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!