Tuesday, 23 August 2011

Libya: Learn from Egypt's Constitutional Gridlock

Libyan rebels make a chalk drawing of their tri-colored flag.  Photo AFP. 

Lorianne Updike Toler

Although Libya yet finds itself in a state of chaos, as the end looms for Gaddafi and his supporters, Libya's civil and political rebel leaders should consider a strategy for avoiding an Egypt-styled  constitutional gridlock.

It may seem somewhat presumptuous to begin planning for a new government now even as Gaddafi's sons and he himself are unaccounted for and appear out of rebel control.  Yet if and when Gaddafi falls, as most major western leaders are now recognizing, it will be almost too late to put together a long-term strategy, as the country will require some measure of stability almost immediately.

Consider Egypt's plight: constitutional amendments were quickly voted upon in March, calling for elections of a parliament first, who would then identify a constituent committee to draft a new constitution.  Yet when it became apparent that the new parliament and therefore the constituent committee would be dominated by Muslim Brotherhood forces, other parties cried foul.  Several constitutional proposals have been proffered by various parties and leaders, and the deputy prime minister has now issued a document which takes each of these proposals into account in proposing a new constitutional procedure.  Despite this act of reconciliation and inclusion by the current military regime, the Muslim Brotherhood and it's political affiliates are crying foul, saying the initial, popularly-adopted procedure outlined in March is that which should be followed.  

The root of Egypt's problem was a failure to carefully plan and then institute a constitutional procedure which would be inclusive and build consensus from the beginning.  Elections are the default mechanism for a  democratic government.  Yet as Egypt's recent history has demonstrated, such a default mechanism is not appropriate--nor will it work--for long-term constitutional change.  More inclusive, supermajoritarian procedures should be used for constitutional moments; such inclusiveness will help to legitimate the process, precipitating wide-spread acceptance of a constitution as the supreme and first law of the land upon which a healthy rule of law can be established.

Even though Libya's new beginning is not yet, I would encourage rebel leaders to start planning an inclusive, consensus-building constitutional procedure now.  The more they involve all the various parties and voices throughout the process, the more support a new constitution will have, resulting in greater economic, political, and social stability.

Tuesday, 16 August 2011

Multiple, single-author constitution drafts good for Egypt

Photographed by Fouad Elgarnousy

Deputy PM Ali Selmy has drafted constitutional principles for Egypt, outlining a secular yet tolerant civil state.

His draft comes as the latest of several proposals to be put forward over the summer, and signals a healthy debate among political leaders and civil society organizations.

It also highlights what history has proven works: constitutions (and constitutional drafts) should be written by individuals.

Don't get me wrong - there should be a healthy debate around a Constitution, and proposals should be vetted, discussed, and amended by all players involved in the process. Yet the kind of careful, tight writing a constitution requires cannot--and should not--be written in a crowd.

Again, I turn to American constitutional history.  (I pause here again to make the point that if we measure constitutional success by its long-term acceptance by its own people, American history is a good place to look to derive a normative standard or normative model for constitution creation.  This may allow Arabs to avoid those aspects of American constitutionalism they dislike, while drawing on one of its greatest successes - its perceived legitimacy by Americans.  See this article on Aljazeera for an interesting perspective on how Arabs should not pattern their constitutions after America's.)

Several constitutional plans were proposed at the constitutional convention, each authored or headed by one individual - the Virginia Plan, presumed to be authored by James Madison, the Patterson Plan, the Pinckney Plan, and the Hamilton Plan.  One plan, the Virginia Plan, was discussed and debated at length by the convention.  Yet in the end, in the highly-important Committee of Detail, all plans (except perhaps the extreme Hamilton Plan) were used in drafting the Constitution.

The report of the Committee of Detail, the Constitution's first working draft, and the later, stylistic changes reported by the Committee of Style were heavily influenced if not authored each by one individual: James Wilson and Gouverneur Morris, respectively.  These plans were subsequently debated and changed by the full committee to produce the final Constitution of the United States.

Why is it important that drafts be authored (in part or in full) by a solitary voice?  Continuity of ideas, fluidity of prose, tightness and simplicity--all of the elements that contribute to a good piece of writing.  Especially a constitution.  Constitutions written (instead of being amended) by a committee can be overly wordy and try to do too many things at once.  This is problematic for a legal document which will surely be the basis for many lawsuits.  Too, wordy constitutions will not be read nor understandable to the people it governs, and therefore hard for them and institutionalized watchguards to enforce.

So far, Egypt's many draft constitutional principles have largely avoided the pitfalls of group work-product.  It remains yet to be seen whether, when a constitutional committee is constituted, they will adhere to this sound policy.


Thursday, 11 August 2011

London Rioters show Arab Spring Democracy not Enough

Vandalized Domino's Pizza a few blocks from my London flat.

Lorianne Updike Toler

Democracy means rule by the demos, or people. Self government or people-rule is considered a good and has become the normative standard for modern governance.  Yet what happens when some significant segment of the people have no respect for the rule of law.  What then, of self government?

I, along with other Londoners, have witnessed the tragic consequences such lack of respect produces as hundreds of youths have seized upon an excuse to vandal, arson, and loot with impunity their own neighborhoods in the last few days.  Many have compared the London riots to the Arab Spring.  Yet the largely non-violent, pro-democracy protests in the MENA region, as one blogger points out, bear little resemblance to the destructive, opportunistic vandalism of the rioting London youths, and the family who protested the shooting of their son in the taxi have decried any connection with or support for the gangs of youths who have seized upon their misfortune to aggrandize their fun and possessions.  Further, rather than being among a "feral underclass" who have been denied benefits by Cameron's austerity measures, the youths arrested Tuesday night are now reported to have stable jobs and futures ahead of them.

A connection might be found, however, in what we could learn about democracy and the rule of law from the London riots.

It may arguably be said that the United Kingdom has the oldest democracy, or form of self government, in the world.  True, it is shaped as a constitutional monarchy, but its unwritten constitution has evolved such that Parliament and especially the popularly-elected House of Commons and Prime Minister have greater power than the monarch or judiciary combined.

Yet there seems to be a certain generation and class of persons in Britain who clearly have little respect for the rule of law.  Why is this?  Democracy, in that it is seen as more legitimate, is theoretically suppose to breed voluntary compliance with the law, or respect for the rule of law.  What went wrong?

Here history, and particularly American history, has something to say.  One of the few things upon which there was unanimous consent among America's founding brethren was that self-governance (what they styled republicanism, but in general terms is called democracy today) requires morality.

And how is morality bred among the populance?  Again, the unanimous answer of the founding generation (even, eventually, Jefferson) was religion.  They assumed that piety and fear of God and eternal punishment would awake in a people a sense of duty towards one another.  After all, not killing, not stealing, and not lying, hallmarks of Old Testament Mosaic law, provided good starting points for any penal code.

(Clearly, religion isn't the only way to inculcate morals such to allow for self government.  One of the most moral individuals I know is an atheist.  An education which includes the teaching of ethics (and dare I say history?) might instill the kind of respect for the rule of law necessary for self-rule.  Some are calling for a re-emphasis of this kind of education in Britain, and are chastising parents for not inculcating their youth with ethics.)

These, then, are the relevant questions the London riots pose for their neighbors to the south and east - in addition to establishing democracy, how might they also create a culture which preserves the rule of law?  Will their faith and fear in God (or Allah) and an adherence to the Qur'an also help them to abide by each other's laws?  Democracy set up in a transparent and inclusive fashion will certainly help to promote voluntary compliance with the law, but democracy is not enough.     

Tuesday, 9 August 2011

America Can Help Arab Spring by Not Controlling It

Saudi Arabia King Abdullah condemned Syrian government Sunday night. Photograph: Tannen Maury/EPA

Lorianne Updike Toler

Sunday night, the king of Saudi Arabia had harsh words for the Syrian government's brutal suppression of its protesting citizenry.  The Arab and European reception was mixed, as King Abdullah had suppressed a similar insurrection in neighboring Bahrain and gave refuge to the has-been Tunisian dictator  Zine el-Abidine Ben Ali.  His speaking out at this time looked more like a political ploy to strengthen a post-Assad Sunni government.

Leaders and countries who seem to act out of political expediency rather than provide early and sincere support for Arab Spring uprisings are distrusted in the MENA region.  According to The Huffington Post's Michael Hughes, Obama's support of past dictators and "sluggish" support for the region's popular uprisings has placed the U.S. on the "wrong side" of the Arab Spring.

Hughes recommends that the U.S. "should embrace democracy even if it can't configure the outcome, and accept the reality that the Mideast's emerging governments will unlikely be transfigured into Jeffersonian-style secular republics." 

I agree.  But what does such an embrace look like, in real time?  Does embracing entail standing by, or providing tools and resources that the Arabs can take or leave in their self-determination?

I advocate the latter approach.  As outlined in last week's post, "The Case for History," democracy and its history cannot be divorced.  This means that the U.S. and its Western Allies should share with Arabs what they have learned about democracy, including how it has worked for them and historically successful set-up procedures.

As a wise leader once said, share correct principles (in this case, principles of procedure, not outcome-based), and allow the Arabs to govern themselves.  It might take some time--perhaps something like America's 11 years of near-anarchy under the Articles of Confederation--but Arab self-determination is the only path forward to lasting stability in the region.  

Friday, 5 August 2011

The Case for History

Lorianne Updike Toler

The Arab Spring has brought about the opportunity to implement Arab democracies in Egypt and Tunisia.  In setting up their new governments and constitutions, most Muslim Arabs are looking on Western influence and help with disdain.

While I am inspired by their independent zeal and believe that their constitutions will be stronger because of it, in their haste to go it alone, Arabs may be overlooking a piece of the "West" that is as much their inheritance as anyone else's. 

I speak of the political philosophy, democratic republics, and history of the ancient Greek and Roman civilizations.  The Greeks modeled democracies, or direct participation in government by the people; the Romans modeled republican government, or representative participation in government by the people.  These traditions the East preserved, sometimes through translation into Arabic.

These Eastern-preserved ideas were captured and discussed as part of a broad European Enlightenment, particularly by Montesquieu in his The Spirit of the Laws in 1750.  In particular, Montesquieu, a Frenchman, became famous for his praise of the English constitution (or form of government) in Spirit of the Laws

Montesquieu had great impact on Sir William Blackstone, who discussed Spirit of the Laws throughout his Commentaries on the Laws of England, published in 1765-9.  Blackstone's Commentaries, though not very well received in England, became the primary legal text and actual law (in that it summarized the inherited Common Law of England) in the fledgling United States where there was no constitutional or statutory law.  Too, both treatises were studied by those who participated in the constitutional convention, and particularly Montesquieu was discussed and referenced in the convention's debates.  James Wilson, who wrote more than one draft of the Constitution, relied upon or used Blackstone's Commentaries as a foil for his own writing and pulling together of various documents in compiling text for the Constitution, explained in his Lectures on Law.

A more direct connection between ancient models of government and the frame for the U.S. Constitution may be found in James Madison's studies of historical republics and confederacies in the months leading up to the convention.

The forms of government incorporated in the U.S. Constitution, and those found in its parent government in Great Britain, have been modeled the world over, where three branches of government, separation of powers, and independent judiciaries are all considered important aspects of democracy.

In fact, these same forms and concepts are being discussed by Arabs in Egypt and Tunisia, Morocco and Bahrain.  You cannot divorce democracy or republicanism from its history, and setting up the best democracies and democratic republics should always include canvassing successful contemporary and historical models in other countries.  The same is true for in-process Arab democracies as anywhere else. 

After all, the beginnings of democracy could be claimed as much by the Middle East as by the West.  

Thursday, 4 August 2011

What History Says about Creating a Muslim Democracy in Egypt

Salafis entering Tahrir Square July 29.  Ghetty Images.
Lorianne Updike Toler

After returning from a vacation in Italy, I was saddened to learn of the violence in Hama and in Tahrir Square over the last few days.  I was also surprised to learn of the Salafis' entry into the July 29 protests shouting, "Islamic. Islamic. Not Western or Eastern. No liberal or secular."   (See more pictures of the protest and clash between secularists and conservatives here.)

Other intensive reports such as this in Foreign Policy indicate that Salafis are beginning to say that not only is Islam compatible with democracy, but required by it:

Sixty-two percent of Egyptians believe "laws should strictly follow the teachings of the Quran," according to an April 2011 Pew Research Center poll. "Majorities usually run countries. So why should the minority [secularists] rule everything," poses Abdel Moneim Al-Shahat, a prominent Salafi scholar and the spokesperson for the Salafi movement in Alexandria.

Is a well-functioning, long-term democracy created through democracy, or mere majority rule?  History tells us otherwise.

Anti-western prejudice aside (as this entire blog, explained here, challenges the reader to do), consider for a moment the history of the longest-standing democracy based upon a written constitution.  Yes, I am again referencing American constitutional history (my specialty, after all).  

Each state but for Rhode Island sent delegates to the Constitutional Convention, wherein the delegations--composed of two or more delegates--had one vote.  This alone required supermajoritarianism, as measures were adopted based on the concurrence of a majority of people from a majority of the states.  Too, ratification measures later set into the constitution required 9 of 13 states to ratify before the constitution went into operation (again requiring a majority of a majority), and then only for those ratifying states.  Eventually, all 13 (plus an eventual 37 more) voluntarily ratified themselves into the union.  

The U.S. Constitution and the long-standing democracy it established did not become supreme law until a supermajority voluntarily agreed to abide by its principles.  How would such a procedure play out in Egypt?  What would the Egyptian constitution look like with respect to Islam? 

Regardless of its content, I guarantee that such a constitution would successfully govern Egypt for hundreds of years.