Authoritarian regimes in the Middle East have retained part of their legitimacy and popularity by portraying themselves as guardians of religious minorities, and/or saviors from the phantom of political (read radical) Islamism. Following the ouster of the heads of these regimes, particularly in the cases of former presidents Zine El Abidine Ben Ali and Hosni Mubarak, a persistent concern was articulated in public discourse as to the preservation of pluralism and the avoidance of armed conflict.

Constitution-making was of particular concern. The experience of constitution-making and the degree of its success differed from one country to another. The Tunisian scenario has  generated more political stability than the Egyptian one, which continues to face significant challenges today. Other “Arab Spring” countries seem to be charting a similar path of demanding constitutional change, with many Syrians and Yemenis calling for constitutional amendments. Notwithstanding the inherent differences between the countries, it appears that respective political factions share a deeply entrenched belief in constitutionalism as a socially transformative tool. This has led a number of scholars to express skepticism and to speak of a “fetishizing of constitutionalism”.

The question of constitutional reform as a successful means of revolutionary change was addressed in a symposium entitled “Law, Politics and Constitution-Making in the Arab Spring”,[1] which was held this spring at SOAS (University of London). The conference brought together academics, human rights activists, and political analysts from the Middle East and North Africa region (MENA), Europe and North America.

Drawing on the interventions during the symposium, this article critically examines the role of constitution-making in effecting change beyond legal texts and doctrines. In particular, the article will analyze the relationship between constitution-making and political compromise in divided societies aiming to build a democratic state. To understand such a correlation, two questions must be tackled. First, can drafting a constitution engender a durable and meaningful compromise between opposing parties, and what are the risks therein? Second, if reaching a major compromise through constitutional drafting entails risks, then what is the role, if any, that constitutions can play to consolidate state building?

 

Compromise and Constitutionalism: What Risks?

The Arab uprisings raise important questions regarding the role of constitutions in preserving pluralism in post-authoritarian political climates. However, it remains unclear as to what extent this goal can be achieved through constitution drafting. Some scholars emphasize the role of constitutions in addressing and resolving deep conflicts within a society, and where they serve as  “intercommunal peace treaties”,[2] while others view the settlement of deeply contentious disputes in constitutions as dangerous. Allen S. Weiner, senior lecturer in law at Stanford Law School, argues that such an approach hinders the formation of a vision of “a mutually bearable future”, in which parties commit to building their relationship through normal political processes. Constitutions -by removing issues from ordinary politics-[3] consolidate compromises, losses and gains, and thus send a message to the “losing” side that there is no will to address that side’s goals. In this sense, they pose the risk of creating permanent opposition groups,[4] and making one side’s views “entrenched as the normative perspective of the state”.[5]

 

The Tunisian context provides interesting terrain from which to examine this question, as the priority of the constitution-making process there has been to reach a consensus between two opposing sides. The election of a distinct constituent body and the involvement of citizens and civil society in the drafting process, are praised by many scholars as “the most important feature of the constitution”.[6] However, it reveals certain inefficiencies, and primarily the shift towards superficial conflict avoidance at the expense of more substantive issues.

Nadia Marzouki, Research Associate at the European University Institute, has highlighted these risks during the SOAS symposium. She offers two definitions of compromise; one that is headed toward conflict resolution, and the other that concerns conflict avoidance. To Marzouki, the Tunisian debate is framed around the latter. It was crystallized in Ennahda’s reluctance to push for the inclusion of a special provision declaring Islam as the main source of legislation in the Constitution, even if that has meant encountering the risk of “alienating their base in the name of survival”. This was coupled with what she calls “the anti-Islamists’ strategy” of containment in “resentfully” accepting Ennahda as a political party, but without engaging in a debate on core values aimed at resolving divisive issues raised by the other side. Despite the possible upsides of such a compromise in helping to avoid armed conflict for example, Marzouki warns against the risks associated with this process, as it conceptualizes success as the ability to reach a mere compromise, without paying much attention to the issues at stake. In other words, conflict avoidance might have severe consequences on the future of pluralism, especially as it might create a disconnect between the political base and the leaders, and overemphasize the nation rather than focus on society.

In fact, another risk of focusing on reaching compromise in constitutions is that substantive issues are overshadowed. In the context of the Arab uprisings, the prototypical compromise has been the insertion of a Sharia clause in a largely liberal constitution.[7] However, in both Tunisia and Egypt, focusing the debate on religious rhetoric between secular groups and Islamists has led to marginalizing socio-economic questions, and prioritizing religious concerns. This is the effect that Nimer Sultany, lecturer in law at SOAS, describes as “distraction”, as it conceals the internal polarization within each camps and between them on social and economic questions that are not necessarily related to the (visibly) major issue of the Sharia clause.[8] Other equally important questions such as the nature and extent of military powers, and the powers granted to the presidency would also be given less attention. Accordingly, and in light of her experience, Heba Morayef, former director of Human Rights Watch in Egypt, has come to the conclusion that the protesters who led the 2011 uprising ought to have demanded legislative reform, and focused more on laws regulating protests and NGO work, instead of focusing their demands on the drafting of a constitution.

This is echoed in the thinking of Hedayat Heikal, S.J.D. candidate at Harvard Law School, who reasons that it is necessary to go beyond the question of constitutionalism and compromise, and hints that constitution-making is wrongly prioritized and perceived as a tool of social transformation. Heikal argues that this intense focus on the constitution has polarized the country at the expense of the demand for “bread”, that is at the expense of deeper structural issues of social justice. More importantly, debates around inserting a Sharia clause in the constitution had led to “the demonization of other groups of citizens”.[9] As Sultany points out, this polarization risks creating two rigid categories of “secularists” and “Islamists”, overlooking the possible fluidity of the two concepts and their tendency to alter over time.[10]

 

By highlighting the risks of seeking compromise through constitutional reform, many scholars have gone as far as wondering whether, if at all, fundamental disagreements on the nature of society should be resolved in constitutions. Weiner suggests that contentious issues be left to resolution outside the boundaries of constitutionalism,[11] and within the realm of ordinary politics. It is in this sense that he critiques the use of constitutions as “peace treaties” that attempt to resolve deep group or social divisions. Nonetheless, there is merit in considering the way constitutional consensus could serve as an intermediate phase in the formation of a broader consensus around state building.

Constitutional Consensus as an Intermediary Phase

 

As argued above, it is unlikely that a state can reach a deep and lasting compromise in pluralistic societies through constitutional drafting. However, the process can play an intermediary role in the pursuit of reaching consensus between opposing factors. Drawing on aspects of US political scientist John Rawls’ ideas on political liberalism, Mohammad Fadel, a scholar of Islamic law at the University of Toronto, discussed during the SOAS symposium the depth of consensus that negotiating parties should aim to reach when drafting a constitution. Borrowing Rawls’ terminology, he distinguishes between a state of modus vivendi and that of overlapping consensus. He acknowledges that in deeply divided societies, no constitution would be able to achieve the more desirable state of overlapping consensus, which is grounded in a mutual and deep agreement. A modus vivendi is a consensus among different groups on the distribution of power, which is maintained by the parties’ fear of being eliminated by their rivals upon a shift in the balance of power. Fadel, unlike Rawls, argues that in the absence of consensus on central issues – which is characteristic of divided societies such as Egypt or Tunisia – the modus vivendi is desirable given the other alternatives. It is in this sense that Fadel introduces the idea of constitutional consensus that could serve as the intermediary phase between deeply divided societies, in which there is an established modus vivendi and a well-ordered society enjoying overlapping consensus. The constitutional consensus would moderate political rivalry within the context of procedural constitutionalism, and avoid armed conflict. In this case, even if the society as a whole did not agree on the constitutional essentials (i.e., the basic scheme of rights and liberties) but only on the constitutional consensus, then it would begin to move toward the ideal of a well-ordered society – a society that Rawls describes as a “realistic utopia”.

 

Fadel’s analysis resonates with Weiner’s idea of the role of constitutions in deeply divided societies. Like Fadel, Weiner argues that post Arab  countries in the post-uprising period should refrain from resolving their contentious divisions through constitutions, and instead aim to build their political relationships around a vision of “a mutually bearable future”.[12]

 

To reach such a consensus, in which the vision of a mutually bearable future exists, the constitution’s role is to draw the institutional framework. Fadel suggests that the priority should be building institutions, which would require making choices between presidential and parliamentary systems, unicameral or bicameral legislatures, federal or unitary systems, and the like. In his view, a parliamentary system must preferably represent all groups; a federal system would delegate real powers to the provinces; and, a bicameral legislation would be able to answer to a broader constituency. Where a presidential system is chosen, Fadel argues for the adoption of a cumulative voting system in order to guarantee that the winning candidate has the relative preference of the voters.

 

In conclusion, compromise is unlikely to be reached through constitutional agreement, nor are constitutions able to provide a framework to resolve contentious issues. However, they are pivotal in creating an institutional framework on which broader consensus could be built.

The SOAS Symposium has highlighted important questions that deserve further examination in the future. This is more so in light of how any activists today sarcastically call for the inclusion of the Egyptian Constitution in the Guinness Book of Records for its numerous revisions, especially with the current speculation that the government will establish a new committee to study further amendments. Should the drafting of the constitution be based on the existing constitution or is it better to start anew? Who should draft constitutions? Should it be drafted by the existing legislature, or a special constituent assembly? Should members of the legislature sit in the constitutional assembly?

Moreover, what is the role of the judiciary in the consolidation of consensus and the building of new institutions? The convergence between the current state of the judiciary and its previous role during the Mubarak era, especially with regard to administrative issues, is quite alarming. How should constitutions draw the line between judicial independence and excess powers? What role should the Egyptian Supreme Constitutional Court play? The changing dynamics between military and civil arenas, as well as increasing violence towards religious minorities are essential issues to consider before any constitution drafting.

Maybe the questions that SOAS professor of gender studies and seminar participant Nadje Al-Ali posed to the panel best sums up the debate: Are there compromises that are not rotten? What does it take to make fruitful compromises? The key element is thus identifying the zone in which compromise consolidates pluralism and democracy, rather than intimidates opposition in the name of national concord. Perhaps the most difficult question to answer was posed by Heikal: To what extent do constitutions really matter? Can post-revolution constitutions aim to establish a new social contract?

These questions, among others, are pivotal to the future of state-building in the MENA region, and particularly, to ones in-transition. Although we cannot recommend a uniform process for all countries, it is important to insist that, as this symposium has shown, answers cannot come from legal experts only, but rather, should be the fruit of a multilayered and multi-disciplinary analysis.

 

__________

[1] See: “Law, Politics and Constitution-Making in the Arab Spring”, SOAS, University of London, 2015.

[2] H. Lerner, Making Constitutions in Deeply Divided Societies. 1st, Cambridge University Press, Cambridge: 2011.

[3] William Partlett, The Dangers of Popular Constitution-Making. The Brookings Institution, 2012.

[4] A. Weiner, Constitutions as Peace Treaties A Cautionary Tale for the Arab Spring. Stanford Law Review, 2011.

[5] Ibid.

[6] See: M. A. Jaidi’s, “Tunisia: The Collective Making of a Constitution”, The Legal Agenda, 2014.

[7] N. Sultany. Religion And Constitutionalism: Lessons From American And Islamic Constitutionalism, (2014) Emory International Law Review:345- 424, p. 345

[8] See note 7 above, idem, p. 410.

[9] See note 7 above, idem, p. 404.

[10] See note 7 above, idem, p. 411.

[11] See note 4 above, idem.

[12] See note 4 above, idem.