A preliminary reading of the constitution-writing committee’s draft chapter on rights and freedoms shows that the three conditions governing freedom which were set out when the modern state was being established during the eras of occupation and national liberation still stand. The draft constitution maintains the state’s guardianship over the right of the public to independent organization and movement, guardianship of the conscience and resultant restrictions on freedom of belief and worship and finally a guardianship on the body and sexuality, which is fixated on imposing restrictions on the female body through a strict reading of the Islamic norms on the subject.
This draft constitution also reveals a grave disconnect between the revolution — which sought to restructure the modern state and reconfigure the nation on a basis totally different from that of the collapsed regime — and the new political elite, particularly the Islamist current, which still adheres to the legacy of the fallen state.
In fact, the hesitation on the question of freedoms, marring the stance of the majority of Islamist factions, and particularly the Muslim Brotherhood, stems from their very adherence to the tenets of the modern nation state.
The Egyptian modern state has since its conception been suspicious of the public organizing themselves, associating it with an instinctive inclination to rioting and sabotage. Attempts at modernization came hand-in-hand with the state of emergency and the imposition of martial law during World War I. The penal code also criminalized public assembly and a number of other forms of mass protest, including the right to strike.
Viewing with suspicion the capacity of the public to organize is a legacy of the era preceding the establishment of the modern state, maintained to organize relationships of ownership, the capitalist market and protect the colonial administration. Granting the right to organize remained tied to conditions ensuring the “civilized attitude” of the protesters, creating therefore a “benign” and toothless form of protest. These restrictions were incorporated in Egypt's first liberal constitution and other laws governing the right to organize. Articles 15 and 20 of the 1923 Constitution, for instance, restricted the freedom to publish papers and the freedom of assembly by “the necessities to preserve social order.”
The modern Islamist project was both shaped and played a role in shaping a new national identity. It presented its own theory on sovereignty and legitimacy, which replaced those inherited from eras preceding the formation of the modern nation state. In the Islamist vision, the nation is the source of power and is the legislator. The nation therefore has a number of civil and political rights such as the right to elect, and the right to form parties and the right to equality and other forms of practice of its collective identity. In that vision, Christians are viewed as a sect bound by a strategic alliance with the Muslim majority.
This vision creates an ideological mission for the modern state that involves spreading and monitoring a particular version of Islam, lest the theory of legitimacy on which the state is founded gets eroded. Extremist Islamist theories that deny the existence of the new nation or radically secular visions that do not recognize this conservative view of patriotism would then take over. Within the context of this fear, Al-Azhar gradually transformed into a state institution required to define and preserve this version of Islam and to impose it in the face of Sufism and Shi'ism. And within that context too, censorship on conscience, restricting freedom of belief and different forms of expression, was introduced to guarantee the unity of the nation and its stability. Article 13 of the 1923 Constitution restricted the freedom to perform religious rituals “by public order and traditions in the Egyptian state.”
Finally, this modern project sought to spread its authority to the physical body and particularly the body of females who belong to the lower classes and to have them play predetermined roles in the state’s modernization project. At this point, women were able to win some of their rights and freedoms which later came to be predominantly interpreted in more conservative ways.
These three forms of guardianship continued to exist at the constitutional and legislative levels until the July 1952 revolution, which imposed further restrictions in return for the social bribe of additional economic, social as well personal rights for women, also derived from the same framework of modernized Islam.
The 1952 revolution broke away from the theory of democratic legitimacy, almost threatening to confiscate the entire political sphere in favor of a parallel police state. In other words, the July regime violated the consensus that the modernization elite had built. But with regard to legitimacy, political and civil freedoms, it left the consensus intact and maintained the three types of restrictions.
The struggle for political rights over the past two decades has led to some gains. However, that struggle also ran contrary to the consensus of the elite on these three conditions. For instance, in the previous decade the State Council renewed its emphasis on the restriction of freedom of belief, particularly those that concern followers of “non-divine religions” as well as on religious conversion.
Attempts to drop the modern state's guardianship on the female body were met with fierce opposition from the state and its judicial institutions. For instance, the State Council has consensually rejected to appoint women as judges in the council and expressed reservations on legislative reforms that would give women greater freedom, as in the case of the amendments to the Child Law in 2008.
Large sectors of Egyptian society, particularly the urban working-class, pushed for the freedom to organize. The legislative and the judiciary did grant them the right to form independent syndicates, all while criminalizing strikes in different ways.
As the Islamists seek to inherit this modern state of which their movement is itself a product, it is quite normal for it to reproduce the same restrictions on freedoms, and to add new forms of control to establish its political hegemony. The rights and freedoms chapter of the draft constitution was written up against that backdrop.
Regarding the right to organize, Article 37 grants workers the right to go on strike, while Articles 18 and 19 give citizens the right to form associations, parties and syndicates if they notify the authorities. However, that right is tied to “the legitimacy of the goals and the peacefulness of the means.” This concept of the “legitimacy of the goal” is new to Egyptian constitutional language. In fact, the issue of legitimacy should be regulated by laws governing the work of these organizations, not through a constitutional clause that opens the door to clamping down on those organizations on the pretext of their violation of the constitution.
Article 20 concerns freedom of information, and it obliges the state to empower its citizens to enjoy that right without any obstacles in a manner that does not harm the state's national security or encroach on people’s private lives. Again, who defines national security and how many internet websites could be blocked on such a pretext, for example? The communications-blackout imposed during the first days of the January 25 revolution would, under this article, be constitutionally legitimate. The communications law should specify the details of what should be blocked instead of resorting to such loose terms.
Regarding the freedom of conscience and belief, Articles 8 and 9 have reinstated restrictions inherited from the past century. Article 8 restricts the freedom to perform religious rituals to followers of “divine religions,” which strips the article of meaning and empowers security bodies to crack down on individuals and scrutinize their private lives to ensure that they do not use their homes to practice outlawed “non-divine religions.”
Article 9 guarantees the right to freedom of expression, orally or in writing or other forms provided that such expression does not encroach on people’s private lives or the rights of others. But again, what do the rights of others mean? Would a film, say, be said to violate the rights of others if it questions a dominant interpretation of a religious text?
Article 40 of the constitution re-establishes the traditional position on women, obliging the state to undertake all legislative and executive measures to entrench the principle of equality between men and women in the political, cultural, economic, social and other spheres in a manner that does not undermine Islamic Sharia rulings. The state also ensures that women are able to reconcile their family duties with their work. This article, except the provision concerning Islamic Sharia, was copied from the 1971 Constitution and suffers from the same defects. And why is there a need to mention Islamic Sharia again given that it is already cited in Article 2? And why is it presumed that there is a clash between women's rights and their duties toward the family? This stipulation could be exploited to prevent the issuing of certain laws and to claim that certain existing laws are unconstitutional.
As such, the revolution’s constitution will be born almost in complete isolation of the values and spirit of the revolution. The fact that the political sphere is isolated from the ongoing transformations in society, which has come to reject all forms of limitations on freedom, means that the constitution will not be respected and will remain a foreign product imposed on the people