UN expert group encourages review of Egypt’s draft Constitution to ensure conformity with its obligations under international law on equality and women’s human rights
Egypt's Constitution and women
14 December 2012
GENEVA (14 December 2012) – The United Nations Working Group on the issue of discrimination against women in law and in practice expressed deep concern regarding equality, non-discrimination and protection and promotion of women’s human rights in the final draft of the new Constitution which was approved by the Constituent Assembly on 30 November.
It calls upon the Egyptian Government to abide by commitments made through the ratification of international instruments to which it is a party, including the Convention on the Elimination of All Forms of Discrimination against Women and the International Covenants on Civil and Political Rights and Economic, Social and Cultural Rights, which obligate States’ parties to ensure that the Constitution and other legislation are compatible with the principle of non-discrimination against women, and equality of women with men.
“Key opportunities have so far been missed,” stressed independent expert Kamala Chandrakirana, who currently heads the UN expert body charged with identifying ways to eliminate laws and practices that discriminate against women, and making recommendations on implementation of the law and empowerment of women. “We are concerned that almost no women were represented in the Constituent Assembly charged with drafting the new Constitution and that women’s perspectives were grossly under-represented in the final draft.”
“Political transitions offer a unique opportunity to address inequalities of the past, advance women’s human rights and ensure that equality between women and men is one of the foundations on which the new legal system is built as indeed we emphasized in our report to the HRC in 2012*”. However, she said, “despite offering unprecedented opportunities for progress, political transitions can result in regression and bring new forms of discrimination.”
The UN expert group has been closely following unfolding events in Egypt and takes note of the planned referendum on 15 December. It is of the view that critical review of the draft Constitution is still necessary.
While the Working Group welcomes a number of positive provisions on human rights in the draft Constitution, including free maternal and health services, it draws attention to issues relating to equality for women that need to be brought in line with international human rights standards.
The experts acknowledge that the final draft Constitution includes in its preamble a general principle which provides that “equality and equal opportunities are established for all citizens, men and women, without discrimination or nepotism or preferential treatment, in both rights and duties”. It also provides “that all citizens are equal before the law and have equal public rights and duties without discrimination”.
However, crucially, it does not include in its substantive provisions the guarantee of non-discrimination based on sex necessary to give effect to the principle of equality between men and women in the preamble and in accordance with Egypt’s international human rights obligations. Furthermore, the Working Group notes that the implementation of temporary special measures aimed at accelerating de facto equality of women in subsequent legislation might be obstructed by the formulation in the preamble.
According to article 2, Islam is the religion of the State and the principles of Islamic Sharia are the principal source of legislation. Although article 6 espouses democratic principles, including citizenship on an equal basis, political pluralism, separation of powers, and the rule of law, as well as respect for human rights and freedoms, the experts expressed concern about the absence of a provision incorporating international law, including on women’s human right to equality, into the domestic legal order and stipulating its primacy.
“Treaty bodies regularly recommend that States guarantee women’s human rights in the national Constitution and thus ensure that they prevail over inconsistent laws of lesser status” Ms. Chandrakirana said.
Article 2 provides that Islam will be the principle source of legislation and article 3 provides that Egyptian Christians and Jews personal status will be regulated under their religious laws. However, there is no provision that women’s right to equality in the family will be respected, protected and fulfilled by the State in accordance with international human rights standards. In addition, article 10 provides that “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.”
Over the last 30 years, human rights mechanisms have emphasized that violations of women’s right to equality cannot be justified by reliance on religious or cultural tradition. The experts also noted the absence of protection for women of diverse beliefs and opinions, religious or other, against any form of discrimination and exclusion.
The Working Group notes that article 4 extends the powers of the independent Islamic institution Al-Azhar, stating that “Al-Azhar Senior Scholars are to be consulted in matters pertaining to Islamic law,” which puts it effectively in charge of interpreting all Sharia-related matters. The experts urged the Egyptian authorities to clarify that measures will be taken to ensure that interpretations provided by this body to the executive, legislature and judiciary will be brought into line with the legally binding international instruments Egypt has ratified, including on women’s human rights.
“We would also like clarification on how the independence of the judiciary, and in particular of the Supreme Constitutional Court, an independent judicial body provided for by article 175 to exclusively exercise judicial control of the constitutionality of laws and regulations, will be guaranteed, as well as women’s equal representation in the Supreme Constitutional Court.”
“We urge the Egyptian Government to ensure women’s full and equal participation in all processes related to the political transition, to guarantee their freedom to express their views, to be protected against violence in their political and public activities and have their voices incorporated in public discourse and in shaping the society. Further, the Government should ensure that the Constitution provides the strongest guarantees to advance equality and women’s human rights in line with Egypt’s obligations under international law,” Ms. Chandrakirana underscored.
(*) Read the Working Group’s first report: http://www.ohchr.org/Backup%20(1)%20of%20Documents/Issues/Women/A-HRC-20-28_en.pdf
The Working Group on the issue of discrimination against women in law and in practice was established by the Human Rights Council in 2010 to identify ways to eliminate existing discrimination in law and practice, and helping States to ensure greater empowerment and autonomy for women in all fields. The Group is currently composed of four independent human rights experts: Kamala Chandrakirana, Chairperson-Rapporteur (Indonesia); Frances Raday,Vice-Chairperson (Israel/United Kingdom) Emna Aouij (Tunisia); Eleonora Zielinska (Poland) and Patricia Olamendi Torres (Mexico). They are independent from any government or organization, and serve in their individual capacities. Learn more, visit: http://www.ohchr.org/EN/Issues/Women/WGWomen/Pages/WGWomenIndex.aspx