Beirut — The Egyptian government should withdraw proposed constitutional amendments that will consolidate authoritarian rule, Human Rights Watch and the International Commission of Jurists (ICJ) said today. The amendments will undermine the Egyptian judiciary's dwindling independence and expand the military's power to intervene in political life.
On April 16, 2019, Parliament finalized and approved the amendments, which a pro-government bloc proposed in early February. On April 17, the National Election Authority said a public referendum was set for April 19-22. The official draft amendments were only published in the official Gazette on April 18. The vote takes place amid ongoing mass arrests and a relentless crackdown on fundamental freedoms, including currently targeting those calling for boycotting or rejecting the amendments. Given the ongoing repression, and that political opposition in Egypt has dwindled to a nominal presence, a free and fair vote will be impossible.
"These amendments aim to smother Egyptians' aspirations to live in dignity and under the rule of law," said Michael Page, deputy Middle East and North Africa director at Human Rights Watch. "The authorities should immediately halt efforts to pass these amendments by threatening, disappearing, and persecuting peaceful critics and dissidents."
The 596-seat Parliament, which is dominated by members loyal to President Abdel Fattah al-Sisi and which routinely rubber-stamps government decisions, passed the amendments by a vote of 531 to 22. During Parliament's "societal dialogue" sessions, few critics were allowed be take part in the discussions about the amendments.
"The amendments are a flagrant assault on the rule of law and independence of the judiciary in Egypt. If adopted, they will effectively place the military above the law and the Constitution and cement the executive's subordination of judicial and prosecutorial authorities," said Said Benarbia, ICJ's MENA Director.
The initial amendments would have allowed al-Sisi to run for two more six-year terms, after his current second term. The final amendments will permit him to run for one additional term and also extends his current term from four to six years, a move that attracted criticism inside Egypt. The amendments are particularly troubling given the widespread suppression of fundamental freedoms, including freedoms of expression, association, and assembly and the right to political participation, all of which are essential to a free and fair public vote.
A coalition of 10 secular and leftist political parties called for rejecting the amendments. Local news reports say that the public prosecutor is investigating an opposition political figure, Hamdeen Sabbahy, for "instigating chaos" and insulting the state because of his opposition to the amendments. The authorities have also started aggressive smear campaigns against several activists and award-winning actors, and are exploring the potential prosecution of them following their participation in public advocacy efforts about Egypt's human rights situation in Washington, DC and European capital cities in March.
In February and March alone, authorities arrested or prosecuted over 160 dissidents or perceived dissidents, according to Egyptian rights lawyers who spoke with Human Rights Watch. Authorities also briefly arrested another opposition figure, Mamdouh Hamza, a businessman, on February 16, accusing him of "publishing false news" and citing critical posts on his Twitter account. They released him on bail a few hours later. Al-Araby al-Jadeed newspaper said that other opposition figures have received telephoned "threats."
On April 10, the authorities blocked an independent campaign website, "Batel," which, in the context of the referendum, could be translated as "void." Egyptians living abroad started the campaign, inviting Egyptians to register their "No" votes online. Access to the site was blocked in Egypt only hours after its launch, but the campaign still managed to amass tens of thousands of "No" voters in a few days.
The authorities blocked seven other alternative websites that the campaign made to circumvent the efforts to block access in Egypt. In their efforts to block access to the campaign, the authorities have blocked about 34,000 websites, according to an internet-monitoring website. Since mid-2017, the authorities have blocked access to hundreds of websites including most of the independent news websites and some for human rights organizations.
The independent news website Mada Masr reported on February 10 that security authorities instructed mainstream media in Egypt not to report on the amendments, and in particular not to give critics any coverage. Mada Masr also reported that, at least since December 2018, meetings between staff from al-Sisi's office and intelligence officials have been held at the General Intelligence Agency "on a nearly daily basis," coordinated by al-Sisi's son Mahmoud, a senior intelligence officer, to push the amendments.
A few days after parliamentarians proposed the amendments, supportive placards, signs, and billboards were erected across the country. On April 16, Mada Masr, quoting witnesses in East Cairo, reported that security authorities had pressed business owners to post the signs. The government denied imposing fines on those who refused, but the authorities refused to permit opposition protests on March 27, citing "security threats."
The al-Mashhad website also published a leaked memo from judges of the State Council, the body that contains the Supreme Administrative Court, to the Parliament, which said that the amendments "demolish judicial independence." The State Council's deputy chief justice, Judge Samir Yousef, later confirmed that he drafted the memo.
In July 2013, then-defense minister al-Sisi led the forcible removal of Egypt's first freely elected president, Mohamed Morsy. Al-Sisi was officially elected president in 2014 and re-elected in 2018, after his government arrested or intimidated all of the other potential candidates. Al-Sisi has presided over a government that has committed widespread and systematic human rights violations, including mass killings of protesters, arbitrary arrests, enforced disappearances, extrajudicial killings of detainees, and torture and other ill-treatment in detention. Some of these crimes most likely constitute crimes against humanity.
The nationwide crackdown first targeted al-Sisi's Islamist opponents but quickly expanded to include political dissidents, human rights lawyers and defenders, journalists, artists, gay men, lesbians, transsexuals, and virtually anyone expressing the mildest critical views. Government security forces, including the army, violate human rights with almost total impunity.
Since April 2017, the government has imposed a state of emergency, which has been used to justify undermining judicial independence, and used abusive counterterrorism and media laws to suppress fundamental freedoms.
President al-Sisi has apparently long opposed many of the human rights guarantees in the current constitution, saying in September 2015 that "the Constitution was written with good intentions. But countries cannot be built with good intentions." The parliament speaker, Ali Abd al-Aal, said that a new constitution should be drafted in 5 or 10 years. Critics say this will happen when al-Sisi nears the end of his third and final term.
In an April 17 news conference, Judge Lasheen Ibrahim, the head of the National Elections Authority, called on Egyptians to vote and said that amending the constitution was justified because "it has to fit the [society's] situation."
"Egypt's autocracy is shifting into overdrive to re-establish the 'President-for-Life' model, beloved by dictators in the region and despised by their citizens," Page said. "But it's a model that recent experience in Egypt and neighboring countries has demonstrated is not built to last."
Amendments That Undermine Judicial and Prosecutorial Independence
Amended articles 185, 189, and 193 grant the president broad and unchecked supervisory powers over the judiciary and the public prosecutor, in contravention of fundamental rule of law principles concerning the separation of powers, the independence of the judiciary, and the right to a fair trial by a competent, independent, and impartial tribunal.
Under amended article 185, the president will have the authority to appoint the heads of judicial bodies and authorities fromamong seven of the most senior deputies nominated by judicial councils. The president or, in his absence, the justice minister will be the head of the Supreme Council for Judicial Bodies and Authorities, which will supervise the judiciary and whose independence is vital to preserve judicial independence.
The amendments give the Supreme Council the authority to determine the conditions of appointment, promotion, and discipline for members of judicial bodies, as well as a consultative role on draft laws organizing the affairs of judicial bodies and authorities. The president will have veto power in the Supreme Council.
Under amended article 193, paragraph 3, the president will have the authority to select the chief justice of the Supreme Constitutional Court (SCC) from the five most senior court vice-presidents and to select the vice-president from two nominees nominated by the court chief justice and the court's General Assembly, the de-facto court syndicate.
The president will also have the authority to appoint the head and members of the Commissioners' Authority, who will be nominated by the chief justice after consulting with the court's General Assembly. The Commissioner's Authority consists of judges who provide opinions to the chief justice on constitutional and legal issues in cases before the court.
The amendment to article 189, paragraph 2, will also grant the president the power to appoint the public prosecutor from among three nominees by the "Supreme Judicial Council" (another body that lacks independence and supervises the judiciary). The nominees should be from the Court of Cassation deputy chief justices, the appeal courts chief justices, and the assistant prosecutors general.
In recent years, al-Sisi approved several laws that undermined judicial independence. Under Law No. 13 of 2017, the president gave himself the authority to choose the chief justice of the Court of Cassation, Egypt's highest appellate court, and the heads of the Supreme Judicial Council (the body whose powers will be almost completely replaced by the new Supreme Council for Judicial Bodies and Authorities), the State Council which contains the country's Supreme Administrative Court, the Administrative Prosecution Authority and the State Lawsuits Authority. Law No. 13 of 2017 is under constitutional challenge before the Supreme Constitutional Court.
In the past several years, tens of thousands of political and other perceived dissidents have faced unfair trials in both civilian and military courts, after prolonged arbitrary pretrial detention, resulting in lengthy prison sentences and the death penalty. Even after they serve their sentences, some of those convicted must report to their local police station every day for up to 12 hours, for up to five years, effectively forcing them to spend their nights in their local police station.
The amendments to articles 185 and 193, together with Law No. 13 of 2017, will grant the president and thereby the executive almost complete control over the judiciary and enable its further use to stifle peaceful dissent.
International Standards on Independence of the Judiciary
The proposed constitutional amendments do not comply with the right to a fair trial by a competent, independent, and impartial tribunal, which is guaranteed by article 14 of the International Covenant on Civil and Political Rights (ICCPR), articles 7 and 26 of the African Charter on Human and Peoples' Rights (the African Charter), and articles 12 and 13 of the Arab Charter of Human Rights (the Arab Charter). Egypt has ratified all of these covenants, which all require the separation of powers between the executive and judicial branches of government.
The UN Special Rapporteur on the Independence of Judges and Lawyers and numerous courts and international and regional guidelines have emphasized that the separation of powers between the executive and judicial branches of government and the independence of the judiciary are mutually interdependent principles. Independence requires procedures for the selection, appointment, promotion, transfer, and discipline of judges to be transparent and free from overall executive control.
International standards, monitors, and experts including the Human Rights Committee, the United Nations Special Rapporteur on the Independence of Judges and Lawyers, and the African Union (AU) Fair Trial Guidelines all underline the importance of the establishment of an independent body for the selection and supervision of judges, which should be constituted of at least a majority of judges elected by their peers and free from executive interference. The UN Basic Principles (principle 10) and the AU Fair Trial Principles (principle A(4)(h), (i) and (k)) indicate that the process for the appointments to judicial office should also be transparent and subject to strict selection criteria based on merit.
In Egypt's Judiciary: A Tool of Repression, the International Commission of Jurists previously reported on the current framework governing the judiciary and prosecutors in Egypt and its non-compliance with the right to a fair trial under international law. The report explained that the Supreme Judicial Council consists of judges determined by seniority rather than election by their peers, and has no autonomous decision-making power over judicial careers, including over the appointment of some judges, or over assignment and disciplining judges.
The amendments will give the powers under Law No. 13 of 2017 constitutional status; grant the president the authority to appoint judges to lead all judicial bodies including the Supreme Constitutional Court without any judicial involvement other than SJC's nomination of a pool of judges who are selected by seniority rather than merit; and to determine the conditions under which all judges are appointed and promoted and the organization of judicial bodies and authorities. This will also give the president potential power to influence the outcome of cases reviewed by the Supreme Constitutional Court through determining the composition of the body of judges, known as the Commissioner's Authority, that initially reviews the cases and advises members of the SCC deciding on them.
International Standards on Independence of the Public Prosecutor
The right to a fair trial also requires prosecutors to act independently and without undue influence from the executive. Article 2 of the United Nations Guidelines on the Role of Prosecutors (UN Guidelines) makes clear that states must ensure selection criteria for prosecutors that "embody safeguards against appointments based on partiality or prejudice, excluding any discrimination against a person on the grounds of ... political or other opinion." Article 4 of the UN Guidelines, as well Principle "F" of the AU Fair Trial Principles, affirms that prosecutors must be able to perform their professional functions without intimidation or improper interference.
The public prosecutor is currently selected by the Supreme Judicial Council and appointed by presidential decree. Several human rights reports have shown that Egypt's public prosecutors are subject to interference by the executive authority, becoming tools of oppression and failing to investigate human rights abuses. The additional power the constitutional amendments grant the president to appoint the public prosecutor will facilitate appointments based on political or other improper objectives and, in turn, most likely risk unduly influencing decisions by the prosecutor and subordinates acting upon their authority, including by refraining from investigating and prosecuting cases involving crimes by members of the executive, the president, or other government officials or associated private citizens.
Amendments That Expand Military Interference in Civilian Affairs
Amended constitutional articles 200, 204, and 234 will significantly expand the military's authority, in violation of rule of law principles and the right to a fair trial by a competent, independent, and impartial tribunal.
Expanded Military Interference in Civilian Affairs
Under amended article 200, paragraph 1, the military will have the duty to "protect the constitution and democracy, and safeguard the basic components of the State and its civilian nature, and the people's gains, and individual rights and freedoms," in addition to its current mandate to "protect the country, and preserve its security and territories." Under amended article 234, the currently temporary role of the Supreme Council of the Armed Forces' (SCAF) in approving the appointment of the defense minister, who is also commander of the armed forces, will also be made permanent.
The amendments appear designed to enable the military to intervene in civilian governance and public and political spheres that are the responsibility of law enforcement agencies. In the context of the 2013 military coup, which the AU deemed unconstitutional, temporarily suspending Egypt from AU activities, the amendments also appear designed to justify any future removals of the head of state by the military, cancellations of the results of free elections, and interruptions of the democratic process. The amendments could also further shield members of the military from accountability for human rights violations and other crimes, including using excessive force, dispersing peaceful protests, and other violations committed in the name of maintaining the constitution and democracy.
It is a fundamental principle of the rule of law that the military should be subject to civilian oversight and should not have any direct or indirect interference in governance. The UN Human Rights Council, in reaffirming that civilian authority over the military is a key component of human rights, democracy and the rule of law, has called on states to ensure that "the military remains accountable to relevant national civilian authorities." The UN Human Rights Committee has persistently highlighted the need to subject armed forces to effective control by civilian authorities.
Egypt's military already has expansive powers to determine policies and intervene in civilian affairs without civilian oversight. The constitution does not provide for civilian oversight over the military, and the amendments will accordingly place the military in a position in which it has significant authority to act without restriction and, most likely, with impunity. The military also has a history of exercising its authority arbitrarily and outside the framework of the rule of law, with blanket impunity for violence against women, killing hundreds of protestors, and demolishing homes in the name of fighting terrorism. Such practices clearly conflict with Egypt's obligation under international law to investigate and prosecute gross human rights violations and other serious crimes.
Unprecedented Increase in Trials of Civilians in Military Courts
The military's increased power will be coupled with an unprecedented expansion of the jurisdiction of military tribunals. Under amended article 204, paragraph 2, military tribunals will have jurisdiction over crimes committed by civilians "that represent an assault" against military facilities, equipment, weapons, documents, and public funds, among many other things, removing the pre-amendment requirement that such assaults be "direct."
The range of facilities subject to such assaults will also be expanded to include those that have "the same nature or the facilities that the military protects," instead of facilities that fall "under their authority" or "stipulated military or border zones." The amendment will, in effect, make the expansion of the military court's jurisdiction over public universities and other public places in Law 136/2014 on Protecting and Safeguarding Public and Vital Facilities constitutional.
This amendment will incorporate into the Constitution Decree No. 136 of 2014, which al-Sisi issued in October 2014, to expand the jurisdiction of military courts to include any crimes committed on any public property or vital facility. Since that decree was issued, over 15,500 civilians, including scores of children, have been referred for military prosecution. This decree has been interpreted broadly, providing the military prosecutor the authority to decide whether a particular crime falls within the military's jurisdiction.
Under international law and standards including article 14 of the ICCPR, Principle "L" of the AU Fair Trial Principles, principles 5 and 8 of the Draft principles governing the administration of justice through military tribunals (Decaux Principles), and principle 29 of the Updated set of Principles for the protection and promotion of human rights through action to combat impunity the jurisdiction of military courts should generally be limited to military offenses, in particular disciplinary offenses, by military personnel. Military courts should not have jurisdiction over civilians or over gross human rights violations, including but not limited to torture, extrajudicial executions, and enforced disappearances.
Military courts are not independent judicial authorities for the purposes of a fair trial under article 14 of the ICCPR. In its Resolution on the Right to a Fair Trial and Legal Assistance in Africa, the African Commission on Human and Peoples' Rights stated that "military courts should respect the norms of a fair trial" and that "[t]hey should in no case try civilians." The Human Rights Committee stated that trying civilians in military courts is only permissible in exceptional circumstances and has called on states to prohibit the use of military courts to try civilians. The special rapporteur on the independence of judges and lawyers and the Working Group on Arbitrary Detention have also emphasized that military courts are incompetent to try civilians.
Military trials in Egypt are inherently unjust. Military judges are serving military officers appointed by defense minister, are not required to have the same legal training as civilian judges, and are subject to the military chain of command including in the course of their judicial functions; as such, they are not independent. In the conduct of trial proceedings, the accused are not afforded adequate time and facilities to prepare a defense and are also in both law and practice not guaranteed the right to communicate confidentially with counsel of their choice. Military trials are closed to the public, and the use of "confessions" or other information obtained through torture or other ill-treatment as evidence is routine.