Thursday, December 13, 2012

Ron Smith: On Constitutions


The proposed constitution for Egypt contains a good deal of contentious material and it will be interesting to see how it fares in the referendum, scheduled for this weekend.  As readers of the New Zealand Centre for Political Research know, there are also constitutional projects afoot here in New Zealand.  There are interesting parallels between the two.

In the Egyptian case, and in the context of a ‘virtuous revolution which has unified all Egyptians’, there is an early affirmation of the object of the exercise.  This is to ‘build a modern democratic state’, in which, ‘Equality and equal opportunities are established for all citizens, men and women’.  But all is not as it seems.  As in Orwell’s celebrated story, some (animals) are more equal than others.  In this case the ‘more equal’ are specifically Islamic and masculine.  On the face of it, there is to be ‘no discrimination’ between men and women (this is in the Preamble); but what are we to make of Article 10, ‘The State shall ….enable the reconciliation between the duties of a women toward her family and her work’?  This seems clearly to envisage a restricted status for women, of a kind that, lamentably, is to be found around much of the Islamic world.  More generally, there is limited constitutional protection (and much threat) for minorities such as the Coptic Christians, and any who desire to live in a modern, secular state.
The proposed constitution enshrines Islamic Sharia as the proposed ‘principal source of legislation’ (Article 2).  Article 219 amplifies this point by stating that, ‘The principles of Islamic Sharia include general evidence, foundational rules, rules of jurisprudence, and credible sources, accepted in Sunni doctrines and by the larger community’.  How this might be applied is anyone’s guess but there are plenty of examples of Sharia in operation, in other Islamic ‘communities’, which ought to give Egyptian citizens some pause.  This is particularly the case when it is noted that pre-eminence in these matters is accorded (Article 4) to the authority of an ‘encompassing Islamic institution’ (Al-Azhar) and its ‘Grand Sheikh’.  There are some parallels here between the proposed constitutional place of the Grand Sheikh in Egypt and the position of the ‘Supreme Leader’ (Ayatollah) in Iran (albeit that this is Shiite rather than Sunni).

Provisions in other places in the proposed constitution seem to raise further concerns about democracy and human rights: particularly the right to disagree.  In Article 11 it is provided that, ‘The State shall safeguard ethics, public morality and public order and foster (safeguard*) a high level of education and of religious and patriotic values, scientific thinking (scientific truths*), Arab culture and the historical and cultural history of the people, as shall be regulated by law. (*The words in parentheses are alternative translations of the original Arabic).  As noted above, this regulatory activity would, presumably, be in the hands of the clerics at Al Azhar.  What might be meant by the idea of safeguarding science thinking is particularly perplexing.  Does the constitution suppose that there is such a thing as ‘Arab’, or ‘Islamic’ thinking, just as the Soviets thought that there was a special kind of communist ‘thinking’ (for example, about evolution)?  That isn’t what we remember of Islam in its golden age. 

These things together raise considerable doubts about the nature of the envisaged Egyptian ‘democracy’, and it is really hardly surprising that those Egyptians that understand the concept (and understand what is in the constitution) should be so alarmed.  It may say (Article 43), ‘Freedom of belief is an inviolable right’, but the article that follows provides a sharp corrective, ‘Insult or abuse of all religious messengers and prophets shall be prohibited.’

In contrast to all this, the New Zealand ‘constitution’ seems to be coming upon us by stealth and it seems to have different purposes.  We already enjoy the major elements of representative democracy and human rights.  In our case, the coming constitution seems likely to undermine this by threatening the supremacy of parliament, and further detracting from the central principle of equal representation, by enshrining the so-called ‘Principles of the Treaty of Waitangi’.  It may also have a lot in common with the Egyptian example by attempting to privilege a particular world view, in our case Maori.  Freedom of expression may still be an ‘inviolable right’ but we may not ‘insult’ those who bring messages about mythical creatures, or who wish to advance the concept of, say, ‘Maori science’.  Amongst the many speculations in NZCPR Guest Forum writer, David Round’s ‘A Treaty of Waitangi Constitution’ (9 December, 2012), I was particularly taken by item 21, which concerned ‘cultural safety’.  Nearly a quarter of a century ago, I was on the staff of a teacher’s college where just such a proposal for compulsory cultural competence courses, for staff and students, alike, was actually proposed.  I think we resisted, then.  If it is coming back (with the other provisions that Round and others have been speculating about), we may well think that, here too, the local democrat might be driven to the barricades!

3 comments:

Brian said...

I must confess that I was not surprised at the content of the proposed Egyptian “Constitution” as explained by Dr. Ron Smith in his Blog. That an Islamic Party would conform to the idea of equality for the female sex would be a monumental magnitude about face. It would, divide the Arabic world even further if that is at all possible, but also which is more important, challenge the Koran.
That some Islamic countries allow women more “freedom” than others is very obvious, but the question arises “In a Unified Islamic World would this be tolerated”? Therefore we will hope that the present divisions between Sharia v Sunni and other sects continue. Nothing like the principal of “Divide and Rule” to help peace along the road!!!! Even if it is only a temporary solution to help our Western Politicians avoid decisions that may endanger their positions of power.
Another confession is that I have always regarded a written constitution as a final bulwark of a democratic society, namely because I thought (quite wrongly it seems) that it would protect us from not only the abuses of elected politicians, but also from a State ruled by the legal profession.
It now seems with this “Kangaroo Maori dominated Committee” with its huge budget is about to decide our fate, without our participation. If indeed; they and the present Parliament are going to use the Treaty as a basis for a “Constitution” they would do well to recall Voltaire’s warning
“One word in the wrong place will ruin the most beautiful thought”
Or a more modern adaption in this case might be
“One word in the wrong place will ruin our chances of power and privilege.”
New Zealand if one might drawn a parallel, rather resembles the France of 1791, when cracks started to appear with the groans of the French bourgeois establishment, followed by the excesses of a raw popular movement which culminated in the Revolution. Still we are not French; we have rugby, almost total welfare, and apathy well bred into us all. No rocking the boat here (or rather vote) and told frequently of our stable democratic heritage!
The question all of us must face is “Are we prepared to accept this Treaty as our Constitution without the democratic right of a vote” Furthermore what are we, the people, going to do if this is thrust upon us by Parliament?
For a long time our political leaders have been living under the delusion that they are virtuous; they should recall Robespierre’s friend Armand St. Just statement.
“In a republic which can only be based upon virtue, any pity shown towards crime is a flagrant proof of treason”.
Brian

Ray S said...

I like Brian's thinking. If we must repeat what happened in France starting in 1791, then so be it.
Taking a country back for ALL citizens is not a bad thing.
I just hope I am around long enough to contribute to that end.

Steve Baron said...

I think it is high time that New Zealanders threatened the supremacy of parliament. We give these people far too much power for the abysmal record they have.