and seems instead to make further prosecutions for political speech more likely.