By Ellen McLarney, Duke University
*This essay was prepared for the Women and gender in Middle East politics workshop, March 11, 2016.
Many criticisms of the 2012 Egyptian constitution revolved around its presumed violations of women’s rights. The media, research institutes, and human rights organizations blamed the Islamism of the government of Muhammad Morsi for jeopardizing women’s “personal liberty” and civil rights. Yet the 2012 constitution was the first to explicitly establish – without qualification – “equality and equal opportunities for all citizens, men and women (muwatinin wa muwatinat), without distinction, favoritism, or partiality, in rights or duties.” The preamble asserted this equality as one of the founding principles of the new state, going to great lengths to pay tribute to democratic concepts like popular sovereignty, political pluralism, dignity, and freedom (of thought, expression, creativity, etc.). Gender equality was an integral element of this liberal vision of the new state, asserted in the preamble’s fifth principle. Moreover, the equality of all citizens was reiterated as a general principle no fewer than five times – Articles 6, 8, 9, 33, and 63 – in the main body of the 2012 constitution. In contrast, the U.S. constitution has no mention of equality anywhere between anyone.
The 2012 constitution’s attitude toward women did not represent a radical departure from prior “secular” constitutions. This paper charts the genealogy of the language of “women’s equality” in successive Egyptian constitutions, culminating in the 2012 constitution in which the liberal language of women’s rights and equality converged with Islamist political aims. The Morsi government adapted the liberal language of women’s rights, drawing simultaneously on a long history of constitutional language, as well as a long history of Islamist rhetoric about women’s rights in Islam. This Islamist language has long been deployed in the service of Islamic mobilization, advocacy that has been essential to cultivating its appeal among the populace.
The 2012 document paved the way to a more extended assertion of equality in the subsequent 2014 constitution, which called (in Article 11) for appointing women to high political office, including the judiciary, “without discrimination,” as well as for equal representation of women in the parliament. The 2012 constitution raised the bar on women’s equality in Egyptian constitutional history, so that the 2014 “secular” constitution strove to top the 2012 “Islamist” one with further provisions for women’s rights.
Gender equality first appeared in Article 31 of the 1956 constitution promulgated under Gamal ‘Abd al-Nasser. “All Egyptians are equal under the law in public rights and duties, without discrimination due to sex, origin, language, religion, or belief.” In contrast, the previous 1923 constitution called for equality for all Egyptians, without discrimination with respect to “origin, language, or religion,” without mentioning sex. In addition to gender equality, the 1956 constitution introduced the tension between women’s public work and her duties to the family, asserting that “the State facilitates for women the agreement (al-tawfiq) between her work in society and her duties to the family” (Article 19).
This language of tawfiq between women’s public work and her duties in family life was reproduced verbatim in the 1971, 2012, and 2014 constitutions. The 1971 constitution, promulgated when Anwar Sadat came to power, states: “The State shall guarantee the agreement (tawfiq) between the duties of a woman toward her family and her work in society, considering her equal status with man in the fields of political, social, cultural, and economic life, without contravening the laws of Islamic shari‘a” (Article 11). This constitution introduced something new into the tension between public rights and private duties: religion as potentially opposed to women’s equal rights with men, especially in the sphere of the family. This clause thus set up a binary between equal work in (secular) society, in contradistinction to (religious) hierarchies governing the intimate domain. The language of the clause connects equality to public rights, but suggests a different set of gendered private duties.
The clause asserting women’s equality to men – but only where this equality does not “violate the rules of Islamic jurisprudence” – found its way into an early draft of the 2012 constitution. After public uproar, the drafters ultimately opted for broad, unqualified, assertions of gender equality. The removal of the clause spoke volumes about the liberal ambitions of the Morsi government, ambitions that were both political and economic. The Morsi government clearly intended to show that women’s equality was not antithetical to an Islamic society, an Islamist president, a government by an Islamist party, or an “Islamic democracy.” Gender inequality remained encoded in the personal status laws with regards to witnessing, polygamy, and divorce. But the liberal language of the 2012 constitution sublimated these inequalities (in typical liberal fashion) underneath euphoric celebrations of newfound political liberties, pluralism, democracy, and freedom (mentioned no fewer than eight times in the preamble alone). The language clearly rankled activists, who, along with feminists, critiqued this liberalism’s dissimulations and hypocrisies, along with its dualisms and paradoxes.
The 2012 constitution also called for providing free services for motherhood and childhood, a clause that had been interpreted as an Islamist bid to relegate women to the home and force them to be mothers. Yet protection of the family, and especially of motherhood and childhood, is hardly unique to the 2012 constitution. (It made its way verbatim into Article 10 of the 2014 constitution as well.) The clause is derived directly from Article 18 of the 1956 constitution and from Article 10 of the 1971 constitution, which also called for supporting the family and protecting motherhood and childhood. These articles might be understood as an Islamist provision, but they are also influenced by from Articles 16 and 25 from the Universal Declaration of Human Rights, promulgated a few years before the Free Officers’ Revolution in 1952. The language of protections for motherhood and childhood is not found in the 1923 constitution, but is introduced in the later, post-UDHR constitutions. Article 18 of the 1956 constitution says: “The State protects and supports (takfil al-da‘m) the family, in accordance with the law, and protects motherhood and childhood.” Article 25 of the UDHR similarly declares that “motherhood and childhood are entitled to special care and assistance,” just as Article 16 calls for protection of the family by society and state as a “natural and fundamental group unit of society.” Not surprisingly, Article 5 of the 1956 constitution echoes this language, stating that “the family is the basis of society and her [family, usra, being a feminine noun in Arabic] support is religion, morals, and nationalism.” This language was identically transposed into both the 2012 and 2014 constitutions.
After the publication of the Universal Declaration of Human Rights, its principles were “translated” into Islamic thought in Egypt, in widely circulated texts such as Sayyid Qutb’s Social Justice in Islam (1949), ‘Ali ‘Abd al-Wahid Wafi’s Human Rights in Islam (1957), and Muhammad al-Ghazali’s Human Rights Between the Teachings of Islam and the Declaration of the United Nations (1963). These thinkers called for freedom, rights, and equality first under the Egyptian monarchy, and later, under subsequent military dictatorships, as they strategically deployed “rights talk” against repressive regimes. The family became a place for envisioning – and articulating – a system of reciprocal rights and duties in an Islamic society, symbolically standing in for an Islamic polity within a secular, semi-authoritarian state. Moreover, the family became a place where rights and duties could be balanced, through a sense of religious communalism, care, and self-sacrifice, in contradistinction to a liberal, secular conception of unbridled individualism.
What purpose has the discursive ideology of equality served for the new Egyptian state? The authors of the 2012 constitution clearly aimed to thwart resilient assumptions about the incompatibility of Islam with gender equality. But they also wielded a long developed discourse of gender equality in Islam as a political tool. This gender equality has been a pillar of contemporary Islamist ideology, developed in the writings of thinkers like Sayyid Qutb, ʿAbd al-Wahid Wafi, and Muhammad al-Ghazali. Each wrote extensively on Islamic notions of women and men’s reciprocal rights and duties, on conceptions of Islamic freedom and equality, and on women. Each focuses on gender equality as a pillar of social justice and human rights in Islam. It is a principle that the Muslim Brootherhood’s Freedom and Justice Party spokeswoman Dina Zakaria reiterated in an interview about the constitution on NPR. Dr. Huda Ghaniyya, one of the drafters of the 2012 constitution and a member of the People’s Assembly (the lower house of Parliament), similarly defended the constitution’s protections of “women’s rights, dignity, and freedom” in a video on Ikhwan Tube, a Muslim Brotherhoods version of YouTube.
Criticisms of Egypt’s 2012 constitution focused on Article 10: “The family is the basis of society, her support is religion, morality, and patriotism.” This article has been generally interpreted as an Islamist provision and stemming from an Islamist emphasis on family values and on women’s roles as mothers. Yet Article 10 hardly has its origins in the Islamic ideology of the Freedom and Justice Party, as public commentaries relentlessly asserted. Article 10 is taken verbatim from Article 5 (“The family is the basis of society, founded on religion, morality, and patriotism”) of the 1956 constitution under Nasser, who was, by that time, resolutely at war with the Muslim Brotherhood. This historical context, along with the UDHR, is utterly critical to understanding this particular formulation of a religious family as the basis of society. Through the constitution, Nasser sought to curb and control the powers of not just the Muslim Brotherhood, but also Al-Azhar and the religious courts. He did this partly by concentrating religion in the family and the personal status laws, as emblems of authentic religion, circumscribed within the family. In 1956, Nasser abolished the religious courts, bringing the (religious) laws of personal status under the jurisdiction of the (civil, secular) national courts, in addition to bringing the administration of al-Azhar under government control. Personal status laws were, nonetheless, still governed by the religious laws of their respective religious communities. In his book Formations of the Secular, Talal Asad calls the personal status laws “the expression of a secular formula, defining a place in which ‘religion’ is allowed to make its public appearance through state law,” and religion is (publicly) relegated to private life. Article 10 is a reflection of that “secular formula,” growing out of the state’s complex – and contested – relationship with the religious personal status laws. The personal status laws have historically functioned as a means of controlling religious law partially by consigning it to the family (and religious property), a tactic first used by colonial regimes in the region. Relegating shari‘a to family law served to delimit its sphere of influence.
The role of Islamic law in state legislation has been one of the most contested questions in Egypt’s constitutional history, manipulated toward different political ends by different regimes. In the aftermath of the 2011 uprisings, the news media obsessed over whether the Morsi government was going to impose religious law. But the personal status laws have come to stand in for (or even replace) religious law in general. Article 2 of both the 2012 and the 2014 constitution states that “Islam is the religion of the state and Arabic its official language. Principles of the Islamic shari‘a are the main source of legislation.” The 2012 and 2014 constitutions’ assertion of Islamic law as “the source of legislation” is closely related to the role of the personal status laws as a repository for religious law in the Egyptian state. It is no accident that the next article, Article 3 (in both constitutions), goes on to define religious law of the respective religious minority communities as the basis for their own personal status laws, reiterating the centrality of religion (and religious law) to governing the personal affairs of the family. Moreover, the assertion of Islamic law a “the source of legislation” was a holdover from the Sadat era. The 1956 and 1971 constitutions declared Islam the religion of the state, but Sadat’s 1971 constitution added an additional clause asserting that shari‘a was a main source of legislation (even though the personal status codes were the only laws based on shari‘a). In a later constitutional amendment in 1980, the Sadat government would change this to shari‘a as the main source of legislation – identical to the clause in the new constitution. This clause was designed to counteract the uproar against “Jihan’s law,” a set of reforms to the personal status laws instituted by emergency decree in the wake of the 1978 Camp David accords with Israel. Most striking are virtually identical approaches to hotly contested issues by the “Islamist” government of Muhammad Morsi and the more “secular” government of Abdel Fatah al-Sissi, in their imbricated visions of gender, religion, and rights in public and private.
In the aftermath of the 2011 uprisings, the new Egypt converted the fervor of revolutionary change into the civil liberties of a new constitutionalism. This is what Hannah Arendt calls the “end of revolution” in her classic book On Revolution, when constitutions augur the end of revolutionary freedoms that are replaced with “civil liberties.” In the case of the Arab Spring, this partly involved the re-constitution of the existing power structure, even as the promise of gender equality glimmered with the hope of a newfound political order. The glimmer little dissimulated the tightening of restrictions on other civil liberties with the re-institution of the ancien régime, as all Egyptian citizens, men and women (muwatinin wa muwatinat), see their freedoms circumscribed.
Ellen McLarney is an associate professor of Asian and Middle Eastern Studies at Duke University. She is the author of “Soft force: Women in Egypt’s Islamic Awakening, (Princeton University Press, 2015).
 Vivienne Walt, “Women’s Rights at Odds in Egypt’s Constitution Wars,” Time, December 9, 2012; Merrit Kennedy, “Egyptian Women Worry Constitution Limits Rights,” NPR, October 12, 2012; Egypt’s New Constitution Limits Fundamental Freedoms and Ignores the Rights of Women (Amnesty International, November 30, 2012), http://www.amnesty.org/en/news/egypt-s-new-constitution-limits-fundamental-freedoms-and-ignores-rights-women-2012-11-30; Egypt: New Constitution Mixed on Support of Rights (Human Rights Watch, November 30, 2012); Moushira Khattab, Women’s Rights Under Egypt’s Constitutional Disarray (Woodrow Wilson Center for International Scholars, January 17, 2013); United Nations News Service, UN Experts Urge Review of Egypt’s Draft Constitution to Ensure Equality and Women’s Rights, UN News Centre, December 14, 2012, http://www.un.org/apps/news/story.asp?NewsID=43771.
 Jumhuriyyat Misr, “al-Dustur,” December 26, 2012.
 Mona El-Ghobashy, “The Metamorphosis of the Egyptian Muslim Brothers,” International Journal of Middle East Studies 37, no. 03 (2005): 373–95.
 Jumhuriyyat Misr, “al-Dustur,” 1956.
 Jumhuriyyat Misr, “Al-Dustur,” 1971.
 Carole Pateman, The Sexual Contract (Stanford, CA: Stanford University Press, 1988); Mervat Hatem, “Egyptian Discourses on Gender and Political Liberalization: Do Secularist and Islamist Views Really Differ?,” Middle East Journal 48, no. 4 (1994): 661–76; Wendy Brown, “Liberalism’s Family Values,” in States of Injury: Power and Freedom in Late Modernity (Princeton, NJ: Princeton University Press, 1995); Joan Wallach Scott, Only Paradoxes to Offer: French Feminists and the Rights of Man (Cambridge, MA: Harvard University Press, 1997).
 Marwa Sharafeldin, “The ‘Hareem’ of the New Egyptian Constitution,” Egypt Independent, March 15, 2012; Feminist Wire Newsbriefs, “Women’s Right in Question in New Egyptian Constitution,” Ms. Magazine, December 13, 2012.
 Sayyid Qutb, al-‘Adala al-Ijtima‘iyya Fi al-Islam (Cairo: Maktabat Misr, 1949); ‘Ali ‘Abd al-Wahid Wafi, Huquq al-Insan fi al-Islam (Cairo: Maktabat Nahdat Misr, 1957); Muhammad al-Ghazali, Huquq al-Insan Bayna Ta‘alim al-Islam wa-I‘lan al-Umam al-Muttahida (Cairo: al-Maktaba al-Tijariyya, 1963).
 Kennedy, “Egyptian Women Worry Constitution Limits Rights.”
 Huda Ghaniyya, The Constitution Gives You Your Right (Cairo, 2012), http://www.ikhwantube.com/video/1671232/.
 Nathalie Bernard-Maugiron, “Personal Status Laws in Egypt,” Promotion of Women’s Rights (Cairo: Federal Ministry for Economic Cooperation and Development, March 2010); Laura Bier, Revolutionary Womanhood: Feminisms, Modernity, and the State in Nasser’s Egypt (Stanford, CA: Stanford University Press, 2011), 101–121.
 Talal Asad, Formations of the Secular: Christianity, Islam, Modernity (Stanford, CA: Stanford University Press, 2003), 231.
 Wael B. Hallaq, An Introduction to Islamic Law (Cambridge: Cambridge University Press, 2009), 145–46.
 Hannah Arendt, On Revolution (New York: Penguin, 1990): 133-35.