As a human rights activist since 2004, when a group of journalists and myself launched a non-governmental organisation from Geneva — the Press Emblem Campaign (PEC) — geared to defend journalists in conflicts zones, my eyes followed other rights organisations in the field, among them Article 19 based in London, for whom I hold a great deal of respect for its work and contribution in the field of freedom of opinion and expression. A few days ago a new report issued by Article 19 came to my attention, concerning the new Egyptian constitution. If you may allow me, I will share parts of the analysis with the readership of Al-Ahram Weekly without interfering in its flow. Article 19 noted that in October 2013 it analysed the Draft Proposed Amendments to the 2012 constitution, dated 20 August 2013 (Draft Constitution), in light of international standards on the right to freedom of expression and information. An expert committee prepared the draft constitution pursuant to Article 28 of the Constitutional Declaration dated 8 July 2013. It is now under consideration by the 50-Member Committee, which will present its own amendments in November 2013. Article 19 welcomes that the Draft Constitution includes positive references to a rights-based language throughout, including a dedicated Bill of Rights that sets out the right to freedom of expression and many important related rights. However, in almost every case, the scope afforded to each fundamental right, including the right to freedom of expression and information is too narrow. At the same time, there is a lack of guidance on how rights may be legitimately restricted to protect other rights, or collective interests, in compliance with international law. In several instances, fundamental rights are qualified in ambiguous terms that give the authorities substantial discretion and that may lead to abuse. Article 19 calls upon the 50-member committee to ensure that the constitution fully protects the right to freedom of expression and information and related rights. The recommendations that should be considered by the assembly are summarised below.
PREAMBLE: The preamble should stress as a priority the universality of human rights for all people, without limiting this on the basis of citizenship. This could include reference to the Universal Declaration of Human Rights and other instruments, such as the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights. Principle 7 of the preamble should be revised to reflect that while the right to express oneself freely in public is important, private expression is also protected. Principles 4-6 should be revised to make clear that national unity and security are not a condition for the enjoyment of human rights, but that these ends can only be achieved through respect for universal human rights. The preamble should not make the acceptance of the constitution, or a person's willingness to uphold it, conditional on religious faith or any other belief system.
STATUS OF INTERNATIONAL LAW: The constitution should include a dedicated provision on the status of international law. International law should have primacy over domestic law, with the exception of the constitution. Domestic law may not be invoked to justify violations of international law. The requirement that treaties infringing on “sovereignty” should be subject to referenda should be clarified, and this should not be an obstacle to the ratification of human rights instruments. Treaties should only be repealed, modified or suspended in the manner provided for in the treaties themselves.
RIGHT TO EQUALITY: The right to equality should be guaranteed to all people, regardless of citizenship status. All of the rights in the constitution should be guaranteed without distinction of any kind. The protected characteristics in Article 38 should be extended to include: national origin, race and colour, property, birth, political or other opinion, sexual orientation and gender identity. Articles 10 and 11 should be removed from the constitution because they promote harmful gender-based stereotypes. They should be replaced by a provision explicitly stating the obligation on the state to achieve the elimination of prejudices and customary and all other practices that are based on the idea of the inferiority or the superiority of either of the sexes, or on stereotyped roles for men and women, as per Article 5 of the Convention on the Elimination of Discrimination Against Women.
FREEDOM OF EXPRESSION AND OPINION: The title to Article 48 should reference both the right to freedom of opinion and the right to freedom of expression. The right to freedom of expression should encompass the right to seek, receive and impart information and ideas of all kinds, regardless of frontiers. Consideration should be given to specifying the right to freedom of expression through electronic and Internet-based modes of communication.
ACCESS TO INFORMATION: The right of access to information should be guaranteed to all people, regardless of citizenship status. The constitution should provide the positive obligation on public bodies to proactively disclose information and recognise the principle of maximum disclosure. The right of access to information should apply to all information held by public bodies, and also to private bodies where that information is required for the exercise or protection of any rights. Limitations on the right of access to information must comply with Article 19 (3) of the ICCPR, and limitations must be justified on the basis of “harm” and “public interest” tests.
PEACEFUL ASSEMBLY: Article 53 should protect the right to freedom of peaceful assembly, and references to “quiet” assemblies should be removed. The right to organise and participate in peaceful assemblies should be guaranteed. Article 53 should place a positive obligation on the state to facilitate the exercise of the right to freedom of peaceful assembly. The right to freedom of peaceful assembly should not be restricted on the basis of citizenship status. Restrictions on the right to freedom of peaceful assembly, including notification requirements, must comply with the three-part test under Article 22 of the ICCPR. The right to freedom of peaceful assembly in private does not require separate protection. The right to privacy should be protected comprehensively in a separate provision.
LIMITATIONS ON RIGHTS: The constitution should specify which rights cannot be qualified or limited, including the right to freedom of opinion, as protected by Article 19 (1) of the ICCPR. The constitution should provide guidance on the limitation of rights that are not absolute, and in relation to the right to freedom of expression and information, and the right to freedom of peaceful assembly, these should comply with Article 19 (3) of the ICCPR and Article 22 respectively.
MEDIA FREEDOM: The new constitution should provide explicit protection for freedom of the media and specifically protect the following elements of media freedom: There should be no prior censorship. There should be no licensing or registration system for print media. There should be no licensing of individual journalists or entry requirements for practising the profession. The independence of all bodies with regulatory powers over the media, including governing bodies of public media, should be guaranteed. The right of journalists to protect their confidential sources of information should be guaranteed. Journalists should be free to associate in professional bodies of their choice. In a nutshell (and now I go back to my own words), this is how others who have a long-standing record of contributing to the positive protection of human rights view with hope the upcoming Egyptian constitution. I join the prestigious NGO Article 19 in hoping that the 50-member committee will take these recommendations seriously.
