Tuesday, 10 April 2012

Kosovo to Libya: Write Your Own Constitution

As NATO looks increasingly at Libya to further peacekeeping efforts there, perhaps they should reflect on some of their less-successful measures in the Balkans (this video, while exposing Russia's self interests more than anything else, gives one pause), including the Dayton Accords and other exogenously-authored constitutional documents.

In fact, the Dayton accords, the "Comprehensive Proposal for Kosovo Settlement," and the Kosovo Constitution, are a case study in the need for autochthonous constitutional procedures.

Danielle Tomson, who spent much of her Yale undergrad experience in Kosovo observing peacekeeping progress, maintains that many provisions of the Kosovo Constitution are copied from the Comprehensive Proposal, and evidence the heavy hand of the international community in Kosovo's constitution-writing.

If the Dayton Accords prefigured in any way the Comprehensive Proposal (which in turn provided much language and structure for the eventual constitution), the turmoil in the region may underscore a central point of Tomson's senior thesis: the process of constitution-building often provides a forum for ethnic and other groups to negotiate agreements and come together in a unique way to make peace amongst themselves.

The externally-imposed Dayton Accords (formulated in Dayton, Ohio) for Bosnia and then the Comprehensive Proposal for Kosovars, concludes Tomson, robbed parties in the region to discuss and deliberate differences.

She is certainly on to something.  Anti-factual scenarios always make for poor analysis, but one does wonder whether at least some violence could have been averted had locals been able to freely negotiate at the same table.  Such a non-violent forum for working out differences surely could have only facilitated peace rather than postpone or avert it.

With my background in U.S. constitutional legal history, I can't but help think of the parallel multi-party negotiation studies done of the U.S. Constitutional Convention, wherein parties with varied interests - North and South, East and West, Large State and Small State-came together to resolve differences.  The Constitution (or the process of creating it) didn't resolve all differences (enter the Civil War, stage left), but it certainly created a basis for unity and prosperity in the new country, and proved a platform that could be molded to new circumstances during Reconstruction.

Thursday, 5 April 2012

Egyptian Constitutional Walk-out Risky Business

Photo Credit: AP
Egyptian Liberals have walked out on the constituent assembly chosen by the Egyptian Parliament to author a new constitution.  The reason?  Not enough representation in the assembly, they argue, when it was largely liberals in Egyptian elite, press, and student cores that ignited the revolution.

The walk-out has illicited hasty maneuvers by the Islamists who dominate the assembly to win them back.

Yet what if the liberal's walk-out strategy fails? Do they have a viable BATNA? The only favorable outcome to a negotiated agreement is that the new constitution is so marred by illegitimacy and one-sidedness that it fails to be adopted.

Liberals bank on this option at their peril.  The more likely outcome from a failed walk-out is that the Islamists-dominated assembly writes a constitution that is embraced by the largely Islamist-sympathetic country anyway, despite any hints and tinges of illegitimacy.

Those who will care most are the minority of Egyptian liberals and the West, but what then? Best case scenario for liberals is that it will take 5, 10, 25, perhaps 50 years for liberals to organize and gain a majority in Parliament sufficient to re-write the constitution.  Picture Hungary.  (And how well is that turning out?) Yet the country will still lose overall because frequent constitution-writing makes for unstable political and economic structures.  Even if economists dominate writing committees for economic provisions in the constitution, a business would be hard pressed to invest and set down roots in such a politically unstable environment.*

Constitutional walk-outs by minorities and their inefficacy are not without precedent.  During the American Constitutional Convention, two delegates from New York, Yates and Lansing, afraid to see the power of their principal, Governor Clinton, wane, walked out.  Did that help their cause at all?  No--instead, they merely diminished their influence on the final product.

There were other dissenters in the Constitutional Convention, most notably George Mason, who did not walk out.  Instead, he refused to sign.  But he stayed till the end, after many had already left for home.  He stayed and contributed and worked tirelessly for his principles to be affected into constitutional texts.  He lost on some things, but there are a good many points he gained.

Unless dissidents are in the majority, walking out of a constitutional convention or constituent assembly will not likely be as efficacious as rolling up their sleeves, gaining friendly and unlikely advocates, and working as hard as they can to affect their goals into the new constitution.  As it is, the liberals in Egypt better hope the Islamists don't call their bluff.

*Post-script:  the lesson for other countries, of course, is to develop constitution procedures that are inclusive from the outset.

Sunday, 1 April 2012

Libya: Charting a Different Constitutional Course from Egypt

Libya's National Transition Council has made strides in charting a constitutional course already destined for greater legitimacy then their Egyptian neighbors.

NTC adopted a national electoral law 28 February which allocates only 80 of 120 National Assembly seats (to be elected in June) to be elected out of political parties.  The remaining 120 seats will be open for individual election.  In a society where political parties not based on religion or some other pre-existing organization have not had enough time to organize and develop a cohesive ideology, this electoral situation allows for true representation of the people.

It will also allow the constitution crafted by the National Assembly to be more reflective of the people's choice and framed for Libya's political future rather than present.  In this way, the Libyan NTC has charted a course for their country that is vastly different from neighboring Egypt, wherein the parliament was elected solely from political parties.  The fall-out from this decision by the Supreme Council of the Armed Forces is that the constituent assembly chosen by parliament in recent days has predictably perpetuated the bias and balance of political parties in parliament (perhaps even tipped the balance even more in favor of one particular party or parties), preserving in a permanent document what many are calling a temporary political situation.

Yet the NTC can do even more to prevent current problems in Egypt.  The Egyptian parliament has reserved 50 of 100 seats on the constituent assembly for members of parliament.  Although there may be some who say such representation, as reflective of the people's choice, is appropriate, it allows for dangerous conflicts of interest.  Members of Parliament on the constituent assembly will invariably be tempted to seek to perpetuate their political influence in permanent structures of government.  This will render the constitution more of a brokered power deal than a document worked out with the best interests of the country in mind.  Such a situation, real or perceived, will tarnish the document's legitimacy and make it more likely to be rescinded in the not-too-distant future as political power changes hands.

Libya's NTC can yet prevent a similar situation on the homefront.  NTC's transitional role is to put the country on a good footing for the National Assembly to adopt a new constitution.  Within this mission, it is appropriate (perhaps necessary and proper?) for the NTC to adopt procedural rules for the creation of a new constitution before elections.  These should allow Libya's most pressing national concerns to be discussed and negotiated rather than the interests of political operatives.