The Working Paper Series stems from the constitution building processes in Egypt and Tunisia in the wake of the Arab Spring. As one of the primary international institutions supporting constitution building in both countries, International IDEA commissioned leading international experts to produce research papers on specific issues of constitutional design on the agenda of the constitutional assemblies of Tunisia and Egypt.

International IDEA, together with Constitutional Transitions, has brought these papers together in this Working Paper Series. The papers reflect recent constitutional developments, such as Tunisia’s third draft Constitution (22 April 2013) and Egypt’s post-revolution Constitution, approved by referendum and brought into force on 26 December 2012. This working paper series aims to bring the experience of the Tunisian and Egyptian constitutional transitions to a broader audience, with each paper addressing a specific question of constitutional design.

The Series is edited by Zaid Al-Ali (International IDEA) and Richard Stacey (Constitutional Transitions). The contributions in the Series are:

The entire working paper series is available online here.

March’s article, part of a larger book project, provides a historical and conceptual background to certain contemporary attempts to harmonize ideals of divine and popular sovereignty. In particular, he examines the pre-2011 doctrines of Tunisian Islamist leader, Rachid al-Ghannouchi, particularly his attempt to reconcile visions of divine and popular sovereignty through the doctrine of a universal covenant of vicegerency. March contrasts Ghannouchi’s doctrine of a “caliphate of man” with other modern attempts to institutionalize divine sovereignty in Saudi Arabia and Iran, while suggesting a set of ambiguities this doctrine raises both for the idea of rule by divine law and for post-revolutionary expectations of democracy within a “civil state.”

At the colloquium, March elaborated on the concept of the caliphate of man, which suggests that the Islamic community is collectively designated as God’s caliph (or deputy on Earth), and thus entitled to a direct role in determining how to define divine law. He discussed how this concept might be used to shape a democratic system of governance in Muslim-majority nations. He also described how the caliphate of man doctrine differs from the approach taken to governing in the theocratic states of Saudi Arabia and Iran.

March’s talk concluded the Constitutional Transitions Colloquium for the 2012-13 academic year. In fall 2013, the Constitutional Transitions & Global and Comparative Law Colloquium: Emerging From / Sliding Back into Authoritarianism, will convene. More information on this colloquium series will be available online shortly.

The full-day event was attended by 70 faculty members and students, including Dr. Chafik Sarsar, a prominent scholar of constitutional law and advisor to Tunisia’s constitution drafting process, and Zaid Al-Ali, Senior Advisor on Constitutional Building at International IDEA. The audience responded positively to the presentations, posing many questions to the researchers, especially relating to how constitutional provisions should be drafted to achieve the specific policy outcomes detailed in the reports.

Constitutional Transitions mobilizes knowledge by providing ‘back office,’ real-time support to constitutional advisors through the Constitutional Transitions Clinic, which is the only organization of its kind in the world.  For 2012-14, the client of the Constitutional Transitions Clinic is the West Asia and North Africa office of International IDEA.  Our work with International IDEA has two major components:

• First, a team of 16 student researchers, based at NYU School of Law, are preparing six, 50 pp. thematic research reports on constitutional issues that have arisen in more than one country in the Middle East and North Africa region.  For year 1, the reports will be on the design of constitutional courts, political party finance regulation, and semi-presidentialism (where power is shared between a president and prime minister).  The ultimate work product will be a set of six reports, which will be translated into Arabic and disseminated on-line, and jointly published by International IDEA Constitutional Transitions.
• Second, nine field researchers are stationed with International IDEA for 4 months each in the Middle East. The researchers anchor our client relationship with International IDEA by providing on-the-ground support for its technical assistance activities.

President Marzouki graciously welcomed the group at the Presidential Palace. Constitutional Transitions’ researchers posed questions to the President on substantive constitutional matters, including appointment of judges to the constitutional court and the roles of transitional justice and political parties in a transitional context. The president emphasized the need to include all actors and to strive for consensus in developing the country’s emerging constitutional framework. “It was a tremendous honor to have a private audience with President Marzouki. Our meeting was a testament to the importance of our project with International IDEA to support constitutional transitions in the region,” said Sujit Choudhry following the meeting.

Afterwards, the researchers met with Ahmed Ouerfelli, senior legal advisor to the President, who presented and answered questions relating to a proposed initiative for an International Constitutional Court. The initiative involves establishing a mechanism of distinguished jurists to provide legal opinions regarding adherence to democratic standards.

In addition, the researchers were received at the Parliament building that afternoon by three members of the Constituent Assembly, representing both the government and the opposition as well as religious and secular parties. Researchers spent nearly two hours discussing the constitution drafting process, engaging in a detailed discussion on the wide range of issues we have encountered in our clinic research.

While in Tunis, Constitutional Transitions’ researchers also held meetings with U.S. Ambassador Jacob Walles and Public Affairs Officer James Bullock at the US Embassy, where they presented their research and were able to ask the American officials for their perspective on the ongoing transition process.

Bâli’s article engages with the concept of secularity as articulated by Charles Taylor, whose account of the origins and evolution of the concept of secularity is based in the contingent cultural context of a largely European post-enlightenment trajectory. Bâli’s paper examines Turkish secularization policies that, while modeled on the West, were imposed indigenously and voluntarily (rather than through colonial compulsion). She finds evidence in the Turkish case of several of the forms of secularity described by Taylor, but suggests that examining secularity in Turkey highlights the incompleteness of Taylor’s narrative, which offers little analysis of critical encounters between East and West that were constitutive of both. Specifically, she argues that Taylor’s work does not provide an account of the diffusion of Western models of secularism in non-Western contexts – both through intellectual exchange and through institutional borrowing – and the alternative indigenous expressions of secularity produced through such diffusion. Bâli uses the Turkish case to show how the borrowed concept of secularity has taken an idiosyncratic trajectory and one that has produced an alternative framing of legal and constitutional debates on the definition and role of secularism.

During the colloquium session, Bâli discussed how the Ottoman Empire, the Turkish republic under Kemal and, more recently, Turkey under the Justice and Development Party (AKP) all undertook to define and regulate religion in different ways, in order to further their broader goals for the state. Bâli also described some of the ongoing debates in Turkey regarding how state institutions interact with religion, including the courts, the education system, and the civil service.

The final session of the Constitutional Transitions Colloquium, on 1 May, will feature Professor Andrew March of Yale University.

The Vetting Board was established in 2011, and is provided for by the Sixth Schedule of Kenya’s 2010 Constitution. The 2010 Constitution was drafted in the aftermath of severe violence that followed the disputed 2007 presidential election, leaving more than 1,000 people dead and 500,000 displaced. One important grievance that fueled the violence was concern from the opposition regarding the courts’ inability to prevent election fraud and protect electoral competition. The creation of the Vetting Board was an important part of the post-election constitutional settlement. The Board is composed of six Kenyan citizens, three of whom shall be lawyers, and three distinguished foreign judges, including Sachs. The other two foreign judges are Frederick Chomba, former Justice of the Zambian Supreme Court, and Georgina Theodore Wood, Chief Justice of the Ghanaian Supreme Court.

Sachs explained that the role of the Vetting Board was to determine whether sitting judges were suitable to remain in office, based on criteria of impartiality, integrity, sound temperament, and “capacity to apply good sense.” Sachs detailed the Board’s methodology, including which judges would constitute a panel and what evidence would be presented. He also addressed several obstacles the Board faced, including the need to balance the time pressures of political transitions with the requirements of a thorough hearing, and the need to balance confidentiality with a public demand for transparency. Another challenge, Sachs explained, was that judges against whom orders for removal have been made have tried to challenge the Board’s findings in court, despite that no such right of appeal exists. Indeed, in some cases, judges would issue rulings to suspend investigations into their own conduct.

Despite the challenges, Sachs viewed the Board’s role as a success, specifically commending the influence of his fellow international judges on the Vetting Board’s determinations. “The proof,” he said in closing, “is in the pudding,” nodding to the largely peaceful Kenyan presidential election that took place in March 2013 and challenger Ralia Odinga’s decision to respect the Supreme Court’s authority in upholding his opponent’s victory.

Read more about Albie Sachs’s lecture here.

Libya is currently governed by an interim set of constitutional arrangements inscribed in its Constitutional Declaration, which endows a Constituent Assembly (CA) with the responsibility for drafting a permanent constitution. A major point of controversy has been whether the CA should be selected by Libya’s legislature, the General National Congress (GNC), or elected directly by the country’s electorate. The Constitutional Declaration originally provided for a selected CA, but was amended in July 2012 to require elections. In February 2013, the Libyan Supreme Court struck down this amendment because it had not secured support from a super-majority of legislators in the GNC.

Choudhry suggested that the Libyan Supreme Court’s judgment provides an important pause to reflect on how best to assign legislative and constitution-making powers during constitutional transitions. The threshold decision, Choudhry argued, is whether to vest both functions in the same body, with a legislative committee charged with drafting the constitution, or instead to establish a CA that is distinct from the legislature and elected separately. A directly elected CA has the advantages of avoiding possible conflicts of interest that arise from entrusting politicians to draft the constitution that grants them powers. Depending on the electoral system used, a directly elected CA can also be more inclusive and representative than one selected by the legislature and can include non-politicians.

However, a CA separate from the legislature also poses disadvantages. Limiting the legislature’s role in creating a constitution may result in political elites not supporting the constitution, rendering it politically unstable. Thus, establishing bodies that combine legislative and constitution-making functions, as occurred in India and South Africa, may be a preferable constitutional option.

Stilt’s book project focuses on the incorporation of references to Islam and Islamic law in modern constitutions. Among these references are what Stilt calls the Islamic “establishment clause,” which provides that Islam is the religion of the state; the “source of law clause,” which states that the Islamic shariah or its principles are either a source, or the main source, of legislation; the “Islamic state clause,” which declares that the nation is an Islamic state; and the “repugnancy clause,” which explicitly declares invalid any laws that are in conflict with shariah.

The “establishment clause,” Stilt notes, is the most common of these, having been incorporated into the modern constitution of more than twenty countries. At the colloquium, Stilt discussed the history of Malaysia’s constitution, drafted just before the country’s independence from Britain in 1957. She explained that what drove the incorporation of this clause was not a commitment to Islam per se, but rather the construction of a post-colonial Malaysian identity around the overlapping grounds of ethnicity, language, and citizenship, and the building of a strong central government that would hem the authority of the hereditary rulers of many Malaysian states under a federal constitution. Stilt also connected her research to the current constitutional processes underway in Egypt and Tunisia, and considered its implications for future processes in Libya and Syria.

The next session of the Constitutional Transitions Colloquium, on 3 April 2013, will feature Professor Asli Bâli, Assistant Professor of Law at the UCLA School of Law.

The event, “Sri Lanka: Post-War to Post-Conflict,” addressed the various ways in which the current government has failed to capitalize on the end of the civil war as an opportunity to strengthen democratic governance and political reconciliation, and has instead undertaken decisions which will ‘sustain and reproduce the roots of conflict,’ according to Dr. Saravanamuttu.

Dr. Saravanamuttu’s presentation focused on three such instances: a refusal to acknowledge the rights abuses and alleged war crimes suffered predominantly by the Tamil population; a frozen process for resolving the country’s ethnic tensions; and the capture of state institutions by the ruling Rajapaksa family. Saravanamuttu detailed the specific rights violations that have accompanied the detention and forced resettlement of internally displaced persons and the militarization of Tamil-majority regions of the country. He openly doubted the government’s commitment to reconciliation, arguing it believed its military victory was sufficient to end any discussion of a greater devolution of power from the central government to the provinces.

Professor Coomaraswamy, echoing these concerns, inquired as to how the regime has been able to maintain its course despite attracting increasing negative attention. Challenging claims that pure private interest motivates the country’s ruling class, she argued the President has attracted real political support from among the Sinhalese elite in the country’s south, grateful for the end of the war and local development, even at the expense of restrictions on individual liberty.

Coomaraswamy identified the major problem facing the country as an erosion of the rule of law, and a lack of meaningful checks and balances or due process. In particular, Coomaraswamy spoke to the absence of civilian oversight over the military and the government restricting the role of independent commissions as two pressing concerns. The military, benefitting from a culture of impunity and an ability to sidestep state bureaucracy, has implemented military government and extensive surveillance of the island’s north and east, while also claiming de facto authority in areas as mundane as park maintenance and selling of crops. The independent commissions, and the 17^th Amendment which authorized them, were repealed by the 18^th Amendment, which simultaneously removed any presidential term limits.

Dr. Saravanamuttu is the Executive Director of the Center for Policy Alternatives, a founding board member of the Sri Lankan chapter of Transparency International, and a widely quoted expert on security and governance issues in Sri Lanka. Professor Coomaraswamy is currently an NYU Global Visiting Professor of Law and Visiting Fellow at Constitutional Transitions. She recently served as the U.N. Special Representative for Children and Armed Conflict.

The Center was highlighted in a section on best practices of international and regional actors, alongside well-established international civil society organizations such as the International Institute for Democracy and Electoral Assistance, the International Center for Transitional Justice, and the Geneva Centre for the Democratic Control of Armed Forces. Prominent UN bodies and leading regional organizations are also identified in relevant paragraphs.

“We’re very pleased that the Office of the High Commissioner and the Human Rights Council are dedicating themselves to developing best practices in the field,” said Faculty Director Sujit Choudhry, adding “it is a privilege to be included in such a robust coalition of actors working to secure democratic governance worldwide.”

The report was prepared for the UN Human Rights Council in accordance with a resolution passed in March 2012. The report examines various challenges to democracy, ranging from social and economic inequality to political instability. Among other topics, it stresses the needs of states transitioning to democracy, and the importance of constitutional reform in the “redistribution of political power with a view to secure effective government underwritten by the rule of law and human rights.” The full report is available here.