• April 5, 2007
  • 8 minutes read

Constitutional Amendments at the Expense of Civil Liberties

Constitutional Amendments at the Expense of Civil Liberties

A referendum was held in Egypt to decide on constitutional amendments to bolster the campaign against terrorism and ban the formation of religious parties. In this interview with Mahmoud Tawfik, Hafez Abu Saada, secretary-general of the Egyptian Organization for Human Rights, talked about this issue

According to official statements at any rate, Egypt has voted for the constitutional amendments, specifically 34 articles which are now to be rewritten. What is your view on this?

Hafez Abu Saada: What most disappointed us as a human rights organization were the amendments to Article 179. Whatever you think about the other amendments, the changes to Article 179 represent a significant restriction to civil liberties anchored elsewhere in the constitution, to personal freedom, the right to private space, postal secrecy; these are the civil liberties enshrined in Articles 41, 44 and 45.

According to the government everything is to happen under judicial supervision, but based on our experience of the emergency laws we have every reason to doubt these legislative guarantees. For this reason we are disappointed.

You were not the only people who were disappointed; so were a large section of the political opposition. Their reaction was to call for a boycott of the referendum in which the constitutional amendments were to be sanctioned. Do you consider that an intelligent move?

Abu Saada: No, I take a different view. One of Egypt’s problems is that public participation in political life is already minimal. So I am amazed that all these people have been calling for a boycott of the referendum. The thing to do would have been to ask people to vote “no” – naturally I’m speaking here from the point of view of the opposition, not the human rights organization.

For me that would have been a position which boosted participation in political life, because in another context they will soon be needing to encourage the people to come back to the ballot box, whether it’s to vote for the parliament or for the upper house, and in this light we see it as highly important that people become politically active, rather than boycotting political life.

Returning to the anti-terror measures… what exactly do you find so bad about them? In countries such as Germany or the USA there are also well thought-out anti-terror laws. And isn’t it a positive step when in contrast to what was announced, the emergency legislation will no longer apply?

Abu Saada: The emergency laws are essentially more wide-reaching, and that is also the argument put forward in this context; that the emergency laws do not apply to a concrete offence whereas the new constitutional amendments do apply to concrete elements of an offence. But our experience in these matters suggests that this will also basically just mean that the security forces have free reign under the guise of combating terror.

Under the emergency legislation people initially condemned are often subsequently acquitted because a higher court has proved that they were simply framed for the crime. We can expect exactly the same scenario when the anti-terror laws are applied; evidence will be faked in order to drag people in front of courts and incarcerate them, under the pretext of fighting terrorism.

In other words it is possible the deployment of the terror laws will also affect people who are not involved in it, even if only during the phase of collecting information and investigating. The most dangerous thing however is that as part of these constitutional amendments suspects can also be tried by a special tribunal. You might well ask what is going on here, if the purpose was ostensibly to create an urgently-need legislative framework for the fight against terrorism. Why are these suspects not to be tried by a normal court, so that we can be sure these legislative guarantees, of which there is so much talk, are really being put into practice?

Another controversial amendment to the constitution – at least in the view of the Egyptian Muslim Brotherhood – is the addition to the Fifth Article of the constitution clearly banning all political activity with a religious background, as well as the ban on forming political parties which would fit this mould…

Abu Saada: …On this issue we disagree with some elements of the opposition, sadly from our perspective we can only support this addition. We think that there should be no parties with a religious basis. It is a matter of debate whether this ban should extend to all forms of political activity however; that is going too far, as we see it.

Now there are also several politically explosive amendments, for instance the amendment to the article concerning the election of the Egyptian president. This article, the 76th, has already been changed, around two years ago, accompanied by heavy criticism from the opposition. At any rate exemption clauses were added to the amendments which could finally have lead to the first free presidential elections ever seen in the country. Now the same article has been re-written again, and this time too there are exemption clauses…

Abu Saada: As for the amendments to this article, they have turned out to be partly positive, partly negative. On the one hand the conditions a party must fulfil to put a candidate up for president have been slightly relaxed; previously it was 5 % of the seats in parliament, now it is only 3 %. Then an exemption clause was added similar to that added when this article was first amended. Even this only extends to the period of the next ten years, as long as a party gets at least one member of parliament in each of the two houses. At the end of this ten-year period the 3 % hurdle then applies.

Essentially an improvement?

Abu Saada: The reworked article excludes independent candidates from the presidential elections de facto, because it tightens the conditions required when standing for election. Personally of course I would have liked it to be somewhat different, but according to the government it is intended to strengthen the role of the parties in politics, and I can accept this argument. We can at least assume that in the coming presidential elections there will be more different candidates.

The other article which has caused indignation amongst many people is Article 88, which is about the supervision of elections by an independent authority, the Egyptian judiciary. According to the amendment it is however no longer necessary that there be one judge for each polling station to ensure that everything runs smoothly. For many people this is a clear sign that in the future there will once again be increased election fraud.

Abu Saada: This constitutional amendment was justified by the fact that the number of judges does not allow each polling station to be covered, and that is genuinely true, particularly as the government insists that elections may not be spread over several days.

Despite this we are of the view that in that case a better compromise could have been found. Like most human rights organizations we see it as extremely important, now just as previously, that elections take place under judicial supervision, because this has greatly increased the citizens’ trust in the election process in the past and ultimately led to the participation by more people in elections.