GENEVA (30 November 2012) – The UN High Commissioner for Human Rights Navi Pillay has urged the President of Egypt, Mohamed Morsi, to reconsider the Constitutional Declaration issued last week, saying a number of measures contained in it are incompatible with international human rights law. She further warned that approving a constitution in these circumstances could be a deeply divisive move.
Pillay welcomed the efforts to reach out to the judiciary and political parties, but said they were “not yet sufficient” to prevent Egypt reneging on binding principles laid down in the two overarching international human rights treaties – the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights -- which Egypt ratified in 1982.
“The three slogans of the Egyptian Revolution, were liberty, freedom and social justice,” she said Friday. “These same principles underlie all international human rights law, including both Covenants. In order for them to be achieved, there need to be prompt, effective and impartial investigations, truth-seeking processes, judicial accountability mechanisms, and reparation programmes, as well as a strengthening of institutional reform and guaranteeing of non-recurrence of the violations that were rampant during the Mubarak era.”
In a letter addressed to the Egyptian President on Tuesday, the High Commissioner noted the efforts made so far, since the successful May-June elections, “in combating human rights violations, countering impunity and ensuring transparency and accountability at all levels.”
She outlined the areas where the Constitutional Declaration opens the door to violations of the International Covenant on Civil and Political Rights, in particular the right to effective remedy, access to justice as well as the guarantees for the independence of the judiciary.
• Article I of the Constitutional Declaration, provides for the re-trial of ‘anyone who held a political or executive position under the former regime.’
“I understand the need to address past human rights violations and the public dissatisfaction,” Pillay said, but pointed out that Article 14, paragraph 7 of the Covenant stipulates that ‘no one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.’
• Article II of the Constitutional Declaration prohibits any legal challenge to any ‘previous constitutional declarations, laws, and decrees made by the president since he took office on 30 June 2012, until the constitution is approved and a new People’s Assembly is elected.’
“In my view, this provision contravenes the fundamental notion of the rule of law by placing the President’s actions outside judicial scrutiny, and not permitting any legal challenge, irrespective of its substance,” Pillay said. “This encroachment on the role of the judiciary in a democratic society is inconsistent with Article 14, paragraph 1 of the Covenant that guarantees the independence of the judiciary.”
• Article II of the Constitutional Declaration also annuls all lawsuits presently before the courts relating to ‘previous constitutional declarations, laws, and decrees made by the president since he took office on 30 June 2012.’
“Denying access to the courts to those who may wish to legally challenge presidential actions is contrary to Article 2, paragraph 3 of the Covenant,” Pillay said, noting that paragraph 3 stipulates that a State Party to the Covenant ‘undertakes to ensure that any person, whose rights or freedoms as herein recognized are violated, shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity.’
• Article V of the Constitutional Declaration states that ‘no judicial body can dissolve the Shura Council or the Constituent Assembly.’
“This is incompatible with the principle of the independence of the judiciary, as well as with Article 2 of the Covenant, which affirms the right to an effective remedy including in the context of elections,” Pillay said.
The High Commissioner also commented on concerns about the composition of the Constituent Assembly, noting that “Any proper constitution-making process must include adequate representation of the full political spectrum, men and women, minorities, and civil society, which was not seen to be the case with this Constituent Assembly.”
She expressed concerns about the unfolding events in Egypt and warned against taking divisive measures such as adopting a Constitution that may lead to further escalation and tension.
In her letter to the President, Pillay stressed that she fully understood the difficult challenges the Egyptian President is facing, but urged him to reconsider the Declaration so that the various problems it was designed to address can be confronted by measures that are “in conformity with international human rights principles.”
“It is within the legal prerogatives and political responsibility of President Morsi to address these concerns in conformity with international human rights principles,” she said.