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The Carter Center encourages Egyptians to initiate an inclusive political dialogue and to consider future amendments to the constitution to strengthen the core principles of democratic governance and bring the constitution better into alignment with Egypt's international political and human rights obligations.
In particular, the Center urges consideration of amendments to strengthen the enforcement of human rights protections, the transparent exercise of public authority, the balance of powers, and political and institutional processes that hold the Supreme Council of Armed Forces and judiciary accountable to the people.
On Jan. 14-15, 2014, Egyptians voted in a referendum to approve their second constitution in little more than a year. While the referendum results indicated that a significant part of the population supports the military-backed transition toward an elected civilian government, the short constitution-drafting period and lack of broad participation was a missed opportunity for Egyptians to build consensus on a shared vision of a democratic future.
The 2014 constitution contains key advances, including steps to bolster human rights protections. However, respect for key rights is undermined by provisions that formalize extraordinary privileges for the Supreme Council of the Armed Forces and the judiciary. The constitution also leaves many critical decisions to the House of Representatives, which will be elected later this year. A strong pluralistic party system that allows genuine debate in the House of Representatives will be necessary to ensure appropriate balance between the executive and legislative branches. Debate should be driven by mutual respect, especially given the requirement of a two-thirds majority in the House of Representatives for legislation affecting rights and freedoms and a referendum for all constitutional amendments.
Open public dialogue is crucial to transcend the ideological divides that separate Egyptians. Unfortunately, the constitution-drafting process served to deepen these divides rather than heal them. The referendum took place in an environment that already threatened many of the constitution's key tenets. Arrests of regime critics and of journalists have become widespread, and drafting took place in the shadow of a violent crackdown by security forces that left more than one thousand dead.
In a spirit of respect and good will, The Carter Center offers the following recommendations for possible constitutional amendments to the president and legislature in the hope that Egyptians will work together to build a common vision of the future.
- Responsibility to uphold the constitution. Constitutional provisions should be considered to bind public authorities at all levels of government, including judges and the armed forces, to uphold the constitution.
- Stronger protection of fundamental rights and freedoms. New provisions should be considered to protect core rights, including but not limited to the right to life, human dignity, freedom from torture, and the right to a fair trial. Consideration also should be given to the inclusion of the principle of proportionality as means of regulating rights and freedoms. A proportionality test provides courts a coherent framework to guide their rulings on the constitutionality of legislation and administrative decisions, including that 1) the state pursues a legitimate public aim; 2) chooses an approach capable of achieving this aim; 3) that it impairs the right in question as little as possible; and 4) that the positive effects for society outweigh the negative impact on a right or freedom. The current requirement of a two-thirds majority of the members of the House of Representatives to pass laws regarding fundamental rights might prove difficult in practice. Steps also should be taken to strengthen the independence and powers of the National Council for Human Rights to make it a more effective champion of rights and freedoms. Consideration should be given to defining the composition and powers of the council in the constitution, requiring public authorities to monitor and regularly report on the status of human rights protection in their areas of competence, and restoring the duty of the House of Representatives to address shortcomings within a prescribed period.
- Ensuring press freedom. The Center recommends that efforts be made to securing greater media freedoms, including the consideration of amendments that clearly define the authority of the Supreme Council for the Regulation of the Media so as to prevent its overreach and rescind the requirement of newspapers to notify the government before publication. Any limitations on media freedoms should be subject to proportionality analysis.
- Limitation of states of emergency and military trials. Authorities should take steps to protect against the abuse of states of emergency, including consideration of an amendment that would more clearly specify reasons to justify a state of emergency, define the measures that may be imposed, and guard certain rights and freedoms from being restricted when one is in effect. Given Egypt's history, the Center recommends banning the use of military trials for civilians, even in states of emergency, unless strict limits and conditions are defined to ensure independent trials, due process, and transparency.
- Civilian oversight of the armed forces. Civilian authority over the military is an essential feature of democratic societies. To this end, it is important that Egyptians consider amendments to make the armed forces subject to the authority of elected civilian bodies and to regulate the competencies of the Supreme Council of the Armed Forces. To ensure greater transparency and accountability, amendments should be considered to enable the House of Representatives to discuss the armed forces' budget and details of military expenditure included in the annual budget.
- Access to the Supreme Constitutional Court. Stronger protection of key rights could be ensured by allowing citizens to have a constitutional right to access the Supreme Constitutional Court once they have exhausted all other legal remedies. Provisions could be added to allow legislators and the executive to challenge directly in court the constitutional validity of a legislative proposal, decision, or law (abstract judicial review). Members of the House of Representatives could be enabled to challenge the validity of the annual budget law if constitutionally mandated shares of the GNP are not spent on health care (Article 18), education (Article 19), university education (Article 21), and research (Article 22).
- Accountability of the Supreme Constitutional Court. To provide greater accountability, consideration should be given to the selection process for Supreme Constitutional Court members, so that the body does not choose its own members or determine its size.
- Women's representation. Consistent with international obligations and the constitution's intent to improve the representation of women in the legislature, provisions should be considered to ensure that at least 30 percent of seats in the parliament are held by women. This could be achieved through the use of quotas, measures to promote the increased participation of female independent candidates, or amendments to the electoral system that ensure women are elected (e.g. the use of zippered party lists).
- Stronger local democracy. Provisions should be considered to grant locally elected representatives greater legislative authority and resources to develop local government under the supervision of the central government.
- Ongoing legislative review. As a means to promote regular review, a special legislative committee or permanent independent law commission should be convened to continuously review Egyptian laws and regulations with a view to their compatibility with constitutionally guaranteed rights and freedoms.
- Simplification of the constitutional amendment process. Going forward, consideration should be given to removing the requirement of a referendum for all constitutional amendments (Article 226) in order to enable a simpler path to constitutional reform.
Background on The Carter Center in Egypt. The Carter Center has deployed election witnesses for most of Egypt's recent electoral processes, including the 2011-2012 parliamentary elections and the 2012 presidential elections. For the 2013-2014 constitutional referendum process, the Center deployed a small expert mission focusing on the broader legal and political context of the ongoing transition. The Center requested, and the Supreme Commission for Elections approved, accreditations for a maximum of 10 international witnesses to carry out this work. The Center did not witness voting procedures on referendum days. The Carter Center's electoral assessment and observation activities around the world are implemented in accordance with the Declaration of Principles for International Election Observation, which establishes guidelines for professional and impartial election observation.
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"Waging Peace. Fighting Disease. Building Hope." A not-for-profit, nongovernmental organization, The Carter Center has helped to improve life for people in more than 70 countries by resolving conflicts; advancing democracy, human rights, and economic opportunity; preventing diseases; and improving mental health care. The Carter Center was founded in 1982 by former U.S. President Jimmy Carter and his wife, Rosalynn, in partnership with Emory University, to advance peace and health worldwide. Please visit www.cartercenter.org to learn more about The Carter Center.
Translations
مركز كارتر يحث على الحوار والتغيير الدستوري لتعزيز الحكم الديمق ا رطي في مصر
