Negotiating Gender Rights and Gender Relations in the Constitution- making Process in Egypt: Towards a ‘Thick’ Constitutional Guarantee for Women’s Rights

Introduction The purpose of this article is to explore gender-sensitive constitution-making. I will examine the constitution-making process in Egypt, as well as the constitutions themselves, from comparative constitutional law and gender perspectives, and I will then include the Japanese experience. Constitutionalizing or legalizing women’s issues is one of the most controversial or challenging legal areas because women’s issues are often assumed to be matters deeply embedded in tradition or culture, and therefore, it has been held that changing the status-quo relating to women’s issues will erode the tradition or culture which should be protected.


Introduction
The purpose of this article is to explore gender-sensitive constitution-making. I will examine the constitution-making process in Egypt, as well as the constitutions themselves, from comparative constitutional law and gender perspectives, and I will then include the Japanese experience. Constitutionalizing or legalizing women's issues is one of the most controversial or challenging legal areas because women's issues are often assumed to be matters deeply embedded in tradition or culture, and therefore, it has been held that changing the status-quo relating to women's issues will erode the tradition or culture which should be protected.
The article is divided into six parts. First, I will discuss comparative constitutional law and gender perspectives based on existing literature. Then, I will present a brief analysis of the constitution-making processes in Egypt in order to provide a background of the issues relating to gender or women's rights. Then, I will examine articles directly relating to gender or women's rights under the Egyptian Constitutions of 1971Constitutions of , 2012Constitutions of , and 2014. I will also discuss the Japanese experience relating to these issues and give some suggestions. In the concluding remarks, I will make suggestions for ensuring women's rights in the constitution-making process.

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Issue 143-144 | Fall/Winter 2013-2014 the way for comparative analyses of constitutional laws beyond the specificity of constitutional law within one country.
The literature on comparative law, however, has not sufficiently discussed gender issues, even though other disadvantaged groups such as certain ethnic groups or religious communities have been examined (Baines & Rubio-Marin, 2005, section 1, para. 3). The literature on constitutional law does not sufficiently give women's right advocacy groups a full "design manifest" to constitutionalize gender equality (Irving, 2011, p. 33). The issue remains about what should be done to promote constitutionalizing women's rights in practice, because women's rights under constitutions have rarely been recognized or have been neglected until recently (Baines & Rubio-Marin, 2005, section 1, para. 4; Irving, 2011, p. 19). It follows that women's rights advocacy groups would often face questions regarding how to use constitution-making processes as well as constitutional judicial processes to achieve gender equality (Baines & Rubio-Marin, 2005, section 1, para. 5). When women's rights advocacy groups design constitutions in order to promote gender equality, they need information on constitutional mechanisms for promoting gender equality or ensuring women's rights. They must also have information regarding the effectiveness, efficiency, or rationality of different constitutional mechanisms in different settings.
There are, however, a few exceptions to which women's rights advocacy groups can refer to when constitutionalizing women's rights or gender equality. The feminist constitutional agenda, according to Baines and Rubio-Marin (2005), should present "the position of women with respect to: (i) constitutional agency; (ii) constitutional rights; (iii) constitutionally structured diversity ; (iv) and constitutional equality" with special attention to: women's reproductive rights and sexual autonomy, women's rights within the family, and women's socioeconomic development and democratic rights" (Baines & Rubio-Marin, 2005, section 1, para.6).
Women's constitutional agency means "lobbying, legislating, litigating, and adjudicating" (Baines & Rubio-Marin, 2005, section 2, para. 6) and thus participation in the constitution-making process such as lobbying and drafting constitutions is regarded as critical for promoting gender equality. In general, participation in constitution-making or constitutional design, where the processes include elements of representation, consultation, popular ratification, and oversight, is assumed to be an important factor of democratic constitution-making. Popular participation is justified, according to Blount's overview (2011), because it enhances constitutional legitimacy, makes better citizens, strengthens a constitution's ability to constrain the executive, or provides more rights, provisions, and a better enforcement mechanism to protect them (p. 39). As Irving noted (2011), the logic of participation, in general, has been extended specifically to women. It is assumed that women's participation in constitution-making processes might provide an opportunity to institutionalize or constitutionalize women's experiences and their demands for promoting gender equality.
According to Baines and Rubio-Marin (2005), the term gender equality is equivocal, and it has been used to denote three doctrines of gender equality: formal equality, the separate but equal principle, and substantive equality (section 5, para. 2-4). Formal equality is a principle of equal treatment, requiring the state to provide men and women with the same opportunity to exercise rights and obligations in the context of gender, while the doctrine of seperate but equal respects women's differences. Substantive equality seeks to avoid unequal outcomes by taking into account that the same rules may produce different and unequal outcomes due to the fact that men and women may be differently situated. Then, how do we draft constitutional articles to promote gender equality or ensure women's rights? Sullivan (2002) suggests the following choices exist when working on constitutionalizing gender equality: 1. Choice between a general provision favoring equality and a specific provision favoring sex equality; 2. Choice between limiting classifications based on sex and protecting the class of women; 3. Choice between reaching only state discrimination and reaching private discrimination as well; 1 4. Choice between protecting women from discrimination and guaranteeing affirmative rights to the material preconditions for equality; and 5. Choice between setting forth only judicially enforceable and broadly aspirational equality norms (Sullivan, 2002, p. 747).
She notes that the first choice between generality and specificity affects "the jurisdictional or institutional allocation of discrimination," i.e. generality retains broader discretion for future interpretation, while specificity restrains interpreters' discretion in the future (Sullivan, 2002, p. 747). She mentions Article 7 of the 1948 United Nations Universal Declaration of Human Rights as an example of a general provision, and Article 1 of the Convention to Eliminate All Forms of Discrimination Against Women (CEDAW, 1979) as an example of a specific provision (Sullivan, 2002, p. 748). Article 7 of the 1948 United Nations Universal Declaration of Human Rights reads: All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.
Article 1 of the CEDAW states that: The term discrimination against women shall mean any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.
The second choice between symmetry and asymmetry entails that either "the ban on discrimination applies to forbidden classifications (such as sex, race, and sexual orientation) or to protected classes (such as women, African Americans, and gay men and lesbians)" (Sullivan, 2002, p. 750). For example, for tackling the issues relating to discrimination against women, the choice of symmetry requires a law to provide that discrimination on the basis of sex is forbidden. On the other hand, the choice of asymmetry requires a law to state that, for example, "women shall be accorded full and equal dignity of the person with men" under article 33 of Uganda's 1995 Constitution (cited by Sullivan, 2002, p. 751), and it aims at protecting "the class of women rather than the classification of sex" (Sullivan, 2002, p. 751). It corresponds to the choice between formal equality and substantive equality. The third choice between state action and private action asks whether the ban on discrimination should apply to the public sphere only or to the private sphere as well. Limiting constitutional constraints to state action does not directly extend to family or the relationship between employer and employee in the private sector. The fourth choice between negative rights and positive rights asks whether women should have freedom from discrimination "or also some guarantee of freedom to the material preconditions of the meaningful exercise of equal rights of citizenship" (Sullivan, 2002, p. 759). The letter choice includes "the right to work, minimal subsistence, equal pay, literacy, reproductive control, health care, or education" (Sullivan, 2002, p. 759). The final choice is one between judicially enforceable standards and hortatory or aspirational norms. She notes that hortatory or aspirational norms are unknown to traditional constitutional views, and their legal effect is ambiguous and brings to light Article 5(a) of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) as an example of a provision articulating hortatory or aspirational norms (Sullivan, 2002, p. 761). According to Article 5(a) of the CEDAW reads: States Parties shall take all appropriate measures: (a) [t]o modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women.
Norms such as those put forth in Article 5(a) of the CEDAW are best understood as a form of 'soft law' that attempts to influence a state's behaviour rather than generating binding norms.
Partly following to the feminist constitutional agenda presented by Baines and Rubio-Marin (2005), in this article, constitutional agency, constitutional rights in general, and constitutional equality in particular are discussed. When discussing constitutional equality, I apply the matrix of approaches constitutionalizing gender equality suggested by Sullivan (2002) in order to examine equality under the constitutions in Egypt.

Constitution-Making Processes
The 'Arab Spring', or revolutions, had a significant impact on the Japanese people, including Japanese academics. From a foreigner's perspective, a series of constitution-making processes in Egypt included various topics to be included in the constitution-making processes such as public participation, structure of governance, rights, and religion. Controversial issues may divide the procedures and the substantive matters for making a new constitution. Issues on procedures for making a new constitution included the following: 1. whether to introduce amendments or a new constitution; 2. whether to proceed with parliamentary elections or first with drafting a new constitution; and 3. who should be members of constituent assemblies. Issues on substantive matters of constitutions included: 1. human rights, especially freedom of expression, freedom of the media, freedom of religion, and minority rights; 2. Shari'a and the status of al-Azhar; 3. women's rights; 4. civilian control of the military; and 5. the structure of governance or polity.
The debate over the constitutions of 2012 and 2014 showed that constitutional supremacy, which originated as a western value, and 'modernity' were accepted by Islamists, secularists, leftists, and liberals, among others. Constitution-making processes in Egypt also seemed to show the contentious relationship between democracy in the sense of majority rule and human rights. It resulted from the lack of a pervasive agreement on the concept of constitutional democracy due to deep ideological divisions. While Mohamed El-Baradei released the draft of a bill of rights, the discussions did not go much further. Rather, Islamists or Salafists showed their aggressive view against a bill of rights and critically regarded it as a 'western' product.
The debate over women's rights was intertwined with the role of shari'a in the Constitution. One of the most controversial articles relating to women's rights was Article 36 of the 2012 constitutional draft which emphasized gender equality without contradicting the precepts of Islamic Law and was eventually omitted from the final draft of the 2012 Constitution. The reason Article 36 of the draft was omitted, however, could not be gleaned from media sources. The 2012 Constitution did not directly deprive women of the rights that they enjoyed under the 1971 Constitution. Rather, the 2012 Constitution omitted the controversial draft of Article 36 that was based on Article 11 of the 1971 Constitution. 2 The 2012 constitution, however, embedded the possibility of depriving women of these rights within Articles 4 and 219. The 2014 Constitution returned to the language of the 1971 Constitution, as far as the provision of shari'a was concerned.

Gender and Women's Rights under the Constitutions
As far as provisions relating to women's rights are concerned, the 2014 Constitution is designed to enhance women's rights more so than the 2012 or 1971 Constitutions, mainly because it chooses to guarantee the so-called "affirmative rights to the material preconditions for equality" (Sullivan, 2002) as mentioned above under Paragraph 2 of Article 11, which reads: The state commits to taking the necessary measures to ensure appropriate representation of women in the houses of parliament, in the manner specified by law. It grants women the right to hold public posts and high management posts in the state, and to appointment in judicial bodies and entities without discrimination.
Because affirmative rights are regarded as an effective measure to bring substantive equality to women who have been historically socialized to occupy subordinate positions, Paragraph 2 of Article 11 seemingly intends to ensure women's participation in the state's decision-making processes, such as the legislative, executive and judiciary processes, in order to promote gender equality. Moreover, Paragraph 3 of Article 11 affirms state protection of women against all forms of violence and is a step forward for women's rights in light of the current Egyptian social context where sexual violence against women is becoming more visible than before. Moreover, assuming that the phrase 'all forms of violence' under Paragraph 3 of Article 11 includes domestic violence, the 2014 Constitution delivers a strong message that the state shall or may intervene in the so-called 'private sphere' to protect women from violence. Interpreting both Article 10 and Paragraph 3 of Article 11 literally, begs the question: how is 'domestic violence' legally defined, and how will it be addressed when it conflicts with the so-called "family values"' protected under Article 10?
As such, the 2014 Constitution departs from the so-called traditional constitutional model which "operates under strong conventions of constraint to general norms of formal equality, symmetrically interpreted, against state rather than private action, to promote negative not positive rights, that are capable of administrable judicial enforcement" (Sullivan, 2002, p. 762). Examples of such a model include the U.S. Constitution and the Japanese Constitution. Rather, the 2014 Constitution seems to be specific, asymmetric, and extends to private action and positive rights.
With regard to the choice between a general provision favouring equality and a specific provision favouring gender equality, the 2014 Constitution chose a general provision under Paragraph 1 of Article 11 rather than a specific provision favouring gender equality. With regard to the choice between limiting classifications based on gender and protecting the class of women, while it takes a basically symmetrical approach under Paragraph 1 of Article 11, it also chooses partial asymmetry by guaranteeing affirmative action to give preferences to women as a group under Paragraphs 2, 3, and 4 of Article 11. Paragraph 1 of Article 11 bans discrimination based on gender. By contrast, Paragraphs 2, 3, and 4 of Article 11 aim to protect women as a group. With regard to the third choice between addressing only state discrimination or addressing private discrimination as well, it seems that the latter part of Paragraph 3 of Article 11, about the state ensuring that women are empowered to reconcile their duties toward their family and their work obligations, chooses to extend the ban on discrimination to not only state actions but also more specifically private actions. With regard to the choice between protecting women from discrimination and also guaranteeing affirmative rights to the material preconditions for equality, as mentioned above, it chooses both to protect women from discrimination and to guarantee affirmative rights to the material preconditions for equality under Paragraph 2 of Article 11. Considering the choice between including only judicially enforceable or broadly aspirational norms for equality, Article 11 seems to depend on judicial interpretation or enactment of laws.
The answer to the choice between these competing approaches depends on the structure of the constitutional, economic, social, cultural, and historical circumstances. The structure of the constitution includes the structure of government, electoral systems, judicial review, and the role of the military in domestic affairs.
In Egypt, as the debate over the constitutions of 2012 and 2014 exemplified, women's rights were intertwined with the position of shari'a under the Constitution. In deciding cases relating to the constitutionality of personal status laws favourable to women in light of article 2 of the 1971 Constitution, amended in 1981, under which stipulated "principles of Islamic law (shari'a) are the principal source of legislation", Mousa (2011) emphasises the "progressive approach" taken by the Supreme Constitutional Court (hereinafter referred to as the SCC) in spite of the sceptical views against the amended article 2 that would undermine women's rights (p.153). Therefore, judicial review and the composition of the SCC is crucial for implementation of women's rights

Lessons Learned from the Japanese Experience
Although Japan is an economically advanced country, gender equality in economic and political areas is less advanced than other developed countries. For example, Japan was 10 th on the Human Development Indicator (HDI) for 2012, 21 st on the 2012 Gender Inequality Index, and 105 th on the 2014 Gender Gap Index. This shows that gender equality in the area of education and health has been achieved, but the gaps between women and men in the labour market and at the highest level of political decision-making are huge. This is due, in part, to the lack of state-strong initiatives or adequate measures that can lead to substantive gender equality.
The current Japanese Constitution enforced in 1947 introduced a number of legal reforms, including family law reforms and drastically improved women's status and enhanced women's rights. There was no gender equality under the former Japanese Constitution, which was enacted in 1890, and women were subordinate to men on the premise that the natures of women and men were different and resulted from biological differences. Some characteristics were thought to be innately tied to gender (e.g., men were logical and women were emotional) and roles were genderoriented (e.g., men work outside the home and women do domestic work). Although the current Japanese Constitution introduced equality as a general principle under Article 14 and gender equality in family life under Article 24, the view according to which specific characteristics and roles based on biological gender differences was broadly shared by political decision-makers as well as a majority of the people. Laws that provide unequal treatment of men and women without just or adequate reasons remained. 3 For moderating gender gaps between women and men, lessons learned from the Japanese experience and from the legal perspective are as follows: 1. Family law or personal status law can be an avenue to ensure women's rights in 'the public sphere' as well as 'the private sphere'; 2. Criminalizing or imposing penalties for violence against women and sexual al-raida Issue 143-144 | Fall/Winter 2013-2014 harassment are also ways to ensure women's rights in 'the public sphere' as well as 'the private sphere'; 3. Affirmative action or positive action is necessary to close or narrow the existing gender gaps; 4. Strong political will is a crucial factor in changing people's attitudes; 5. Implementation mechanisms for constitutional equality and rights, including statutes and substantive legislation, judicial review, legal education or training for legal enforcement institutions (e.g., police forces), and independent media, should be established; and 6. Changing the public's mentality or attitudes is difficult in the short-term, but not impossible in the long term.

Conclusion: Towards a 'Thick' Constitutional Guarantee Model
From the perspective of constitution-making, especially in a country where women hold inferior positions in society, formulations with more requirements for gender equality and women's rights in the substantive way, which I call a 'thick' constitutional guarantee model, would be more appropriate than formulations with less requirements in the formal way, which I call a 'thin' model, to promote gender equality and ensure women's rights. A 'thick' constitutional guarantee model, which I suggest here, includes: 1. ensuring representation of women's agency for constitution-making processes; 2. ensuring women's rights and gender equality by: (i) including a specific provision favouring gender equality, (ii) protecting women as a class, (iii) addressing both state discrimination and private discrimination; and (iv) guaranteeing affirmative rights for women; 3. accepting women's rights in the context of the nature of rights; and 4. enforcement mechanisms, (i) including nonjudicial or semi-judicial institutions of compliance (e.g., an ombudsman) as well as judicial review; and (ii) ease of prerequisites for a cause of action to enable the third party, other than the victims whose rights are violated, to petition to the court for remedy, for example, the public interest litigation in India (see appendix 2). Such provisions are a clear departure from the traditional constitutional theory, which I describe as a 'thin' constitutional guarantee model. Art 10. The family is the basis of society and is based on religion, morality and patriotism. Both state and society seek to preserve the inherent character of the Egyptian family, its cohesion, stability, and moral character, and to protect the family as specified by law. The state guarantees mother-and-child services that are free of charge and pledges to reconcile the woman's duties toward her family with her work in the public sphere. The state provides special protections for female breadwinners, divorced women, and widows.
Art 10. The family is the basis of society and is based on religion, morality, and patriotism. The State shall ensure its cohesion stability and the establishment of its values.
Art 11. The State shall ensure the achievement of equality between women and men in all civil, political, economic, social, and cultural rights in accordance with the provisions of this Constitution. The State shall take the necessary measures to ensure the appropriate representation of women in the houses of representatives, as specified by Law. The State shall also guarantee the women's right of holding public and senior management offices in the State and their appointment in judicial bodies and authorities without discrimination. The State shall protect women against all forms of violence and enable them to strike a balance between family duties and work requirements. The State shall provide care to and protection of motherhood and childhood, female heads of families, and elderly and neediest women.