Learning from success,learning from failure

Introduction

There is today a new paradigm of democratic constitution-making, beyond classical American and French models. ¹ It emerged in Spain in 1977 and central Europe in the early 1990s, and was greatly improved upon in South Africa later in the decade. We stress its following elements. (1) Constitutions are made in two or more distinct stages. (2) The first stage drafting is the work of a new institution, the Round Table, under different names, while in the second a freely elected assembly does the main work. (3) Neither of these agents or institutions, nor any other, claims to alone embody the will of the sovereign people. (4) An interim constitution is the product of the first stage, and orders and regulates the rest of the process. (5) A constitutional or other apex court enforces these rules. (6) The process will generally take place within full legal continuity. This paradigm, fully conscious of the legitimacy problem, is a veritable factory of legitimation; the main principles that have emerged are plurality, inclusion, compromise, publicity, free elections, self-limitation and enforceable legality. For the first time, the paradigm consciously applies the principles of constitutionalism to the process and not only the outcome of constitution-making. Thus Hannah Arendt’s dilemma is answered at least partially: how to begin without the constituent power being in the state of nature, even where republican institutions cannot be presupposed. In terms of Claude Lefort’s ideas the problem of how to begin democratically where there is no democracy is solved by the performative opening of the empty space of power. ² The key: that enemies who previously regarded themselves as the unique repository of the people’s will accept one another as opponents; and that no one can legitimately claim to be the people. Thus, in terms of political philosophy, the new paradigm involves a rejection of embodied, unitary, ‘substitutionist’ popular sovereignty in favor of a pluralistic conception of democratic legitimacy. ³

Unfortunately, the new paradigm has very demanding historical pre-conditions. In general it assumes the transition from dictatorship to constitutional democracy. But this is not all. Historical conditions of equality or balance between a regime and its opposition are also pre-supposed, or at least their appearance on both sides. What is important here is that one cannot (or does not) hope to control change by the imposition of top-down reform, or otherwise by initiating and dominating a process of revolutionary rupture. Such conditions can be shown to have existed in many countries, for a variety of reasons. But they do not always exist. Here we want to deal with two cases where reform and revolution have been possible, and explore the relevance of the new paradigm to each: to Turkey’s constitutional reform and Egypt’s revolutionary process. We will maintain that even in reform and revolution there is much to learn both from the success of the new paradigm, and also from its failures. The case of failure we will draw on is the Hungarian one.

Legitimation principles and design mechanisms

We think it is important to distinguish legitimation and paradigm, legitimating principles and mechanisms. By paradigm we mean the full two-stage, post-sovereign model with a Round Table and an interim constitution. It is an ideal type of course: there can be more than two stages as in Poland; a Round Table can be missing in the beginning as in Spain; there can be a legal break as in Nepal. But we must consider for each case whether a missing component or the wrong sequence can make the model pathological. The first happened in Hungary where the second stage was not completed; the second in Iraq where full inclusion happened only at a very late stage, after free elections. ⁴ By pathology we mean first and foremost that the legitimating potential of the paradigm is not realized, opening up a crisis of legitimacy as in Hungary and Iraq. Conversely the legitimating principles understood in a pluralist, sociological Weberian sense can stand free of the paradigm. This is accomplished first and foremost by international discussion and dissemination insisted on by Heinz Klug, ⁵ which already played a role in the transference of the paradigm among different countries. Moreover, the very same principles can and do travel to reformist and revolutionary settings. This is what we mean by the idea of learning from success. It is documentable that many actors in the midst of reformist and revolutionary projects now also speak about inclusion, pluralism, compromise, participation, publicity and self-limitation. Thus suddenly there is the possibility (we will notice it in both Turkey and Egypt) to establish and even institutionalize some of the new principles in the midst of comprehensive reform and revolution, assuming their built-in legitimation problems. ⁶ Whether such a grafting is possible will depend on primarily two factors: the strength of the alternative idea of unlimited embodied popular sovereignty, present in different ways in revolutions and under reform, where a government has a constitution-amending majority, and the solution of specific problems having to do with the design of the process.

The issue of popular sovereignty is obvious enough. Where someone – an assembly, a head of state, an institution like the military – is in the position for reasons of both ideology and power, physical or electoral, to claim to embody the unified will of the people, pluralism, publicity, participation and compromise will all be on weak foundations even when other important actors assert these principles. The outcome will depend on lots of historical and contemporary givens: the tradition of constitution-making in the specific place, the actual support of contending sides, the strength of intellectual arguments on both sides and sometimes, and as we will see in the Turkish case, specific electoral outcomes. But one important question here will be that of design. In order to represent the new principles, and to graft them onto a revolutionary or reformist process, the actors need to know what design elements can make them work within a relatively hostile paradigm and perhaps tradition. They need to be able to recognize the opportunities to establish them, and the alliances that can be created to serve this goal.

Note that adopting design elements need not and will not mean in general the whole two-stage post-sovereign paradigm. But when grafted onto reform or revolution, parts of the process will in fact resemble that paradigm. When all such resemblance is absent, the likelihood of grafting tends to be greatly diminished.

We repeat: it is not enough to know; the design mechanisms must also be established. But if they are not known, there is little chance to establish them. Moreover, even if established or represented institutionally, in both reformist and revolutionary settings the opposing principles of embodied popular sovereignty will not disappear. Instead of replacement, there may be a long-term tug of war, with uncertain outcome. We see this today in both Turkey and Egypt. Here imperfect design can help the other side. Experience of a failed case like Hungary has a better chance to indicate what such design problems may be than does experience of a successful case like South Africa.

Story 1: Turkey

Let us start with the Turkish case. ⁷ Turkey’s constitution of 1982 was semi-authoritarian with a relatively small space for competitive elections that was, however, immediately expanded by the soon-to-be-prime minister Turgut Özal. The constitution was passed in a referendum in 1982 that exactly like Mr Morsi’s currently proposed one in Egypt had only an illusory choice. First under the leadership of Özal, and then repeatedly, the 1982 constitution was amended in a process that involved consensus-making mechanisms and institutions of reconciliation. Interestingly, it was right after the various Round Table schemes became internationally known that the most important steps were taken. The 1995 and 2001 amendment packages, which have brought substantial changes toward democratic and liberal lines, were made through inter-party compromises and have been considered as successful cases based on the principle of consensus. This pattern was broken in 2007–11 when the leading party, the AKP or Justice and Development Party, repeatedly passed amendments either with the help of referenda (amendment on the election of the president in 2007; amendment package in 2010, which changed 24 articles and added 2 provisional articles), or with the support of only one additional party (the headscarf amendments in 2009). All these efforts were enabled by the combination of a highly disproportional electoral rule with a 10% cut-off and parliamentary amendment rule that allows a manufactured super-majority to act. Note the AKP’s electoral support in each of the three main episodes: it was initially 34.28% in 2002 elections and then 46.6% in 2007 elections. It became 49.83% after 2011. ⁸ But here is the great paradox, probably the result of learning by voters and parties: each time the percentage of parliamentary seats for the winning party was smaller than the time before. From 363, namely almost two-thirds of the seats in 2002, to 341, still over three-fifths in 2007, the AKP’s total seats after the 2011 elections became 327 or less than three-fifths. With two-thirds the constitution can be amended save for its permanent articles that used to be protected by the Constitutional Court. With three-fifths amendment of the permanent articles is possible, but only with a referendum; under three-fifths a dominant party cannot amend entirely alone.

Turkey has historical and contemporary givens, which work both in favor of and against a possible success of the post-sovereign constitution-making. Ever since the 1990s, Turkey has been under European pressure to adopt a completely new ‘civilian’ constitution. ⁹ Although the undemocratic character of the 1982 constitution has always been emphasized, even immediately after its adoption, since the constitutional crisis in 2007, the need for a new democratic constitution has gained widespread public support. In the 2011 elections, all the political parties underlined such a need in their election campaigns. Although the previous constitution-making experiences (1924, 1961 and 1982 constitutions) have not established a constitution-making tradition favorable to the new paradigm, the constitutional amendments in the 1990s and 2001 broke this tradition by showing the possibility of constitution-making based on compromise and consensus. On the other hand, although the AKP has long identified itself with the goal of a new constitution, in our view, the amendments from 2007 to 2010 did not help the project by following the majoritarian populist route. Nor did the battles between government and the Constitutional Court, which ended with the packing of the latter. But now in any case the AKP is not in the position, it might seem, according to parliamentary arithmetic, to accomplish this task alone.

Thus amazingly enough the demands for inclusion, consensus and compromise, and for an institution of consensual creation, based on Turkish traditions and international precedents, were suddenly again heard. In October 2011, formally at the initiation of the Speaker of the Grand National Assembly, the four political parties (the AKP, the Kemalist CHP, the nationalist MHP and the Kurdish BDP) were invited to participate in a new parliamentary Constitutional Conciliation Commission based on equal representation of three members each. Subsequently the new forum met and produced its own rules. ¹⁰ These were:

All decisions would have to be made by agreement of all four parties, meaning at least two members of each (though the parties may always vote as blocs in practice).

Story 2: Hungary 1994–6 and 2011

Hungary is a Round Table country that has failed to make a final constitutionalist constitution, hopefully not permanently. ¹¹ Its interim constitution, so defined by its preamble, was made mostly by the National Round Table of 1989. Unlike South Africa’s interim constitution, or the Polish Little Constitution, the 1989 text had no rules or procedures for final constitution-making, except an amendment rule giving this power to two-thirds of a mono-cameral parliament, a rule very much at the mercy of an electoral rule that turned out to be highly disproportional. The first freely elected parliament avoided the task of making a new constitution and chose only a massive amendment package based on a pact of the main parties, one leading the government, the other the opposition. It was a pact that excluded many others, including the then still liberal FIDESZ. It is, however, the second, center-left- dominated, freely elected parliament that is especially important for us in the present context, a parliament where the governmental parties (the socialist MSZP and the liberal SZDSZ) alone had constitution-amending powers. These parties assumed the task of constitution-making and chose to adopt highly cooperative and consensual rules to that end. ¹² The rules for that process would have to be adopted, according to a new constitutional amendment, by four-fifths of the members. That was accomplished, producing the following rules:

An all-party parliamentary committee would be elected

Thus the whole project failed, keeping the door open for a subsequent return to majoritarian constitution-making through amendment. We can surmise that the socialist prime minister Gyula Horn undoubtedly hoped to avail his own party of this power, because he sought (though partially failed) to let the sun set on the new four-fifths rule concerning constitution-making. In the end the power was exercised much later by the right-wing FIDESZ in 2011, a party that had no compunction in eliminating the four-fifths rule by two-thirds of the vote, a prima facie absurdity. FIDESZ, as is fairly well known by now, with a vote of 52% attained over two-thirds of the parliamentary seats. It used the power to enact a new constitution, without any consensus or negotiation, in a national Christian style, diminishing the separation of church and state, and establishing an ethnic definition of citizenship, as well as a variety of incumbent-protecting ‘bionic’ powers. ¹³ FIDESZ called its constitutional imposition a revolution, the revolution of the voting booth, though the voters were not told during the elections that they were voting for comprehensive constitutional change. The government’s argument broke with the tradition of Round Table constitution-making, in favor of populist claims of embodying the will of the people.

Lessons for Turkey?

Let us continue the Turkish story. There have been a variety of disagreements in the Constitutional Conciliation Commission. As opposed to the optimism at the beginning of the process, the commission has not reached agreement on most of the issues regarding basic rights and freedoms. In many cases, the parties in the commission have even rigidly insisted on their ‘red lines’. On the issue of the definition of citizenship, of secularism, on sexual orientation and the equality principle, on education in the mother tongue and on the constitutional protection against social exclusions, the parties strongly disagreed. But undoubtedly the biggest roadblock to the possibility of consensus is the proposal of the AKP (its details not yet published at the time of writing) to execute a shift to a presidential and perhaps hyper-presidential government. It had already achieved in 2007 the direct election of the president whose power had been reduced in previous constitutional reforms. The aim now is certainly to increase these powers, and to elect current prime minister Erdoğan as the new president in 2014. The goal cannot be achieved through the Conciliation Commission, in the face of opposition by at the very least two out of four and maybe three parties. Thus concurrently there have been statements by the prime minister that may imply the desire to revive the parliamentary majoritarian amendment route. Most recently major figures from the AKP have insisted that they will introduce the party’s own constitutional draft to parliament if the Reconciliation Commission fails to come to a consensus.

These statements can have different interpretations. A more positive one would suggest that the goal of the AKP leadership is only to stimulate and motivate the members of the commission to achieve consensus. But two successive moves, both aiming at the voting potential of the Kurdish BDP, point in more problematic directions. First, there was the move by the prime minister to take away the parliamentary immunity of 10 Kurdish deputies (9 BDP and 1 independent), which seems to be an indirect attack on the commission. Had the BDP collapsed as a result, so would have the commission according to its own rules. No commission members were directly involved, but the BDP could very well have chosen to leave the process if its members faced arrest. Fortunately, the prime minister did not have full support in this effort even by his own party, and notably President Gül (who would be the obvious choice for either a re-elected president or a new prime minister) disagreed.

The second move was facially more positive. As obvious, the AKP lacks only 4 or 5 parliamentary votes to resume a constitutional amendment process. The Kurdish deputies, less concerned with the issue of presidentialism, could under some conditions yield some of the needed votes. Several commentators have suggested that if current indirect negotiations with the imprisoned Öcalan succeeded, these votes would be available. ¹⁴ There is a horse race then between two options – as Carl Schmitt might have called them, the majoritarian and consensual ones – that is very much on, and the majoritarian one may be winning.

Our hypotheses are formed partially by the Hungarian case. First, the consensual requirements for the commission in Turkey may be too high. Too much veto power remains in the hands of any 2 members (or even 1 member) of each of the four parties. Second, the fact that the new rules were not entrenched and that an amendment moratorium was not achieved are serious omissions. Too much opportunity is given to the ruling party itself to veto, to deadlock and wait out the consensual process. Finally, the assumption of genuine parity between forces that politically and even in terms of the rules are fundamentally unequal is an illusion. The more powerful has to get more share in the constitutional outcome, if it is not to use its power to bring it all down. In Hungary, in retrospect, it might have been a good idea to give in on at least one of the major substantive desiderata of the biggest party. Since a corporate second chamber is not compatible with liberal democracy, the obvious candidate should have been social rights as some former participants now admit.

In Turkey, it seems to us, no fundamental concession is acceptable on the issue of strong or hyper-presidentialism (weak presidential government as in US internal affairs is not in the prime minister’s or the AKP’s interest). But once all the disputed issues are formally catalogued and evaluated, perhaps it would be possible to satisfy some other aspirations of the party that is in the position to bring it all down. For example, headscarves or improved status for religious high schools may be a small price to pay, e.g. if the road to presidentialism could be blocked. Of course everything depends on if the AKP is interested in trading, and especially with whom. However, even within the presidentialist option, a semi-presidential solution of the French type may be agreeable to the majority of the governmental party. Within that model fine-tuning is possible, in terms of precisely calibrating the powers of the president (which should be reduced ¹⁵ ) and the powers of a prime minister who needs to gain and retain parliamentary confidence (which should be increased).

What would be least desirable would be the triumph of non-consensual majoritarian constitution-making producing a strong presidential regime, especially if it was based on a narrow bargain between just two parties. The dangers are especially great if that bargain would be between the AKP and the BDP alone. Let us state right off, that for us personally the satisfaction of many Kurdish demands, including cultural autonomy and political amnesty, is a very sympathetic cause. But if these provisions were achieved together with strong presidentialism, and without the concurrence of the other two parties, Turkey could wind up with an exacerbation of an already violent conflict. On one side, inevitably, it would be charged that Turkey was moved toward a more authoritarian system with the help of Kurds. On the other side, it would be claimed that the Kurdish deputies gave away more important rights (as, again inevitably, they would) merely to make limited gains for themselves and perhaps for their titular leader. The extremes on both sides would have very strong points to make, and that would favor the eventual collapse of the deal except for the authoritarian elements, which would be very well called into play as the polarization was exacerbated.

There are two alternatives left. One is keeping the heavily amended constitution of 1982. It is not the worst of the options. Hyper-presidentialism imposed by the majority with or without Kurdish help would be worse, because of both its potentials: authoritarianism and polarization. But the only really good alternative would be to make the Conciliation Commission work, i.e. come to an agreement around the major issues. This is what the interest of the country, including both Turks and Kurds, demands. This option would require willingness of all parties to limit themselves, the majority as well as the minority parties, Turks and Kurds, and possibly religious as well as secular. This would have to mean that all major actors settle for a solution that from their partial point of view would be only the second-best. In a divided society a common second-best for all parties would be, however, the best for the country as a whole.

Story 3: the return of revolution in Egypt

That desideratum concerning the second-best as the best applies even more to Egypt, torn by powerful divisions and conflicts. The competition between consensual and imposed principles too is even more striking in Egypt than in Hungary and Turkey, involving clashes between large popular movements, the main parties, as well as between institutions, the courts and the presidency. Undoubtedly, the initial revolutionary break as well as the populist revolutionary imaginary with its vision of a united people embodied in some actor or other, a vision seemingly pre-supposed on all sides, favors the task of imposition. Nevertheless, the associations and movements of civil society have served as an important counterweight, performatively if not self-reflectively promoting various consensual options. The failure to make the step to political society of strategic action by civil society actors has unfortunately weakened their chances of success, though the issue is not yet decided.

No serious interpreter has claimed that the Egyptian constitution-making process has been satisfactory or even adequate. ¹⁶ Even in the context of revolutionary populist constitution-making to which this case belongs, the Egyptian version is distinguished by its inconsistencies and idiosyncrasies. In revolutions, generally, a new holder of power is capable of occupying the seat of a provisional government and dictates the pace, the form and the outcome of constitution-making. Even that has not happened here. From the revolutionary version, this case inherits arbitrariness and unjustified claims of embodying the sovereignty of the people, but not consistency and clarity.

Two things have been the ultimate source of difficulty. These are the existence of two and even more powers capable of making sovereign claims, and the presence in the culture (national and international) of the legitimating principles of the post-sovereign method of central Europe and South Africa: ideas of inclusion, plurality, public openness, participation, fair compromise, self-limitation and the role of courts and judges in constitution-making. It is significant that these last principles helped to disorganize the process, but without a genuine, organized set of forces representing them they could not break through as the alternative.

Note that alternatives based on inclusion, compromise, plurality and ‘consensus’ have been occasionally raised and even enforced if in a negative manner. This is a dramatic new development in revolutions, and can only be ascribed to the international influence of the new principles of constitution-making that emerged in the 1990s. ¹⁷ The idea of an interim constitution before elections was raised, but was misunderstood and was rejected by the two strongest forces. What Egyptians got instead is the nonsensical combination of an annulled constitution that was amended repeatedly, and was supplemented by equally top-down constitutional declarations first by SCAF, then by the president, each in turn assuming legislative in addition to executive powers. The first of these declarations was even called an interim constitution, ¹⁸ though its contents were paltry and its origins non-negotiated when compared with forerunners in the 1990s, and even the Transitional Administrative Law in Iraq. The idea of ‘supra-constitutional principles’ à la South Africa was seriously raised, but then perverted by the SCAF before being embodied in the defunct Selmi draft. ¹⁹ As in several new democracies, courts, unfortunately inherited ones, played a major role in the process. They dissolved two non-consensual assemblies with majoritarian rules, only to see one of them, the elected parliament, replaced by the executive, and the other, the so-called constituent assembly (in reality a committee of parliament) by a similar successor with rules under which the Islamic majority could not and did not lose a single vote. This body then remained in session even as its parent, the elected parliament, was dissolved. In effect the committee survived the body to which it needed to report, at least under similar circumstances.

We know what happened before this second constituent assembly too might have been dissolved, after its non-Islamist members left. The sole point of President Morsi’s Constitutional Declaration on 22 November 2012 ²⁰ was to keep it in existence in the face of possible Supreme Constitutional Court (SCC) action. That action, also, could not come because of an open attack on the SCC by MB crowds.

Even after the president’s declaration, which was met by an amazing response from civil society, its citizens and organizations, there was an obvious way out: negotiations and setting-up an institution of negotiation like the current Turkish Constitutional Conciliation Commission, which need not decide by full consensus as in Turkey, but would be able to renegotiate all the truly divisive points. The second constitutional assembly could have even stayed in place, with President Morsi’s guarantee that it would adopt most of the new recommendations. This was not done, not because no one thought of it, but because the very point of the exercise has become, since the elections, majoritarian populist revolutionary constitution-making in the supposed name of the Egyptian people.

Instead of facilitating consensus, the so-called constituent assembly, or its chair, decided to rush through the voting process. In effect this move abrogated the one positive feature of President Morsi’s Constitutional Declaration, extending the process to allow more discussion and, presumably, the possibility of coming to an agreement on at least some disputed points. Why the rush? There were three possible reasons:

hoping to disarm the crowds and the judges by making the open provisional dictatorship shorter;

It is already clear that SCAF did not speak in the name of ‘the people’, whatever that would have meant. The same is now turning out to be the case for the MB government of President Morsi. The revolutionary legitimation now sounds hollow; it always does when the process is imposed in a very divided society. In the end only force remains to control a civil society in revolt. We again emphasize: from the beginning the populist revolutionary imaginary of this transformation pointed toward the outcome whose unfolding we now witness, although it could have been avoided through constitutional learning. By that we mean not only insistence on pluralism and consensus, but also the creation of institutions that embody it. In Hungary it was the Opposition Round Table and the National Round Table. In South Africa it was the MPNF. In Turkey it is still the Constitutional Conciliation Commission. Such bodies can work only if demanding pre-conditions are fulfilled, among them the self-limitation of all actors that should be incorporated in rules and procedures. But as the South African case shows, they can work.

Is that learning still possible in Egypt? Yes, but it is very late in the day. A revolutionary process favors it even less than a comprehensive reformist one. Then there is the problem of sequencing. As we learned in Iraq, to place a consensual negotiated solution in a late part of the process where the dominant actor(s) has or have electoral legitimacy is very difficult. ²⁴ Once a draft has been voted on, again as in Iraq in 2005, it is very difficult to enforce concessions by the dominant party that depend on the amending process of the new constitution, even a special one designed for the very purpose. ²⁵

Yet as we see these very days, the ultimate outcome even in a revolution is open, especially when new legitimation principles are there to challenge the revolutionary imaginary. Constitutional learning in Egypt has depended first and foremost not on political actors but on the actions of Egyptian civil society, its movements and organizations: jurists, artists, students, ordinary citizens: women and men. Even in the absence of formal negotiations, in a sense negotiations are taking place but on the street. Can this method be effective? Yes in de-legitimating or even pulling down a rejected arrangement. But no, not in the sense of producing an alternative. When it comes to that, negotiations in political society are still very much needed. ²⁶ Constitutions and especially constitutional compromise cannot be and never have been produced directly by grass-roots pressure. Here the idea that movements themselves incorporate the will of ‘the’ people, as well as the anti-political bent of many of the actors on the streets, are themselves roadblocks in the way of possible solutions. These attitudes make negotiations without pre-conditions and compromises by oppositional parties very difficult.

Conclusion

Let us conclude. The new principles of legitimate constitution-making, pioneered in Spain, central Europe and South Africa, are now becoming an international possession. Even where the whole two-stage, post-sovereign paradigm is not possible or applicable, the legitimation principles can play an active role. In revolutionary and reformist settings, however, the central post-sovereign principles of consensus, public participation and self-limitation are most likely in a horse race with majoritarian populist principles. Who wins that race depends on political constellations of forces, but also on solving problems of design and sequence. Where the full two-stage post-sovereign paradigm is adopted but is not completed, as in Hungary, the option of majoritarian constitution-making can return in a populist guise. Where the actors whose interest is tied to the principles have not sufficiently reflected on their post-sovereign status, where they themselves are tied to populist revolutionary ideas, the chances of successful implantation or grafting of the necessary design elements are reduced. This has been the case in Egypt. The same may also be true where the design of consensual solutions is weak, as seems to be the case in Turkey. Where the introduction of the new principles appears in the wrong sequence, and in particular where greater inclusion is promoted after free elections as in Iraq and Egypt, the race is likely to be won by whomever possesses electoral legitimacy even when its authority is obviously abused. Thus in all these settings, one has to bet on the victory of the majoritarian-populist principle in the very short run. Yet the presence of the new principles means that constitutions imposed, whether by majorities or their presumed representatives, are not likely to achieve the necessary legitimacy for initial stability. Instead of resolving sharp conflicts and constructing new identities, imposed constitutions will divide and polarize. Thus at the very moment of their enactment, they will point to new constitutional crises, and the possibility of the relatively early replacement of the new constitution. When that time comes, it is to be hoped that all the relevant actors will have learned from their earlier failures. Such a learning is needed by the competing movements of civil society, as well as the political actors confronting one another.