In early 2011, when no one knew the ultimate outcome of the nascent Arab Spring, acclaimed historian and Harvard professor Niall Ferguson appeared on MSNBC’s Morning Joe and offered his take on the developments in the Middle East. Among other things, he pointed out that the near universal excitement in the West was perhaps a little premature, as “most revolutions lead not to happy clappy democracies.” The reason being, he argued, for Egypt and the other countries involved in the Arab Spring, is that they lacked a democratic and secular tradition. Furthermore, he continued, the US, which should have for years been supporting such forces, so that in case there was a revolution, they could take an active or at least participatory role, failed to do so. Instead, the strongest and best-organized opposition forces were Islamic fundamentalists, lead by the Muslim Brotherhood. Ferguson and many like him worried that such groups would cement their grips on power and impose Islamic rule; replacing secular dictatorship with theocratic dictatorship. In other words, absent long-term American and Western support for democratic forces, the power and authority of a revolution will manifest itself in the dominant underground forces, i.e. Islamist groups.

A constitution is the immediate legacy of a revolution; in a liberal-democracy -what we desire- it protects positive liberty and guarantees negative liberty. Egypt’s proposed constitution –a referendum on which will be held on December 15th- fails to do so.   

Westerners are firmly attached to the egalitarian principle that men and women are equal. We assume that any modern society too will protect the rights and dignities of women as they do men. It is thus particularly disappointing that Egypt’s modern constitution fails to do so. The document’s preamble does say that “Equality and equal opportunities are established for all citizens, men and women.” However, Article 10 of the constitution focuses on preserving “the genuine character of the Egyptian family.” Furthermore, it says the state should maintain a “balance between a woman's obligations to family and public work.” It is not difficult to see how, given Egypt’s Islamist trends and the preferences of the Muslim Brotherhood, this ambiguous language could be used to deny women their rights.        

Just as Egypt’s previous constitution had, the new one maintains that the principles of Sharia are the basis for legislation. However, the new constitution goes further, clarifying that Sharia refers to established Sunni doctrine, and that scholars from Al Azhar, one of the leading centers of Sunni learning, be consulted with matters of Sharia law. It also guarantees the freedom of religion only to monotheistic religions What this does is move the political and civic discourse away from one centered on secular principles and jurisprudence and towards one centered on Islam and Sharia. The new constitution further institutionalizes Islam and holds that it is the foundation of legislation, and thus impedes the rights of women and religious minorities.   

The constitution’s protection of freedom of speech is qualified in two ways: it prohibits speech insulting “individual persons”, and prohibits speech insulting “prophets.” The constitution removes the defense budget from parliamentary oversight. The constitution holds that only military officers can hold the position of minister of defense. The constitution allows the military to bring civilians in front of military tribunals.

The constitution fails to protect basic human rights and uphold the standards of a liberal society. And it fails to do so because it was written largely by Islamists being pressured by the military; because no one had supported secular democrats, there was no liberal counterbalance. And although the constitution is not without merit –it installs term limits and somewhat separates power- if we allow ourselves to assume that liberal western values, i.e. freedom of religion, women’s rights, a military with civilian oversight, are proper and universal, then we can say that the new Egyptian constitution is something of a scandal. This is what happens when the West allows radical forces to germinate, underground, in a dictatorship: it becomes, in a sense, unstoppable, and the people who most need protection get abused.