Controversial clauses in Egypt’s constitution

The draft constitution approved by Egypt’s constituent assembly approves some significant changes from the controverisal drafts first circulated last month.

Article 35 and article 36 protect Egyptians from arbitrary detention and torture, respectively; those provisions were absent from earlier drafts. Others amendments protect the freedoms of assembly and association.

But many aspects of the constitution, approved in the early hours of Friday morning, are still unpopular with Egyptian and international rights groups and activists. Below are a few of the most controversial areas.

Women’s rights

The draft constitution no longer includes article 68, which ensured equality of the sexes provided “this does not conflict with the rulings of sharia.” That provision was fiercly opposed by women’s rights groups, which argued it would give men unequal advantages on personal status issues.

But the draft also includes article 219, which declares the principles of sharia to be the “fundamental rules of jurisprudence”.

It also removed language prohibiting discrimination on the basis of gender, and it includes article 10, which stipulates that the state “shall provide free maternal and child care services, and maintain a balance between a woman’s obligations toward the family and public work”.

“The state’s role should be confined to ensuring equality and non-discrimination, without interfering with a woman’s choices about her life, family and profession,” Human Rights Watch said in a statement.

Freedom of religion and speech

The draft, as expected, maintains article 2 from the 1971 constitution, which declares Islam the state religion and “the principles of Islamic sharia” to be the “principal source of legislation”.

Liberals are willing to accept this formulation, because there are no fixed “principles” of Islamic law. Some Islamists, particularly members of salafi parties, had pushed for a stricter application of Islamic law.

Article 11 provides that the state “shall protect ethics and morality and public order,” broad language which rights groups say could allow the government to impose a religiously-inspired version of “morality”.

Article 43 provides for freedom of religion, but only for the “heavenly religions”: Islam, Christianity, and Judaism. This limitation could preserve discrimination against minority groups, like the Baha’i, who have long been treated as second-class citizens in Egypt. (They were unable even to obtain identity cards until 2009).

The constitution provides for the freedom of expression, but it also includes article 31, which bars “personal insults”; it is unclear how the two articles will be reconciled. Article 44 prohibits insulting prophets – blasphemy, in other words.

Civil-military relations

One of the most significant changes is the deletion of language in article 75, which prohibited military trials for civilians. More than 12,000 civilians have faced military tribunals since the revolution, so rights groups considered this clause a major victory.

But the army complained, so the drafters deleted that line and added language (in article 198) which allows civilians to face military trials for “crimes which affect the armed forces.” The exact meaning of that clause is left unclear, and “will be defined by law”.

Article 197 largely prevents the parliament from overseeing the military budget, and it requires the parliament to seek the opinion of the National Defence Council on any legislation related to the army.