Ismail Serageldin

Statements & Reflections


Towards a Constitution for the 21st Century

 21/10/2012

Introduction:

As Egypt drafts its new constitution, we must recognize that we are designing it in the second decade of the 21st century, and that much of what has changed in the world around us requires decision makers to have to think “outside of the box”. Regretfully, I find much of the current debate is about concerns and solutions that still seem very conventional in their outlook. Certainly there are certain fundamental issues that any constitution must address, from the oldest to the most recent. Among these would be the balance or separation between the judiciary, legislative and executive; the basic protections of fundamental freedoms; the guarantees of equality before the law without regard to race, sex, religion or ethnicity; the role of the military; the balance between centralization and decentralization; and many more. These are all conventional matters, addressed in most constitutions, and that will forever deserve our attention, vigilance and careful consideration. But I think that new times have also forced a different set of issues to the fore that deserve some serious “out of the box” thinking. I will give a few examples.

Citizenship and the Diaspora:

For the first time, about 3% of the world population is composed of migrants, and that figure is likely to increase in the future. Many of these migrants maintain close ties with the “old country” and send remittances and visit family there. Many countries allow dual citizenship. We allow Egyptian immigrants holding dual citizenship to vote in our presidential elections. But we also say that the child of an Egyptian national is an Egyptian national. For how many generations would the children of immigrants remain nationals and have the right of voting in Egyptian elections? Should persons who have taken dual citizenship be allowed to run for elections and hold public office? To get that other citizenship, did they not have to swear an oath of allegiance to that other country? So what does that mean for an elected office holder?

All these and many more questions simply show that the questions are not trivial and need some careful thought. Some indications of that thinking should find its way in the section on citizenship in the new constitution.

The role of the Civil Society:

The civil society is today recognized as a fundamental part of the democratic process in all countries. Even the United Nations, quintessentially an organization of sovereign states, whenever it holds a summit will hold a parallel summit for NGOs. So how come we continue to ignore the civil society in our constitutions? We tend to focus only on the role of the “three powers”, the legislative, executive and judiciary, already recognized by Montesquieu in 1748, and leave the organization and supervision of the civil society to one ministry of the executive branch of national government.

The civil society also poses a set of questions on the relationships with other civil society organizations in other countries across the planet. These today are international movements, and thus the notion that these are solely local matters to be regulated locally will constantly run into obstacles in everyday life. Membership and funding and supervision may all have to be subjected to local regulations, but the international dimension can no longer be ignored. We are all becoming global citizens. But no country wants citizens of another country to interfere in its internal affairs. How will this be handled?

The Media and Communications:

We need to reflect on the power of the media and how it sets the agenda for the national debate. While no one would argue that the state should own the media as in the days of the communist bloc, it is nevertheless important to be able to ask who is funding these new private media outlets, whether radio, TV or cable channels or the print media such as newspapers. The right of expressing an opinion should not be the preserve of the rich only, and it should be transparent to the public who owns and funds various outlets. So new thinking is needed. Some mixed system that includes some state sponsored media outlets as well as many privately owned and operated media outlets would be beneficial, provided that transparency is kept as a paramount feature. The system of state support may take different forms, but it should be transparent and surveillance would be publicly reported.

Secondly, it is clear that today the idea that we control a territory and the people on it is an illusion. It is inconceivable that we can block broadcasts coming from other countries, any more than our neighbors can block broadcasts coming from Egypt. So again, what constitutes the boundaries of free expression should be kept exceptionally wide, and censorship should be avoided. The best way to fight ideas is with ideas. However, laws on libel and slander should be strengthened, and careful thought should be given on how to deal with incitement to hate against minorities. These are serious questions that require thoughtful reflection.

Third, we must recognize the revolution in communication. Who would have thought that the internet would so completely transform our lives? Where is the role of the old media and where is the role of the new media? The bloggers and the old-line newspapers and journals? Who could have predicted the new social media? Who could have believed a short five years ago that Facebook would exceed a billion connected users? Who would have envisaged Twitter?

Now, we must add that the pace of change is accelerating. Hence, with some humility, we must recognize that our ability to predict what sort of communications and media will exist a few short years from now is doubtful. Thus we should concentrate on principles rather than particular formulas for dealing with the media both old and new. How to frame such principles into the constitution so that the wording does not get distorted and misused in the coming years is another big challenge that requires careful reflection.

It is worthy of note that some have argued that access to the internet should be considered a basic human right. This is not as frivolous as it may sound. Without question, the right to access to information and the right to self-expression are universally recognized as fundamental human rights. Today, it is the internet that is the primary mode of obtaining information and, increasingly, the primary means of self-expression. So if access to the internet is the primary enabler of these two fundamental rights, should it not also be protected? More food for thought.

The environmental dimension:

Today, for the first time in history, we have a sense of responsibility towards future generations and to all living things on the planet. Yet most constitutions are silent about that intergenerational dimension, or about our responsibility towards downstream riparians in the management of our water resources, or our obligation to think of the planet in issues such as carbon emissions. Environmental thinking permeates our lives but has not yet permeated our laws. The drafting of a constitution is a great opportunity to remedy this. This is a topic worthy of a fuller discussion, even if its immediate import is easy to sense and appreciate.

The protection of cultural assets and cultural heritage:

Egypt is incredibly well-endowed in cultural assets and cultural heritage. Much of our historic legacy is recognized as part of the world heritage and resulted in one of the biggest international efforts to assist Egypt in saving the Nubia monuments during the construction of the High Dam. Surely, the new constitution must address such concerns as it guides future legislators and executives in how to strike a balance between inventing the new and protecting the inherited. To guide how we deal with the renewal of our cities and our landscapes, adopt new technologies and meet the needs of expanding populations. Our societies and our cities are organically growing entities that cannot live frozen in the past, but their organic growth must manage somehow to preserve the essence of our cultural heritage, from monuments to wildlife, from the intangible heritage to magnificent desert rock formations.

The balance between absolute values:

Freedom, equality and justice: Three values that we are all absolutely committed to. Yet the experience of democratic societies in the last half century has shown that we sometimes find them at odds when we try to promote them in practice. Thus Freedom is about the ability to decide, to choose. But we very quickly notice that many in society are not able to choose, even if the law guarantees them that right. Thus, extreme poverty severely limits the choices open to an individual. Lack of education or illness can also be important constraints in an individual’s ability to fulfill his or her potential, not to mention social attitudes towards gender or ethnicity. Therefore, the exercise of rights needs the empowerment of individuals with certain capabilities that allow them to effectively practice such rights. To many, society’s assistance to each individual to ensure that they acquire such capabilities becomes itself a human right since it is necessary to exercise these rights. Without that, there can be no Social Justice.

But if equality before the law must grapple with the issues of whether we mean equality of opportunity only or a certain level of reduced inequality in outcome, it must also grapple with the issues of justice and freedom. Freedom is ultimately to allow each person to live as fully as they can, then the inherent differences between people challenge us in terms of the inequalities that they will generate. People are multi-dimensional and we are unequal in our endowments in various dimensions: musical talent, ability in sports, physical strength, educational attainment, entrepreneurial drive, and so on. Hence society sometimes promotes deviations from the norm of absolute equality before the law now to ensure a more just outcome later on. For example, quotas in parliament for some groups (farmers and peasants in the past, perhaps women now?). Such actions should be transparently decided and subjected to a review every 5-10 years to ensure that they are achieving the objectives for which they were designed and adopted. These complex issues are at the heart of the making of social justice, issues I discussed at length in my 2011 Mandela Lecture, and which I believe require some thoughtful guiding principles written into the constitution to guide future legislators on how to strike a balance that may temporarily limit some aspects of one or the other of these attributes (e.g. equality) to achieve another (e.g. justice) should be allowed only if they are always subject to a time bound review by the people in a transparent and fair manner. Quota systems, whether for parliamentary seats or other areas, or affirmative action programs in the US to overcome the legacy of past injustices, are examples of that in action.

Concluding remarks:

These are but a few of the new issues that constitutional thinking today should address. As can be seen from the above, they are far-reaching and require innovative thinking. They require the careful design of a system that recognizes change as a fundamental part of the reality of our daily lives, even as it tries to preserve the timeless and fundamental freedoms that undergird our social contract, and are the pillars of citizenship and even of our basic humanity. I will have more to say about those fundamental freedoms in a separate essay. I will also have more to say about the experience of others in drafting constitutions and adopting them, as well as the economic and financial issues in our society and other societies. Likewise, it will be important to address the issues of the relationship between money and the political process and political decision making… but all of that is for another discussion, another day.

 

 

 


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