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Michael Wasco

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Arab Spring and Constitutional Democracy

Posted: 02/28/2012 11:14 pm

On Sunday, Syria held a referendum on a new constitution of which Syrians themselves had no input.

It is hard to believe that it has been over one year since citizen driven uprisings began in predominantly Muslim nations of North Africa. Because stability in the region is critical to safety and security abroad, trepidation on the part of western democracies is natural, but misplaced. The concern is not what regimes result, but how they come to power. Much work remains for a complete and sustainable democratic transformation for Arab nations, including dialogue on government structure and the protection of human rights.

If we agree that democracy over dictatorship was a driving force for these revolts, then a critical step is the implementation of democratic constitutions. Constitutions outline basic government structures, but are also the supreme law of the land regarding the rights of the citizens. The process of constitutional development is as important as the resulting document. As many citizens as possible must participate in a transparent and inclusive process where rights and religion are not mutually exclusive. The work must be collaborative and not adversarial. It is not "East versus West" or "Secular versus Shari'a." Democracy is a means, not only an end.

The danger lies not in the radical groups within the resulting governments, but with the fringe actors left out of the process.

Constitutional democracy is not a western ideal forced upon others by the United States. Since the turn of the twenty-first century, numerous constitutions have been developed not at all like the U.S. model. The U.S. Constitution is terse and old and it guarantees relatively few rights when compared to Sudan's 2005 interim constitution. The U.S. constitution is also an outlier in prohibiting government establishment of religion. New permanent constitutions in North Africa and the Arabian Peninsula are not likely to resemble the U.S .constitution, but that does not mean that they will be any less democratic.

Constitution making in Muslim nations is not a series of either/or propositions. The practice of Islam and shari'a should not be viewed as impediments to democracy. Muslims make up over 20 percent of the world's population. At least 50 countries are predominantly Muslim, from Mauritania to Indonesia. Constitutions that cite shari'a as a source of law do not necessarily result in a state where women are lashed for wearing pants, and thieves are disarticulated from their hands. Sudan's interim constitution cites shari'a as a source for legislation, yet emphasizes equal rights. Shari'a is a complex set of ideas with at least three sources, infinite interpretations and various methods of enforcement. The six-thousand verse Quran for instance, authorizes communal punishment for just four crimes.

Just as constitutions heavy on shari'a are not "anti-democratic," secular constitutions that codify and protect numerous international human rights are not contrary to the teachings of Islam or "anti-Muslim." For some devout Muslims, secular constitutions are the only way to protect their beliefs, as the Quran calls for reflection and not compulsion as a sign of true faith. According to Sudanese legal scholar and devout Muslim, Abdullahi Ahmed An-Na'im, religion, human rights, and secular states are actually interdependent. For An-Na'im, a shari'a free constitution only strengthens his faith.

Should some of these countries choose to reference shari'a in their constitutions, it is only a concern if it is forced upon the citizens, and not a product of their own will. Enacting an entirely secular constitution without input from the public would lead to an equally precarious situation. The over simplification lies in lumping all of these countries together in a new wave of "Arab democracy." Each nation is independent and diversity should be reflected in their constitutions. Resources should not focus on advocacy, but in educating populations on all of the alternatives.

Such a portrait may seem naïve and impractical in volatile countries with inadequate infrastructure, but this assumption is also incorrect. In Sudan local civil society organizations mobilized volunteers for nation-wide domestic observation of the 2010 elections. The Sudanese Group for Democracy and Elections received commendation from the Sudan National Election Commission and led a sophisticated electoral law reform initiative -- only one step away from actual constitutional revision. If such activities can work in a country as politically volatile, tribal and short of roads as Sudan, it will work in states like Egypt and Tunisia.

If financial and technical support focuses on civic education and public participation, constitutions will be less threatening. Constitutions do not guarantee peaceful nations, but a populace that contributes to the content and has ownership over the freedoms that it protects is far more likely to hold elected officials accountable within the system. Thumbs up or thumbs down on a document generated by a government that continues to injure and kill its own citizens is not a blue print for stability in Syria or any other Arab nation.