The 50-member Constituent Assembly tasked with amending the 2012 constitution began on Sunday voting on the draft constitution by passing draft articles in the rights and freedoms section.
The assembly’s spokesman Mohamed Salmawy held a press conference after Sunday’s first closed session to announce its outcomes. The sessions are held without media presence; only the 50 members of the assembly are allowed to attend. Backup members are not allowed to attend closed sessions.
The spokesman described the process of passing rights and freedoms articles as a “great prologue to this constitution”. He added that the articles which passed on Sunday will change the nature of interaction between the state and the citizens in the future.
The first article the assembly passed on Sunday is Article 37, concerned with human dignity. It states that dignity is a right for all which cannot be infringed upon; the state is responsible for respecting this right and guaranteeing it remains untouched.
Though short, the article represents a “quantum leap” in the constitution, Salmawy said. He described the article as an “honest translation of all that the 25 January and the 30 June revolutions represent and call for.”
The second half of Article 37 states that torture in all its forms is a crime not subject to a statute of limitation.
Salmawy said Article 37 is planned to be divided into two separate articles; one handling dignity and the other handling torture. The spokesman added that the assembly is adding a transitional article to define torture.
“Without a clear definition of torture, we might not be able to punish those who commit such crimes,” Salmawi said.
Emad Mubarak, director of the Association for Freedom of Thought and Expression, pointed out that the 1984 United Nations Convention against Torture clearly defines torture and should be a reference for any definition adopted by the Constituent Assembly.
Article 38, the third article passed on Sunday, discusses equality. It states that all citizens are equal in rights and duties before the law, banning discrimination based on religion, belief, sex, race, ethnicity, colour, language or disability. The Constituent Assembly added to the banned forms of discrimination: discrimination based on the geographical position, social status, political affiliation or any other reason. The article also states that discrimination or inciting hate are crimes punishable by law and mandated the state to take all measures to eliminate all forms of discrimination.
Mubarak criticised the criminalisation of inciting hate, describing the text as “disastrous”.
“Since the article lacks a clear definition of hate, I expect this article to be used in restricting freedom of expression,” Mubarak said. “It will mainly be used against religious minorities who could be accused of attacking Islam.”
Mubarak said he is against criminalising any form of speech unless it represents a “direct incitement to violence.” He said that the solution to facing hate speech should come through raising awareness and promoting tolerance.
Article 39, the fourth article the assembly passed on Sunday, deals with personal freedom. It states that personal freedom is preserved unless the citizen is caught red-handed. The article prohibits arresting, searching or detaining citizens without a court order which warrants an investigation. It states that the detainee should be immediately notified with the reason for his detention and allowed to contact his family and lawyer. It adds that the detainee should be referred to investigation within 24 hours of his arrest and should only be investigated or tried in the presence of his lawyer.
Mubarak said that 24 hours is too long of duration until the detainee is referred to investigation, calling for the immediate referral of detainees to investigation.
Approved articles should be sent back to the 10-member legal experts’ committee to revise their drafting and finalise them.
Salmawy meanwhile denied that the closed sessions are “secret sessions”, saying they are tape-recorded and all that is discussed is revealed to the public in press conferences which follow each session.
Mubarak, however, criticised the decision to vote on the constitution in closed sessions, asserting that such sessions can only be described as “secret sessions”, since the public is barred from seeing the discussions held over the articles before they pass.
“It is our right to witness transparency in the process of issuing the constitution,” Mubarak said. He added that though criticised for lack of transparency, the Constituent Assembly which passed the 2012 constitution was better than the current one in this matter, since the voting procedure was aired live.
Mubarak also criticised the unclear nature of the process of passing articles, which he confirmed was not through voting.
The assembly is expected to be done with the constitution in December.