Votes Versus Rights

Votes Versus Rights

Elections in Egypt, and throughout the Arab Spring, pose a classic dilemma of political theory: Do you support democracy, even if it means sacrificing some civil rights? Or do you support rights, even if it means stifling democracy?

The largest Islamic parties in the region insist that they stand for both democracy and rights, and these assurances have been sufficient to win a plurality of votes in Tunisia and Egypt, the first countries of the Arab Spring to hold free elections. But political opponents, and many foreign observers, worry that governments led by these parties will suppress the rights of women and minorities, restrict freedom of expression, and potentially abandon democratic accountability altogether.

Suppose that these concerns are valid. Should people have the right to vote against rights?

For more than two centuries, democracies have struggled to identify which rights are so important that voters should not be allowed to violate them. The list of protections has varied from country to country and from era to era, but democracy and rights have always been at odds. Democracy empowers the will of the majority; rights set limits on these powers.

The founders of the United States of America obsessed over this problem. Just one year after the constitution was ratified, they went back and amended it to tweak the balance between democracy and rights. The first change they made was to protect freedom of religion, an issue as volatile in the 1780s as it is now. Even if a religion is unpopular, the First Amendment stipulates, the majority may not prohibit the free exercise thereof. That’s why opponents of mosques in America appeal to traffic and parking regulations: Many voters and legislators may feel distressed by the religious implications of mosque construction, but they are constitutionally prohibited from blocking it on religious grounds.

The founders of the new democratic order in North Africa are also struggling with the balance between democracy and rights. Most Arab countries have had constitutions for more than a century, with increasing guarantees (at least on paper) for both popular sovereignty and a growing list of rights, including freedom of religion. Soon after the uprisings of early 2011, however, these constitutions were scrapped. Egypt’s military junta drew up a constitutional declaration in March without waiting for new elections to be held, promising a robust set of rights. In Tunisia, elections were held first, and the provisional document recently approved by the country’s constituent assembly offers only a vague reference to human rights and public freedoms.

Many of those calling for a more forceful defense of rights against the threat of majority rule are secularists. They are trying to shape the debate as the process of drafting permanent constitutions continues in both countries. Last summer Mohamed El Baradei, a presidential candidate in Egypt, proposed a bill of rights that was based in part on the Universal Declaration of Human Rights. The Tunisian League for the Defense of Human Rights made a similar proposal on December 10, the day the country’s "mini-constitution" was approved, which also happened to be International Human Rights Day (December 10).

Still, secularists are not the only ones demanding the protection of rights. Some Islamic organizations have sounded similar themes, albeit couched in religious language that makes some secularists nervous. Al-Azhar, Egypt’s leading seminary, proposed a long list of protected constitutional rights, including a ban on religious discrimination and the exemption of non-Muslims from Islamic personal law, which it justified with reference to Quranic principles. Egypt’s leading Islamic movement, the Muslim Brotherhood’s Freedom and Justice Party, issued an electoral platform that describes rights as a fundamental Islamic principle, including "non-discrimination among citizens in rights and duties on the basis of religion, sex, or color," and "freedoms of belief, commerce, property, opinion, expression, movement, assembly, the formation of parties and associations, and the publication of newspapers." Tunisia’s main Islamic movement, the Renaissance Party, which won 40 percent of the vote in October’s election, pledged "respect for human rights without discrimination on the basis of sex, color, belief or wealth, and the affirmation of women’s rights to equality, education, employment and participation in public life."

This Islamic discourse of rights is not a recent invention. Over the course of the 19th century, a modernist Islamic movement developed Quranic justifications for elections, parliaments, and political parties, as well as natural law and sharia defenses for individual freedoms. In the early 20th century, this movement began to mobilize on a large scale, forcing constitutions on reluctant monarchs and defying colonial authorities. Tahrir (Liberation) Square in Cairo, which the world came to know for its sit-ins in 2011, is named for one of these episodes, the Egyptian independence movement of 1919 that forced out the British.

Few post-colonial governments in the Middle East have lived up to ideals of human and civil rights, however, and there is no guarantee that the Arab Spring will either, even where dictators have been ousted. One threat to rights comes from military juntas claiming emergency powers, as in Egypt. Other threats to rights come from civil war, as in Yemen, and from unchecked militias, as in Libya. Another comes from revolutionary groups such as al-Qaeda and its affiliates, who reject democracy and human rights as usurpations of divine sovereignty and have targeted Islamic groups that participate in elections. (The photo above shows a young Yemeni woman sporting the flags of the Arab Spring countries on her fist during an anti-government protest.)

Yet another challenge to rights comes from the democratic process itself, namely from leaders who are elected with a mandate to subordinate rights to other priorities, such as religious principles. In Egypt, for example, Islamic parties advertised their intention to submit rights to religious review, and voters supported them anyway. The platform of the Freedom and Justice Party, which won 45 percent of the votes in elections over the past two months, qualified its endorsement of international human rights conventions with the phrase "so long as they are not contrary to the principles of Islamic law." The platform of the main Salafi party in Egypt, the Nour ("Divine Light") Party, also endorsed rights (including the freedom of expression, publication, and association), but only "within a framework of Islamic law."

As a result, democratically-elected Islamist governments might not adopt the full set of rights that many Americans have come to consider an indivisible package. For example, the new provisional constitution in Tunisia bars non-Muslims from serving as president. Non-Muslims constitute only 1 percent of the population, but the provision seems like a throwback to an older era when citizenship was bound up with religion. (My home state of North Carolina, for instance, limited government office to Christians until 1868.) Today, such restrictions strike many of us as an egregious violation of the norm of equal citizenship rights for all. But in Tunisia, the voters’ representatives have adopted this restriction, democratically.

As democracy advances in the wake of the Arab Spring, we will no doubt witness further restrictions on rights. At what point might our objection, as outsiders, be so intense that we abandon our support for democracy? If a democratically-elected government began to slaughter a minority group? If a democratically-elected government rounded up a minority group on reservations? If a democratically-elected government outlawed the practice of a minority group’s religion?

Fortunately, egregious rights violations such as these do not appear imminent in the Arab Spring. But Islamist governments might conceivably require men to wear beards and women to cover their hair. They might change divorce and custody and labor laws to favor men over women. They might strengthen longstanding restrictions in the region on proselytizing and religious conversion.

In other words, they might adopt policies that outsiders would not adopt. Of course, that is the nature of democracy. Egyptians make laws for Egyptians, Tunisians make laws for Tunisians, and outsiders have no vote. Those of us cheering the advance of democracy around the world should expect countries to forge their own legislative paths, even if we are uncomfortable with the results.