What’s in a Constitution?

Opinion

What’s in a Constitution?

Ian Linden

31 Jul 2013

The last decade has seen a bumper crop of new constitutions. It has been Spring time for constitutional lawyers and drafters: a well-placed comma saves lives, so they say. Constitutions carry the wisdom and burden of history. And they all have to present a plausible account of how religion is intended to fit into the scheme of things.

Intended by whom? Well, by the state. States try to keep the religious claims of their citizens under control whilst claiming to be the embodiment of the popular will. In its own way, it resembles patriarchal religions trying to keep women under control: separation, rules of conduct in public places, not too much voice in the public domain and so on.

Constitutions provide legal frameworks and give states textual gravitas. The fact that a group of entirely male, Christian and largely slave-owning landowners in the 18th century wrote the first constitution and amendments in the historical context of deliverance from British Rule, does not mean it cannot have a legal and almost scriptural authority over the lives of US citizens, and provide a model for many other constitutions. Does the US Supreme Court believe it is simply applying or interpreting the mind and will of these Founding Fathers, as so expressed, when it decides about gay marriage, abortion, Federal health provisions or positive discrimination for black people? Some of its members have done in the past. It is an exceedingly complex issue. This is a prodigious achievement from the perspective of a British subject, ex-imperial, with a Queen heading an established Church and supplying the gravitas - though Parliament creates laws and is notionally supposed to do that too. And, of course, with a sturdy opposition to having a written constitution.

India also had to deal with a British colonial tradition. It also needed to look beyond it for constitutional provisions suitable for dealing with the rich tapestry of its religions.

India also had to deal with a British colonial tradition. It also needed to look beyond it for constitutional provisions suitable for dealing with the rich tapestry of its religions. The result was an innovative and supersized constitution with subtle religious provisions that might kindly be called ambiguous and unkindly, somewhat contradictory. Its beauty is, of course, that some ambiguity provides wriggle room. The genius of Hinduism - excepting the deformation of Hinduvta - is that it has created a social philosophy that allows and encourages religious pluralism. If one of the Abrahamic faiths had been dominant, it would probably have been more difficult. The notion of a "principled distance" between state and religion in Indian political science is an exportable model.

Many would say that Arab and Muslim cultures would do well to contemplate the advantages of importing this form of constitutionalism. The Ba'ath parties version of secular authoritarianism, better called fascism, has been a disaster for the Middle East. Abdullahi Ahmed An-Na'im's Islam and the Secular State provides an exciting analysis of the why and how a new secular vision of the state might be realised in a Muslim context. Rashid Ghannouchi's thought, and the historic tradition of Tunisian cultural diversity dating back to the Phoenicians, makes Tunisia a critical testing ground for the evolution of such new ideas. This places Ennahda and the AKP in Turkey as the two leading sites of struggle for their implementation.

But constitutionalism has been dealt a serious blow in Egypt. There was never any chance that the Muslim Brotherhood would go the distance in partnership with secular parties despite some initial dialogue.

However, in contrast to the way the regime acted on most other matters, the Morsi constitution was not quite the expression of the implacable will of Islamists against the Egyptian majority. Despite Salafi pressures to change Article 2 of the 1971 constitution which had Shari'a provide the "principles" rather than "norms" for law, the Muslim Brotherhood resisted and it was kept the same. Article 219 widened the legally legitimate sources of authority for interpretation of Shari'a and normative Islamic practice, making it less easy for any extremist group to highjack them.

The problem was that Morsi's knee-jerk authoritarianism and the drafting of the constitution crystalized the fears of minorities and of the urban secular elites, and provided a terrain for polarization. Drafting constitutions often have that result. Coupled with the other set of expectations that somehow an Islamic government would be less corrupt and solve the country's dire economic plight, and the absence of any benign mediation, the 2013 people's power overthrow of the government – the military played much the same role as in the overthrow of Ferdinand Marcos in the Philippines – becomes understandable.

Perhaps "little" Kosovo can provide a cheerful note. A short, concise, secular constitution, for a population of predominantly "secular", cultural, Muslims. There are provisions for important religious minorities such as the Serbian Orthodox Church, so critical to the stability of the country, and a social commitment by government to foster harmonious interfaith relations. The Tony Blair Faith Foundation is holding a universities' Summer school in Pristina this week bringing experts on religion and statecraft to discuss the role of faith in society and in international relations. Because, however brilliantly drafted a constitution, it remains a piece of paper until governments put into practice the religious freedoms it guarantees, and define in effective policies the separations that they deems vital between religion and the state.

This article originally appeared on The Huffington Post.

 

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