CONSTITUTIONAL REFORM IN TIMES OF TRANSITION CONSTITUTIONAL REFORM IN TIMES OF TRANSITION EDITORS ÁLVARO VASCONCELOS GERALD STANG BACK TO TABLE OF CONTENTS 1 CONSTITUTIONAL REFORM IN TIMES OF TRANSITION EDITORS ÁLVARO VASCONCELOS GERALD STANG © 2014 Arab Reform Initiative. All Rights Reserved. No part of the publication may be reproduced or transmitted in any form or by any means without permission in writing from the Arab Reform Initiative. Arab Reform Initiative 71 rue Fondary, Paris 75015, France Arab Reform Initiative c/o The Lebanese Center for Policy Studies, Sadat Tower, Tenth floor, PO Box 55-215, Leon Street, Ras Beirut, Beirut, Lebanon www.arab-reform.net The Arab Reform Initiative does not take institutional positions on public policy issues; the views represented in this publica- tion do not necessarily reflect the views of the Arab Reform Initiative. 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Composition by Metropolis Design Partners Cover image (Tab59) Flickr Translation by Wael Sawah ISBN 979-10-93214-00-9 May 2014 TABLE OF CONTENTS 06 FOREWORD BASSMA KODMANI 08 INTRODUCTION: PRIORITISING THE LEGITIMACY OF THE PROCESS ÁLVARO VASCONCELOS 15 CHAPTER SUMMARIES 20 THE MAKING OF THE INDIAN CONSTITUTION RADHA KUMAR SOUTHERN EUROPE IN THE 1970S 26 LOCAL AND REGIONAL GOVERNANCE IN THE PORTUGUESE CONSTITUTION: A CASE STUDY IN DEMOCRATIC TRANSITION EDUARDO CABRITA 37 CONSTITUTIONAL REFORM AND CIVIL-MILITARY RELATIONS IN SPAIN NARCIS SERRA LATIN AMERICA STARTING IN THE 1980S 46 BRAZIL: THE CONSTITUTION-MAKING PROCESS AND THE POLITICAL SYSTEM PEDRO DALLARI 54 CONSTITUTIONAL REFORM PROCESSES IN LATIN AMERICA: KEY ISSUES OF COMPARATIVE INTEREST ALEXANDRA BARAHONA DE BRITO CENTRAL EUROPE IN THE 1990S 70 CONSTITUTIONAL REFORM IN BOSNIA AND HERZEGOVINA DENISA SARAJLIC-MAGLIC THE ARAB WORLD TODAY 76 ECONOMIC, SOCIAL AND CULTURAL RIGHTS IN THE NEW TUNISIAN CONSTITUTION AZZAM MAHJOUB AND SALWA HAMROUNI 82 THE EGYPTIAN CONSTITUTION: PROCEDURAL PROBLEMS AND A CRISIS OF CONTENT AMR EL-SHOBAKI 97 WRITING THE CONSTITUTION OF THE EGYPTIAN REVOLUTION: BETWEEN SOCIAL CONTRACT AND POLITICAL CONTRACTING YASMINE FAROUK 113 CONSTITUTIONAL REFORM: THE CASE OF SYRIA NAEL GEORGES CONSTITUTIONAL REFORM IN TIMES OF TRANSITION FOREWORD BASSMA KODMANI EXECUTIVE DIRECTOR OF THE ARAB REFORM INITIATIVE This collection of essays offers narratives of constitutional moments in eight different countries. They present a wide spectrum of experiences from nations with diverse social, political and cultural histories: from Latin America to Southern Europe, Asia and the Middle East. Constitutional Reform in Times of Transition is part of the larger Arab Reform Initiative project, Living Constitutions. The proj- ect focuses on knowledge building and policy dialogues with diverse voices to foster awareness that a constitution is a living document owned by the citizenry, from the drafting phase to the imple- mentation, and needs periodic amendment to adapt to changing realities in a democratic system. The drafting of a constitution mobilizes political, social, economic forces, as well as the groups with coercive power on the ground (military and security institutions). All groups are aware that the re- sulting document will lay the foundations for governing relations between social, ethnic, religious, cultural and regional communities, between men and women, and between social classes and in- terest groups. But a constitution is only step one in a democratic transition. In the aftermath of the drafting process, societies discover that the constitution is only one body of laws which, though essential for framing key issues and defining a path, is a mere first step. Many laws that follow are also important in their capacity to affect the political and social system and relations between state and society. As Álvaro Vasconcelos indicates in his introduction, and as the country studies illustrate, the con- stitution-drafting process is a transformative exercise. Some groups, especially those that triggered the political transition, enter the process thinking they have a blank slate before them. As the pro- cess unfolds, they realize that they need to reconcile opposing interests and accommodate differ- ent traditions, beliefs, principles and values. They learn that compromising to build consensus is the most precious part of themselves that they need to nurture. The outcome is invariably very dif- ferent from what was sought at the start. The best indicator of a successful constitutional process is when it transforms the actors themselves. In effect, many admit that it is a rich learning process for them. Living Constitutions draws on several projects conducted by the Arab Reform Initiative over the last eight years. A first project was conducted in Egypt in the immediate aftermath of the 2011 revolu- tion when the process of constitution-drafting was still in its first phase. The studies and dialogues organized then were among the first efforts to involve multiple stakeholders in the discussion of the drafting process. 6 BACK TO TABLE OF CONTENTS CONSTITUTIONAL REFORM IN TIMES OF TRANSITION Prior to the Arab revolutions, the Critical Dialogue project led to a sustained dialogue over two years between political forces with different ideological backgrounds on state and religion, freedom of expression, the rights of women, minority rights and social agendas of political parties. Representa- tives of political forces sought to develop common ground and explore ways of building coalitions to oppose authoritarian regimes. These were the very same actors who participated two years later in the constitution drafting processes in Tunisia, Egypt and Yemen. Another ARI project is the multi-country project entitled Governance of Diversity launched in 2010. It addresses the critical issue of ethnic, religious and cultural diversity within Arab societies and sets the issue at the centre of state responsibilities. It designates diversity as a criterion for good governance and identifies benchmarks for ensuring sound management of diversity through con- stitutional provisions, laws, institutions and public policies. Last but not least, the project entitled Securitocracies and Security Sector Reform in the Arab World tackled the very nature of the authoritarian systems and shed light on the importance of enshrining basic democratic principles to govern the security sector in the constitution. These different lines of work over the years seemed to converge when the constitutional debates began to engage multiple actors in the aftermath of the revolutions in Tunisia, Egypt and Yemen. Other perspectives were also brought in, including those engaged in a gradual process of constitu- tional reform, such as Morocco, and Syrian opposition groups concerned with the future constitu- tion for a democratic Syria. The Arab Reform Initiative, as a process driven organization, remains committed to Living Constitu- tions for Arab citizens building their democratic environment. I would like to thank the Ford Foundation in Cairo, the International Development Research Centre in Ottawa, the Open Society Foundations in Amman and the Rockefeller Brothers Fund for making this project possible. BACK TO TABLE OF CONTENTS 7 CONSTITUTIONAL REFORM IN TIMES OF TRANSITION INTrodUCTION: PRIORITISING THE LEGITIMACY OF THE proCESS BY ÁLVARO VASCONCELOS “Our constitution is called a democracy because power is in the hands not of a minority but of the whole people” Thucydides, History of the Peloponnesian War The Arab Reform Initiative (ARI) conducted a project entitled Living Constitutions which addressed constitutional reform in times of democratic transition with the goal of contributing to the debates on democratic consolidation in the Arab world. The project used comparative analysis to address both substantive constitutional issues and the processes of constitution building. The work was enriched by a research conference in Ankara, Turkey organised in cooperation with the Economic Policy Re- search Foundation of Turkey (TEPAV). This text is intended as an introduction to the project, collect- ing a number of basic ideas from the individual country papers, the 2012 kick-off conference in Ankara and discussions about the main findings at follow-up meetings in Tunis and Cairo. The project was directed by Álvaro Vasconcelos with the assistance of Gerald Stang. One of the most important and polarising topics for the on-going democratic transitions in the Arab world has been the process of creating new constitutions. Constitutional processes can be especially important for democratic transitions because they are critical in the construction of national con- sensus and democratic political legitimacy, particularly after a revolution. Comparative analysis of different constitutional processes can enrich the debate in counties going through these processes. At the time of publishing, Tunisia had just achieved its goal of finalising a democratic constitution. It was approved with wide political consensus and is considered quite advanced on commitment to international norms guaranteeing human rights, women’s rights, the protection of religious freedom, freedom of conscience and social rights. Each democratic transition is unique and lessons may be learned from studying multiple cases. The project studied democratic transitions in southern Europe in the