This resource was published on 01/04/2013 and is not updated to reflect changing circumstances.
A list of some of the controversial articles in Egypt’s recently ratified constitution with a brief overview of the arguments made for and against each article is provided below. (Italicized text is from a translation of the new constitution available here.)
Citizens’ Rights and the Role of Sharia
Article 10
The family is the basis of the society and is founded on religion, morality and patriotism.
The State is keen to preserve the genuine character of the Egyptian family, its cohesion and stability, and to protect its moral values, all as regulated by law.
The State shall ensure maternal and child health services free of charge, and enable the reconciliation between the duties of a woman toward her family and her work.
The State shall provide special care and protection to female breadwinners, divorced women and widows.
Critics: This article was criticized because it seems to take what was a vague ideological provision and turn it into the basis or a demand for legislation. Critics argue that the state’s role to “preserve the genuine character of the Egyptian family” may infringe on personal freedoms and gives the government unnecessary and overreaching powers in defining what constitutes a “genuine” Egyptian family. They also contend that the specific mention of female breadwinners, divorced women, and widows should have been expanded to guarantee protection for all women from issues like violence, female genital mutilation, and denial of rightful inheritance.
Supporters: Defenders of this article argue that it is based off of Article 9 in the 1971 constitution, which had similar language, and that it appropriately adheres to precedent and the role of the state under sharia. They say that although the new article adds language allowing for legislation to govern the matter of family character, the allegation that this can somehow be leveraged to introduce repressive legislation is exaggerated.
Article 11
The State shall safeguard ethics, public morality and public order, and foster a high level of education and of religious and patriotic values, scientific thinking, Arab culture, and the historical and cultural heritage of the people; all as shall be regulated by law.
Critics: Critics argue that the state safeguarding public morality will likely infringe on personal freedoms and provide the constitutional basis for legislation that seeks to deprive citizens of certain rights on the basis of defending public morality. They also criticized this article for seeming to take what was a vague ideological provision and turn it into the basis or demand for legislation.
Supporters: Defenders of this article argue that it is similar to the language of Article 12 in the 1971 constitution (although Article 12 stated that society and not the state should safeguard ethics) and that it is within the state’s mandate to safeguard ethics.
Article 4
Al-Azhar is an encompassing independent Islamic institution, with exclusive autonomy over its own affairs, responsible for preaching Islam, theology and the Arabic language in Egypt and the world. Al-Azhar Senior Scholars are to be consulted in matters pertaining to Islamic law.
The post of Al-Azhar Grand Sheikh is independent and cannot be dismissed. The method of appointing the Grand Sheikh from among members of the Senior Scholars is to be determined by law.
The State shall ensure sufficient funds for Al-Azhar to achieve its objectives.
All of the above is subject to law regulations.
Critics: Some critics argue that granting al-Azhar such an authoritative role is shortsighted and may lead to complications in the future, due to fears that future leadership may use the new authority to mandate repressive laws. Others accept that al-Azhar will have some role in deciding how sharia is legislated but are uncomfortable with the vagueness of the text in regard to the mechanisms through which al-Azhar will be consulted in matters pertaining to Islamic law. Critics also argue that any promised autonomy or independence is meaningless due to the fact that the article’s final clause makes all of its previous clauses subject to legislation and legislators may end up leveraging their power to contain the institution.
Supporters: Supporters argue that this article grants al-Azhar unprecedented autonomy and recognition, which was a key demand of the institution. They also point to the fact that the institution’s name was not even mentioned in the 1971 constitution and that an article governing the role of al-Azhar was long overdue given the institution’s prominent position in Egyptian society.
Article 43
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.
Critics: Critics argue that the exclusionary nature of this article goes against the principle of religious freedom by only guaranteeing freedoms to what is defined in Egypt as the three divine or heavenly religions of Judaism, Christianity, and Islam. Egyptian legal precedent and the common interpretation of sharia do not allow for other religious classes to be classified as divine or heavenly, and small religious minorities such as the Bahais will continue to be deprived of legal protection.
Supporters: Defenders of this article say it grants more freedoms than the previous constitution. They claim it should especially be viewed as a win for the Christian minority, which suffered for decades due to government refusal to grant permits for the construction of churches.
Article 44
Insult or abuse of all religious messengers and prophets shall be prohibited.
Critics: Critics argue that this new article is vague and can only lead to deprivation of freedoms. They say that it is unclear what exactly constitutes insult or abuse of prophets, which institution or individuals will be responsible for judging the matter, and how the offending incidences will be prohibited.
Supporters: Defenders of this article argue that it should not be controversial and that the article falls within the boundaries of sharia law, which the constitution establishes as the basis for legislation in Article 2 and it states that “Islam is the religion of the state and Arabic its official language. Principles of Islamic Sharia are the principal source of legislation”.
Article 219
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.
Critics: Critics warn that this specific article runs contrary to the spirit of Article 2, which allows for a broader and more inclusive interpretation of what constitutes the principles of Islamic sharia. They point to the specific mention of the Sunni doctrines as an attempt by conservative Islamist politicians to provide the constitutional basis for stricter legislation in the future that will incorporate more of the controversial aspects of the Islamic penal code.
Supporters: Defenders of this article argue that it was necessary to clarify which source of sharia Article 2 was referring to in stipulating that sharia is the main source of legislation. They further argue that there should be no reason for controversy since Sunni doctrine has been the basis for majority legal and scholarly opinions in Egypt and has been used exclusively in legal rulings for decades.
The Military
Article 197
A National Defense Council shall be created, presided over by the President of the Republic and including in its membership the Speakers of the House of Representatives and the Shura Council, the Prime Minister, the Minister of Defense, the Minister of Foreign Affairs, the Minister of Finance, the Minister of Interior, the Chief of the General Intelligence Service, the Chief of Staff of the Armed Forces, the Commander of the Navy, the Air Forces and Air Defense, the Chief of Operations for the Armed Forces and the Head of Military Intelligence.
The Council is responsible for matters pertaining to the methods of ensuring the safety and security of the country and to the budget of the Armed Forces. It shall be consulted about draft laws related to the Armed Forces. Other competencies are to be defined by law.
The President of the Republic may invite whoever is seen as having relevant expertise to attend the Council’s meetings without having their votes counted.
Critics: Critics argue that the proposed National Defense Council will continue to shroud Egypt’s military institutions and its massive economic ventures in secrecy and keep them above the law. They argue that the language of the text allows the council to be in control of all aspects of the military’s budget. They also contend that it makes vague the extent of the consultative nature of the body when it comes to draft legislation and whether that interferes with the legislative branch’s sovereignty. Critics also point to the fact that Article 182 in the 1971 constitution, which established the National Defense Council, did not grant it responsibility for the armed forces’ budget.
Supporters: Defenders of this article argue that Article 182 in the 1971 constitution established the National Defense Council and that there should be no reason for controversy. They believe that the new article only expands on and clarifies the mandate of the council.
Article 198
The Military Judiciary is an independent judiciary that adjudicates exclusively in all crimes related to the Armed Forces, its officers and personnel.
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.
Members of the Military Judiciary are autonomous and cannot be dismissed. They share the immunities, securities, rights and duties stipulated for members of other judiciaries.
Critics: Critics oppose the language allowing for military trials of civilians in crimes that harm the armed forces, arguing that such a standard can be applied loosely and will continue to provide the justification for military trials of civilians. The nature of the article’s language is especially controversial due to the events of the past year and half, which saw tens of thousands of Egyptians facing military courts under the pretext that their alleged crimes affected the armed forces.
Supporters: Defenders of the article argue that it actually protects civilians and, unlike previous constitutions, it explicitly forbids any trial of civilians for reasons other than crimes pertaining to the armed forces.
The Judiciary
Article 169
Each judiciary body shall administer its own affairs; each body shall have an independent budget and be consulted on the draft laws governing its affairs, by the means that are regulated by law.
Critics: Critics argue that subjecting the internal affairs and independent budgets of judiciary bodies to legislation—even if they are consulted—chips away at the sovereignty of the judicial branch. They also contend that it allows the legislative branch to overreach and influence the judicial branch through legislation, which runs contrary to the principle of separation of powers.
Supporters: Defenders of this article argue that it protects the independence of the judiciary more than previous constitutions by explicitly allowing judicial bodies to administer their own affairs.
Article 176
The Supreme Constitutional Court is made up of a president and ten members. The law determines judicial or other bodies that shall nominate them and regulates the manner of their appointment and the requirements to be satisfied by them. Appointments take place by a decree from the President of the Republic.
Critics: Critics argue that there was no immediate or justifiable reason to decrease the membership of the Supreme Constitutional Court from nineteen to eleven members, arguing that more members allowed for better debate and more diverse legal opinions. Some argue that the article was intentionally inserted in order to expel judges with whom the majority Islamists did not agree. Of the eight outgoing members, some were outspoken critics of the government, like Judge Tahani el-Gebali.
Supporters: Defenders of this article argue that the criticisms are unfounded and exaggerated and contend that the Constituent Assembly, which drafted the new constitution, must have had a reason for preferring this new makeup for the Supreme Constitutional Court. Supporters also argue that Article 176 in the 1971 constitution established that the law governs how judges are appointed to the court. They add that the constitution should establish principles and that details may be left to legislation.
Labor Rights
Article 14
National Economy shall be organized in accordance with a comprehensive, sustainable development plan, ensuring the increase of national income, raising standard of living, eliminating poverty and unemployment, increasing work opportunities, production and national income.
The development plan shall establish social justice and solidarity, ensure equitable distribution, protect consumer rights, and safeguard the rights of workers, dividing development costs between capital and labor and sharing the revenues justly.
Wages shall be linked to production, bridging income gaps and establishing a minimum wage that would guarantee decent living standards for all citizens, and a maximum wage in civil service positions with exemptions regulated by law.
Critics: Critics oppose the language indicating that workers’ wages will be tied to their production, believing that it contradicts the principles of workers’ rights established in previous constitutions and the January 25 revolution. They argue that workers may have no control over production and that their wages must be protected from factory or business owners who may abuse the article, which links wages to production.
Supporters: Defenders of this article argue that it establishes comprehensive guarantees for workers’ rights and goes further than any previous constitution. They add that it only makes sense to tie a worker’s wage to his or her productivity and that it should not be a point of controversy. They also point out that the article establishes the basis for legislation to determine minimum and maximum wages, which was a key demand of the revolution and will further protect workers from abuse.
Article 53
Trade unions are regulated by law and managed on a democratic basis, the accountability of their members subject to professional codes of ethics. One trade union is allowed per profession.
Authorities may not disband the boards of trade unions except with a court order, and may not place them under sequestration.
Critics: Critics argue against the limitation of one trade union per profession, which they say is an effort by the state to only allow government-friendly trade unions to operate. This sensitivity is due to the former regime’s long-standing strategy of breaking up active trade unions and only allowing the operation of unions that had been infiltrated by ruling party members and allies.
Supporters: Defenders of this article believe that it protects trade unions from harassment and any other interference by the state, as was the case during the old regime, by requiring a court order for any actions to be taken against a trade union.
Article 64
Work is a right, duty and honor for every citizen, guaranteed by the State on the basis of the principles of equality, justice and equal opportunities.
There shall be no forced labor except in accordance with law.
Public employees shall work in the service of the people. The State shall employ citizens on the basis of merit, without nepotism or mediation. Any violation is a crime punishable by law.
The State guarantees for every worker the right to fair pay, vacation, retirement and social security, healthcare, protection against occupational hazards, and the application of occupational safety conditions in the workplace, as prescribed by law.
Workers may not be dismissed except in the cases prescribed by law.
The right to peaceful strike is regulated by law.
Critics: Critics argue that forced labor should never be allowed under any condition, with or without a law.
Supporters: Defenders of this article believe that it guarantees fundamental workers’ rights and unprecedented protections and that the critics ignore the gains for workers and instead make unfounded and exaggerated allegations.
.jpg)
