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Part 1: Experts weigh in on rights and freedoms in the constitution

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An analysis of two sections of the six sections of the draft constitution

A billboard reading "participating in the constitution means YES for the 30th of June and the 25th of January" is seen on the 6th of October Bridge, on November 25, 2013 in Cairo. According to the government's timetable, a referendum is to be held on a new constitution within the next two months to be followed by parliamentary elections in mid-2014 and then presidential polls. (AFP PHOTO/GIANLUIGI GUERCIA)

A billboard reading “participating in the constitution means YES for the 30th of June and the 25th of January” is seen on the 6th of October Bridge.
(AFP PHOTO/GIANLUIGI GUERCIA)

Experts have analysed the debatable articles in the final draft constitution, highlighting both the positive and negative aspects.

Emad Mubarak, director of the Association for Freedom of Thought and Expression, said that the most problematic aspect of the new constitution, especially in the rights and freedoms section, lies in referring the regulation of most rights to the laws.

“This leaves rights and freedoms under the mercy of the coming parliament,” Mubarak said. “The laws would probably restrict freedoms rather than regulate them.”

Article 92 bans the issuance of laws which could restrict the “origin or core” of rights or freedoms. Mubarak nevertheless doubted that this article would be implemented. He added that it takes years for the Supreme Constitutional Court to rule on cases regarding the unconstitutionality of articles.

Article 52 of the draft states: “Torture in all of its forms is not subject to statute of limitations.”  Mohamed Zare’, Head of the Arab Penal Reform Organisation, said this is not enough. The article should state that torture is a “crime against honour”, which in legal terms, means that if a police officer inflicts torture, they are not allowed to return to their jobs, Zare’s said. He said the article has always been the way it is now but it allowed policemen convicted of torture to return to their jobs after serving time.

Article 54 dictates the conditions under which a person can be arrested or detained, among other issues. People can only be arrested after investigations and a judicial order, except when caught red-handed. But Zare’ disapproved of another part of the article, which states that anyone who is arrested must be presented to “the investigations authority” within 24 hours of the arrest. Zare’ believes that the constitution should state that people are presented to investigation “immediately” after arrest.

Article 55 bans torturing, terrorising, coercing or physically or morally harming detained or arrested persons, which Zare’ praised. He added that Article 56, which states that prison is a place for reform and rehabilitation, is also commendable because it uses “the modern philosophy” of prisons and means that the law will guarantee prisoners many rights like education and health.

The rights and freedoms section of the constitution also addressed press freedoms and freedom of creativity.

Mubarak criticised Article 64, which states that freedom of belief is “absolute”, yet only gives followers of Abrahamic religions the right to practice their religious rituals and build houses of worship, leaving the organisation of this right up to the laws.

“According to this article, freedom of belief is not absolute,” Mubarak said. “It means you’re not allowed to express such beliefs. This will create problems with Shi’as and Baha’is.”

Article 70 states that the freedom of the press, visual, audio and electronic publishing are guaranteed for all Egyptians. However, it adds that newspapers are created by notifying the authorities “in a manner organised by the law.” It adds that the law organises the establishment and ownership of video and audio broadcasts and electronic newspapers.

Legal Adviser for the Press Syndicate Sayed Abu Zeid said the article is worded in a “shiny” manner, but the content is devoid of meaning because it leaves too many things for organisation by the law.

Article 71 bans imprisonment for crimes related to publishing, yet leaves the punishment for crimes related to discrimination, defamation or inciting violence up to the laws.

Mubarak said: “I believe the only verbal crime that can be punishable by law is the direct incitement to violence.

“Hate crimes, on the other hand, should not be punishable by law.  The solution to facing hate speech should come through raising awareness and promoting tolerance.”

Abu Zeid also criticised the liberty given to the law in organising penalties for such crimes. He said this means that journalists can be jailed for such crimes, adding that this goes against media freedom.

Abu Zeid said the same applies to Article 67, which addresses freedom of creativity in a similar manner to Article 71, by stating that artists cannot be jailed for making their work public. However, it states that the law can organise the punishment that artists must face if they commit a crime related to inciting violence, discrimination among citizens or defamation.

It also states that the draft constitution preserves the right to artistic creativity. Article 72 states that the government is committed to guaranteeing the independence of state-run media, which would guarantee neutrality and the expression of all political orientations and opinions. Abu Zeid considers this a rather positive addition to the constitution. He said state-run media has always been under the control of the ruling party and this article may help prevent this. He added, however, that in reality, he does not expect the article to be implemented.

Among the problematic articles is article 73, which gives citizens the right to organise peaceful public assemblies, marches and protests after notifying the authorities, leaving the manner of notification up to the laws.

The newly-passed and highly controversial Protest Law states that a written prior notice must be submitted to security authorities at least three working days in advance. The law also gives the Minister of Interior or the concerned Security Director the right to cancel, move, or change the route of an assembly should they have intelligence or proof that the protest could “threaten peace and security”.

Mubarak described the notice, as stipulated by the law, as “permission”. He doubted that the Supreme Constitutional Court could rule the law unconstitutional based on the draft constitution.

Article 80 addresses children’s rights, and defines children as those under the age of 18.  It preserves the children’s right to free vaccination, health care, basic nurturing, safe haven, religious upbringing and intellectual development. It also preserves the rights of disabled children and stresses the state’s responsibility to protect children against violence, maltreatment and sexual and commercial abuse.

The article gives children the right to early education until they are six years old, bans child labour for those who have completed their basic education and from jobs which would endanger their lives.

Fady Wagdy, lawyer at the Egyptian Centre for Children’s Rights, praised the constitutional articles addressing children and said the Constituent Assembly complied with 80% of the centre’s demands regarding children’s rights. He added that the assembly adopted Article 80 as it was proposed by the centre.

Article 81 obliges the state to provide political asylum to any foreigners who have been oppressed due to defending people, human rights, peace or justice. It also bans handing over political asylum seekers, leaving the regulation of the process to the law.

“It’s a very well written article,” Mubarak said. “Yet crimes are practiced against Syrian refugees in Egypt every day.”

The draft constitution is to be officially submitted to Interim President Adly Mansour on Tuesday morning. A referendum on the constitution, once ratified by Mansour, is set to be held within weeks.


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