—Aslı Bâli, UCLA School of Law
[Editor’s note: This is one of our biweekly I-CONnect columns. Columns, while scholarly in accordance with the tone of the blog and about the same length as a normal blog post, are a bit more “op-ed” in nature than standard posts. For more information about our four columnists for 2017, see here.]
At the beginning of August, following months of crisis and weeks of protests and violent demonstrations, Venezuela’s controversial new constituent assembly took office. The challenge in Venezuela runs deeper than contestation over drafting or revising a constitution. The new constituent assembly was also given the power to bypass or dissolve the opposition-led National Assembly, further consolidating President Nicolas Maduro’s stranglehold on the country’s politics. In line with a global trend of authoritarian regimes manipulating the ballot box to entrench power, Maduro convened elections for the assembly that were marked by violence and fraud. The result is the seating of an assembly that has eliminated opposition voices and empowered Maduro and his allies to rewrite the constitution to their liking, as a recent ICON symposium makes clear.
One question to consider is why constitutional revision has become such a consistent part of the global authoritarian repertoire? On the one hand, the answer seems obvious. The goal is to harness the power of populism to alter the basic institutional architecture of the state: maximize executive control, permanently bias the rules of electoral competition and alter or eliminate devices like term limits. On the other hand, there is a broad toolkit of other strategies to accomplish these goals without engendering the conflict and criticism associated with constitutional changes. Aziz Huq and Tom Ginsburg have cataloged a wide array of such mechanisms short of formal constitutional change. These range from using appointments powers to pack existing regulatory and judicial institutions with loyalists to using statutory powers intended to address corruption, tax evasion or defamation as instruments to disproportionately harass, threaten or imprison opponents and repress civil society. Executive power can be used to alter sub-constitutional statutory and regulatory regimes to shift electoral rules, curb civil society organizing and much more. Because changes of this kind often remain under the radar, some have referred to such techniques as a way of achieving stealth authoritarianism.
The advantage of such a stealth approach is that it reduces the likelihood of widescale domestic protests of the kind that occurred in Venezuela earlier this summer. Yet, as David Landau discusses in a forthcoming symposium piece in the Chicago Law Review, formal constitutional change has several key advantages over other mechanisms for consolidating power and eroding institutional checks and balances. These include accelerating the pace at which changes occur, using textual revisions to shift specific norms and ensuring the durability of institutional transformation.[1] Moreover, as I discussed in my previous column, mechanisms of constitutional design intended to stave off such authoritarian revision—such as unamendable provisions or other formal procedural requirements intended to slow change—are unlikely to hold. The power of “higher lawmaking” is precisely what authoritarian actors seize, with all the attendant dangers. In countries like Turkey and Venezuela, formal constitutional revision has elements of both regime change and cultural revolution.
For all the attention paid to these exercises of authoritarian constitution-writing, a more subtle set of lessons is at risk of being missed. A broad range of actors that are democratic or democratizing may be just as tempted as their authoritarian counterparts to use constitutionalism as a short-cut to shifting norms and entrenching commitments without doing the work needed to build democratic support. Indeed, in both Venezuela and Turkey, the prior constitutions now being supplanted were also largely top-down impositions, albeit ones adopted in what were viewed as democratizing transitions. What recent comparative experience has shown is that constitutional revision, amendment or replacement can serve repressive ends even in the midst of a post-authoritarian transition.
In Egypt, a constitution-drafting exercise that began as part of a democratic transition in 2011 devolved into an authoritarian power grab by 2013. But the allure of treating constitutionalism as a way of providing a road map for democratization, accomplishing national reconciliation and entrenching and protecting liberal rights leads political opposition groups and international advisors alike to embrace constitution-writing as the first step of a transition rather than its culmination. [2] New constitutions are drafted before constituencies have a chance to fully understand or debate provisions, the language of democracy is used as a talisman to ward off legitimate political and social contestation about questions of constitutional identity and fundamental values. The effect of making constitution-writing the beginning of a democratic sequence may be to exacerbate underlying conflict, trigger winner-takes-all competition and risk empowering groups that will treat constitution-making as an opportunity to permanently tilt the playing field in their favor. In general, we understand authoritarian constitutionalism as bad but are insufficiently attentive to the risks of constitutionalism during political transitions with a more positive valence.
In a recent volume that I co-edited with Hanna Lerner, we examine constitution-drafting in democratizing contexts and find echoes of some of the concerns raised by abusive, authoritarian constitutionalism. In contexts of deep polarization where there is no underlying consensus concerning key political and normative questions relating to constitutional identity, constitution-drafting is a high stakes undertaking. When constitutions are written to foreclose debate on certain grundnorms in democratic transitions, the experience for constituencies that have not yet been persuaded of those norms is much the same as any other form of top-down imposition. In our book, we focus specifically on countries that are divided over questions of religion. Here, enshrining internationally-approved liberal values such as secularism in the constitutional text may be experienced by religious constituencies as repressive. In the presence of competing metaphysical conceptions of the state, constitution-making is less about institutional design and more about forging a set of shared norms out of dissensus. Under these conditions, we argue, more provisional or flexible mechanisms capable of accommodating competing conceptions of the state are preferable to entrenching one set of values.
While we draw this conclusion based on a study of fourteen cases of religiously-divided societies undertaking constitution-writing, the lessons are more generalizable. In democratizing contexts, constitutional revisions may not always be experienced as emancipatory simply because the values being entrenched are deemed liberal. In countries experiencing social divisions and political polarization in periods of transition, there is enormous temptation for one faction to seize constitutional tools as a means of shifting social norms from above. This amounts to an end run around the slow and laborious political work of building consensus on the ground. When this kind of top-down social engineering through constitutional revision is accomplished by a faction promoting ostensibly liberal principles—like secularism, for instance—the practice draws comparatively little international criticism, but may have destabilizing or counter-productive effects. In Turkey, eight decades of secular constitutionalism have given way to a new reactionary constitutionalism fueled in part by the grievances of constituencies that experienced the prior order as repressive. More generally, constitutional revisions in the absence of wide consensus risk triggering a political backlash.[3]
If such imposed constitutionalism is not solely the province of authoritarians and is a risk in democratic transitions as well, the conventional account of constitutional revision in democratizing contexts should perhaps be reassessed. Efforts to establish and entrench liberal constitutional principles on the basis of narrow majorities (or pluralities) without forging broader consensus may exacerbate or channel polarization in undesirable ways. An alternative approach would be to explore more politically contingent solutions to fraught normative divisions in the realm of ordinary legislation where choices may be revisited as particular positions gain greater social acceptance. Over time, iterated processes to debate and renegotiate formulae that address contested questions may generate the kind of uncoerced consensus that can then serve as the basis for constitutional revision. Encouraging an approach to constitutionalism that favors flexibility and provisional formulae over the entrenchment of principles (even good ones) in ways that exacerbate polarization is one way of mitigating the risk of abuse. Such strategies may engender their own risks—if certain grundnorms are not entrenched, rights protections may be compromised, for instance. That is not a reason to rule out more permissive and incremental approaches to constitution-making, it is a reason to study such alternatives more closely.
Suggested citation: Aslı Bâli, Assessing the Risks of Constitutional Revisions, Int’l J. Const. L. Blog, Sept. 3, 2017, at: http://www.iconnectblog.com/2017/09/assessing-the-risks-of-constitutional-revisions-i-connect-column/
[1] David Landau, Populist Constitutions (forthcoming University of Chicago Law Review) (on file with author).
[2] Tamir Moustafa, to his credit, recognized the risk of this sequencing in the Egyptian context from the outset.
[3] Hanna Lerner’s work on the Israeli counter-constitutional revolution is an example of such a consequence. See, e.g., Hanna Lerner “Constitutional Impasse, Democracy and Religion in Israel,” in Constitution Writing, Religion and Democracy.
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