Concerning a new constitution, which is more important, the
process or the content? In Egypt, that most secularists and the Coptic
Christian representatives walked out of the assembly working on a document
suggests that the final product would not have legitimacy for all of Egypt. To be sure, it is possible
for a partisan group to design a system of basic law that is not overtly
self-serving at others’ expense. The document emerging from the assembly
weakens the presidency and strengthens the parliament in line with the popular
protest in “the Arab Spring.” However, the assembly left in place a
“longstanding article” grounding Egyptian law in the principles of one
religion. Furthermore, a provision on women’s equality was left out, and the
military generals would keep their existing power. Moreover, anticipating
dissolution from Mubarak-appointed judges, the assembly began its work from the
last Egyptian constitution.
Do the members of the constitutional assembly look liberal or conservative? Reuters
Basing deliberations on the status quo works against the
process needed to arrive at a new constitution,
especially if the last constitution had been constructed in a very different
time. The Wall Street Journal reports legal experts as indicating that the
assembly’s final document is “almost identical to the 1971 constitution written
by former President Anwar Sadat”—hardly a democratic standpoint.
The construction of a new constitution from scratch has particular value in allowing a political system to
“catch up” to the contemporary context, even if ancient political theories are
drawn on. The default in a constitutional assembly’s deliberations should not
be based in the status quo. This point is easily missed, particularly when the
other weakness of a partisan group dominating the assembly is also the case.
In the best of all possible worlds (Leibniz’s expression),
delegates from all of the principal segments of society should be included in a
constitutional assembly, with no group having a majority. Where such a majority
is the case, a certain percentage of the minority should be required for an
article to be adopted. Second, rather than being based on the last
constitution, the starting point could be based on a new blue-print formulated
in very basic terms by a committee (composed of delegates from the major
segments of society). In the case of Egypt, delegates favoring particular major
religions as well as secular society should have been on such a committee, and,
moreover, active in the deliberations of the committee of the whole—the
assembly itself.
A constitutional assembly should be a microcosm of the macro
society, and thus inclusive of the powers and the non-so-powerful. Ideally,
Rawls’ “veil of ignorance” should apply, wherein no delegate knows which
segment he or she is in. Hence, no segment is apt to be left out or expunged.
The veil would apply as well to the existing or prior constitution, so ever its
assumptions would not serve as the default for deliberation. In short, a
constitutional assembly should “reinvent the wheel” in the context of where a
society is, rather than was. This does not mean that the
resulting document would necessarily be progressive, particularly if a given
society is traditionally-oriented.
In the case of Egypt, the “new” constitution drafted by the
assembly, unlike the constitution
that had been written by Anwar Sadat, includes a reference to the laws of a
particular religion. In fact, both the state and “society” are given the
authority to “ensure public morality.” Lest it be supposed that Egyptian
society had become more traditionalist and religious in terms of a particular
religion since 1971, the changes from the
status quo document could simply be a reflection of the partisan make-up of
the assembly. The point is that it is impossible to know unless it is the
living—representing all of society rather
than one party or segment—rather than the already-dead as the force behind the
construction of the edifice by which public
governance is to run its course.
Accordingly, all major
segments of society must ratify a proposed document of basic law for it to have
legitimacy operationally. Absent such approval of a super-majority or of
all of the major elements of society,
a proposal should be read as partial or incomplete. Rather than returning to
it, a new assembly of delegates should “start from scratch” so a document can
be crafted with presuppositions freed from the tyranny of the status quo and
any major faction.
Sources:
David Kirkpatrick, “Islamists
Rush Through Egyptian Constitution and Prepare to Vote on It,” The New York Times, November 30, 2012.
Sam Dagher and Matt Bradley, “Egypt
Adds Islamic Influence to Constitution,” The Wall Street Journal, November 30, 2012.
No comments:
Post a Comment