HUMAN WRONGS WATCH

But these tasks are essential if revolution is not to become a byway to repression by another name. The past year offers some key lessons for success in this venture—as valid globally as they are for the states at the heart of the Arab Spring. There are lessons for both the nations undergoing revolutionary change and the international community. Here are a few.

Avoid Majoritarian Hubris

Any revolution risks excesses, and a revolution in the name of democracy is no exception. It is no surprise that a revolution’s victors, long repressed by the old regime, do not want to hear about new restraints once they have finally found their way to power.

But a rights-respecting democracy is different from unrestrained majority rule. Frustrating as it can be, majority preferences in any democracy worthy of its name must be constrained by respect for the rights of individuals and the rule of law.

Majoritarian hubris can be the greatest risk to the emergence of true democracy. As the region’s fledgling governments set about drafting new constitutions, no major political actor is proposing to jettison rights altogether.

Sharia

But unlike, say, Bosnia, Kenya, South Sudan, and many Latin American states, none of the region’s constitutions simply incorporates international human rights treaties—the surest way to resist back-sliding because it avoids watered-down formulations and helps to insulate the interpretation of rights from the perceived exigencies of the moment.

Many of the region’s constitutions continue to make at least some allusion to Sharia (Islamic law)—a reference that need not substantially conflict with international human rights law but often is interpreted in a manner that threatens the rights of women and religious or sexual minorities.

Egypt’s New Constituion

For example, the controversial new constitution of the region’s most influential nation, Egypt—which was being put to a national referendum at this writing—seems a study in ambiguity, affirming rights in general terms as it introduces clauses or procedures that might compromise them.

It has some positive elements, including clear prohibitions on torture and arbitrary detention—abuses that, perhaps not coincidentally, members of the governing Muslim Brotherhood regularly suffered under the ousted government of former President Hosni Mubarak.

In article 2, it affirms the “principles” of Sharia, a clause copied from Egypt’s prior constitution, which is broadly understood to correspond with basic notions of justice, rather than the proposed alternative “rulings” of Sharia, which would impose strict rules and leave no room for progressive interpretation.

Dangerous Loopholes

However, the new document contains dangerous loopholes that could cause problems down the line. All rights are conditioned on the requirement that they not undermine “ethics and morals and public order”—elastic caveats that are found in rights treaties but are susceptible to interpretations that compromise rights.

The principles of Sharia are to be interpreted in consultation with religious scholars and in accordance with a certain school of Islam, potentially opening the door to interpretations that run afoul of international human rights law. The right to freedom of expression is qualified by a proscription against undefined “insults” to “the individual person” or the Prophet Muhammad.

Freedom of religion is limited to the Abrahamic religions, which would appear to exclude those who practice other religions, such as the Baha’i, or no religion at all. Military trials of civilians appear to be allowed for “crimes that harm the armed forces,” which leaves intact the military’s broad discretion to try civilians.

Gender Discrimination

Gender discrimination is not explicitly prohibited, and the state is asked to “balance between a women’s obligations toward the family and public work”—a possible invitation for future restrictions on women’s liberties.

A proposed ban on human trafficking was rejected because some drafters feared it would block the shipment of Egyptian children to the Persian Gulf for early marriage. And efforts to exert civilian control over the interests of the military, whether its impunity, budget, or businesses, appear to have been abandoned.

So for the foreseeable future, rights in Egypt will remain precarious. That would have been true even if even a less qualified document emerged, since every constitution requires interpretation and implementation. But it is all the more risky because of this constitution’s limits on many rights.

Despite these disappointments, it is essential that electoral losers not give up on democracy. That is a dangerous tactic, premised on the view that Islamists, once having taken power by electoral victory, can never be trusted to cede it by electoral loss.

When Algeria’s military acted on that rationale by halting elections that Islamists were poised to win, the result was not democracy but a decade of civil war with massive loss of life.

Combination of Domestic Protest and International Pressure

It is a perspective that undervalues the potent combination of domestic protest and international pressure that would coalesce to challenge new attempts to monopolize power.

Its proponents have a high burden to meet before they can convincingly contend that the prognosis for elected government under an Islamic party is so bleak that a return to the dark days of the past is warranted.

By the same token, electoral victors must resist the temptation to impose whatever restrictions on rights a majority of legislators will support. That is important as a matter of principle: unbridled majority rule is not democracy.

It is important for reasons of pragmatism: today’s electoral victor can be tomorrow’s loser. And it is important for reasons of compassion: even those unable to conceive electoral loss should have sufficient empathy to recognize the defeated as deserving of their own freedom and aspirations.

Women’s Rights

As the Islamist-dominated governments of the Arab Spring take root, perhaps no issue will define their records more than their treatment of women. International human rights law prohibits the subordination of people on the basis of not only race, ethnicity, religion, and political views, but also gender.

That is, it prohibits forcing women to assume a submissive, secondary status, and similarly rejects a “complementary” role for women as a substitute for gender equality.

As noted, the Egyptian constitution contains troubling language on this subject, and while Egypt’s Supreme Constitutional Court has historically interpreted the “principles of Sharia” progressively, many fear that more conservative interpretations may now prevail.

*Source: Human Rights Watch. Go to Original. 

2013 Human Wrongs Watch