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.
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.
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.