The Right to Rebel Against an Oppressive Government

In his approach to the study of this issue Ginsburg relied on data from the Comparative Constitutions Research Project that he co-administers, a project revealing the critical intent of constitutions encompassing “the right of resistance,” and clarifying their effective performance in many instances. Ginsburg made reference to the evolution of this right in the ancient civilization of China and in Islamic history, and subsequently among Western liberal thinkers of the seventeenth and eighteenth centuries, also touching upon on the Universal Declaration of Human Rights and its enshrinement of the right to self-determination in the event of a foreign domination. In discussing the upcoming United States presidential elections and their uncertain outcome – with some anticipating a constitutional crisis after several recent statements made by the current president, Donald Trump – Ginsburg noted that in the United States certain state constitutions – such as in Kentucky – incorporate the right to rebel against authority.

Lessons of Latin America

The opening lecture was followed by two sessions, the first, devoted to reviewing experiences related to constitutional transformation in many countries of the world, was moderated by Sultan Barakat, Professor at the Doha Institute for Graduate Studies and Director of the Center for Conflict and Humanitarian Studies. It featured: Nathan L. Brown, Professor of Political Science at George Washington University and former president of the Middle East Studies Association; Markus Böckenförde, Professor of Comparative Constitutional Law in the Department of Legal Studies at the Central European University and Acting Director of the Constitutions Building Project at the International Foundation for Democracy and Elections in Stockholm; and William Elliott Bulmer, Professor at the University of Dundee in Scotland and Director of the Research Project on “Preliminary Preparations for Building Constitutions”.

At the outset, Nathan Brown reviewed the process of constitution-writing in the Arab region, observing that despite a century and a half of familiarity among Arab countries with constitutions, most of the constitutions of the region were laid down by the central authority, and constitutions were not instrumental in establishing that authority, until the advent of the “Arab Spring”. With the latter development, a debate arose over the nature of the regime and new constitutional frameworks were proposed, raising the profound question: does a mass movement lead to different constitutional documents, or different constitutional processes? Did they lead to the development of applicable constitutional principles? Brown referred to some Arab experiences, such as Kuwait, Egypt, Palestine and others, highlighting the concept of the constitutional moment and the importance of political pluralism to ensure the implementation of constitutions, as well as of studying contexts above and beyond constitutional texts.

Marcus Böckenförde raised the issue of presidential term limitation, citing the Arab countries of North Africa persisting under a long-term dictatorial rule until the Arab Spring came and toppled autocrats and their constitutions, thereby handing elites the difficult task of drafting new constitutions. Among the difficulties they faced was the determination of the powers of the executive authorities, at the heart of which lies the issue of restricting the period presidents spend in their posts. Böckenförde reviewed the design options that North African states had adopted to limit the power of the president by restricting the constitutional term, and assessed how successful they have been thus far, in the process comparing the experiences in the decade of the Arab Spring with those in countries of sub-Saharan Africa and in some Latin American countries.

In his lecture, William Elliot Bulmer discussed comparative case-study knowledge in constitution-building, based on his years of work at International IDEA in support of constitution-building and constitutional reform processes in a number of countries, through the presentation of comparators. Bulmer elucidated the importance of providing direct technical information to parliamentarians and negotiators during the stages of democratic transition and at the moment of enacting constitutional reforms; the importance of the role of specialized technical institutions in providing vision and technical evaluation notes on draft constitutions; the critical role of educating civil society organizations on constitutional knowledge, referencing also the writing and editing The Constitution Building Introductory Series that was published by International IDEA on the topic of comparative constitutional design, globally. Bulmer concluded by underlining the importance of comparative constitutional knowledge and the role of constitutional expertise, calling for more “south-south” and “south-north” knowledge transfers.

The second session of foreign experts was moderated by Omar Ashour, Professor at the Doha Institute and Head of the Master’s Program in Critical Security Studies, with interventions by Katia Papagianni, Director of Policy Support and Mediation at the Center for Humanitarian Dialogue in Geneva and an expert in designing processes of national dialogue, and Gabriel Negretto, Professor of political science at the Institute of Political Science at the Catholic University of Santiago de Chile, an expert in institutional design, and constitutional and electoral reform.

Katia Papagianni reviewed lessons learned from peace processes and their relevance to constitution-making in countries affected by conflict. She explained the differences between the constitution-making process in countries that have suffered from conflict and the constitution-making process in countries undergoing a transition that did not result from armed conflict, highlighting factors such as an absence of foundations for civil order and a continuation of violent conflict during the negotiations on the constitution: these have implications for the usefulness of large-scale broad-ranging consultations and public participation, as well as the impact of an absence of security on participation. As a result of these factors and their repercussions, draft constitutions may be produced that are dominated by the views of the armed actors, rather than by the considerations of society as a whole. In addition, sometimes the negotiations may exclude major societal groups from the negotiating table for various reasons, and the ensuing drafts remain as a result closer to being peace agreements than constitutions – ordering gains achieved from military equilibrium but which do not establish a basis for a permanent political settlement.

Gabriel Negretto presented the lessons that can be learned from the institutional design of Latin American constitutions and the wave of democratization that began in Latin America at the end of the 1970s and that led to a series of constitutional changes aimed at dismantling the institutions inherited from the dictatorial past. Such constitutional adjustments have not always deepened democracy, whether in terms of its principles, contents, or implementation. At the beginning of the transition to democracy, multiple authoritarian regimes had enough bargaining power to retain constitutional articles that severely limited the electoral and institutional power of the majority. At the same time, the multiple constitutional changes carried out under democracy have served to strengthen the power of presidents and reduce legislative or judicial oversight, as well as restricting the power of elected representatives to enforce accountability. In Negretto’s view, the changes that contain the greatest potential for deepening democracy are those that have been approved because of comprehensive negotiations and deliberations that have taken place between most of the elected political forces.

Following this session a prolonged discussion took place on many interrelated issues, most notably authoritarian rulers’ manipulation of constitutions, the importance of implementation of constitutions, the centrality of the constitutional issue in Arab countries after the 2011 uprisings and right up to the current wave of protests, and the importance of caring for societies that have witnessed civil wars.

The Cases of Spain, South Africa, and Chile

The third day of the conference, 26 September 2020, opened with two sessions devoted to international experiences related to constitutionalizing transformation and inaugurating efforts for the transition to democracy. During these two sessions five papers were presented discussing constitutional experiences from various regions of the world, through a comparative case study approaches to South Africa, Spain, Chile, Poland, and Indonesia.

In the session headed by Marwan Qabalan, Director of the Political Studies Unit at the Arab Center, presenters included Ahmed Edali, Professor of Political Science at Ibn Tufayl University in Morocco; Mohammed Ahmed Bennis, professor and researcher at the Regional Center for Educational and Vocational Professions in Tangiers; and Mohammed Naimi, Professor of Organizational Sociology at the Center for Social Development in Rabat.

Ahmed Edali discussed the South African case, which he highlighted as an example of pragmatic constitutionalism. Context forced parties to the country’s protracted conflict to seek out a consensus-based route forward to put a stop to the whirlwind of violence: this by employing constitutional bases upon which to democratically rebuild the political system and its institutions. The South African case offered a new constitutional architecture that fortified the interconnection between the processes of constitutional and democratic transition, in that the negotiators who adopted the logic of consensus found their way to wide-ranging constitutional norms that functioned as regulators to reduce the degree of hesitation and uncertainty inherent in transition periods. The constitution succeeded in bringing the army under civilian administration and turning it into the defender of democracy. Edali isolated an element demonstrating the constraints that stood in opposition to this experience, explaining that the transition process is more than merely a legal phenomenon. Standard-setting and constitutional limits are not enough to entrench the values of democracy; rather, a prerequisite for its achievement is embodied in policies guaranteeing that the constitutional standard will be translated into lived reality.

Mohammed Bennis, presenting his research on the Spanish experience, enumerated the factors that led it to success as a high point in the wave of democratization that swept several countries across southern and eastern Europe. Bennis focused on the elite consensus factor, which made this experience a unique case of the constitutional issue’s relationship to democratic transition through incorporating a deeper understanding of ideological and political contradictions among political actors during the 1976-78 transition period. The constitution contributed to framing a social, economic and political consensus that transcended the political and constitutional legacy of the past, and overcame the foundational problems that faced the actors, opening the way for a complex process of rebuilding the Spanish state. He added that the role of the elites in understanding the necessity of not dismantling the previous regime all at once, to avoid sharp polarization was critically important for a peaceful democratization process. Bennis pointed out that the consensus achieved around the 1978 constitution ended decades of societal division and opened the way for mutual recognition between various social and political forces.

Mohammed Naimi spoke on the constitutional experience in Chile, stating that while there were limitations on the success achieved in this instance relating primarily to the constitutional issue and latent manifestations of authoritarianism in the constitution that had been inherited from military rule, there were other constraints. The most important of these was the economic problem imposed through the adoption of neoliberal policy options from the time the dictatorship was established. Here, Naimi drew attention to the crucial role played by social movements, especially their ability to sustain peaceful protest against the military regime. This feature, effectively driving the transitional process, depended on the ability of democratic forces to transcend their political and ideological differences and forge strong alliances amongst themselves, enabling them to lead a transition towards democratic solid ground. Then he showed how the elites leading the transitional process had the primary role in laying out the foundations and rules of the state of law and subsequently their incorporation within a constitutional document that represented the supreme law expressing a social contract between rulers and the ruled.

Discussion followed these presentations of the lessons applicable in the Arab world from these cases, the roles played by the armies, and of the ways to maintain equilibrium with military power during negotiations over the transition to democracy. The session closed with attention focusing on the economic dimension and the struggles that these cases witnessed in seeking to integrate social and economic rights in the emerging constitutions.

Designing Constitutions and Building Trust

In the session headed by Khalil Al-Anani, Researcher at the Washington branch of the Arab Center, Marwa Fekry, Professor of Political Science at the Faculty of Economics and Political Science at Cairo University, spoke, followed by Ahmed Hussein, Researcher at the Arab Center and Managing Editor of the journal Siyasat Arabiyya.

Marwa Fekry offered a comparative perspective on designing constitutions and building confidence, citing four cases that succeeded in achieving democratic transition, namely Poland, Chile, South Africa and Indonesia. Fekri reviewed the common factors that contributed to this success, concluding that the political and social aspects of the constitution design process outweigh, in terms of importance, the legal and technical aspects: the role of the elites in conducting bargaining and negotiations was of critical importance in these contexts. In the four cases, the transition followed not a revolutionary but a gradual path of negotiation and bargaining, that extended during several years. The constitution-design process in these instances was comprehensive, with none of the main political actors being excluded – including elements of the ancien regime and forces allied with it, regardless of what they may have committed in the past; the approach to transitional justice in these cases was remote from any logic of revenge or settling of scores. The four cases were furthermore characterized by the adoption of arrangements limiting the absolute power of the majority, thereby instilling confidence among political contenders in the midst of a climate of uncertainty, such as may prevail during transitional periods.

Ahmed Hussein then spoke of the constitutional experience of the European Union, reviewing the conjunction of constitutional framing through unification treaties, with the expansion of the group and the inclusion of new members. The countries of the European Community, entering a new phase of cooperation and integration, signed the Maastricht Treaty in 1992 which ushered the European Community into a Union, in form and substance, with multi-treaty tracks generating the idea of a European “Constitutional Treaty”. Hussein presented the contexts that led to the drafting of the Constitutional Treaty and its contents, the methods underlying the failure of its ratification, and the resulting shift of attention to the signing of the Lisbon Reform Treaty. Hussein outlined many of the elements of this treaty that render it clearly democratic: its direct election of the President of the European Commission; its expansion of the voting circle by the qualified majority; its encompassing of new areas for joint action by member states.

The discussions of this session touched on importance of the European Court of Human Rights, political conditionality and criteria for accession in the European case, the factors of Indonesia’s success versus the Arab countries’ failure, the concept of transitional constitutionalism, the importance of external factors in Arab cases, and the role of the external factor in the dynamics of the transition in South Africa.