By Zahira Flores, Juris Doctor Candidate (2014), Northwestern University School of Law
The post-Arab Spring has resulted in constitutional-drafting processes in many Muslim-majority nations. This wave of constitutions has attempted to put an end to post-revolutionary conflict in the region. While it is too soon to determine the outcome of the constitutional-drafting processes of countries, such as Egypt and Tunisia, there are many aspects of such processes that have been vehemently criticized.
Constitutions are typically drafted or substantially modified at moments of rupture, in the wake of a crisis or exceptional circumstance of some sort, such as social and economic crises, revolutions, regime collapse, fear of regime collapse, reconstruction after war, or liberation from colonial rule. A new constitution, and the process the drafters employ, helps many countries along a path to national reconciliation. Given the varying political and socio-economic factors that influence a country, there is no perfect constitutional-making process. However, some scholars establish that there are certain mechanisms that can provide for the creation of a more durable document in a post-conflict setting.
During a presentation at Northwestern University School of Law, Zaid Al-Ali, a senior adviser on constitutional building for International IDEA, and Sujit Choudry, NYU Professor of Law, discussed the constitutional-drafting processes of post-Arab-Spring states. They noted that the failure of these constitutional-drafting processes has been attributed to the presence of pre-conceived notions of constitutionalism in the Arab World, the lack of preparation by drafters, and the time constraints imposed on the process itself.
The media in these countries has created a false image of a healthy constitutional process, Al-Ali said, and has reinforced pre-conceived notions of what kinds of constitutional structures are needed in the region. For example, arguments are employed that Arabs need a strong leader; that the environment is not conducive to protect against human rights violations; and that short constitutions provide states with the flexibility to adapt to change. As Al-Ali asserted, the effect of these kinds of misperceptions on constitutional norms has negatively influenced the process employed.
Al-Ali mentioned that no “constitutional autopsies” were undertaken to identify the problems with the pre-Arab spring constitutions. This led to a lack of preparedness by the elite population, which had an effect on the substance and process of post-Arab-Spring constitutions. Al-Ali suggests that had there been warning signs that a revolution was a possibility, drafters would have been better prepared for constitution-making.
However, the problem goes far beyond a failure to conduct a constitutional post-mortem; the pre-revolutionary constitutions have been used as models in the modern drafting process. Egypt used its 1971 constitution as a starting point for its deliberations in that resulted in the 2012 and 2014 constitutions. Libya did the same. In fact, Tunisia was the only regional counterpart that decided to set aside the failed 1959 Tunisian constitution and to start anew. Public participation and the nature of the interim power in Tunisia’s constitutional-making process resulted in the Constitution of 2014 that so far has been characterized as the “lone” success story of the post-Arab Spring.
Another issue critical to the constitutional-making process is timing. Some argue that President Morsi’s biggest mistake during his short rule was his decision to maintain the drafting process that had been established by the Supreme Council of the Armed Forces (SCAF) in March 2011. The SCAF, clearly not expert in democratic transition, imposed a 6-month timeframe for the entire constitutional drafting process. The Libyan text prescribed an even shorter time frame – a mere 2 months. In times of crisis, there is often a sense of urgency that the country needs a governing document quickly. Al-Ali noted that once a deadline was in place, every delay in the constitutional-making process diminished the credibility of the drafters. While too much time for the constitutional-making process could threaten the process, it is important to allow the process sufficient time to develop a constitution that is inclusive of the views of oppositional factions and civil society actors.
In addition to the lack of preparation by the governing elites and the timing faced in the wake of post-Arab Spring constitution-writing, there is one more issue that scholars often overlook: leadership. Professor Choudry raised the importance of having an influential leader who has the legitimacy and charisma to push forward a constitutional-making process to produce a durable document. He particularly highlighted the remarkable process that gave birth to the Constitution of South Africa. Post-Arab spring states may be in need of their own “Mandela” to have a successful constitutional-making process. The danger is that a single inspirational and powerful person could lead a post-Arab Spring state back towards dictatorship.
Although there is no single process that will work in every post-Arab Spring state, it is important to break ties with old constitutions and implement mechanisms that have proven successful. Only in this way will these countries win the uphill battle in their transition to democracy.
 Jon Elster, Forces and Mechanisms in Constitution-Making, 45 Duke Law Review 364 (1995).