—William Partlett, Columbia University Law School & Brookings Institution
[Editors’ Note: In this forum on Egypt and New Perspectives on Constitution-Making, three young scholars of comparative constitutional law – Ozan Varol, Will Partlett, and David Landau – discuss their recent work on constitution-making and democratic transitions, focusing on Egypt. The work offers counter-intuitive predictions about the pace and design of the process, as well as the role of undemocratic actors like the Egyptian military in the transition. ]
Leading analysts have widely criticized Egypt’s transition to constitutional democracy. George Washington University’s Nathan Brown calls it “the stupidest transition in history.” Shadi Hamid of the Brookings Institution calls it a “Democratic Transition in Trouble.”
At the heart of much of this criticism is one concept: democratic legitimacy. These analysts worry that institutions with close links to the old Mubarak regime like the military and the courts are crowding out “the people.” This old regime involvement, they argue, jeopardizes both the democratic legitimacy of the Egyptian revolution and its central symbol: Egypt’s new constitution.
The Dangers of Popular Constitution Making
As I detail in my new Article, this criticism is not new. During the 1990s, commentators criticized the use of pre-existing law and parliaments in constitution making in post-communist Central and Eastern Europe (e.g. Poland, Germany, Czech Republic). Yet, “parliamentary constitution-making” helped to build robust constitutional democracy in these countries.
This criticism persists because it stems from a widespread belief that increasing direct popular participation in constitution making is the best way to build healthy constitutional democracy. In this kind of “popular constitution making,” a democratic constitution “matters” because it is drafted and ratified through “extraordinary” popular mechanisms like constitutional assemblies and referendums. By separating constitution making from ordinary institutions like Parliament and the courts, the true democratic sovereign – the people – become the direct authors of the constitution.
This version of popular constitution making worked in eighteen century American constitution making. In fact, the Framers drafted the United States constitution in a special Convention that existed outside of the ordinary federal institutions created by the Articles of Confederation. Special state constitutional conventions then ratified this new constitutional draft. This extraordinary process helped ensure that the United States Constitution would become a form of higher law.
Popular constitution making, however, is fraught with danger in today’s post-authoritarian world. Post-authoritarian countries lack the dense network of stable institutions or shared beliefs that are were so critical in ensuring compromise and deliberation in American popular constitution making. Instead, these countries have weak institutions, power-hungry politicians who are often hostile to pluralism, and atomized populations looking for a quick fix to the problems of the old regime. In these political landscapes, popular constitution making can quickly degenerate into tyranny. In fact, it provides a perfect opportunity for charismatic politicians to seize on temporary popular mandates to unilaterally reshape the institutional apparatus of the state.
My Article tells this story. Focusing on the former Soviet republics, it describes how power-hungry presidents exploited economic and political crisis to gain temporary popular mandates. These presidents then used these “mandates from the people” to sweep away pre-existing institutions and impose authoritarian constitutions on the populace.
Russia is the paradigmatic example. In his struggle with Parliament, Yeltsin ruthlessly drew on the rhetoric of popular constitution making to attack the role of Parliament and the Constitutional Court in constitution making. In September, 1993, Russian President Boris Yeltsin relied on a popular mandate from a recent referendum to justify a decree disbanding both Parliament and the Constitutional Court. Ruling as a presidential dictator, Yeltsin then pushed through a constitution that concentrated power in the Russian presidency.
This example vividly demonstrates how the mechanisms of direct popular participation can undermine the broad-based deliberation required for democratic constitution making in certain circumstances. The former Soviet world is not the only example. David Landau’s work points out similar dangers of popular constitution making in Venezuela and Bolivia.
This broad phenomenon also helps us better understand the virtues of constitution making in Central and Eastern Europe. In these countries, communist-era constitutions and parliaments dominated by the Communist Party played a major role in the emergence of the new constitutional order. The inclusion of pre-existing legality and institutions sacrificed short-term constitutional legitimacy and, in some cases, allowed old regime institutions to protect their own interests. But, at the same time, it also helped to reduce the chances of unilateralism and encouraged broad deliberation and negotiation.
There is strong evidence that the military is playing a similar role in Egypt. The Egyptian military leadership is clearly seeking to protect its own interests by unilaterally issuing interim constitutional declarations that regulate the process of constitution making. But these declarations have also played a central role in encouraging constitutional deliberation. For instance, one of these constitutional declarations has allowed the Egyptian courts to ensure that Egypt’s constituent assembly is not just a temporary reflection of majoritarian politics but encompasses “Egypt’s diverse social groups.”
Seen as the naked pursuit of institutional self-interest, the limitations that the military is placing on majoritarian politics in Egypt might seem “troubling” at first. But, as long as this old regime institution remains committed to transferring power to elected politicians (as Ozan Varol predicts), these limitations are useful. In fact, without these limitations, you risk transforming constitution making from a period of broad-based democratic deliberation to an opportunity for plebiscitary dictatorship.