Can Egypt’s Latest Lifeline Result in a Modern Constitution?

Sep 04, 2013

Dr. Khattab submitted a list of amendments to the committee of ten in charge of revising the constitution. Some of these suggested amendments are marked in this article with a *.

Egyptians have embarked on yet another battle in their fight for freedom—a fight they started when they took to the streets on January 25, 2011. This fight continued in battles on June 30 and July 26, 2013. A committee of ten experts appointed by the interim president Adly Mansour has proposed a host of amendments to Egypt’s 2012 constitution—a flawed constitution by all standards. The amendments will be further examined by a committee of 50 formed on September 1, 2013 through a mixture of appointment and elections before finally being put to referendum.

Axing around 37 articles, the new draft is free of empty rhetoric that carried no legal weight as well as provisions with heavy religious connotations that set the stage for an Islamist state. The amendments hover between the 1971 and 2012 constitutions, leaning more toward the latter without groundbreaking departures.

As the 2012 constitution was lacking vis-à-vis human rights, the following section provides some reflections on provisions related thereto:

The new draft marks a shift to restore the secular civil identity of the state but not much further than the 1971 constitution. The notorious article 219, which set the stage for clerics to overrule legislators, was not removed by the committee. Instead, experts deferred its removal to the larger committee. The amendments have nevertheless taken important steps:

  1. modifying article 4 on Al-Azhar to distance the religious institution from any legislative role.* Al-Azhar's independence is asserted by the removal of the clause obligating the state to finance the institution. However, the article is not placed under independent entities but rather left at the forefront of the constitution to indicate a prominent role of the religious institution;
  2. using constitutional provision to determine a crime or its punishment is removed, confining such determination to the penal code.* The removal will also limit the scope left to the discretion of a judge
  3. Reference to the role of society is also removed with regard to the family and women,* removing the possibility of a religious militia taking the law into their own hands;
  4. The 1971 prohibition of the establishment of religious parties is restored, but falls short of prohibiting parties with religious references
  5. Freedom of belief remains “protected” not “absolute” as was the case in the 1971 constitution. With a comma separating the two sentences, the state ensures the freedom to practice religions and facilitates the establishment of places of worship to the three “celestial faiths.”   

The 2012 constitution encompassed the error of dividing rights into three categories: personal, civic, and economic and social rights (overlooking cultural rights).* The amendments group all rights without any classification, which is acceptable considering that all rights are indivisible and interdependent. Reference to human rights as one of the pillars of the political system is paradoxically removed from article 6 and replaced by “the foundations of the constitution.” Nationality is no longer a right and moved from personal rights to article 7 in the first chapter on the State. Equal opportunities for all citizens are strengthened by the state commitment to ensure opportunities without discrimination. The state’s obligation to ensure citizens’ rights is strengthened in cases such as the deprivation of liberty.

Freedom of thought and movement remain unchanged, while freedom of innovation and scientific and artistic research is strengthened by state commitment to ensure it. Freedom of expression is conditioned by the fundamental foundations and values of society. A situation of emergency has replaced a state of mobilization as a condition that warrants censorship.

The right to equality and non-discrimination is much stronger than the 2012 text. The preamble is rights-based. It features equality as the first core value being “the basis for justice, freedom, social peace and the protection of citizens’ rights and freedoms against forms of discrimination that violate or limit the practice of such rights and freedoms.” Rule of law is the second core value, “to ensure that laws will not violate rights and freedoms considered as the first pre-requisite for a state based on the rule of law and as a basic guarantee to protect such rights and freedoms.” The operative section does not qualify equality as a right, which may impact certain groups such as women. Article 38 has restored the 1971 text that explicitly prohibits discrimination on the basis of sex, gender, religion, and belief. It even went further to harmonize the text with human rights agreements by adding “or any other ground.”* This unprecedented addition protects against any possible form of discrimination that may arise in the future.

Women are no longer dealt with solely under family issues. Article 11 in the 1971 constitution is restored with positive yet ambivalent modifications. The ceiling on women’s equality with men in the various fields of life is no longer confined within the restrictive and controversial “provisions” of shari’a but rather by the more flexible and agreed upon “principles of shari’a.” If adopted, this will mark a breakthrough in the constitutional status of women, notwithstanding it still does not fulfill women’s demands for equal rights. The article still implies that shari’a is against gender equality. It also indicates the tension between domestic “obligations” of women and their public “role.” It is significant to note that the state’s role in ensuring the protection of childhood and motherhood is placed before its commitment to ensure women's equality with men. More importantly, the article is void of the term “right” and is still placed under the Moral foundation of the State rather than under human rights. This article could consequently be interpreted as guaranteeing no rights for women. Women would then only be left with article 38 on equality and non-discrimination. Human trafficking is prohibited.*

A positive step is that the entities in charge of human rights such as the National Council on Human Rights, the National Council for Women, and the National Council for Childhood and Motherhood are given constitutional status as independent and monitoring bodies.* If adopted, this will mark a leap in the respect and implementation of human rights including those of women and children.

Despite some improvements, the constitution remains lagging behind the irreducible minimum on human rights. It still lacks a human rights approach, and does not prioritize human rights. The language of many provisions is still vague and outdated. It still contains provisions that constitute violations to human rights such as those allowing sequestration, nationalization, and child labor. Many rights and freedoms hinge on the regulation by law. It continues to limit the freedom of speech by allowing for deprivation of liberty. Dissolution of syndicates or parties and closures of media channels are also allowed.

Guarantees to human rights, the status and mandate of the Supreme Constitutional Court, and the independence of the judiciary are all restored to the provisions of the 1971 text. The mandate of the government headed by the prime minister is strengthened. The amendments, nevertheless, leave the president with wide authority.

The current national mood is very conducive to the elaboration of a constitution that echoes the achievements of Egyptians and the global movement of human rights. More importantly, Egyptians have been given a second lease on life with the opportunity to elaborate a civil constitution worthy of the country's heritage and diversity. However, the formulation of such a constitution might not materialize fully. Political rights still dominate public discourse and overshadow other rights. While economic issues are a pressing priority, the approach is still based on needs, not rights. This can be clearly seen in chapter one of the constitution. The same applies for social rights, where the rhetoric is that of charity, not of creating a social safety infrastructure. Cultural rights are not mentioned at all, but instead are mostly dealt with as part of the freedom of expression and the right to innovation. Among the dropped articles was establishing an Economic and Social Council. This is a forum that would have capitalized on Egypt’s growing civil society.

I have submitted a list of amendments to the committee of ten. The committee has publicized them through social media. Some suggestions were taken; some of them are marked in this article with a *, yet those related to the approach and language of the chapter on rights and freedoms were not as lucky. The current political situation may intimidate limiting the scope of amendments. The fickle Salafi Al-Nour Party has decided to join the committee of 50 after it declared its intent to push for maintaining the articles on shari’a. Its actual political leverage will be tested in this exercise amidst rising expectations of potential withdrawal. Egypt needs a more concise, yet effective constitution. The constitution should be forward-looking, leading the legislation into ensuring citizens’ rights. My concern is that some members of the larger committee are looking for details that belong in legislation not the constitution. 

I remain hopeful, however, to see Egypt governed by a new constitution commensurate with its diversity, heritage, and potential, not a patch work of two outdated documents. I remain hopeful that Egypt can one day be privileged by a constitution as liberal and liberating as that of South Africa, whose people also struggled for their freedoms. I remain hopeful that Egypt, too, will reap the fruit of its perils, and will one day boast a great constitution.

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The opinions expressed herein are those of the author and do not reflect those of the Wilson Center.

 

The list of nominees for Egypt's 50-member constitution committee to amend the suspended 2012 constitution is available here.

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