This paper discusses the rights and freedoms granted by the current Egyptian constitution as regards the scope of freedom the limitations imposed by legal and practical restrictions and the extent to which this freedom conforms to the international conventions officially upheld by Egypt.
The first question that comes to mind is whether Egypt is a “constitutional state” or rather a state that has a constitution.
Power in a constitutional state is bound to serve individual freedom; and a balance is clearly maintained between power and freedom under the restricted authority of a government that commits itself to the protection of individual rights and freedoms. Accordingly a state cannot be described as “constitutional” if the power mostly rests in the hands of one individual (as is the case with the Egyptian president who is granted excessive authority by the constitution) if the freedom and independence of the Judiciary are compromised and if the total separation of powers is lacking.
A state may have a constitution however this does not automatically entail a constitutional regime or a constitutional democracy; in fact more than one constitution was issued during the “Stalin” regime Spain had a constitution while it suffered under a dictatorship until 1975 and likewise Portugal prior to 1974.
A constitution may be approved by the nation but whether such approval was genuine or false does not necessarily mean that the state has earned itself a constitutional identity. The Iranians have accepted the constitution of a tyrannical religious state that cannot be possibly called a constitutional state which - by definition - should be committed to the protection of individual rights under a constitution and laws that do not contradict the international declaration of rights and freedoms.
We can safely conclude that Egypt is not a constitutional state but rather a state that has a constitution.
As regards rights and freedoms:
Economic rights include the right to own property the freedom to work produce and compete and free markets…. etc.
Political rights include security equity participation justice demonstration formation of political parties and peaceful assembly etc.
Social rights include the right to life the right to marry and to have a family the right to a nationality and social guarantee etc.
Other rights are concerned with thought conscience religion opinion and expression in addition to several many more rights that are granted by modern constitutions in democratic nations.
In comparison what kind of rights and freedoms are granted by the current Egyptian constitution?
There are 4 major observations regarding this issue:
Laws that stamp out rights and freedoms Laws and executive regulations are supposed to interpret constitutional principles so as to clarify details and procedures. However in many instances they impede constitutional values to the extent of quashing their original intent. No longer in the service of constitutional principles as they ought to be these laws have the power to tear down the basis of the constitution itself.
There are many examples which demonstrate this ugly fact – where the constitutional text delivers promises that are thwarted by laws and regulations - and to name just a few:
“The political regime of the Arab Republic of Egypt is based upon the multi-party system Political parties shall be organized by law (Article 5). Freedom of opinion shall be guaranteed. Every individual shall have the right to express his opinion and to publicize it verbally in writing by photography or by other means of expression within the limits of the law (Article 47).
Freedom of the press printing publication and mass media shall be guaranteed. (Article 48).
Citizens shall have the right to peaceful and unarmed private assembly without the need for prior notice. Such private meetings shall not be attended by security men. Public meetings processions and gatherings shall be allowed within the limits of the law (Article 54).
The freedom of the press is guaranteed and press censorship is forbidden. It is also forbidden to threaten confiscate or cancel a newspaper through administrative measures as stipulated in the Constitution and defined by the law (Article 208). Journalists have the right to obtain news and information according to the regulations set by law. Their activities are not subject to any authority other than the law (Article 210). No citizen shall be prohibited form residing in any place or be forced to reside in a particular place except in cases defined by law (Article 50). Citizens shall have the right to form societies as defined by law (Article 55).
The establishment of political parties civil associations newspapers and peaceful assemblies are regulated by notorious laws that have succeeded in divesting the constitutional provisions of meaning and merit. The same would also apply to several rights and freedoms that are granted by the constitution only to be minimized or even cancelled by laws. So while the constitutional principle appears to be in harmony with international conventions it is in fact subject to laws and regulations that would deny its essence and contradict with those conventions. Taking into consideration that security authorities tend to add their own terms and restrictions the constitutional principle is ultimately reduced to almost nothing.II. Rights and freedoms that were never actually implementedApparently several rights and freedoms that figure in the Egyptian constitution were copied from modern constitutions and much as one would put a décor piece they were placed there to gain the approval of the outside world wi
th no intention of implementing them domestically. They are no more than “empty shells” that catch the eye as once described by Dr. Said El Naggar. Article “41” is such an example: “Individual freedom is a natural right and shall not be touched…..”
“A natural right” implies a maximum level of personal freedom; can such thing exist in reality in Egyptian society – now or ever? Other rights conceived in a socialist framework are no longer viable or applicable: “Work is right a duty and an honor ensured by the State” (Article 13).
There are evidently several more impractical and unrealistic articles. A great disparity exists between the extent of freedom granted by the constitution and the reality of a Police-State that exercises rigid control over its citizens under an emergency law imposed more than 25 years ago. III. Unrealistic freedoms that contradict each otherThe current Egyptian constitution is inconsistent with the economic political and social developments in Egypt in many respects. Reality and written text stand in opposition; moreover further development and adjustments are being restricted by the written text. Whereas the term “Socialism” was mentioned 33 times the current economic system affirms that Egypt has adopted a market economy at least theoretically and legally since 1974.
A major conflict exists between the ideological orientation of the current constitution and the type of rights and freedoms granted by the same constitution which also fails to fulfill the ambitions and hopes of Egypt’s citizens. The constitution adopts a socialist economic ideology as well as a religious identity for the State. The second article which states that “Islam is the religion of the state and Islamic jurisprudence is the principal source of legislation” is clearly at odds with the Article 41 which states that “Individual freedom is a natural right and shall not be touched.” It also conflicts with articles that grant other freedoms placing considerable limitations on such freedoms or only granting the extent of freedom that is allowed by Islamic Shari’a as is the case with Article 11 “The State considers women equal with men in political social cultural and economic life without violation of the rules of Islamic jurisprudence.”
Article (11) not only restricts the granted freedom but clearly goes against several rights granted by international conventions. Four major controversial issues stand out whenever there is an international discussion about Islamic Shari’a: (1) women’s status (2) the rights of non-Muslims in Islamic nations (3) excessive punishments such as stoning whipping and hand cutting and (4) religious freedom. IV. Rights and freedoms that are not granted by the constitutionThe articles of the current constitution do not mention the role of civil society and its scope of freedom in a world swept by the tide of globalization. Civil society has become a sort of parallel government that monitors society’s movement progress and rights in face of the authorities being highly involved in issues related to individual rights and freedoms.
Likewise the constitution does not address the political rights of Egyptians living abroad – whether temporarily or permanently as regards voting and political participation and equity. The number of Egyptians who live abroad and maintain strong ties with their homeland has increased. Unfortunately while their economic prowess is put to good use to enrich the Egyptian economy very little consideration is given to their political and constitutional rights.
Another significant issue that has also escaped the attention of the constitution is the right of the society as regards the preservation of monuments and historical treasures that have not only an immense cultural value but are also a major source of national income. In fact several critical issues are not handled thoroughly or effectively or given due consideration as main characteristics of modern society such as transparency accountability and monitoring which are key rights exercised by the people in their dealings with the authorities. Religious rights and the relation between State and ReligionReligious freedom stands at the top rung of the ladder of natural human rights as it deals with the freedom of conscience thought and belief.
Article (18) of the Universal Declaration of Human Rights states that “Everyone has the right to freedom of thought conscience and religion; this right includes freedom to change his religion or belief and freedom either alone or in community with others and in public or private to manifest his religion or belief in teaching practice worship and observance.”
According to that article religious freedom includes the following rights:
To have any type of religious belief; or none at all; and the right to change religion easily and without any form of harassment.
• Open display of religious beliefs to worship participate in rituals religious processions and pilgrimages.
• The protection of the law and Judiciary system against any violation of the individual’s right of free religious practice.
• The right to establish and maintain places of worship under a single common law without discrimination among different religions and the right to hold meetings and religious celebrations in those places.
• To remove religious status from all identification cards and official or non official papers and to incriminate the inquiry into an individual’s religion. It also includes the freedom of religious education teaching of religious beliefs and the right for appropriate media attention.
According to Article (46) “The State shall guarantee the freedom of b
elief and the freedom of practice of religious rites.” However other texts have infused the constitution with the particular tone of a religious Islamic state that holds other religions at a lesser status or ignores their existence. Therefore the Article (46) is practically undermined and the tone of religious superiority plagues Egypt’s reality as well as its constitution.
The following texts imply that Egyptian society is an Islamic society without religious pluralism:
“Islam is the religion of the state and Islamic jurisprudence is the principal source of legislation”(Article 2);
The family is the basis of the society founded on religion (Article 9);
The State shall guarantee the proper coordination between the duties of a woman towards the family and her work in society considering her equal with a man without violation of the rules of Islamic jurisprudence (Article 11).
Freedom of belief is thus targeted by constitutional texts that put one religion above the others and to begin with the fact that a religious identity for the state is mentioned in the constitution is at odds with democracy.
It is no wonder then that the annual report of the United States Commission on International Religious Freedom as regards Egypt has expounded on the violations of religious freedom in Egyptian society:
“Egypt has a poor overall human rights record that includes repressive practices which seriously violate freedom of thought conscience and religion or belief and serious problems of discrimination intolerance and other human rights violations against members of religious minorities remain widespread.
The government has not taken adequate steps to halt repression of and discrimination against religious believers including the indigenous Coptic Orthodox Christians.
There is a growing sense among human rights organizations that Islamic extremism is advancing in Egypt with detrimental effects on the prospects for democratic reform and religious tolerance. Members of Egypt’s non-Muslim religious minorities particularly Christians Jews and Baha’is report discrimination interference harassment and surveillance by the Egyptian state through security services.
Christians face official and societal discrimination and government permission must still be sought to build or repair a church and the approval process for church construction is time consuming and inflexible.
Known converts from Islam to Christianity generally receive attention from the state security services and converts have been arrested for attempting to change their religious affiliation on identity documents.” [Editor AWR: because there are no procedures to make such a change possible and thus some people have resorted to forgery]
The second article does not only defy the religious freedom of non-Muslims but it is also often tainted and misinterpreted hanging like a sword over the heads of creative scholars. Dr. Nasr Hamed Abu Zeid and his spouse Dr. Ibtihal Younes were victims of such ill-use when the courts of law ruled that they should be separated mainly due to creative delving into religious matters.
Moreover the same article goes against many economic activities including tourism and banking. To quote Dr. Ibrahim Shehata “The overall orientation of the legal system has been altered by the constitutional text that made Islamic jurisprudence to be the principal source of legislation. Laws and court judgments have been affected by the general atmosphere that surrounds this political bidding. Religious slogans and values are being increasingly flaunted in the State’s official work-related statements to the point that some correspondences and even some courts rulings have started to sound like the sermons given by Islamic “Imams” in the mosques!”
The second constitutional article did not only affect laws and rulings but carried the intent to Islamize the society and overwhelm the educational curriculum and media with religious language extending its reach to the arts and sciences and community activities as a whole.
The current constitution allows for religion to interfere with political and community affairs and it intrudes on the personal relationship between man and Creator. Several rights and political and economic freedoms that are granted by the constitution are currently restricted whether by “law ” “Islamic Shari’a” or “public interests.” The constitution’s socialist ideology is clearly at odds with economic pluralism and its religious ideology clashes seriously with religious pluralism and religious freedom. Overall a huge gap exists between the type of international commitments that Egypt has espoused and the course of its current constitution and if there ever should be a new constitution it must neither contradict nor restrict the rights and freedoms granted by international treaties.
The Egyptian constitution in its current shape requires a comprehensive makeover otherwise Egypt will not have the chance to evolve from a totalitarian theocratic state to a democratic nation that strives forwards to achieve progress economic political and religious freedom transparency peace and welfare.
The Egyptian Constitution and Principal Laws (Cairo El Amiria Print House 1996).-Ibrahim Shehata My Bequest for My Country (Cairo Dar El Amin 1st edition 1999).
-Esmat Abdallah El Sheikh The Constitution between the Requirements of Permanence and those of Change (Cairo Dar El Nahda El Arabia).
-The Egyptian Canadian Human Rights Organization Egyptian Declaration (Montreal/Washington 2002).
-Said El Naggar Neo liberalism and the Future of Development in Egypt (Cairo New Call letters).
Magdi Khalil writer and political analyst resides in Washington DC ([email protected]).
This article is based on the author’s paper presented at a conference organized by the Ca
nadian Egyptian Organization for Human Right in collaboration with Rights and Democracy entitled “An Egyptian Constitution for a Modern and Democratic State.” The conference was held in Montreal Canada from 12-14 June 2005. Another paper presented at that conference by Adel Guindy appears on page 3 of this issue. The Arabic version of Mr. Khalil’s article was published in Watanī of 19 June 2005. [not translated by AWR]