How to Construct a State

TOM GINSBURG — The Tunisian Constitution was born from a lucky confluence of capacity and cooperation. But the country’s real challenge may still lie ahead. 

When drafting a new constitution in a country like Tunisia, the challenge seems to be ensuring that any document mediates differences, lays out rights, and establishes common trust while also safeguarding a democratic transition through a politically chaotic period. How can drafters avoid preserving dictatorial prerogatives when conceiving a new constitution — that is, why do some efforts (Egypt and Morocco, for example) produce authoritarian hybrids, while others usher in seemingly genuine democratic transformation, as in Tunisia?

Tunisia was lucky in the period after the overthrow of the Zine El Abidine Ben Ali regime, in the sense that it had fairly good internal capacity for doing constitutional drafting. It had a high level of human capital, a large number of officials and leaders with significant ties to France and who had been educated there. These figures were able to control the drafting process very well, and the resulting document was truly a domestic production — which is not true of many constitutions across the region and around the world in similarly positioned states. The United Nations and International IDEA (a non-governmental organization that advises on constitution construction) were there, providing helpful advice. Yet everyone involved would agree that Tunisians themselves drove the process in a way that was inclusive.

In Tunisia, following the revolution, there was an election for a constituent assembly, after which the drafting process began. A crucial step was the decision by the Islamist party, Ennahda, to allow for proportional representation in multi-member districts the first election. With its tremendous network, particularly in the countryside, Ennahda might have had a great victory if they participated in a “first past the post” system since their reach was widest in geographically larger regions. Once they made this decision, however, they were essentially giving up their ability to dictate a constitution to the rest of Tunisian society.

Thus since 2011 beginning there has been a focus on producing a broad-based constitution, inclusive order. At several junctures in that process, Ennahda leader Rashid Ghannouchi was willing to compromise in order to keep his party away from assuming a dominating role. For example, they decided not to field a presidential candidate in the first election. The point about compromise can be illustrated particularly well by considering the difference between Tunisia’s and nearby Egypt’s experience. There the two main players — the Muslim Brotherhood and the military — saw politics as a zero-sum game. Each tried to dominate or even eliminate the other. This competition produced the troubles with which Egypt must grapple today.

Today Tunisia’s constitutional democracy is facing a critical test with regards to the backlash against the new security law, which passed almost unanimously in Parliament on 25 July. With the two major terrorist attacks in Tunis and Sousse this year, it is quite natural that the country would want to recalibrate its security law. Can Tunisian democracy survive this period of emergency while still delivering the important public good of security?

A constitutional court, tasked with scrutinizing the legality of laws and their conformity to the constitution, has yet to be established in Tunisia. In its absence the monitoring role will fall on civil society organizations. What challenges or dangers might arise from the lack of formal, governmental self-monitoring bodies, especially during a period in which rising security risks influence Tunis’ decisionmaking and legislation?

The overwhelming trend in constitutional design is to have independent third parties like constitutional courts, which can conduct a systematic evaluation of government actions that might infringe on individual rights. The key doctrine in this field is called “proportionality” courts engage in proportionality analysis when they weigh the relative value of civil or individual rights against the social interest in and benefit from infringing these rights. Courts as institutions are able to ask whether there is a better way to achieve the social good without limiting individual and civil liberties. In the context of Tunisia’s new security bill — which, among other problematic provisions, allows for individuals to be detained without access to a lawyer for up to 15 days —  such a self-examination would involve determining whether the Parliament’s attempt to balance security and individual interests could have been achieved more effectively.

Without a court performing this function, the legislature must rely on the democratic process to ensure that rights infringements are not too severe. Such a system works in some countries; the United Kingdom, for example, has operated on the principle that Parliament is self-constraining. However, in new democracies there tends to be greater distrust of post-authoritarian legislatures. It would be much better if Tunisia had a constitutional court — it might not lead to a different outcome, but would at least provide assurances to human rights organizations that the appropriate regulatory process has been undertaken with greatest possible care.

After the Tunisian Parliament approved this new anti-terror legislation last month, eight non-governmental organizations have warned that this law lacks “necessary safeguards against abuse,” and that its definition of “terrorist” is too broad. How can a transitioning democratic state like Tunisia regulate and monitor its own laws so as to protect itself from repeating the dictatorial history it has recently shed? 

The issue outlined above is a major challenge to all states, not just post-revolutionary ones like Tunisia. There are human rights maximalists who argue that there is no trade-off possible when individual and civil liberties risk being compromised. At the other end, there is a real possibility of the government abusing the powers it is given in the name of security. In between lies the right balance. Policymakers today have a great deal of experience striking such a harmony between both ends of the debate in places like Northern Ireland and Israel, which have dealt with severe risks.

What methods might inform this balance in Tunisia? Third party monitoring by courts is crucial; having an independent commission that can assess policies from a civil society perspective might also strengthen this effort; incorporating ex-post monitoring, such as by a human rights commission, which might investigate cases of people who have been detained under the security law. One of the most worrying aspects of the Tunisian bill is that it does not allow access to lawyers for those who are arrested, in turn taking away the right of the accused to at least make the argument that they were detained improperly or mistakenly. There is a history of abuse in Tunisia by the Ben Ali regime, and this provision seems to open a loophole for a continuation of this tradition.

Traditionally constitutions under autocratic regimes — such as the previous dictatorship in Tunisia — have been derided as fraudulent. However, in a country transitioning from authoritarianism there is often a dearth of country-specific legal precedent other than that from the previous regime. How can drafters, advisors, and politicians incorporate the spirit or the word from former constitutions, even though the regime under which they were drafted might be distasteful?

The most important hurdle is not the drafting itself, but rather the implementation of whatever is conceived for a constitution. Are there safeguards against government or police abuse of power? Is there a required showing before an individual is detained? In Tunisia there is a history of the Ben Ali regime using national security measures to repress political opposition. Because that is yesterday’s problem, there will likely be scrutiny to ensure that it does not happen again in the future. Nevertheless there need to be mechanisms using which people can identify and challenge abuses when and if they occur. It is critical to develop a constitutional structure that will require consensus and broad evidence brought to bear before an individual is deemed worth detaining. This process has less to do with language than institutional design.

In 2014 Iraqi lawyer Zaid al-Ali wrote that “the Tunisian people have….been at a heightened state of alert, and have called out any attempt to abuse power by the country’s new class of politicians.” Yet the recent anti-terror law received near-unanimous parliamentary support and an ambivalent popular response. Is it folly to depend on the vigilance of a citizenry that can be persuaded to support potentially undemocratic legislation during periods of fear?

This problem is one that governments and citizenries around the world face, with regards to civil liberties in wartime. In times of crisis there is often an overreaction — it is only after the emergency has passed that motoring bodies might retrospectively determine that such action constrained civil liberties too much. There are certain ways to address this pattern. In Europe, for example, many countries have committed to a regional human rights regime, which allows for neutral external evaluation of measures taken during wartime or periods of emergency.

Interestingly, former Tunisian President Mohamed Moncef Marzouki (2011-2014) had proposed an International Court of Constitutional Law: an institution into which states could opt in, and which would review the constitutionality of various measures of member governments. This institution could have examined, if it had been established, the types of security laws that Tunisia is enacting today. Without some kind of external monitor or vigilant and established courts, it will immensely difficult to avoid populist tendencies in times of terrorist attacks.

Tunisia’s constitutional and political successes have been hailed as a model for other Arab Spring states. Yet there seems a danger of generalizing across the Arab World’s myriad social, cultural, and political contexts. Other efforts in Egypt, Libya, Iraq, and Syria have achieved little of Tunisia’s success. Is Tunisia’s process still exportable today, if it ever was, or was the country’s experience isolated due to country-specific factors?

In retrospect it is possible to see that Tunisia had a number of very helpful conditions under which to draft its constitution. First, it had just emerged from a very personalist dictatorship, which revolved around Ben Ali’s family. The military did not have a powerful role in politics or society. The revolution took place absent of any extreme political ideologies, which might have otherwise taken root after the former regime was ousted. These factors were useful in terms of establishing a consensus about the post-revolutionary process. Additionally, Tunisia is a relatively homogenous and educated society.

Of course, despite these country-specific realities, there are lessons that can be learned from Tunisia’s experience for societies that are more divided or lack the same level of human capital. Most importantly among these is the lessons of political pragmatism — a willingness to compromise. In retrospect, for example, Muslim Brotherhood leaders in Egypt must look back on their own post-revolutionary experience and wish they had taken a softer approach rather than attempt to control the military hierarchy or dominate the constitutional drafting process; Egypt’s liberals may wish they had allied with either the Muslim Brotherhood or the military from the beginning to avoid being completely shut out of the country’s political system.

There must be buy-in from all sides for such compromise to work. Unilateral politics, especially in periods of transformation, is particularly damaging to future democratic governance. This willingness to cooperate between various opinions is not something that can be designed into any process. Many times a successful constitutional drafting experience can be a matter of luck — having the right people at the right time in a situation with relatively benevolent conditions.

Speaking in abstract terms, there are trends which scholars have generally agreed are important in constitutional design, which reflect certain institutional features that often produce successful results. In a democracy it is critical for a government to justify a policy publicly through open debate and review of laws. Independent monitoring ensures that a policy’s justifications are sound. Additionally, James Madison’s warning against having too much power concentrated in one institution is just as valid today around the world as it was in the eighteenth century United States. In the context of traditional authoritarian rule, establishing and enforcing term limits is also crucial.

Many scholars have debated whether Tunisia’s Arab Spring was a “success,” or whether its reforms will prove too fragile against regional security and political realities. How can observers develop criteria by which to even determine a “success” or “failure” Tunisia and others nearby it?

Certain indicators will be quite visible in Tunisia. Do elected officials leave their post “on time,” or do they break their constitutional promises on term limits? How many people will be rounded up under the new emergency security provisions? What are the levels of human rights violations, determined through international and domestic monitoring? Ultimately, though, the answers to these questions must be evaluated with consideration for what is reasonable to expect under the current circumstances: one cannot expect Tunisia to have the same set of laws and implementation as Norway, for example.

Tunisia has a political class that weathered a difficult constitutional drafting process, and came together despite very severe challenges. The process was suspended several times, there were political assassinations. Despite having many moments when it could have failed, the Tunisian constitution was born from a conversation between people who do not like each other, and who have fundamental disagreements about the way society should be organized. This ability to find common ground between myriad groups is cause for optimism looking forward.

***

TOM GINSBURG is the Leo Spitz Professor of International Law, Ludwig and Hilde Wolf Research Scholar, and Professor of Political Science at the University of Chicago. He works with numerous international development agencies and foreign governments on legal on constitutional reform, and is a member of the American Academy of Arts and Sciences.

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