The amendments will undermine the Egyptian judiciary's dwindling independence and expand the military's power to intervene in political life.
This statement was originally published on hrw.org on 20 April 2019.
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.