Four Arab Democrats and a Constitutional Scholar Walk Into a Bar

Barkeep! Five araks over here, please. Plus some tabouli and figs. What’s that? Oh sorry, my mistake. Let’s make that one arak, four iced teas … Actually, forget the arak. Make mine a Cuba Libré. Virgin. Thanks. 

So tonight we’re toasting you, Tunisia, for finally finishing your draft constitution. Sure, I realize that this is not the end of the story. You’ve still got some unresolved issues (and some opposition leaders crying foul about alleged changes smuggled into the text). But your constitutional process still remains the best in class. As my friend Taufiq Rahim recently put it: "[Tunisia] is the place where there is a potential for change, new ideas, and a new direction for the Arab world." 

Bottoms up! 

Okay. So guys, I’m sorry it’s taken us so long to have this talk, but I just don’t think we can put it off any longer. The main events of the Arab Awakening are now two years behind us, and you’re all still having big problems with drafting and implementing new constitutions. Only one of you has succeeded in passing a constitution into law — doing so in a fashion that just ensured all sorts of problems will go on simmering. (Yeah, I’m looking at you, Egypt.) As for the rest of you, you’ve gotten bogged down debating procedure or wrangling over language or arbitrarily extending deadlines. 

Now I realize that you’ve a lot of other stuff on your plate — you know, trivial matters like, say, holding elections or reviving your economies. But the more time you spend dithering over constitutional specifics, the more frustrating it is to stick to the process. Just look at Nepal: They’ve been trying to agree on a constitution for eight years now. Nobody wants to end up like them, right? And don’t even get me started on Zambia … 

But here’s the good news: These aren’t the examples you should really be worrying about. If I had only one message to give you, it would be this: Chillax. 

As exasperating as this halting process might be, you may actually be better off this way. Making constitutions has always been a difficult proposition. Even Machiavelli knew that and said as much: "It should be borne in mind that there is nothing more difficult to handle, more doubtful of success, and more dangerous to carry through than initiating changes in a state’s fundamental order…" That was centuries before constitutions came to be regarded a hallmark of the modern, functional state (like a good international airport or a nationwide TV network). 

The fact is that it’s way better to draw up a constitution that’s built to last, rather than steamrolling through some tragically flawed caretaker document simply to get the monkey off your backs. When constitutions are rushed, they often prove untenable. And if there’s one thing we know about constitutions, it’s that having broad-based agreement is paramount. Only when numerous groups feel a strong stake in a constitution’s success will they defend it — should the need arise. Getting there requires horse-trading, which in turn requires time. 

That’s why you, Egypt, majorly screwed up by pushing your constitution through more or less on the sly (over the objections of the rather large chunk of the Egyptian citizenry that doesn’t support the Muslim Brotherhood). Yeah, you got your constitution pretty fast — but you did it by avoiding just the sort of vexing-but-necessary public discussions crucial to building democratic consensus. While constitutions seek to restrain government, they play an equally vital role in protecting democracy from its own excesses. But this can go completely wrong with unilateral shows of majoritarian force. In any case, majorities are short-lived; Constitutions shouldn’t be. 

Well my friend, what’s done is done — but know that your constitution faces some stormy seas ahead. Also know that amending your way out of this mess will likely prove more traumatic on its own than the entire process should have been. 

That’s why writing a constitution is not something to be taken lightly. Someone should have told you about the Locrian Code. This ancient Greek law system (one of the world’s most ancient) required that anyone proposing a modification to it had to do so with a noose around their neck, so as to facilitate their immediate execution should the measure be defeated. That may sound harsh, but it’s not far off. Rewriting a constitution is not free: it’s an investment, and a very risky and expensive one at that. Whenever a government decides to redesign the constitution in accordance with its own specifications, previously established procedural and institutional norms will rarely carry over. These are crucial to successful governance, and can take decades to develop. The resulting vacuum is itself destabilizing. Worst yet, such changes can trigger vicious cycles. Woe betide the state whose constitutional ADHD becomes habitual. (My own, Venezuela, has endured 26 different constitutions since its founding. You can judge for yourselves how good it’s been for the country.) 

All this goes to show you, Tunisia, why you were so lucky to have Rachid Ghannouchi, a singular figure who acted as the voice of reason during the chaotic post-revolutionary period. Ghannouchi’s influence and willingness to seek consensus with the opposition, even though his Ennahda party could have hijacked the process — just as Egypt’s Islamists did — have been vital. There’s no question that this strategy has drawn out the whole process, but that was the right choice. 

Now you just have to avoid falling apart just as you reach the goal line. Recently some of the members of your National Constituent Assembly (NCA) have been talking about sending especially thorny issues to a national referendum if they can’t arrive at consensus on their own. That is a really, really bad idea. Popular majoritarian sentiment, particularly of the post-revolutionary variety, doesn’t usually lend itself to dispassionate compromise. But that’s exactly what you’ll need to drive a successful constitutional project home. 

Which brings me to you, Libya and Yemen. I know you want to jump in. And I hope you won’t mind if I’m frank. 

Now don’t take this personally, Libya, but right now you’re still kind of a mess. Sure, you managed to pull off a remarkably inspiring election, and there are promising signs your economy may be rebounding. But the constitutional project hasn’t even entered the drafting stages, while the largely unelected National Transition Council (NTC) and your legislature are still butting heads over who the drafters will be. Meanwhile, the security situation has been going steadily downhill. Just look at the recent efforts by militias to take over government ministries in Tripoli. That certainly doesn’t bode well. 

Nor, for that matter, does tightening social controls that have forced many of your more progressive vo
ices on issues like personal rights and minority protections to flee the country. Honestly, any constitution that emerged from such conditions would already be born on life support. 

It’s important to remember, that drawing up a constitution isn’t an end unto itself. It’s supposed to serve the aim of establishing stable ground rules for a functioning polity. But you can’t just charm that into existence if the conditions aren’t right. How are you going to draft a viable constitution while there are still armed gangs running the place? 

After all, the Spanish transition from Franco-era dictatorship to democracy, a model that you’ve looked to for inspiration, took several years to reach the point where establishing a new constitution seemed appropriate. The drafters didn’t force themselves into onerous timetables. Here’s a thought: Why not just extend the provisional constitution for two or three years at a stroke (rather than a few months at a time) to allow you some space to get back on track? Like Tunisia, you’ve still got some of the institutional structures from the old regime to keep you going in the interim. Think about the fact that you’re following a thirty-year period in which you essentially had no constitution at all. (It was replaced by Qaddafi’s Green Book.) So why not give yourself the chance to get it right? 

Or, to phrase it differently: Why put the catharsis before the horse? (Ahem.) 

Same goes for you, Yemen. It’s hard to know precisely what’s going on with you, but it’s clear enough that you’re going through a phase of violence and instability comparable to Libya’s — but without the benefit of those inherited institutions. But your situation is even more complicated because of all the outside powers that are now involved. I know that you actually asked the French to come in and advise you on your constitutional transition. But both Russia and Iran simply invited themselves to the party — as has the United States. You need to get some of these guys out of your house. 

I know. None of this is easy. It’s one of the sad ironies of the business that the very countries most desperate to write new constitutions are usually in the worst positions to do so. Revolutions or changes in regime are almost invariably followed by periods rife with chaos, economic turbulence, power struggles — not exactly the right environment for cool heads and brokered compromise. But it is what it is. 

Which reminds me: It’s getting late. How about I spring for the check?