Dec 23 2012
Constitutional rights vs. legislation
By Daoud Kuttab
Freedom of expression is guaranteed and will be practiced in accordance to the law. Freedom of religious practice is safeguarded and will be regulated by law. Citizen are equal regardless of religion, gender or background and this equality will be exercised through law. Elections are free and fair and shall be guaranteed to all citizens in accordance to the law.
The above statements or similar versions often appear in constitutions and are paraded as proof that a particular country safeguards its citizens’ universal human and civil rights. However, upon closer scrutiny, one discovers that any constitutional clause that ends with the term “in accordance to the law†is actually void of the kind of guarantees one expects from a constitution. Because once a guarantee is conditioned by law, a particular legislative body is actually allowed to work out the details of the law rather than allow the right to stand on its own.Courts, specifically constitutional courts, can analyse whether any particular law is constitutional or not. However, constitutional courts can do nothing when the author of a particular constitutional clause relieves himself from the universal application of it by adding this linkage to laws.As the Arab Spring is being translated into newly written constitutions, it is important to understand the differences between constitutional values and laws. Whereas constitutional guarantees are often aimed at protecting minorities, laws are enacted based on majorities.
This is why a constitution should be reached based on consensus, and not a simple majority vote of a constitutional assembly.
Similarly, it is meaningless to claim that a draft constitution was ratified by popular vote, because the majority of a population, especially if not given enough time, will often act in its favour rather than in favour of a minority.
Jordan has started a process of constitutional changes that included the amendment of 41 clauses. Many Jordanians are unhappy, for example, with the electoral law passed by parliament as they feel it favours certain sectors of society. When it comes to freedom of expression, Jordan’s amended Constitution was also translated by the 16th parliament in a way that many consider to be restrictive. The amended Press and Publications Law, which was railroaded in parliament, severely restricts news websites.
While restrictive constitutional clauses transfer power to legislative bodies, the problem is further exacerbated when a particular parliament’s legitimacy is questioned. For example, Jordanian officials have spoken in public about the irregularities and even fraud that marred the last two parliamentary elections. So, if constructional guarantees are not true assurances, if parliaments are given the right to translate these guarantees, and if these same parliaments are not totally legitimate in the eye of the public, the process is tainted.
The same is happening in Egypt. The constitutional debate is turning into a street battle, with the country’s rulers insisting that the constitutional assembly’s slight majority is empowered to decide for all Egyptians what the shape and text of their parliament should be.
Furthermore, they state that it does not matter that important sectors have withdrawn from the assembly or that some groups are opposed to it, because it will be put to the vote of the general public.
Constitutions are important documents aimed at guaranteeing rights. They must be written in such a way as to protect minorities, rather than majorities. To reach such a document without a mechanism that provides such guarantees requires extraordinary selfless leaders who fight for the rights of all citizens, especially the weak and the underrepresented. That is what we need in order to turn this Arab Spring into a truly democratic revolution that all can be proud of.
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