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December 9, 2016
Reviving the Ottoman Language: a Complicated “Religious” Mission
January 25, 2017

Human Rights in Post-Revolution Tunisian and Egyptian Constitutions: Perspectives for a Future Syrian Constitution – Part Two/Three: Egypt

A constitution is a pivotal factor in the long-term success or failure of the democratic transition that a country has after passing through an uprising or civil war. Both cases were seen during the “Arab Spring” where some countries descended into an armed conflict like Syria while others reverted back to even more authoritarian regimes like Egypt. The notable exception and possible success story is Tunisia. A constitution alone is not enough to guarantee the success of such transition if not coupled with legislative reforms and practical changes in institutions and their methods of operation.[1] This series aims to offer an overview on the respect of human rights in the new Tunisian and Egyptian constitutions, their application on the ground, and attempt to project their successes and failures to the case of Syria and its future constitution whenever it will be written.

In January 2014, the new Egyptian constitution received a 98.1% approval to replace the 2012 constitution which was passed under the rule of the Muslim Brotherhood. According to government sources, the voter turnout was 38.6%, and the vast majority of the youth did not participate. This showed the large marginalization and disapproval of the revolutionary youth who protested in 2011 as well as supporters of the Muslim Brotherhood. Due to the attempt of the Brotherhood to take control over the different aspects of political life following the election of Mohammad Morsi as President, many Egyptians returned to the streets and turned to the military for support in ousting Morsi from power. The new constitution has been heavily criticized by conservatives, progressives, revolutionaries, and Islamists alike. This is due to the struggle between the bureaucratic elite of retired army officers aiming to preserve the status quo and the demands of the millions of Egyptians who took to the streets to call for freedom.[2]

The referendum for the constitution was critiqued by international monitors due to the strongly polarized political environment in the country, the procedural violations during the balloting, the absence of a public debate before the vote, the lack of inclusiveness in the parties who drafted the constitution, and the arrests of those campaigning against the acceptance of the constitution. Also, the media did not allow any meaningful opposition figures to express their dissenting opinion while activists were arrested just for hanging signs calling for a no vote. This was coupled with the mass arrests and banning of the Muslim Brotherhood.[3]

Both constitutions cannot be separated from the context through which they were drafted and adopted. The 2012 constitution referendum came amid Morsi issuing a decree which gave him sweeping powers and immunity from judicial oversight which led to hundreds of thousands of protesters descending upon Tahrir Square and the Presidential Palace. This included street confrontations between them and Morsi supporters that resulted in hundreds of injuries and 6 deaths. These events cast a huge shadow over the legitimacy of both Morsi’s presidency and the referendum. On the other hand, the 2014 constitution referendum came after a military coup and a brutal operation to clear “Rabaa al-Adewiya” square from Islamist protesters. The operation was heavily condemned by human rights groups and labeled as one of the worst mass killings in recent history which caused hundreds of deaths. The complete mishandling of the trajectory of the revolution by those in power, over two waves by Islamists and military officials, successively broke the hopes and demands of the millions of Egyptians who protested in 2011.[4]

The 2014 constitution increased and cemented the powers of the institutions that played an integral part in the ouster of the Muslim Brotherhood, represented by Morsi, from the Presidency. The power struggles which took place since the 2011 revolution are clearly reflected in the constitution where those in power under Mubarak seized the anti-Brotherhood and pro-military sentiment in the streets to recapture and widen the powers they had even before the revolution.[5]

After the Muslim Brotherhood took power in 2012, they provided the military with all the powers and protections they demanded in exchange for them remaining neutral regarding the power-grab attempt of the Brotherhood. This rise in the institutional entrenchment of the military as well as the role they played in the ousting of Morsi made it very difficult to limit their influence in the political scene and consequently the constitution. The military was able to build on the powers granted to it in the previous constitution and enshrined its position as an autonomous entity separate from the executive branch of government. For instance, article 234 grants the Supreme Defense Council the ability to approve the appointment of the Defense Minister for the two upcoming presidential terms while article 203 does not provide any effective oversight over the military budget which is only discussed by the National Defense Council, and merely a gross budget will be submitted to parliament for approval. This entitles the military to complete control over their budget and spending away from any form of public accountability. In addition, article 204 only places superficial limitations on the power of military courts to try civilians which were previously used by the Mubarak regime to get a quick guilty verdict on political opponents and critics. In spite of the elimination of the law that granted the President this power in 2012, the main issue of concern is the thousands of cases being independently prosecuted by the military courts since 2011. All in all, this intensification in the powers of the military directly limits the authority of elected officials, mainly the parliament and the president, over the institution.[6]

On the other hand, the judiciary, which strongly supported the military coup against the Brotherhood, also gained a lot of influence. In a similar manner to the military, judicial bodies receive their budget in lump sum, the judicial council selects the prosecutor general, and each judicial body is granted autonomy. Moreover, members and the chief justice of the constitutional court are now selected internally with no oversight from other institutions thus making it impossible for any reform attempts from outside the court itself.[7]

The police and intelligence agencies, in articles 206 and 207, are loyal directly to the people. This term was the same pretext used by the military to intervene in politics in 2011 and 2013. Additionally, the reference to respecting international human rights obligations was not mentioned, and this raises a wide array of concerns regarding an institution which has a bad human rights record over the past decades. A Supreme Police Council, most likely formed of senior officers, has to be consulted on any law which affects the police. This negates any attempt of serious police reform since it has to pass through already existing police institutions. Also, general intelligence officers are tried in military courts, not civilian courts, which provides them with immunity from civilian oversight.[8]

Even though it theoretically provides better human rights protections than the 2012 constitution, it leaves a huge margin of operation in their implementation to legislation which in turn could be negligent or even hostile to human rights.[9]

Away from the actual actions on the ground, the 2014 constitution states that the state should guarantee equality between men and women in civil, political, economic, social, and cultural rights as well as protecting women from violence (article 11). In addition, it indicates that steps must be taken to provide women with appropriate representation in the executive power, parliament, and judiciary.[10] In spite of the demands of women’s rights organizations to include a mandatory quota for women, their efforts failed so there are no guarantees for representation. They were able however to gain a 25% quota of seats in elected local councils which, on the long run, could help women build up their relations with the constituents of their electoral districts and get elected into the House of Representatives later on. Women also have the right to grant their citizenship to their children as stipulated in article 6; this right was given in 2004 in the Citizenship Law but is now present in the constitution as well.[11] These rights built on the ones granted in the 2012 constitution which was an effort by the Muslim Brotherhood to show that gender equality is compatible with the concept of an Islamic democracy.[12] In spite of these advances and the election of a significant amount of women into the parliament, there still isn’t a national strategy which combats violence against women or amends the penal code regarding sexual harassment. There is still a huge discrimination against women in law and practice.[13]

It is considered a step forward from the 2012 constitution which was dominated by Sharia law and neglected minority rights. For instance, article 219 of the 2012 constitution which allowed extreme interpretations of Sharia to become the basis of legislation was repealed, and article 7 of the 2014 constitution removed Al Azhar’s legislative role which would have elevated its power to an unprecedented level.[14] Article 53 also prohibits discrimination based on religion, gender, race, and social class…, and it calls for the establishment of an independent government agency to monitor and take the needed measures for advancing this purpose.[15] Christians now have their own personal status law in article 3, even though this was established by practice since a long time. Due to the perception that Sisi is more respectful of minority rights than his predecessors, many Christians have supported his rise to power. Sisi has been publically supportive of Copts and attended mass during Christmas which earned him praise domestically and internationally; however, no concrete steps have been taken to limit discrimination against Christians and other minorities as well as increase their disproportionate level of representation in government. Another issue not being tackled is acknowledging that minorities could be in need of protection from discriminatory attacks and anti-Coptic violence. In addition, those responsible for previous attacks have yet to be brought to justice, and little progress has been made on the rebuilding of churches that were damaged in a wave of sectarian attacks in 2013 in spite of government promises of doing so.[16] The constitution restricts the right of worship to the three Abrahamic religions and therefore does not take into consideration the other present religious affiliations such as members of the Baha’i faith which is a small but deeply rooted community.[17]

Article 92 prevents the passing of any legislation which infringes or limits the rights and freedoms in their essence. This was originally present in the 2012 constitution but was limited by adherence to Sharia law as well. Furthermore, article 93 obliges the state to comply with the international treaties of human rights that Egypt has ratified and gives them power of law.[18] This is coupled with the freedom of association guaranteed in article 78; however, tens of civil society organizations and human rights NGOs are being harassed by the authorities and judiciary under the guise of “combating foreign funding which aims to harm national security”.[19] The constitution also prevents the formation of any political party on religious basis, seen as targeting the Muslim Brotherhood.[20]

All in all, the Egyptian security apparatus is dedicating most of its resources to cracking down on journalists, opposition, activists, and Muslim Brotherhood members rather than maintaining public security. Article 237 which requires the state to fight terrorism is being widely interpreted to be able to crackdown on dissent, just like the Mubarak regime did. For instance, 5000 apartments were raided in downtown Cairo and peaceful activists were arrested under charges of “illegal protest, threatening public peace, or belonging to a terrorist organization”. Some of them, and others, are held in pre-trial detention for years without being charged with an offense or even seeing a judge. The judiciary is also complicit with these acts, and estimates point to tens of thousands political detainees at the moment.[21] While responding to criticisms regarding its human rights violations, the Egyptian government states that the constitution is a “victory for human rights and freedom”.[22] Neither the constitution nor the international human rights treaties that Egypt has signed are being respected, and laws have not been reformed to conform to the new constitution. The constitution remains ink on paper until actions on the ground change drastically.

Crackdown on freedom of expression has been exercised under the cover of article 53 which forbids hate speech. Police brutality and torture were key aspects of the rule of authoritarian regimes in Egypt over the past decades which is why article 52 outlawed torture in all its kinds and did not specify any statute of limitation on the crime.[23] Though in reality, according to Human Rights Watch, a huge crackdown on freedom of expression is being implemented in Egypt where arbitrary arrests, torture, unfair trials before military courts, and enforced disappearances are a daily practice.[24] Confessions signed under torture, rape in prison by security agents, and hundreds of enforced disappearances point to a grim reality and complete negligence of the rights supposedly guaranteed by the constitution.[25]

Workers’ rights are touched upon in article 13 which generally complies with the international standards set by the International Labor Organization such as safe working conditions and disallowing arbitrary dismissal; however, workers and farmers no longer form half of the parliament which is a blow to the influence of laborers. Unions are also prohibited from organizing within government security agencies.[26] The right to freely form trade union has also been violated when the Ministry of Manpower declared that independent trade unions are illegitimate entities, and that union pluralism is prohibited. This contradicts article 76 of the constitution which allows trade union pluralism and guarantees the rights of workers to establish unions. This came after dozens of independent unions gained considerable influence, abandoned the pro-government Egyptian Trade Union Federation, and started advocating for the rights of workers.[27]

The hostile attitude adopted by the Muslim Brotherhood regarding any secular opposition, and the mass protests against their rule which aimed at “rescuing the revolution” coupled with the military coup led to a binary narrative of either Islamism with the 2012 constitution or militarism with the 2014 constitution. Within this framework, pluralist civil society figures, minorities, women, and youth groups crucial to the 2011 revolution were left without a “horse in the race” and had no space to express their position. This was in part deliberate by both Islamists and military officers to galvanize supporters and marginalize more tolerant and pro-democratic movements. Egypt was drawn back to the country’s 20th century struggle between secular authoritarianism and political Islam where the former attempts to either crush or co-opt the latter. This is not only limited to Islamism under Sisi since crackdown extends to any opposition from across the ideological spectrum.[28]

Even though the new constitution theoretically provides decent guarantees about the human rights of citizens, it does also empower the military, security forces, and judiciary to levels not seen before. The constitution is either being neglected or having its loopholes exploited so that Sisi and the current military-intelligence apparatus can strengthen their grip on power. The intensity of the crackdown on any kind of opposition has reached unprecedented levels, and the current regime has completely destroyed the remnants of the 2011 revolution and driven the country back decades. Human rights violations are being conducted on a mass scale with no accountability on any level, and civil society organizations are being driven to the ground. The current strategy might provide temporary “stability”, but it will undoubtedly lead to a severe reaction from the Egyptian streets in the future. Any attempt at improving the Egyptian political landscape must start by significantly amending the current constitution because the core institutions ruthlessly ruling the country right now have their powers enshrined in the document.

In comparison to the Tunisian Constitution review, several key differences exist between both experiences. One of them is the role that the army plays in the country. In Egypt, the army has always played a very active role on the political front and led the coup which ousted the democratically elected Mohammad Morsi from the Muslim Brotherhood in an attempt to regain the power lost with the toppling of Mubarak. In comparison, the Tunisian army largely remained in the barracks which is rooted in the distrust which Bourguiba, Tunisia’s post-independence President, had of the army and worked on limiting their influence especially after he saw the roles that armies played with the coups of Abdel Nasser and the Baath party in Syria and Iraq. A second difference is the winner-takes-all approach adopted by the Muslim Brotherhood in Egypt while Ennahda worked on forming coalitions with other parties and respected the democratic process.[29] This, in part, is related to the fact that secular parties in Tunisia were in a much better social and financial position than those in Egypt. Their parity with Islamist parties and very good results in the elections following the revolution created a balance of power which had to be taken into consideration by Ennahda. Some point to a third difference which is the higher rates of development, education, and urbanization in Tunisia as well as the compromising nature in their political discourse. A fourth difference is the strength of the trade unions and plurality of civil society groups in Tunisia which kept up the pressure on those in power even after the ouster of Ben Ali in order to push for a more and more progressive constitution.[30]

Due to the presence of a counter-revolution in Egypt led by the military and due to the presence of a perceived threat from the Muslim Brotherhood which was labeled as a terrorist organization, the army and intelligence apparatus cracked down on all kinds of opposition and dissent under the pretext of preserving security and fighting terrorism. This was coupled with popular support for the coup which ousted Morsi and gave a form of cover for the crackdown in its early stages. This led to a strong grip over power in the country. A similar scenario could have occurred in Tunisia with the constant extension of the state of emergency following a series of terror attacks; however, the much stronger role of civil society as mentioned previously, the plurality of political parties in power, and the presence of an active opposition may have prevented the duplication of what occurred in Egypt. These same reasons directly impact the practical application of the constitution as well since the different actors (civil society groups, elections, trade unions…) that monitor violations and hold those in power accountable are in a far better position in Tunisia than in Egypt. This could explain the small steps of improvement being seen in Tunisia in contrast with the deterioration seen in Egypt.

The Arab Spring initially resulted in high hopes for democracy and the respect of human rights; however, the result has not been very encouraging, albeit it is still too early to give a final verdict. Looking at the MENA region as a whole, especially the countries which witnessed mass protests, the human rights situation has largely either remained the same or took a turn to the worse with no hope in sight for actual improvement or meaningful reforms. Tunisia is seen as a relative success story with the implementation of democratic transitions of power, but huge challenges remain in terms of comprehensive reforms targeting both legislation and the abusive practices of intelligence agencies. On the other hand, Egypt is seen as the complete opposite where a much stronger grip is held over the country by the army, crackdown on opposition has reached unprecedented levels, and civil society organizations are in ruins. Tunisia might have taken a step forward, but Egypt has taken a massive step back. Both experiences have indicated that reaching a state where democratic principles and human rights are respected is much more than just ousting a certain person from power. They have also indicated that a constitution which theoretically guarantees human rights such as freedom of expression and protection from torture is just ink on paper if it is not complemented by deep reforms for relevant legislation since loopholes can and will be exploited to curb constitutional amendments. Another crucial issue is the considerable restructuring of intelligence agencies which used to be the spearhead of the oppressive tactics adopted by previous regimes. Political and ideological divisions as well as electoral considerations should not be used as an excuse to divert the people’s attention from the original demands of the uprisings which are actual alterations in the decades-old methods of rule. A transition to democracy and human rights cannot be achieved in a few years especially in countries that have been ruled by dictatorships for decades, but there is a massive difference between having a good base to rely and build upon, like the case of Tunisia, because hope for improvement through reforms, even if small steps at time, is possible while that is not the case in Egypt.

As seen in the case of Egypt with the army coup against the Muslim Brotherhood, the rise of Haftar in Libya as a strong man opposing Islamists, and the rhetoric adopted by the Assad regime in Syria, the future of the political systems in the region should not become binary in nature. The choice is not limited between dictatorship which provides temporary stability or fundamental Islamic rule. The only way to reach durable peace and long-term stability is through setting a good base with the constitution and accountable institutions which can be gradually built upon to reach a rule of law, a change in mentality, and inclusiveness of all communities in the democratic process.

The final paper of the series will aim to build on the Tunisian and Egyptian experiences to try and tackle the Syrian conflict through analyzing the different forms that a settlement between the Assad regime and the opposition could take. It will also highlight the crucial need for a rights-oriented approach during the future transitional period and in the new constitution where individual as well as group rights are guaranteed so that long-term peace and reconciliation have a chance of succeeding.

[1] Klibi, S. (2015) Implementing Tunisia’s New Constitution Requirements and Roadmap, Constitution Net, Retrieved from

[2] Shalakany, A. (2014) Egypt’s New Constitution A Mixed Bag, E International Relations, Retrieved from

[3] Kirkpatrick, D. (2014) Overwhelming Vote for Egypt’s Constitution Raises Concern, New York Times, Retrieved from

[4] McRobie, H. (2014) Egypt A Tale of Two Constitutions, Open Democracy, Retrieved from

[5] Brown, N. & Dunne, M. (2013) Egypt’s Draft Constitution Rewards the Military and Judiciary, Carnegie Endowment, Retrieved from

[6] Brown, N. & Dunne, M. (2013) Egypt’s Draft Constitution Rewards the Military and Judiciary, Carnegie Endowment, Retrieved from; Shalakany, A. (2014) Egypt’s New Constitution A Mixed Bag, E International Relations, Retrieved from

[7] Ibid.

[8] Ibid.

[9] Brown, N. & Dunne, M. (2013) Egypt’s Draft Constitution Rewards the Military and Judiciary, Carnegie Endowment, Retrieved from

[10] Kirkpatrick, D. (2014) Overwhelming Vote for Egypt’s Constitution Raises Concern, New York Times, Retrieved from

[11] Menna, O. (2014) Women’s Gains in the Egyptian Constitution of 2014, Legal Agenda, Retrieved from

[12] Mclarney, E. (2016) Women’s Equality Constitutions and Revolutions in Egypt, Project on Middle East Political Science, Retrieved from

[13] Lahidji, K. (2016) Egypt President Sisi in a Crusader Fight with a Generation, Huffington Post, Retrieved from

[14] Mahmoud, T. (2014) The Half Full Cup of Egypt’s New Constitution, The Atlantic Council, Retrieved from

[15] Kirkpatrick, D. (2014) Overwhelming Vote for Egypt’s Constitution Raises Concern, New York Times, Retrieved from

[16] Yerkes, S. (2016) What Egypt under Sissi is really like for Coptic Christians, Brookings Institution, Retrieved from

[17] Mahmoud, T. (2014) The Half Full Cup of Egypt’s New Constitution, The Atlantic Council, Retrieved from

[18] Kirkpatrick, D. (2014) Overwhelming Vote for Egypt’s Constitution Raises Concern, New York Times, Retrieved from

[19] Observatory for the Protection of Human Rights Defenders, Egypt Ongoing Harassment and Restrictions to Freedom of Association against Several Human Rights Organizations, World Organization Against Torture, Retrieved from

[20] Al Sharif, A. (2013) Egypt’s Draft Constitution Enshrines Army Role in Politics, Reuters, Retrieved from

[21] Lahidji, K. (2016) Egypt President Sisi in a Crusader Fight with a Generation, Huffington Post, Retrieved from

[22] Associated Press (2014) Egypt Rights Group says Constitution Violated, The San Diego Union Tribune, Retrieved from

[23] Kirkpatrick, D. (2014) Overwhelming Vote for Egypt’s Constitution Raises Concern, New York Times, Retrieved from

[24] Mounir, S. (2016) Egypt still Struggles to Improve Human Rights, Al Monitor, Retrieved from; Amnesty (2014) Egypt Rampant Torture Arbitrary Arrests and Detentions Signal Catastrophic Decline in Human Rights One Year after Ousting of Morsi, Amnesty International, Retrieved from

[25] Lahidji, K. (2016) Egypt President Sisi in a Crusader Fight with a Generation, Huffington Post, Retrieved from

[26] Al Sharif, A. (2013) Egypt’s Draft Constitution Enshrines Army Role in Politics, Reuters, Retrieved from

[27] Hassan, K. (2016) Egyptian State Takes on Independent Trade Unions, Al Monitor, Retrieved from

[28] McRobie, H. (2014) Egypt A Tale of Two Constitutions, Open Democracy, Retrieved from

[29] Ghannoushi, S. (2014) Tunisia is Showing the Arab World how to Nurture Democracy, The Guardian, Retrieved from

[30] Zakaria, F. (2014) Why Democracy Took Root in Tunisia and not Egypt, Washington Post, Retrieved from

Jimmy Matar
Jimmy Matar
Jimmy Matar is a researcher about Middle Eastern politics, with a special interest in identities. He holds a BA in International Affairs and Diplomacy from Notre Dame University in Lebanon and an MA in International Relations from Leiden University in the Netherlands. He is currently the Research and Administrative Officer at the Middle East Institute for Research and Strategic Studies. Alongside his work in research, he was and continues to be involved in various civil society organizations focusing on human rights.