An Appraisal of the New Egyptian Constitution
Mohammad Akram Sheikh (Senior Advocate SC)
Monday, January 14, 2013
On Saturday, 22nd of December, 2012, the Sovereign People of Egypt voted and passed a new Constitution for themselves by way of a referendum held between the 15th and the 22nd of December, 2012. This Constitution, prepared by a constituent assembly assembled by the first democratically-elected Parliament in over three decades, is yet another signifier of Egypt’s transition from authoritarian rule under Hosni Mubarak to a contemporary representative democracy; in the wake of the Arab Spring and its sweeping wave of activism and grassroots politics the new Egyptian Constitution thus represents a significant milestone in the growth and evolution of democratic practices in the Middle East.
Arising out of the Arab Spring this new Constitution has received different comments from various quarters, among them an editorial piece prepared by the New York Times describing this Document as a “Flawed Constitution.” This comes across as a rather scathing indictment of the nascent Constitution, one that is particularly striking in light of the document having been approved by 64% of the Egyptian populace, in a country that has sacrificed so much in recent years to achieve a democratic regime. Considering that such criticism of what – prima facie – appears to be a success-story in democratic processes is remarkable, this paper intends to examine the concerns raised by the New York Times’ editorial and to provide some context for the ‘issues’ it seems to raise.
The Process Behind the New Constitution:
The editorial makes some note of the fact that though the referendum validating Egypt’s new Constitution passed with almost 64% of the vote voter turnout itself was fairly low at about 33% of the eligible voting populace. Following through with some simple calculations it becomes apparent that only 21% of all those eligible to participate in the referendum actually voted in support of the new Constitution, a number which – as the New York Times points out – is on the lower end of the scale. That said however, it is important to note that, unlike Australia for instance, Egypt does not have mandatory voting laws; following the ousting of Hosni Mubarak the Egyptian people are free to vote either way or, conversely, to choose to refrain from voting entirely. This is a significant point in itself; while it could, as the New York Times describes it, be attributed to voter apathy or “disgust,” at what is perceived to be a flawed political process the very fact that the current Parliament – and the Constituent Assembly so convened – are the result of legitimate democratic processes paints a very different picture.
Even immediately after the events of the Arab Spring, when the fervor for reasserting democratic processes was at its peak, voter turnout in the Egyptian Parliamentary elections did not reach higher than about 54% across all three phases of the elections. By contrast, the 2012 Presidential elections for the United States, a country which has enjoyed over a century of stable, democratic elections, had a voter turnout of just under 54%. This was in spite of the fact that the election was a deeply polarizing one, one in which constituencies such as the Black and Hispanic populations which had – historically – tended to be more cautious in voting, had participated more fully. If one of the ‘healthier’ democracies in the world could not push past 54% in what was, by all rights, a hotly contested election it comes across as a tad unfair for Egypt’s 21% referendum turnout to be indicative of voter “disgust.”
Democratic processes, as history has shown, require a great deal of time and economic stability to take root in the collective civic sense of a country. Egypt has – in the past hundred years – experienced tremendous political upheavals: from being a colony, to joining with what is now Syria to become a separate sovereign entity [the “United Arab Republic”], to experiencing thirty years of dictatorial rule, which ended in a completely novel political movement; expecting the same sophistication of democratic praxis from a country like that in its first democratic endeavor in decades seems to come across as slightly Anglocentric.
The editorial makes several references to “Islamism”: that the Constitution is “Islamist-backed” and the government “Islamist-dominated.” It seems peculiar for the New York Times to be so concerned for Islam being an influencing factor on the democratic processes of Egypt. 90% of Egypt’s population is Muslim – with the majority adherents of Sunni Islam; the remaining 10% are split between adherents of the Coptic Orthodox Church of Alexandria [9%] and other Christian denominations [~1%].1 Furthermore, a 2007 report by the US State Department lists the number of Baha’is as around 2,000 and the Jewish community numbers at fewer than 200 persons. Contrary to the New York Times’ alarm at an “Islamist” Constitution, it would have been far more striking had the Egyptian people’s legitimate democratic outcomes led to a constitutional document absent of any Islamic undertones.
This last is not at all a defense of majoritarianism, on that front one can immediately refer to the treatment of African-Americans prior to the Civil Rights Movement in the US as an example of the suffering majoritarianism causes, merely an unadorned description of the facts. Having suffered through thirty years of dictatorial rule, not to mention colonialism not long before that, the Egyptian people finally exercised their long-overdue and well-earned right to vote. This was a right they fought tooth-and-nail to win back, and was exercised in the first set of democratic elections in essentially a generation; for an external observer to critique it because the outcome wasn’t to its liking comes across as paternalistic. To reiterate, the referendum validating the Constitution – and the Constitution itself – are both products of the Egyptian people exercising a right much of “the West” takes for granted; for the latter to criticize the outcome based on a perceived ideological difference smacks of First-World privilege.
Even setting aside the problematic nature of the term “Islamist” and its potential for polemic in the vein of Huntington, it still seems that fears of the rise of “Islamism” in Egypt are exaggerated. The courts, operating to effect justice within the State, act as counter-majoritarian influences and often serve to foil the efforts of a majority in suppressing the rights of minorities. To cite an example, in 2008 California proposed an amendment to its constitution which barred same-sex marriages and provided that “only marriage between a man and a woman is valid or recognized in California.” Popularly known as “Proposition 8,” this amendment was successful in the Californian legislature and, when put to a referendum, was validated by a vote of over 52% in favor of the amendment. However, when the amendment was challenged in Federal District Court in Perry v. Schwarzenegger it was determined to violate the Due Process and Equal Protection clauses of the US constitution. This decision was confirmed in Perry v. Brown, with the Ninth Circuit Court of Appeals affirming the District Court’s decision in Perry v. Schwarzenegger and the matter is now pending before the US Supreme Court in Hollingsworth v. Perry to be determined this year.
Despite Egypt being a Muslim-majority State – not to mention the apparently ever-present fear of “Islamists” rail-roading the political process – the Egyptian courts have done their due-diligence in ensuring that the preparation of the Constitution was not subverted. On the 10th of April, 2012 the Egyptian Administrative Court determined that the First Constituent Assembly was unconstitutional and ordered it dissolved. The Court’s decisions were hailed by representatives of civil rights groups who were of the opinion that the first Assembly was “was totally unrepresentative of Egyptian society, not only women but students, workers and peasants.”
Going further, though Islamic conservatives such as the Muslim Brotherhood who formed a part of the Egyptian Parliament and the Constituent Assembly may, ideologically, prioritize their faith above national goals but in doing so they risk alienating themselves from popular support. The Arab Spring brought to the forefront of Egyptian politics a new form of polity, one that is educated, worldly, egalitarian and – increasingly importantly – tech-savvy. Though the Brotherhood – long banned from the halls of power – may now be in a position to exert political influence it cannot do so without making concessions to ecumenicism; to do otherwise would risk them alienating a broader spectrum of Egyptian society – Muslim or otherwise. Furthermore, and interestingly enough, the Brotherhood doesn’t wield influence in Al-Azhar University, the oldest Islamic educational institution; though they may have gained a majority in the legislature the Brotherhood is not the final arbiter on what constitutes Islamic tenets and any assertions to the contrary are likely to be met with criticism from an institution which is highly influential in the Islamic religious context.
The New Constitution:
The new Constitution is a tangible example of Egypt’s break from its dictatorial past, representing the will of the Egyptian people as expressed through their democratically elected representatives. While Egypt is a Muslim-majority State the fears of “Islamism” appear to be exaggerated; much of the original text of the previous constitution has been incorporated into the new document, therefore this paper will focus on the instances of divergence between the two texts and attempt a comparative analysis thereof. In this, and the proceeding sections, this paper will also seek to go beyond the concerns raised in the New York Times’ editorial in examining the broader issues surrounding faith, civil liberties and their intersection within the new Egyptian Constitution.
Right at the outset the Constitution establishes that while the document may be the product of a Muslim-majority Constituent Assembly, the overarching governing principle is democracy:
The people are the source of all authorities. Authorities are instituted by and derive their legitimacy from the people, and are subject to the people’s will. The responsibilities and competencies of authorities are a duty to bear, not a privilege or a source of immunity. [clause one of the Preamble]
And, Sovereignty is for the people alone and they are the source of authority. The people shall exercise and protect this sovereignty, and safeguard national unity in the manner specified in the Constitution. [article 5]
A cursory reading of this, one of which is the first among the preambulatory clauses of the document, establishes sovereignty with ‘the People’ rather than with Allah, or indeed any other deity. By way of contrast is the Pakistani constitution which, in its preambulatory clauses begins with:
Whereas sovereignty over the entire Universe belongs to Almighty Allah alone and authority to be exercised by the people of Pakistan within the limits prescribed by Him is a sacred trust…
Setting aside any creative interpretative gymnastics, it becomes clear that the Pakistani text is overtly – arguably aggressively – Islamic in nature; the Egyptian text begins by vesting power with the People, the Pakistani text with the Islamic perception of the Abrahamic, monotheistic deity. The latter text may be unproblematic for a Muslim but for non-Muslim Pakistanis such language may well operate to alienate them from a constitution which should, rightly, be theirs as well.
Article 2 of the Constitution establishes Islam as the State religion and the “principles of Sharia” as the main source of legislation – language mirrored in the previous constitution. This has been a cause for concern for many but the censure this article has attracted is – arguably – largely unjustified. Even discounting overtly religious States such as Pakistan, or their constitutions, there are still examples of functioning, healthy democracies which share this State religiosity. The Greek constitution establishes the Eastern Orthodox Church of Christ as the State religion [article 3.1] and allows for the seizure or prohibition of publications in the case of “an offence against the Christian [sic] or any other known religion…” [article 14.3.a]. The Italian legal framework, emerging out of a historical context where a strong dominant religion intersected with weak State institutions, is another example of the role one particular faith – in Italy’s case Roman Catholicism – plays in the establishment and operation of a legal system. In Italy the civil law principle of laicità operates not to “imply the State’s indifference towards religions but rather the State’s guarantee for safeguard of religious freedom in a regime of confessional and cultural pluralism.”
Furthermore, though by stating that Sharia is the principle source of legislation the provision may be construed as being constricting in nature, restricting the legislature, the fact that Sharia has been declared the primary source allows for the interpretative argument that other sources have not been excluded.
The current text includes a new article, 219, which states:
The principles of Islamic Sharia include general evidence, foundational rules, rules of jurisprudence, and credible sources accepted in Sunni doctrines and by the larger community.
And article 4, which states:
Al-Azhar is an encompassing independent Islamic institution… responsible for preaching Islam, theology and the Arabic language in Egypt… Al-Azhar Senior Scholars are to be consulted in matters pertaining to Islamic law.
These two articles represent an interesting intersection between academia and politics; Al-Azhar is a renowned institution of Islamic higher learning and is immensely influential in religious matters. However, as noted earlier, the Muslim Brotherhood – while occupying a majority of the legislative and constituent bodies – has no influence over the institution, whose academics are obliged to determine points of religious law in accordance with the tenets of Sharia. This serves as an added check on legislative abuse; though, as per article 2, the “principles of Sharia” are considered to be the source of legislation these principles aren’t being determined – at whim – by a political entity. While at first blush these articles, when read with article 2, come across as overbearingly Islamic in nature it needs to be understood that, as per article 3:
The canon principles of Egyptian Christians and Jews are the main source of legislation for their personal status laws, religious affairs, and the selection of their spiritual leaders.
Considering that Christians make up the second-largest denomination after Muslims in Egypt and taking a broader, more holistic view of the text it becomes clear that, rather than marginalize religious minorities the Constitution seeks to provide the various constituencies with their own legal space within which to operate. Rather than have the Sharia or the Halakha apply universally the various Abrahamic faiths provide the grundnorm for legislation pertaining to their communities respectively. This is, however, an area of concern; the Egyptian Constitution leaves very little space for adherents of faiths other than the three Abrahamic ones. This is compounded by article 43 which provides:
Freedom of belief is an inviolable right.
The State shall guarantee the freedom to practice religious rites and to establish places of worship for the divine religions, as regulated by law. [emphasis added]
In the text the term “divine religions” is used to refer to the three Abrahamic faiths, a fact emphasized by article 44 which prohibits the “abuse of all religious messengers and prophets”; this leaves non-adherents in a difficult position with regards to their relation with the Egyptian politico-legal system. This is particularly true of members of the Baha’i faith who, according to some reports, number almost 2,000.10 Furthermore, though the constitutional reliance upon the Al-Azhar University for direction in matters of religious law could potentially serve to restrain legislative excesses this check is, nonetheless, a very Muslim one and one which could leave non-Muslims uncomfortable. While the Islamic or Abrahamic tenor of the text may be understandable given the demographic and socio-cultural context of Egypt, the protection of religious freedoms of adherents of faiths other than these needs to be considered and, going forward, the Morsi government must ensure that their rights are constitutionally effected as well.
The Constitution goes on prohibit discrimination [articles 9 and 33] and protect freedom of “thought,” “opinion” and expression [article 45]; and “creativity.” [article 46]. The text also places a high value on human dignity, providing protections thereof in articles 31, 36 and 37, in addition to repeated references in the preambulatory clauses and the responsibilities of the police [article 199]. While discussing women and their treatment under the new constitutional regime the Constitution makes provisions for free maternal and natal care as well as welfare services for female professionals, widows and divorcées [article 10] and while it doesn’t make explicit mention of anti-discrimination protections for women it can be argued that this is more in the way of a nod towards greater tolerance and recognition of trans- and alternate-gendered individuals rather than a more fundamentalist, patriarchal oversight.
Still, given the androcentric reputation the Muslim Brotherhood has historically enjoyed – and arguably still enjoys – the Morsi government, just as in the case of the rights of adherents of faiths other than the Abrahamic ones, needs to ensure that the Brotherhood’s past reputation does not taint Egypt’s new constitutional legacy. The Muslim Brotherhood has, for decades, enjoyed a relative lack of political responsibility; as part of the opposition – that too only in name as it was a banned organization at the time – in a dictatorial regime there was little it could do beyond rely on rhetorical devices and passionate demagoguery. Now that it has gained a majority in the legislative and constituent assemblies it must unlearn long-held practices and modes of thinking and successfully fulfill the role as a part of the government itself.
There is, however, hope that this may prove the case; the Arab Spring and the political revolution which ousted Mubarak was brought about by grassroots activism, something the Muslim Brotherhood had proved quite adept at due to its years as a member of the political periphery, its populist religious appeal and its emphasis on social welfare. This integrating, bottom-up approach to contesting political power meshed well with the socially-weighted role that women in Egypt play, drawing them to the movement to oust Mubarak and – by extension – to the Brotherhood itself. If the Brotherhood manages to retain the lessons it has learned from the Arab Spring then the more inclusivist, LGBT-friendly interpretation of article 30’s lack of specific reference to women might potentially be the more likely one.
Article 198 of the Constitution has raised concerns in certain quarters; the article, part of which is reproduced below, provides that:
Civilians shall not stand trial before military courts except for crimes that harm the Armed Forces. The law shall define such crimes and determine the other competencies of the Military Judiciary.
This provision proves uncomfortable in light of the relationship between the military and the civilian government in Egypt’s history. Given that context, it is feared that the military – which has always been politically strong in Egypt – may crack down on criticism by responding with the threat – or use – of these military tribunals. Once again, however, such a piece of legislation can be found operating within an – ostensibly – healthy democracy. The National Defense Authorization Act [NDAA] for the Fiscal Year 2013 is currently before Congress for debate; its predecessor – the NDAA 2012 – contained provisions which go beyond the pale of those in the Egyptian text.
The NDAA 2012 incorporates provisions which ‘allow’ US military personnel to detain – among others – “any person who has committed a belligerent act or… directly supported [hostilities in response to the US invasion of Iraq or Afghanistan] in aid of [Iraqi or Afghan resistance]” [section 1021(a), (b)(2)]. The NDAA also allows for indefinite detention without trial, trial before a military tribunal according to military court procedures or transfer to any foreign country [section 1021(c)(1), (2), (4)]. The language of article 198 of the new Egyptian Constitution seems timid in comparison to that of the NDAA, and it is important to note that despite the provisions of the NDAA have existed since 2001 – earlier in the form of the Authorization for Use of Military Force [AUMF] of 2001. Nonetheless, the US still operates as a civilian-run representative democracy with civilian members of the judiciary trying cases. While the phrasing of article 198 of the Constitution leaves open the potential for abuse – potential which should be curtailed by legislation as soon as possible – it is arguably not as egregious a violation of the principles of justice as it has been characterized.
A welcome change to the Egyptian constitutional framework is the reduction of presidential term lengths – from six to four – and limitation of a president to a maximum of two terms – down from infinite [article 226]. Of slightly more concern, however, is the ban imposed on senior members of the now-banned former-ruling National Democratic Party. As per article 232 this ban prevents these individuals from engaging in “political work” and from running for presidential or legislative elections for a period of 10 years following the ratification of the Constitution. Not only does this raise concerns of a possible political witch-hunt but it also brings to mind the ousting of the Ba’ath party from the Iraqi political context. Following the removal from power of Saddam Hussein and his government the Coalition Provisional Authority’s [CPA] first policy formulation was CPA Order 1, the “De-Ba’athification of Iraqi Society.” Through this Order, and subsequent ones, the Coalition Authorities sought to remove every member of the Iraqi Ba’ath party from governmental office; this, however, had the unfortunate after-effect of dismissing a significant section of Iraqi public sector employees – many of whom had joined the Ba’ath party to keep their jobs. Admission into the party was a prerequisite for many governmental positions and the “De-Ba’athification” of the Iraqi government forced much of the skilled public labor force – including schoolteachers, doctors and technical staff – out of work and denied them governmental financial assistance. This had the effect of dramatically raising the Iraqi unemployment rate, crippling the State’s infrastructures and capacity to provide services to its citizens and – arguably – escalating and contributing to insurgent efforts in the country.13 Egypt’s rendering of the National Democratic Party – and its members – into political non-persons has the sobering potential to mirror the De-Ba’athification efforts in Iraq and going forward Egypt would be best served taking to heart the lessons the CPA learned after the ousting of the Hussein regime.
Conformity with the International Human Rights Law:
Egypt is signatory to almost all significant International Humanitarian treaties though it has, on occasion, made reservations to the same while signing or ratifying them.14 The same holds true even under the contemporary constitutional regime, with the text adhering to the same humanitarian standards as its predecessor and, in certain specific articles, going further even than that. A formal reading substantiates the fact that the Constitution complies with the Universal Declaration of Human Rights, 1948 [UDHR] enjoying the rights and protections encapsulated in the UDHR reproduced in the Constitution.
As discussed above, the new Constitution contains provisions granting additional rights to mothers and widows – among others. These provisions correspond to article 25 and its sub-articles in the UDHR and mark an expansion of rights beyond the traditional, ‘negative rights’ conception of civil and political rights. More akin to the ‘positive rights’ of the International Covenant on Economic, Social and Cultural Rights [ICESCR]15, the Constitution also includes provisions emphasizing the value of the family as a cornerstone for society [article 10 Constitution; article 16(3) UDHR; article 10 ICESCR] and the significance of human dignity [articles 31, 36, 27 Constitution; articles 1, 22, 23 UDHR]. Article 27 of the Constitution is of particular significance as it provides for the protection and maintenance of human dignity even while incarcerated, going beyond the language of either covenant. The interplay between access to education and adequate housing, and the concurrent development of human dignity, are themes discussed in the ICESCR [articles 11 and 13], the International Covenant on Civil and Political Rights [article 10 – ICCPR] and the UDHR [article 26] and are mirrored in the Constitution [articles 58, 61, 67 Constitution] and while the covenant establishes free access to primary education the Constitution guarantees it “throughout its stages” in all government institutions, making primary education compulsory [article 58] and obliges the State to develop a strategy for the elimination of illiteracy within 10 years of the promulgation of the Constitution [article 61]
Mirroring the ‘positive’ rights encapsulated in the ICESCR [articles 11-13, 15], the Egyptian Constitution recognizes the necessity of quality, affordable healthcare – available free of cost to the financially constrained – [articles 10 and 62] and special considerations for the differently-abled [articles 70 and 72]. In the latter case the Constitution once again outstrips the covenant, making specific provisions for the (re)integration into larger society for differently-abled children. The text also provides for the provision of adequate housing, potable water and healthy food [article 67] which, when read with article 31 of the Constitution which declares:
Dignity is the right of every human being, safeguarded by the State provides for a standard of living higher than merely “adequate” [article 25 UDHR; article 11 ICESR]. Additionally, the text provides for a social welfare system in the event that citizens find themselves unable to support themselves [article 65]. This language corresponds to that of the ICESCR which, in article 9, states:
The States Parties to the present Covenant recognize the right of everyone to social security, including social insurance
and the UDHR which, in article 22, provides:
Everyone, as a member of society, has the right to social security and is entitled to realization… of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.
As discussed above, the new Constitution incorporates non-discriminatory clauses providing individuals with protections against prejudice [clauses 5, 6 of the preamble; articles 6, 9, 33 of the Constitution]; these provisions are largely in conformity with International Humanitarian Law [articles 7, 23 of the UDHR; article 2 of the ICESCR; article 3, 26 of the ICCPR though, in some instances, the Constitution further fleshes out these anti-discriminatory protections. For instance, article 6 prohibits the establishment of political entities which discriminate on the bases of “gender, origin or religion.” While the treaties, for the most part, extend the bases for non-discrimination; for instance, article 26 of the ICCPR provides protection against discrimination on “any grounds such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”; the Constitution takes a more focused view, prohibiting political activity based on discriminatory grounds but doing so on only three grounds. This might, arguably, be a shortcoming of the text – discrimination may take a myriad of forms – but the purpose in the article, which is to prevent a specific form of discriminatory behavior, is noteworthy.
With regards to slavery article 8 of the ICCPR states:
No one shall be held in slavery; slavery and the slave-trade in all their forms shall be prohibited.
No one shall be held in servitude.
This proscription is echoed in the UDHR which provides:
No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.[article 4].
While the term “slavery” is not used in the Egyptian Constitution the text does provide16:
All forms of oppression, forced exploitation of humans and sex trade are prohibited and criminalized by law. [article 73]
This language accords individuals greater protection than the pedantic use of the term “slavery” would. Slavery, in its ‘classical’ form where people are traded as objects, is in decline; the contemporary form of such exploitative relationships is human trafficking or the illegal sex trade. Rather than legislate on an issue that is largely academic, the Constitution provides a broader set of protections against “[a]ll forms of oppression, forced exploitation of humans” whether such may take the form of forced prostitution, human trafficking, domestic servitude or indeed any other form of “oppression.” This, broader, proscription goes beyond International Humanitarian doxa to encompass a wider variety of exploitative relationships.
Given the problematic nature of historical androcentrism in Egypt it is important to establish a legal regime which effects the rights of women. While a signatory to the Covenant on the Elimination of All Forms of Discrimination against Women [CEDAW17] Egypt held a reservation with regards to article 16 of the covenant which provides for equality between marriage partners in entering, maintaining and dissolving marriage partnerships and in the upbringing of their children. The Egyptian reservation sought to subordinate this article beneath certain provisions of Sharia which ascribe particular rights and responsibilities to the two parties respectively. While problematic, in light of the new Constitution which, in its preambulatory text, provides:
The individual’s dignity is an extension of the nation’s dignity. Further, there is no dignity for a country in which women are not honored; women are the sisters of men and partners in all national gains and responsibilities.[clause 3] as well as with consistent provisions for equality between individuals, the reservation to an international obligation – which holds legislative but not constitutive value – is arguably subordinated by the constant refrain of gender equality throughout the text. Additionally, the text provides further rights to women who negotiate the byzantine intersections between modernity and traditional societal roles; as discussed above, the Constitution provides for “special care and protection to… divorced women and widows” [article 10]. Societal perspectives on gender relations may be slow to change and cannot be legislated outright; in this time of political renewal it is for the Egyptian people to break down and reconfigure what the contemporary roles between women and men are. That said however, the Constitution provides a hospitable legal framework within which to cast this debate, enabling women to overcome historically-embedded patriarchal systems and redefine their role in contemporary Egyptian society.
With regards to the rights of children, the Constitution states:
Every child, from the moment of birth, has the right to a proper name, family care, basic nutrition, shelter, health services, and religious, emotional and cognitive development.
The State shall care and protect the child in the case of the loss of family. The State also safeguards the rights of disabled children, and their rehabilitation and integration into society.
Child labor is prohibited before passing the age of compulsory education, in jobs that are not fit for a child’s age, or that prevent the child from continuing education.
A child may only be detained for a specified period, must be provided with legal assistance, and be held in a convenient location, taking into account separation according to gender, ages and type of crime, and be held away from places of adult detention. [article 70] and,
The State shall provide care for children and youth; shall support their development spiritually, morally, culturally, educationally, physically, psychologically, socially and economically; and shall empower them for active political participation. [article 71]
These constitutional provisions mirror those found in the UDHR [articles 25] and the ICCPR [article 24] and, furthermore, the Constitution guarantees specific protections to orphans. The Constitution, as discussed above, provides for compulsory primary education for children and, interestingly enough, provides for “care for children and youth… [supporting] their development spiritually, morally, culturally, educationally, physically, psychologically, socially and economically; and [empowering] them for active political participation” [article 71]. This article is particularly noteworthy in its goal at fostering a sense of civic responsibility and instilling political awareness in those who will, one day, constitute the Egyptian polity and is a welcome step in light of the fact that, historically, repressive regimes have consistently attempted to deny the youth a political voice. To cite an example, student unions had been banned for decades in Pakistan following the usurpation of power by the military dictator Zia ul-Haq18; while the ban has since been lifted it is indicative of the political power that youth enjoy19 and which was mobilized to great effect during the Arab Spring.
As discussed above, the Constitution places a great deal of emphasis on the value of human dignity [clauses 3, 9 of the preamble; articles 3, 36, 37, 199] and discusses this in the context of arrests or detentions [article 36, 37] and police behavior [article 199]. These provisions echo those of the UDHR [article 3] and the ICCPR [articles 7, 10, 11] which restrain the signatories from meting out cruel, inhuman or degrading treatment or punishments. In a similar vein, the Constitution provides protections against the invasion of one’s privacy [articles 38 and 39], parts of each are reproduced below:
The private life of citizens is inviolable… means of communication shall have their own sanctity and secrecy and may not be confiscated or monitored except by a causal judicial warrant. [article 38]
Private homes are inviolable. With the exception of cases of immediate danger and distress, they may not be entered, searched or monitored, except in cases defined by law, and by a causal judicial warrant… Those in a home shall be alerted before the home is entered or searched. [article 39, emphasis added]
The notion of human dignity is closely tied to the defense of one’s privacy, provided for in the UDHR [article 12] as well as the ICCPR [article 17], and as such is deserving of constitutional protections.
Though discussed tangentially above it is important to note the protections individuals enjoy within the domestic legal framework. The UDHR discusses, at some length, the various protections a person is entitled to before a court of law [articles 6-8, 10-12]. Similarly, the ICCPR provides for an individual’s rights vis-à-vis their legal system [articles 9, 14, 16, 17, 26]. These provisions are reflected in the Constitution in its preambulatory clauses [clauses 6, 9] as well as in the main body of the text [articles 6, 33, 35]. The concern here, as discussed earlier, lies in the reliance upon Sharia jurisprudence as primary; this could potentially have a cooling effect on the participation of non-Muslims in the Egyptian legal fora and thus represents an area of growth for the Morsi government.
An interesting provision of the UDHR provides:
(1) Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.[article 27]
This article also finds itself reflected in the ICESCR where:
The States Parties to the present Covenant recognize the right of everyone:
(a) To take part in cultural life… [article 15]
These are novel clauses as the rights to culture and art are seldom considered when, unfortunately, many still struggle to attain more tangible rights such as the right to life or security of person. Nonetheless, the Egyptian Constitution incorporates these rights, stating:
Freedom of creativity in its various forms is the right of every citizen.
The State shall advance science, literature and the arts…
The State shall take the necessary measures to preserve the nation’s cultural heritage and promote cultural services.
The reasoning behind the inclusion of this article may lie in the long, rich cultural tradition Egypt enjoys, stretching back to antiquity. In such a historical-cultural context the value of preserving – and appreciating – this heritage becomes more apparent.
Egypt’s new Constitution, possibly in recognition of Egypt’s current status as a developing economy, contains provisions pertaining to the establishment and encouragement of the economy and individual employment [articles 14-17, 63, 66], informed by “principles of equality, justice and equal opportunities…” [article 63]. Of particular note is the fact that the right to work – to earn a livelihood – is a constitutionally-guaranteed one, possibly incorporated as a response to the dramatic self-immolation of Tunisian Mohamed Bouazizi which sparked the Arab Spring. These provisions also provide for workers to own a share of the management and profits of their places of employment [article 27] and State guarantees of “fair pay, vacation, retirement and social security, healthcare, protection against occupational hazards, and the application of occupational safety conditions in the workplace…” [article 63] These rights concur with those provided by the ICESCR [articles 6-7] and the UDHR [articles 22-23], which extend similar protections to individual workers.
The freedoms of speech, association and information are guaranteed by the UDHR [articles 18-20] and the ICCPR [articles 18-19] and are reflected in the Constitution [freedom of association: articles 50-53; freedom of expression: articles 45, 48-49; freedom of information: articles 47, 54]. On closer scrutiny however, these provision do not come without their caveats. With regards to the freedom of expression:
[S]pecific censorship… may be imposed in times of war or public mobilization. [article 48, emphasis added]
…The establishing of radio stations, television broadcasting and digital media is regulated by law. [article 49]
The term “public mobilization” isn’t a legal term and as such it isn’t clear from the text what would, in fact, constitute a “public mobilization.” Furthermore, the establishment of broadcasting stations and “digital media” is to be regulated by law. Considering that the legislature is currently dominated by one party – that too one with a strong ideological bent – this becomes a point of concern, particularly in light of the efficacy with which social media was brought to bear during the Arab Spring. With regards to the freedom of association:
… One trade union is allowed per profession. [article 53]
A restriction on unionization makes little sense in a developing country, where workers’ rights are often given secondary importance. With regards to the freedom of information:
The law regulates the rules for filing and archiving public documents, the means of access to information, the means of complaint when access is refused, and the consequent accountability. [article 47, emphasis added]
This provision comes across as significantly problematic, allowing the State to monopolize individuals’ access to public information, controlling the dissemination of the same and – most significantly – controlling both the means by which rebuffed individuals might seek redress and the consequences – if any – for that refusal. While these rights are present in the UDHR [articles 18-20] the ICCPR [articles 18-19, 21-22] and the ICESCR [articles 6-8] the concerns regarding the State’s monopoly on information – not covered under the covenants – remain.
With regards to voting and engaging in political activity, the Constitution provides:
Citizen participation in public life and a national duty: Every citizen shall have the right to vote, run for elections, and express opinions in referendums, according to the provisions of the law.
The State is responsible for the inclusion of the name of every citizen who is qualified to vote in the voters’ database without waiting for an application.
The State shall ensure the fairness, validity, impartiality and integrity of referendums and elections. Interference in anything of the above is a crime punishable by law. [article 55]
What is of interest in this provision is the obligation upon the State to register voters on the latters’ behalf; while not necessarily a particularly revolutionary piece of legalese this provision is worded vaguely enough to potentially allow for abuse. It is not inconceivable for a government seeking to influence an election to register or unregister voters for its own advantage and as such, this article proves to be a point of some concern. These rights are also enshrined in the UDHR [article 21] and the ICCPR [articles 1, 25] and as Egypt has signed and ratified both, they operate as further legislative exposition of the constitutional rights.
The right to nationality is an underestimated one; not as prima facie pressing as the right to life nor as manifest as that to expression the right to nationality does, nonetheless, encapsulate a person’s citizenship and thus their identification with the nation and the concurrent facet of self-identity. Citizenship often grants one the additional right to participate in the political processes of the nation, creating additional ties between them beyond those of heritage and nostalgia, and allowing the citizens to express their individual autonomy on a national scale. The UDHR [article 15] and ICCPR [article 24] both guarantee this right, the former granting further protections for the right to change one’s nationality and the latter extending the right to children. The new Egyptian Constitution, in article 32, extends this right rather pithily:
Egyptian nationality is a right, regulated by law while the phrase “regulated by law” raises some degree of concern – the possibility of a government stripping political opponents of their nationality – and thus their ability to respond via the political process – is, unfortunately, a very real one. However, one would be hard-pressed to find a State – any State – which would grant nationality to individuals without some form of regulation.
Referring tangentially to the issue of nationality, the Constitution extends a right specifically to non-citizens; as per article 57:
The right to political asylum shall be granted by the State to every foreigner deprived in their country of public rights and freedoms guaranteed by the Constitution.
Extradition of political refugees is prohibited…
These are powerful protections for asylum-seekers and the non-extradition of political refugees goes beyond the basic rights guaranteed to asylum-seekers by the UDHR [article 14]. On a similar note, the text guarantees the freedom of movement, domicile and immigration and provides protections against the deportation of citizens and the abuse of house arrest [article 42]. These provisions correspond to those of the UDHR [article 12] and the ICCPR [article 13] thought the Constitution, legislating for Egyptian nationals as well as all other individuals in Egypt, goes beyond the guarantees of the covenants in explicitly prohibiting both deporting citizens as well as preventing them from returning to Egypt.
Articles 9 and 40 of the Constitution provide for the security of person of individuals in the Egyptian State:
The State shall ensure safety, security and equal opportunities for all citizens without discrimination. [article 9]
All residents have a right to security which is safeguarded by the State, and are protected by law against criminal threats. [article 40]
These provisions mirror protections established by the UDHR [article 3] and the ICCPR [articles 6, 9, 11, 26] and provide for what is – arguably – the most fundamental right of all: i.e. the right to life, without which an individual is incapable of exercising any others.
Article 81 provides an ideal ‘snapshot’ of the new Egyptian Constitution. The article, which reads:
Rights and freedoms pertaining to the individual citizen shall not be subject to disruption or detraction.
No law that regulates the practice of the rights and freedoms shall include what would constrain their essence.
Such rights and freedoms shall be practiced in a manner not conflicting with the principles pertaining to State and society included in Part I of this Constitution.”
The Constitution, as discussed above, represents a clean break from Egypt’s recent, authoritarian past, and the Egyptian people’s first real expression of political will. The Muslim Brotherhood, considering the vital role women and the youth played during the Arab Spring and the revolution in Egypt, ensured that additional rights were conferred on these two – historically ‘second class’ – sections of Egyptian society in an attempt at developing a more sophisticated political discourse within the country. While Islamic in tenor the Constitution repeatedly emphasizes the premium placed upon egalitarianism and non-discrimination, going as far as to extend particular rights to the Christian and Jewish minorities in Egypt. Sovereignty rests with the people of Egypt and they are the ultimate source of authority within the Egyptian State and while being sworn in the Egyptian parliamentarians swear to look after the interests of the people they represent [articles 86, 157].
This is not to say that the Egyptian Constitution is perfect; it does have several areas of concern. As discussed above, that the Al-Azhar University operates without influence by the Brotherhood helps to inure it from political machinations; however, the fact that the institution is to be consulted regarding matters of Islamic law – and that the “[p]rinciples of Islamic Sharia are the principal source of legislation” – has significant potential to disenfranchise non-Muslim Egyptians.
Furthermore, the repeated emphasis on “Arab culture” [clauses 10-11 of the preamble; articles 1-2, 4, 11-12, 60, 215], combined with the Islamic overtones of the text as a whole, raise concerns of exclusivist nationalism. Egypt needs to keep in mind firmly the fact that not all Arabs are Muslim nor do all Egyptians speak Arabic – saying nothing of the myriad separate dialects of Arabic that are spoken throughout the country.
Additionally, the Constitution endeavors to empower its citizens, endorsing the view that the prosperity of the people leads to prosperity of the State. However, the Constitution makes no mention of minorities other than the Christians and the Jews – and that too only in one particular article. Failing to mention or make any specific provisions concerning the ethnic or religious minorities raises the fear that they have no constitutional recognition. The blanket declarations of non-discrimination and equality within the text seem to pale in comparison to the simple fact that roughly 90% of the country’s population is Sunni Muslim. At best these assertions come across as naïve, at worst as placatory measures devoid of any real effect. Given the marked disparity in population – and thus political power in a representative democracy – it is arguable that the minorities of Egypt need more than what the Constitution currently offers them in the form of guarantees.
Finally, and most significant of all, is the religious nature of the text itself; while Muslims are the largest demographic in Egypt and thus constituted a majority in parliament as well as the Constituent Assembly, the emphasis on Islam throughout the text raises concerns vis-à-vis non-Muslims in Egypt. Though the Constitution does extend rights and protections to all Egyptians – Muslim and non-Muslim alike – the fact that the source of all legislation is considered to be Sharia, that the Constitution itself establishes Islam as the State religion, serves to push non-Muslims to the periphery of the Egyptian politico-legal context, forced to grapple with the nuances and tenets of a faith not their own in order to secure their own rights. This imposition of Islam in the lives of non-Muslim Egyptians is, arguably, the biggest challenge to the Morsi government going forward. Though the Brotherhood gained a majority in parliament through legitimate democratic processes and the Constituent Assembly was similarly largely representative of Egyptian religious demographics these facts will not inure the legislature from criticisms of majoritarianism. Going forward, therefore, the Brotherhood need to ensure that the provisions of the Constitution – and of subsequent legislation – apply equitably to all Egyptians, regardless of faith.
These concerns therefore, are significant ones but, to return to article 81 above, much of the language of the Constitution is framed in broad, inclusivist strokes. To paraphrase: ‘the rights and freedoms of individual citizens shall not be subject to disruption or detraction’ and ‘no law that regulates rights and freedoms shall operate to constrain them.’ Both these sub-articles establish, in no uncertain terms, the inviolability of the rights of the Egyptian citizenry. The fact that these sub-articles are to operate in a manner harmonious to Part I of the Constitution is certainly a contentious point but it is possible that critics of the Egyptian Constitution might be overlooking article 5 – also present in Part I – which reads:
Sovereignty is for the people alone and they are the source of authority… [and] The people shall exercise and protect this sovereignty
Therefore, in light of the above it is argued that the Egyptian Constitution is not as flawed as some perceive.
The above provisions are proof that the Constitution is comprehensive in its approach and confers rights upon the citizens and makes the State responsible to protect these rights. In comparison to the Constitution of Pakistan, the Constitution of Egypt is inclusive and extensive. The sovereignty lies with the people and they have been declared the ultimate source of authority. Further, the Oath mentioned in Articles 86 and 157 of the Constitution make the parliamentarians accountable to the people.