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Egypt Gets a New Constitution

Egyptian voters just approved a new constitution in a popular referendum, so it’s safe to say at this point that the country has undergone a regime change. The military government installed by Gamal Abdel Nasser’s “Free Officers Movement” in 1952, which continued in a crippled form for a while after Hosni Mubarak was removed from power, is now finished. 

The new constitution was translated into English and published on the Internet. It’s a mixed bag. Some of it is pretty good. Parts are incoherent and far too vague for a legal document. Other sections are toxic, especially Article 2 which says—and all of us knew this was coming—that “Principles of Islamic Sharia are the principal source of legislation.” [Emphasis added.]

The referendum passed by a roughly 2-1 margin, which is more or less the same percentage of people who voted for either the Muslim Brotherhood or the totalitarian Salafists in the last parliamentary election.

ABC News reports that Egyptian President Mohamed Morsi “called on the opposition to join a dialogue to heal rifts over the charter.”

There shouldn’t be any serious rifts. Not over a new constitution. It ought to be a consensus document, something liberals and conservatives, Muslims and Christians, and the secular and the religious can all live with.

The United States has used the same constitution for hundreds of years. Theoretically Egypt could do the same. It could still be on the books in 2213. That’s awfully unlikely, but a constitution is supposed to be written as a permanent, or at least semi-permanent, document that is seen as legitimate by the overwhelming majority of the population.

So a constitution in the modern era that’s written to last needs to have a couple of features.

It cannot be partisan. It makes no kind of sense for people in the year 2213 to be hemmed in by a legal straightjacket that was popular for a brief blip in their nation’s history hundreds of years ago. Political parties rise and fall over the ages, and in the medium term—in democracies, anyway—power shifts back and forth. If, say, the United States were to draft a new constitution, we’d need to make damn sure half those involved were Democrats and half were Republicans. It’s not okay if one particular political party that just happened to win the most recent election gets to dictate everything for everyone for all time.

In addition to being a consensus document, a constitution really ought to limit the power of government, especially in a country like Egypt which has known nothing but tyranny for thousands of years. If state power is sufficiently curbed, religious and secular people alike can both find justice within the same legal system. But if religion is part of the constitution, as it is now in Egypt, or if it’s effectively banned by the state as it has been in some parts of the world, then religious and secular people won’t both find justice in the same legal system. One will be oppressed by the other.

The separation of church (or mosque) and state protects both. In Hosni Mubarak’s Egypt, as in Ben Ali’s Tunisia, no such separation existed. Mosques were subordinate to the government. They were heavily regulated. Religious figures served and even breathed at the pleasure of the palace. That might remain the case in Morsi’s new Egypt, or perhaps the mosque will end up dominating the state. The two may become so intertwined that it hardly makes any difference. It’s bad for both either way. And it’s certainly not healthy for the people of Egypt even if most of them think it looks good on paper.

Some Islamists have grasped this. Earlier this year in Tunisia I asked an official at the Ministry of Religious Affairs why his office even exists. “In my country,” I said, “your institution is unconstitutional. Everything about your job is outlawed in America.”

I saved that question for last in case he got angry and threw me out of his office, but he laughed. He understood exactly where I was coming from. He knew that Americans would never tolerate having churches as an arm of the state. But his answer surprised me. “Mr. Rachid Ghannouchi has asked the very same question,” he said. Ghannouchi is the leader of Ennahda, Tunisia’s Islamist party.

And I understand perfectly well where he’s coming from. In his country, mosques have never been an arm of the state. They were suppressed by the state. They were suppressed by the Ministry of Religious Affairs. So both Ghannouchi and I, for entirely opposite reason, look upon institutions of that sort with suspicion.

Tunisia is going a different way from Egypt. It’s a more liberal and secular place. The Islamists there are hardly any different from Egypt’s, but they’re a lot less popular. They dropped their demand to have Islamic Sharia as part of the new constitution. Before they dropped that demand, there was talk in Tunisia of a possible compromise, that Islamic Sharia would be cited as “a source” rather than “the source” or “the principal” source of legistlation. As it turns out, Sharia won’t likely appear in Tunisia’s constitution at all, not even in a watered down form. But it’s right there in Egypt’s, and it’s not watered down in any way whatsoever.

Tunisia’s Islamists don’t have the strength or the numbers to remake society in their own preferred image, but a theocratic constitution is what most Egyptians want. They just approved it in a referendum. It’s not a consensus document—that’s for damn sure—but it is a majoritarian one. In an illiberal “democracy” like Egypt, the majority just enfranchised itself to stomp the minority. It will be ugly.

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