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2.11.2011

The Constitutional Right to Rebel - advice for Egypt?


The ripple effects from Tunisia’s “Jasmine Revolution” are still making themselves felt throughout the Arab World. Earlier today, Egypt's Mubarak stepped down after weathering large-scale protests and civil disobedience for over two weeks. Elsewhere in the region Lebanon, Algeria, Yemen, Jordan (and to a lesser extent Mauritania, Sudan, Syria, Libya, and Morocco) have also seen the citizenry rise up to demand democracy and increased self-governance.

Of course we can’t yet know what system will have taken hold in Egypt when the smoke clears, but Middle East watchers around the world have already begun talking about what a new constitution in that country might look like.

So given that revolutionary leaders in Egypt, and perhaps other Arab countries, may soon have a seat (or a pen) at the constitutional table, it is timely to look at one of the potential legalistic ramifications of the popular uprisings that got them there.

Many constitutions include justifying language to the effect that they are a necessary improvement in governance upon whatever came before them. Many more constitutions outline individual rights and guarantees. Yet some constitutions actually combine the legitimizing language with the basic guarantees by creating a constitutional ‘right to rebel.’ This odd revolutionary clause is most often included in national constitutions written in the aftermath of a governmental overthrow by popular uprising or a coup d'état, and are an increasingly popular, but problematic, shortcut to legitimacy for a new regime.

The philosophical idea of a ‘right to rebel’ dates back at least three thousand years to the Zhou dynasty in ancient China. Having violently overthrown the Shang dynasty which preceded them, the Zhou spoke of an imperial ‘Mandate from Heaven’ which was supreme but revocable. Despotic acts were a sure sign of this divine mandate having been removed by the gods, and under those circumstances a ‘right,’ or even a ‘duty’, to rebel existed.

More relevant to the Arab revolts, the Qu’ran extols a sacred duty to: “obey God, obey the Prophet, and obey those who hold authority over you" but two widely accepted pieces of Prophetic dicta qualify that the ones obeyed cannot be acting against divine law. If they are doing so, then a duty to rebel exists.

In modern times, the concept has made the rounds from Locke, Rousseau and Hobbes, to the US Declaration of Independence, to the Universal Declaration of Human Rights. And while the US Constitution does not explicitly guarantee such a right, the state constitutions of North Carolina, Pennsylvania, Kentucky, Tennessee, New Hampshire and Texas all do; with the latter guaranteeing Texans “the inalienable right to alter, reform or abolish their government in such manner as they may think expedient.” Of course the extent to which these state guarantees remain in force is questionable given the events of the American Civil War…

Yet the device does remain highly relevant in the developing world. Currently Benin, Chad, Democratic Republic of Congo, El Salvador, Estonia, Honduras, Liberia, Niger, Peru and Venezuela all contain provisions in their constitutions enshrining the population’s authority to topple the government. All of these countries, save Congo and Venezuela, instituted these constitutional provisions following coup d'état or regime change through massive social upheaval or protests. The two exceptions were drafted by countries whose sitting leaders had previously attempted, but failed, to overthrow a previous sitting government by undemocratic means: Hugo Chavez in a failed 1992 army coup, and President Kabila as a guerrilla warlord for the Alliance of Democratic Forces for the Liberation of Congo-Zaire.

Dozens of countries have experimented with including a right to rebel in previous constitutions, and in a majority of those cases, these constitutions were themselves violently overthrown, often after remaining in place for less than a decade. For example, Ecuador has had two right to rebel constitutions and these lasted for only three years and six years respectively, brief even by Latin American standards.

Far from being a harmless declaration of philosophical ideals, including a revolutionary clause in a new constitution may in fact be a sort of Faustian bargain. The argument can provide a short-term boost to governmental legitimacy in the tense atmosphere following a coup or a revolution, but that argument can just as easily be made with a speech or a press release so why entrench it in a constitution?

Just as the present government is legitimated in having seized power, or destroyed the former system, future revolutionaries are also given a much stronger case for a potential legal defense or a future amnesty. And while some right to rebel constitutions qualify the factors necessary for a righteous revolution -- “oppression, corruption, abuse etc.” -- these are all highly subjective terms and history is, as they say, written by the victors. In Niger, a Muslim country which guarantees it’s citizens a “right and duty to resist an oppressive regime through civil disobedience,” the government has become a merry-go-round of coups followed by amnesties.

So what does this mean for potential constitutional authors in Egypt and the Arab world?

It’s hard to be sure. While the Middle East produced the first known constitution, issued by the Sumerian Urukagina the King of Lagash around 2300 BC, constitutionalism in the modern Islamic world remains a bit mysterious. Most Arab countries did not have constitutions until the 1960s, and they have had far less constitutional turnover than developing countries in Africa or Latin America. Egypt and Iraq are veritable outliers having had five, and seven constitutions a piece, and some countries such as Qatar or Saudi Arabia have yet to draft even one. Arab constitutions also tend to be comparatively succinct and to draw heavily on religious language, neither of which would likely lend itself to a right to rebel constitution. Perhaps more importantly, it has never happened before in this part of the world (after all Niger, while Muslim, is not Arab). And yet, these protests are also without precedent, and in the wake of a successful revolution much can change can occur in a small amount of time.

Obviously, for a democracy to be born, a non-democratic government must fall. What it will mean for that fall itself to have been “democratic” might not be knowable for a generation, and the only sure way to legitimate an unconstitutional rise will be by building something better.

If these new revolutionaries succeed in creating a democracy where human rights are respected, institutions are independent, the constitution is stable, successions are peaceful, and which can resist undemocratic external pressures (of which there will be many) without betraying its fundamental ideals, then there will be no need to legitimate the revolution that brought it about. And while, in the elation following the fall of admittedly oppressive regimes, it may be tempting to include constitutional language validating revolution; euphoria is fleeting and constitutions, hopefully, are not. Should the fledgling democracy stumble, those words could at best become ironic, and at worst lead to the destruction of all that is being built and fought for now.

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