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The Right Direction

Exactly one year ago, former Minister of Family and Population Moushira Khattab wrote an essay arguing that Egypt’s 2012 constitution falls short of prohibiting discrimination based on gender or religion. In a second essay ahead of this month’s referendum, she compares the 1971, 2012, and the 2013 draft constitution specifically in light of women’s and human rights.
By Moushira Khattab

Reflections on the 2012 Charter

[In 2011] Egyptian women took to the streets alongside their male compatriots calling for freedom, dignity, social justice, and democracy. … The sense was that women were regarded as equals for the first time in modern history. … Egyptians were becoming more politically savvy and equally empowered. They looked toward a new constitution to secure the freedoms they had fought for.
The process of constitution writing, however, [was not] as inspiring and women’s rights emerged as a thorny issue. … On March 19, 2011, in the absence of women and without any form of debate, a constitutional declaration removed the parliamentary quota for women [and] gave the People’s Assembly the right to choose a Constituent Committee charged with writing Egypt’s post-revolution constitution.

On human rights

To its credit, the constitution expanded the identification of rights and freedoms, covered in 51 articles compared to 21 articles in the 1971 constitution. …That said, the constitution lacks a human rights approach. Where rights were mentioned, they were either stated in the third person or without guarantees. The constitution did not follow the globally acknowledged classification of human rights. Religion is vaguely injected in certain articles, threatening restrictions on the exercise of certain rights. The cases of women, children, freedom of expression, and religion are some examples. …

Crucial human rights guarantees are missing. First, reference to the international human rights treaties, which Egypt has ratified and is bound to uphold, has been removed from the constitution. This omission signals reluctance to honor such commitments, if not the intention to backtrack on some of them. Second, in a serious violation of the minimum standards of human rights, Article 81 restricts the exercise of rights and freedoms by a vague notion of the “non-violation of foundations of the State.” Third, Article 76 places the legitimacy of crimes and punishment at the discretion of the judge. It is no longer governed solely by law, but could be based on a constitutional provision, based on Sharia as defined by Article 219 [leaving law enforcement open to the application of hodoud (Islamic punishment)].
Moreover, both Articles 76 and 81 can be interpreted according to Article 219 by clerics who will overrule judges. A great number of articles are qualified by the law, subjecting the constitution to legislation (peaceful assembly; establishing associations, NGOs, and parties; labor syndicates; and cooperatives could be dissolved by court order). The balance of power … is another concern. The president has all the executive powers (across 22 articles in the 2012 constitution compared to only 12 articles in the 1971 constitution), shares the legislative powers, and has a serious influence over the judiciary.

The 2012 constitution does not provide a foundation conducive to the realization of human rights. Article 2 maintains “principles” of Sharia as the source of legislation, and, contrary to the 1971 constitution, provides for soliciting the views of Al-Azhar, a religious entity, concerning Sharia’s interpretation. In a constitutional precedent, Article 2 is interpreted by Article 219, effectively turning the non-controversial “principles” into the more restrictive and controversial “provisions of Sharia.” This [gives] clerics the final word over the laws [and] gives non-elected, non-judicial individuals [clerics] authority over the elected legislature and other democratically-elected bodies. Al-Azhar … may shift from being a moderate enlightened institution to taking a more radical stance. This naturally poses a threat to women’s rights given political Islam’s notoriety for being against these rights.

On Women’s Rights

Article 8 uses paternalistic language that the state “ensures achieving justice, equality and freedom, along with channels of social charity and solidarity… to protect honour and property and provide adequate subsistence as regulated by legislation.” Article 33 states, “all citizens are equal before the law, in public rights and duties without discrimination.” The article overlooks personal rights where gender-based discrimination is flagrant. Moreover, it is devoid of legal guarantees of implementation.
The state’s responsibility to guarantee equality between men and women, a basic tenet of all Egyptian constitutions since 1923, was removed altogether from the 2012 constitution. The post-revolution constitution does not prohibit discrimination on the grounds of gender, sex, religion, origin or any other grounds. … Article 10 about the family is the only article that mentions women as a specific group, [only recognizing] women’s domestic role within a family, “founded on religion, morality and patriotism.” It does not establish any rights for women, let alone guarantee their implementation. The constitution places “public morals above fundamental individual rights” and leaves its definition to the law. Article 10 relegates society beside the state to ensure “compliance with the authentic nature of the Egyptian family and its morals.” Many fear that such a provision will allow for militia groups to terrorize citizens into what they see as good Islamic dress codes and behavior.

2013 in Context

One year ago, Egypt was marred by a democratically elected, autocratic, theocratic president and a deeply flawed constitution. … The fact that Egypt was given a second lease on life and a chance to rewrite the constitution seems to me like a fairy tale. …
Critics complain that the process of rewriting the constitution was run behind closed doors. Others, including myself, saw it professionally run to encourage consensus over thorny issues. Amr Moussa, chair of the constitutional committee and a seasoned diplomat, managed to provide an environment [where] broader consensus became possible on contentious issues through quiet diplomacy, listening to stakeholders, and, in some cases, one-on-one meetings.
Though women’s representation on the committee was scant (sharing a 10 percent representation with youth), the contribution of some female members has been instrumental. The role played by the committee of 10 experts paved the road toward the completion of the draft constitution as it removed many hurdles … before turning the draft over to the bigger committee of 50.

The Losses

Even though the preamble of the 2012 constitution seemed more gender sensitive, the operative document did not guarantee rights for women as a specific group. Compared to the 1971 constitution, the most significant loss is the quota of 64 seats in the lower house, which was deleted without a popular vote in March 2011. The 2013 document, predominantly drafted by self-proclaimed liberals, did not give women back their quota. The liberals objected to a “fair or just” representation, and they also could not go beyond an “appropriate” level of representation of women in elected councils. Not that there is ground for comparison between women, who represent half the population, and farmers and laborers, but women’s only consolation is that the quota for farmers and laborers, introduced by Gamal Abdel Nasser, was scrapped as well. At the local level, the latter group was paradoxically given 50 percent, which is twice the quota given to women. There is no guarantee that such a provision could play out in women’s favor at the polls.

The Gains

The 2013 draft constitution promises a step forward in many respects. Article 11, allocated for women in the 1971 constitution, is restored and improved, commiting the state to ensure equality between men and women in civil, political, economic, social, and cultural rights. In a leap forward, the committee replaces provisions of Sharia as a caveat on such equality with “the provisions of the constitution.” A new provision ensures women’s right to hold public office, high-level management positions, and judiciary positions without discrimination. More significantly, it commits the state “to protect women against all forms of violence.”
Other articles strengthen the protection of human rights. Article 53 on equality is greatly improved by criminalizing discrimination and the incitation of hate. This article commits the state to take necessary measures to eliminate all forms of discrimination, leaving the law to regulate the establishment of an independent commission for that purpose.
In an excellent move, the draft constitution commits the state to the international human rights conventions and agreements ratified by Egypt. Article 93 bestows the same force of those conventions to domestic legislation. This article alone should raise the ceiling of human rights enforcement to the international level. …

The right of women to pass their nationality to their children is clearly spelled out in Article 6, but again it will be “regulated by the law.” State commitment to ensure the rights of the elderly is also recognized and should greatly benefit women.
Under the 2013 draft, clerics and Al-Azhar have no legislative role. [Sharia’s] interpretation is now given to the Supreme Constitutional Court. The infamous Article 219 that elevated clerics over elected legislators is deleted, as well as references to the role of society in upholding morals.

The role of national councils such as those for human rights, women, childhood, and motherhood is recognized by the constitution for the first time in Egyptian history in Article 214. Though their mandate is deferred to legislation, the constitutional draft sets criteria that promise a stronger role for these national councils. et

*Edited excerpts reprinted with permission from the author. For the full text of “Women’s Rights Under Egypt’s Constitutional Disarray” and “A Dream Constitution,” visit www.wilsoncenter.org

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