Saturday, 26 November 2011

Revolution Hijacking in Egypt: An Historical Parallel

Tahrir Square Friday, Nov. 25 during prayers
Lorianne Updike Toler

A dictator is overthrown.  Those close to him step into the power vacuum as a "temporary organ to facilitate the power transfer." Yet days, weeks, and months pass by.  Even close to a year later, the "temporary organ" shows no signs of being temporary.

Sound familiar?

The situation I am describing is not, however, that of Egypt, where tens of thousands of protestors have again gathered in Tahrir Square to demand the military step down from power.  I am referring, instead, to the "stolen" Romanian revolution, where masses protested against socialist dictator Nicolae Ceausescu in the Christmas revolution of 1989.

In that revolution, as soon as Ceausescu and his wife were killed, Ion Iliescu and others in Ceausescuu's own ruling party stepped in and were supported by the people as a temporary expedient.  This "temporary" solution lasted seven years.

As one scholar has explained, "Iliescu was successful in Romania, because the pressure of the disorganized population was too weak against the manoeuvrings of the elite....Socialized in the spirit of mass authoritarianism, the population had no kills or habits either to form parties or to offer organized resistance against those in power. Thus the opposition parties emerged not only tardily, but above all without political resources such as a party press, buildings, organizational patterns and a large membership."  (Attila Agh, Emerging Democracies in East Central Europe and the Balkans (1998), p. 263.)

As I witness the demonstrations in Tahrir Square from a distance, I applaud the Egyptians for demanding that their revolution not be hijacked by the armed forces.

Yet I am worried about the sustainability of such demonstrations.  Clearly, those who are behind the demonstrations know how to organize, but perhaps they can also apply their skills into organizing effective parties and NGOs that can maintain influence and allow participation in deliberations *not* in the out-of-doors and get a good night's sleep.  

Constitutions: Political or Legal Texts?

Andrezej Rapacqynski
This week marks an exciting phase in the Arab Spring: Tunisia's constitutional assembly commenced year long discussions over the basic law for its people.

As they write, these MENA region trend-setters will be faced with a question similar to the one Eastern European constitution drafters in Poland faced in 1990: will the constitution be a political, or legal text?

Such a question should determine its content.

Professor Andrezej Rapacqynski, adviser to the Subcommittee on Institutions of the Polish Parliament's Constitutional Committee from 1989-1991, considered this question in depth:

"If a constitution is to be essentially a legal document, it must primarily include provisions that courts can enforce without upsetting the proper balance of power among the branches of government in a democracy.  It is usual, of course, for a constitution as a legal document to include all kinds of political rights as well as a number of other so-called negative rights, which prevent the state from interfering with an individual's exercise of free speech or religion, or which limit the state's power in criminal proceedings.  Often it is believed, however, that a constitution must be sparing in its guarantee of so-called social and economic rights, such as the right to work or to decent housing, or the right to a clean environment.  It might be difficult for a court to ensure that the government observes rights of this kind without taking on the role of a super-legislature, reallocating resources and reshuffling governmental priorities to a degree that healthy democratic systems ordinarily reserve for the legislature and executive.  The provision of such entitlements usually requires the state to make substantial budgetary outlays, as well as a host of other decisions concerning the relative importance of various social concerns, such as full employment versus inflation, or spending on housing versus spending on education or defense.

"Courts generally do not have the competence to make such decisions: neither their training nor the form of litigation provides them with the information and expertise required to structure governmental affairs at this level.  Nor do courts have the legitimacy--that is, the democratic pedigree--to make their decisions palatable to the public, who must live with the consequences.  Social rights are important; indeed, their achievement may be one of the most basic functions of a constitutional democracy.  But the hard choices necessary to turn rights into realities are often thought to be better left to the political system rather than to a legally binding provision of the constitutional text."

(Constitutional Politics in Poland: A Report on the Constitutional Committee of the Polish Parliament (written in 1990), Constitution Making in Eastern Europe, A.E. Dick Howard, ed. (1993), p. 107)

Poland was not destined to receive a new Constitution until 1997, yet Rapacqynski's commentary remains prescient today as it was then: constitution writers should consider the impact of their provisions.  If the document is meant to be merely symbolic and not enforceable by a court empowered with judicial review, drafters have a broader range of language and what are often called "rights" that may be included.  However, if drafters intend for their constitutions to be judicially-enforceable, they must limit provisions and identified rights to those that courts and judges are naturally empowered--and trained--to protect.

Wednesday, 16 November 2011

Constitutional Muscle

"Will it be sufficient to mark, with precision, the boundaries of these departments
in the constitution of the government, and to trust to these parchment barriers against the encroaching
spirit of power?  This is the security which appears to have been principally relied on by the
compilers of most of the American [state] constitutions."
(James Madison, Federalist 48)

 Most countries (and the early American states) struggle to write constitutions that are self-enforcing. 

In describing Charles de Gaulle's 1958 French Constitution, Bell, Boyron, and Whittaker wrote in their chapter on French Constitutional Law, "Only with great difficulty is political change checked and framed by a Constitution," and "one might rightly wonder whether constitutional law is able to induce any change single-handedly."

Thus writing a constitution down is not enough to check and control government.  To account for this limitation, it is often thought necessary, as Madison identified in Federalist 51, to construct constitutional arrangements wherein "ambition must be made to counteract ambition."

Yet while this condition is necessary, it is evidently not sufficient in constructing a constitution which actually governs.  Even if a constitution pits divisions of government against one another and a constitutional courts is erected to enforce the constitution, these constitutions have generally not been followed by those in power. As Alec Stone Sweet of Yale Law School has identified, modern constitutional review systems have been "relatively ineffective, even irrelevant."

Why is this?  Why is it not enough to write a constitution down and arrange the organs of government to counteract and limit each other, and what can those countries who will soon be writing constitutions (Tunisia, Egypt, Libya, South Sudan, Iceland, Romania, Nepal) learn from this?

Perhaps one answer can be found in how the constitutions are constructed.

Stone writes that "[m]ost constitutions are contracts that are typically negotiated by political elites--representatives of competing groups or political parties."

As we can currently see in Romania, where a proposed constitution by the Romanian President is stalled in a Parliament who does not want to limit its size (required by a referendum), this arrangement is not always ideal. 

In addition to being hard to negotiate into being, a constitution constructed exclusively by political elites, without input and involvement from the people, will not be seen as a true social contract, and thus not be binding either now or later on those who did not or even did participate in its construction.

A process which involves the people and those leaders the people identify as universally legitimate and respected (and not necessarily political) will invey to the resultant constitution with a mysticism and general, long-term acceptance and respect. 

Witness the American Constitution, the French Code Civil, Israel's Code of the Covenant found in the Torah, and Shariah Law.  Each are legitimized and observed as law by its people decades, centuries, and even millenia later in part because of the perceived legitimate process by which it was conceived.  All which identify and adhere to these laws refer back to its inception.  Regardless of whether those outside the system agree with the precepts espoused by these laws, it must be uncontroverted that those who subscribe to the law are governed by it effectively.

Constitutional process matters.  Although most would agree that the process by which the Torah and Shariah Law were imparted is not possible for a modern constitution, it is possible to identify processes which will impart to a constitution the same kind of mysticism and respect for these laws and the Code Civil and American Constitution. 

With this kind of beginning, perhaps parchment barriers and setting organs of government against each other would be enough to render effective constitutions, both now and into the future.

Wednesday, 9 November 2011

James Madison's Argument in Favor of Arab Spring Democracy

Lorianne Updike Toler

"That the people and the States should, for a sufficient period of time, elect an uninterrupted succession of men ready to betray both; that the traitors should, throughout this period, uniformly and systematically pursue some fixed plan for the extension of the military establishment; that the governments and the people of the States should silently and patiently behold the gathering storm and continue to supply the materials until it should be prepared to burst on their own heads must appear to everyone more like the incoherent dreams of a delirious jealousy, or the misjudged exaggerations of a counterfeit zeal."

If this sounds like a secularist in Egypt or Libya or Tunisia arguing against those in the West who maintain that Islam and democracy are incompatible, you would be wrong.

Instead, it is James Madison in Federalist 46, arguing that the American people will never chose something actually and imminently dangerous to their own interest and security.  I believe the same could be applied to those in MENA countries.  No matter what religion they espouse, it is impossible that a majority would willingly vote and hold in power those who would do them harm.  

Thursday, 3 November 2011

Muslim Brotherhood Refuses to Build Consensus

They say that 80% of success in life is simply showing up.

The Muslim Brotherhood is learning the truth of this principle, as the party viscerally and dogmatically responds to supra-constitutional principles published yesterday, the product of a meeting they boycotted.

On Tuesday, 1 November 2011, Deputy Prime Minister Ali Al-Selmy convened 500 of the country's political leaders to discuss and produce supra-constitutional principles which would guide the work of a to-be-elected constituent assembly in crafting a new Egyptian constitution.  The Muslim Brotherhood and Al-Jamaa Al-Islamiya, both Muslimist parties, boycotted the meeting on grounds that elected (or selected, as the constituent assembly would be chosen by a newly-elected parliament) officials should operate without constraints.

Ostensibly, Muslimist parties, as some of the oldest parties in Egypt and providers of popular local services, would likely gain a majority in the new parliament.  Their dominance in parliament would mean a majority say in selecting the constituent assembly to draft the constitution and ultimately on the shape of the new constitution itself.  Thus measures to guide or control the constituent assembly (as reported by Al Ahram Onlin here) would presumably place limits on the Muslimists' power over the new constitution.

The Muslimists' resistance to "play with others" may have a long-term impact on the perceived legitimacy of the new constitution.  If it is dominated by one party, it will not be seen as a proper governing tool for the rest; witness the recent history of Hungary.

In the short run, had they shown up to the meeting of 500 with the deputy prime minister on Tuesday, they would have been able to have a voice in rejecting the ongoing role of the military in constitutional deliberations and procedures currently espoused in the document.

Perhaps next time major decisions about the shape of the future Eygptian constitution are made, the Muslim Brotherhood and other Muslimists will show up.  After all, in a sandbox fight between the Eygptian military and the Muslim Brotherhood, my bets are on those with the guns.