The Arab Spring has laid bare important contradictions in best practices in constitution-making in transitional states

Constitutional transformation is at the heart of the Arab Spring. To establish new democracies necessarily entails creating a new constitutional order. What requires urgent attention is the international community’s role in supporting these constitutional transitions. International support for constitutional change suffers from the absence of a coherent, integrated agenda. Even worse, there are agendas often working at direct cross-purposes. International engagement is, as a result, often ineffective or counterproductive. The stakes could not be higher. Without good constitutions in place, the prospects for successful democratic transitions are grim indeed.

Constitutional transitions pervade modern political life. Since 1978, 185 new constitutions have been drafted and adopted around the world. New constitutions are central elements of regime change and democratization. Constitutional transitions are now globalized phenomena, drawing freely on ideas and people from around the world. Foreign constitutional systems serve as examples of models to be emulated, lessons to be learned, and dangers to be avoided. The international community deploys foreign constitutional expertise to support constitutional transitions. The Arab Spring is the latest chapter in this larger story. There is a very significant international effort underway to support constitutional transitions across the region.

Unfortunately, there are at present two competing agendas at work in current international efforts. One agenda views constitutional transitions as moments of mass democratic engagement that must occur in a process that is itself democratic at every stage. On this logic, a constitutional assembly should be chosen at the earliest possible opportunity in order to draft a new, post-authoritarian constitution. The assembly should invite broad public participation to set its agenda. The debating and drafting of the constitutional text should take place in public, with ample opportunity for input by civil society. Finally, the entire constitution must be subject to democratic ratification in a popular referendum. This agenda is silent on the most divisive constitutional issues in transitional contexts. For example, on the choice of parliament versus president, or unitary versus federal state, proponents of this agenda have nothing to say. As long as a constitution has a democratic pedigree, it is legitimate.

A competing agenda sees constitutions as elite bargains. The most important ingredient for constitutional stability is that the major political interests have their core interests reflected in the constitutional settlement. The goal is to ensure that they have more to gain from living under a common constitutional order than by settling their disagreements in the streets. A successful constitutional process is one that is dominated by the most powerful political interests. Moreover, the result of that process should be a power-sharing arrangement that leaves no major interest without some public power. Stability trumps legitimacy.

The international community often promotes these two constitutional agendas side by side. This produces policy incoherence and impedes international efforts to promote democratization. For instance, the first of the two constitutional agendas promotes inclusive constitutional processes, whereas the second offers a privileged role for those who wield power – especially if they are armed. The first favours early elections, whereas the second counsels that elections be deferred while trust is built among contending political forces. Finally, the first demands that constitutional drafting occur without preconditions or restraints, whereas the second provides guarantees to those who may lose power and rarely wield it again.

What is needed is the development of an integrated framework for international support of constitutional transitions. Instead of two competing agendas at war with each other, each should be seen as appropriate to different stages of the constitutional process. When trust is low, and the potential for political violence high, democratic processes should be delayed in favour of those that are centred on the current distribution of power. However, we also need to ensure that we can eventually unwind power-sharing arrangements in favour of democratically elected regimes. The shift to democratic politics has to give those who could potentially lose power a stake in the system by providing them with the means to protect their fundamental interests. Electoral system design (e.g. proportional representation), legislative structure (e.g. bicameralism), legislative-executive relations (e.g. parliamentary government) and decision-rules (e.g. vetoes, super-majority requirements) are all designed to underwrite a shift to democratic politics.

In the rush toward democracy, it is tempting to gloss over these distinctions and contradictions. Constitutional lawyers are often accused of getting lost in the small technicalities, and of not seeing the bigger picture. But the details matter greatly to the success of constitutional transitions – and, to be sure, to the prospects of success for the Arab Spring.

Sujit Choudhry is Cecelia Goetz Professor of Law at the NYU School of Law, where he is the Faculty Director of the Center for Constitutional Transitions.