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4.04.2012

Arab Spring Constitutionalism

A piece I wrote on Constitutional reform in the Arab World was recently published by the Chicago Council on Global Affairs as expert commentary. Special thanks to Tom Ginsburg who helped me a great deal with his knowledge of the region.

I would very much welcome any comments or responses from ComparativeConstitutions readers.

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Caveat Legislatoris

The Arab Spring revolutions have ushered in an historic wave of constitutional reform across the Middle East and North Africa. Daniel Lansberg-Rodriguez of The Chicago Council offers some guidance to reforming countries.

By Daniel Lansberg-Rodriguez

Among the many pressing matters discussed at last year’s G8 Summit in Deauville, France, much urgency was given to the numerous Arab Spring revolutions then sweeping through North Africa and the greater Middle East. One year later, with the Qaddafi, Mubarak, and Ben Ali regimes gone and a modicum of stability returned to much of the region, many of these former autocracies have shifted their attention away from the process of liberation and toward the far more daunting task of sustainable rebuilding.

The resultant wave of constitutional reform is unprecedented in Middle Eastern history, encompassing not only those countries in which the previous governments were overthrown entirely, but also those where embattled regimes, e.g. Jordan and Yemen, conceded constitutional changes in order to ensure their survival. At present, nearly all of these reforming countries have set strict timelines for the process—in most cases allowing six months for constitutional committees to finish drafting, after which they will submit the new constitutions to popular vote.

While hot-button topics such as the role of Islam and the rights of women have received a good deal of domestic and international press, success in establishing a functional and tenable government will, for the most part, hinge upon the more mundane issues surrounding institutional structures and relationships.

Historically, constitutions have served three major purposes:

  • To establish governmental institutions, standardize relationships among those institutions, and set up intra-governmental checks;
  • To establish citizen rights; and
  • To enshrine common values, setting a raison d'état for the country.

In most cases, it is the first of these purposes that has the greatest effect on the establishment of future governmental stability. Without a workable system of checks and balances, strong governmental institutions, and executive limitations, personal rights cannot be guaranteed and common values become irrelevant as society becomes increasingly factionalized.

Many early constitutions, such as that of the United States, rightly tended to focus heavily on this issue of governmental design: establishing personal rights only in the broadest of strokes and devoting sparse constitutional space to the setting of common values. However, as advances in democratic governance now usually require nascent constitutions to pass through plebiscite, modern constitutional drafters have tended to focus more heavily on the latter two subjects. Indeed, personal rights and shared values—regardless of enforceability—are the most likely to be of interest to the general population.

Middle Eastern constitutions have historically placed a premium upon enshrining common values. Qaddafi’s Libya, and the current Saudi Monarchy enshrined the Qur’an to be their national constitutions, relegating the establishment and definition of governmental institutions and personal rights to more malleable lower authorities. For their part, Egypt and Tunisia’s original constitutional designers back in the 1880s took a great deal of care in designing a workable system of governance even if this structure has not been reflected in their recent autocratic histories.

Egypt’s constitution was perpetually suspended after 1967, and Tunisia’s was routinely ignored on the grounds of executive privilege. In both cases the fall of the constitutional order was not due to a failure in design but to (a lack of) government discipline and popular will. Much of the system established in these documents, however, would likely still be workable if reinstituted today. Where possible, it would be best to make specific constitutional changes through amendment, rather than entirely reworking the system from the ground up.

As I have previously argued in the New Republic, the mere act of redesigning a constitution can serve to limit institutional authority in practice. Institutions need time to develop, and, since executives tend to emerge unscathed from the redesigning process, they are far more likely to become stronger in practice (regardless of what the design itself may say). An example from American history proves illuminating here. In 1831, President Andrew Jackson ignored a ruling of the U.S. Supreme Court and expelled the Cherokee from their land saying: “(Chief Justice) Marshall has made his decision, now let him enforce it!” If, after 50 years of institutional history, the U.S. Supreme Court could not check the authority of a popular president, what hope is there for far younger institutions in a region with a far weaker popular democratic tradition?

Limiting the scope of reform in these countries will require a great deal of restraint and maturity on the part of local governing coalitions. Once given a seat at the table, it is natural for revolutionaries to want to institute fundamental changes and create a wholly fresh start for their country—for which a new constitution is often seen as the most powerful symbol. In Latin America, for example, where nearly every presidential change is characterized as a “revolution,” this has led countries such as Venezuela, Dominican Republic, Ecuador, and Bolivia to draft and institute dozens of constitutions, leaving them with overly empowered executive authorities and laundry lists of unenforceable rights on paper.

In the immediate aftermath of a revolution, it is almost impossible to have a clear picture as to what the future country should look like in the long term and of what structures will need to be set in place to get there. The Articles of Confederation, the precursor to the United States Constitution, lasted for less than a decade, as it had set up a system in which federal authority was far too weak to be able to govern effectively at a national level. Following independence from Britain, America’s Founding Fathers were understandably focused on the issues of independence and state sovereignty, although they could not yet see clearly what federal structures and power relationships would be required to govern coherently. This fate is actually quite common for post-revolutionary constitutions: France had four complete rewrites in ten years following its own revolution, and almost all constitutions written in Eastern Europe and Central Asia after the fall of the Soviet Union have since been rewritten at least once.

Creating a tenable constitutional re-write is not a process that can be rushed. In the Arab Spring countries, where power bases are currently in flux and former rebels must contend with both entrenched Islamic clergy and surviving military and judicial institutions from their respective ancien régimes, this difficulty is compounded still further.

In countries without a constitutional history, e.g. Libya, there will be no alternative to completely redrafting. Where possible, however, an attempt should be made to salvage existing institutions that may remain workable and reinforce their authority through constitutional acknowledgement. For those countries with extant workable constitutions, doing so has even greater importance; in these cases, the stakes are much higher.

While it may be too late to reverse the process of new constitutional drafting in countries such as Egypt and Tunisia, the resultant changes—at least where structure is involved—should be made in a limited fashion and through amendment where possible, rather than through complete rewrites. Furthermore, such a process should be given a much longer timeframe to allow that it is undertaken with the utmost care and implemented only once relevant power bases and national needs can be better understood.

The Iraqi experience has shown the West that attempting to superimpose its own values unto a Middle Eastern constitution is likely to fail. What the West can do: highlight both the importance of establishing a set of coherent rules to govern society alongside defined institutional roles and, where possible, the importance of sticking to them.

5 comments:

  1. I'm afraid that I found this contribution to be seriously flawed. In particular, the author's understanding of the transition process in Arab countries is wanting, as is his analysis of what is needed is misguided. Although there is hardly anything that I agree with in the article, I will focus on a couple of instances that I thought were particularly questionable.

    (i) The author writes that: "Egypt’s constitution was perpetually suspended after 1967, and Tunisia’s was routinely ignored on the grounds of executive privilege. In both cases the fall of the constitutional order was not due to a failure in design but to (a lack of) government discipline and popular will". This is both factually and analytically incorrect. Government discipline and lack of popular will was never the problem. A major problem was that the text itself was vague, poorly worded, permissive and not protective of ordinary citizen's interests. The author's view that the people are somehow to blame for their own predicament, when ordinary Egyptians and Tunisians were routinely arrested, tortured and killed for raising their voices against the previous regimes' dictatorial practices, is particularly shocking.

    (ii) The author apparently wants to limit (and apparently even "reverse") the reform process in countries like Egypt and Tunisia. He may be interested to know that ordinary Egyptians and Tunisians have chosen a different path: they are the ones that have lived through decades of misery and they are the ones that have sacrificed in the hope of a better tomorrow. I hope that I will be forgiven for believing that the people of those countries are in a better position to decide what they need, and how fast their reform process should move, than the author. In fact, their problem is not that the reform process is moving too fast, but that it is being resisted by the many undemocratic forces that remain in their countries. A secondary problem is of course the support that those forces receive by the international community.

    (iii) The author also writes that: "The Iraqi experience has shown the West that attempting to superimpose its own values unto a Middle Eastern constitution is likely to fail". This is, I am afraid, utter nonsense and could be qualified as racism. If the author knew anything about Iraq, he would have known that no attempt was made to impose 'western values' on that country. The author might also be interested to know that, regardless of whether or not the west had sought to impose its 'values' on Iraq, that has never been the problem or the issue in the country, and is certainly not the cause of the constant state of crisis that that country has been living in since 2003.

    In fact, the system of government that the US contributed to creating and that was enshrined in the 2006 constitution is the problem. I won't go into the details because much ink has already be spilled on this elsewhere, but there is nothing 'western' about the distribution of powers or the federal system of government under the 2006 constitution. It is a unique system that was created specifically for Iraq and that has been the principle reason for the crisis that we have been experiencing since the constitution entered into force. There is also nothing surprising about this. When the constitution was being drafted in 2005, there were several constitutional heavyweights in Baghdad who reviewed the text. When asked what would happen if the text were implemented, they used words like “grave danger” and predicted that the constitution’s implementation would lead to the country splitting apart.

    I apologise for the harshness of this comment, but the region that we live is in dire straits and the one thing that we don’t need is misplaced advice from armchair commentators who are either ignorant or uncaring of our needs and desires.

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    Replies
    1. Zaid, thank you for commenting on the article I wrote for the Chicago Council on Global Affairs. The goal of any such piece is to stimulate discussion, and I am pleased that you have responded with your views.

      The thrust of the argument I am making is that strong, independent institutions are the bedrock of a stable constitutional system and that newer institutions tend to be less influential than are more established ones. Likewise, I argue that while both domestic and international media has largely focused on social and religious issues being discussed in various constitutional rewrites, a greater degree of attention should be paid to the structural makeup of constitutions.

      In response to the points you raise (as I cannot, unfortunately, respond to those you withheld):

      (i) Your reading of my blaming the average citizen for their own hardships is incorrect. In the quote you cite the phrase “the fall of the governmental order” invokes the period during which the constitution system itself broke down, not the extended period of hardship and violence in the decades that followed.

      By “government discipline” I meant to characterize that, as often happens in all parts of the world, government leaders charged with upholding institutional integrity and balancing powers in accordance with extant constitutional guidelines failed to do so during periods of crisis, allowing executives to seize control and keep it. In Egypt, Constitutional rights and protocols were indeed suspended following 1967 and (largely) remained so. My mentioning of the popular will likewise references the fact that during the chaotic period where these constitutional suspensions were first allowed to take effect, there was at least a sizeable segment of society that did back the executive taking a greater degree of charge governmentally under the understandable belief that other institutions (the army, the legislature) had been discredited. Likewise, following the breakdown of constitutional rule in Tunisia following the 1987 Coup and the structural changes evidenced in the 2002 reform, the executive was able to entrench itself without much (or at least much publicly known) visible resistance by either nominally independent government institutions or civil society.

      (ii) To your point of my seeking to limit or reverse constitutional processes, at no point do I argue that these constitutions should remain unchanged. What I do believe is that institutions that have already developed well-understood roles should be salvaged where possible, as brand new institutions tend to be less resistant to creeping executive encroachment than are more established ones, particularly in situations where new roles and responsibilities will differ markedly from those of the old order. Regarding speed, I do believe that people in their own countries, following a revolution anywhere in the world, are generally not in the position to immediately understand the changes going on around them and that, as a result, caution can prove more beneficial than speed.

      I lived a similar situation directly when the Venezuelan constitution was entirely re-written and all governmental structures whimsically changed following the popular election of Hugo Chavez. All of the brand new structures (a unicameral legislature, the creation of 5 –rather than the traditional 3- power structures) led to weak and anarchic institutions that were unable to fulfill their roles, allowing more and more responsibility to informally given to the executive as a result. Having experienced this, I understand the extend to which national feelings of rebirth that can accompany a constitutional rewrite are cathartic. But, as I say in the article, following a revolution when various fluctuating powers are vying for their own imprint on the new system, moving too quickly can lead to shortsighted and disorganized structures and institutional responsibilities which risk, once again, the rise of an overly centralized executive authority – as it did for us.

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    2. (iii) Finally, as regards Iraq, I agree that Western values were not superimposed on the constitution. “The Iraqi experience has shown the West that attempting to superimpose its own values unto a Middle Eastern constitution is likely to fail" denotes that the attempt at influencing a new constitution in its values is unlikely to end up affecting the constitution which is eventually written.

      My piece was included in a commentary thread revolving around the G8 and NATO, as such my argument in context pertained to western media, and government leaders that have thus far drawn a heavy focus to topics such as human rights and the role of religion in the state, rather than drawing attention to institutional setup (where I do believe that countries with stable constitutional orders and divisions of power might be able to make suggestions.) In my understanding the role of the international community was similar during the Iraqi experience and that did not translate into much of a value-add in the long term. Too little attention was paid both regionally and internationally to structures being set in place after the fall of Saddam and that the result was, as you say, an unstable distribution of powers.

      I hope this clarifies some of the points I was making in the article, and thank you again for sharing your thoughts.

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  2. Once again, the narratives that you describe and assume to exist here in the Arab region do not correspond to reality. Your understanding of the facts is mistaken and therefore it should not come as a surprise that your analysis is misplaced. I have already stated my reasons for this, but i will give a few examples based on what you right, at the risk of being repetitive:
    (i) speed is not and has never been an issue in terms of constitutional reform in the arab spring. on the contrary, revolutionaries and reformers are aghast at the absolute lack of progress from Morocco all the way to Jordan. Just because a particular dynamic existed in Venezuela or elsewhere in Latin America does not mean that it also exists here.
    (ii) You write that: "institutions that have already developed well-understood roles should be salvaged where possible, as brand new institutions tend to be less resistant to creeping executive encroachment than are more established ones". Once again, this can only come from someone who has no idea what we have been living through here. The theory behind what you say is sound, but no one in the Arab region apart from proponents of the former regimes that have been brutally oppressing people for decades would see any sense in what you write. The reason for that is that there are no such institutions in countries in like Egypt, where the state broke down many many years ago. Also, although i cannot speak about Latin America or Venezuela, in our countries here there are no independent institutions that have a well understood role and that weren't completely dominated and politicised by the regimes. The institutions that you imagine to exist here are simply not present.
    Also, and in any event, the desire that you express that institutions be left to their own devices has been met, because in any event no significant changes are being made anywhere, much the dismay of people throughout the region. So you needn’t worry.
    (iii) In relation to Iraq, you write that the West made an "attempt at influencing a new constitution in its values" which failed. Once again, no such attempt was made and I have no idea where you get your information from. All the US did in Iraq was to make sure that the constitution did not contain any provisions that were overtly discriminatory against women, but that was purely in order to reassure domestic constituencies back in the US that Iraq would not become an Islamic fundamentalist state under US occupation. It was certainly not to try to permeate the iraqi constitution with western influence. No attempt by the US was made to make sure that the constitution would be more progressive, liberal, or even functional than typical arab constitutions. on the contrary, despite all the warning signs, the US encouraged the Iraqis to adopt a system of government that has since been leading us to disaster.

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    Replies
    1. Thanks again for your invaluable perspective regarding the constitutional process in the Middle East. I have found your views and experiences very informative.

      As regards your question as to where I got my information regarding percieved US attempts to influence the constitutional process in Iraq I would like to cite the following United States Institute for Peace Memorandum dating from 2005:

      http://dspace.cigilibrary.org/jspui/bitstream/123456789/4616/1/Iraqs%20Constitutional%20Process%20II%20An%20Opportunity%20Lost.pdf?1

      Regardless, there is much that has been opined on this particular issue from both sides of the equation...

      DLR

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