Democracy Lab

Four Arab Democrats and a Constitutional Scholar Walk Into a Bar

Some free advice for my MENA friends.

Barkeep! Five araks over here, please. Plus some tabouli and figs. What's that? Oh sorry, my mistake. Let's make that one arak, four iced teas ... Actually, forget the arak. Make mine a Cuba Libré. Virgin. Thanks. 

So tonight we're toasting you, Tunisia, for finally finishing your draft constitution. Sure, I realize that this is not the end of the story. You've still got some unresolved issues (and some opposition leaders crying foul about alleged changes smuggled into the text). But your constitutional process still remains the best in class. As my friend Taufiq Rahim recently put it: "[Tunisia] is the place where there is a potential for change, new ideas, and a new direction for the Arab world." 

Bottoms up! 

Okay. So guys, I'm sorry it's taken us so long to have this talk, but I just don't think we can put it off any longer. The main events of the Arab Awakening are now two years behind us, and you're all still having big problems with drafting and implementing new constitutions. Only one of you has succeeded in passing a constitution into law -- doing so in a fashion that just ensured all sorts of problems will go on simmering. (Yeah, I'm looking at you, Egypt.) As for the rest of you, you've gotten bogged down debating procedure or wrangling over language or arbitrarily extending deadlines

Now I realize that you've a lot of other stuff on your plate -- you know, trivial matters like, say, holding elections or reviving your economies. But the more time you spend dithering over constitutional specifics, the more frustrating it is to stick to the process. Just look at Nepal: They've been trying to agree on a constitution for eight years now. Nobody wants to end up like them, right? And don't even get me started on Zambia ... 

But here's the good news: These aren't the examples you should really be worrying about. If I had only one message to give you, it would be this: Chillax. 

As exasperating as this halting process might be, you may actually be better off this way. Making constitutions has always been a difficult proposition. Even Machiavelli knew that and said as much: "It should be borne in mind that there is nothing more difficult to handle, more doubtful of success, and more dangerous to carry through than initiating changes in a state's fundamental order..." That was centuries before constitutions came to be regarded a hallmark of the modern, functional state (like a good international airport or a nationwide TV network). 

The fact is that it's way better to draw up a constitution that's built to last, rather than steamrolling through some tragically flawed caretaker document simply to get the monkey off your backs. When constitutions are rushed, they often prove untenable. And if there's one thing we know about constitutions, it's that having broad-based agreement is paramount. Only when numerous groups feel a strong stake in a constitution's success will they defend it -- should the need arise. Getting there requires horse-trading, which in turn requires time. 

That's why you, Egypt, majorly screwed up by pushing your constitution through more or less on the sly (over the objections of the rather large chunk of the Egyptian citizenry that doesn't support the Muslim Brotherhood). Yeah, you got your constitution pretty fast -- but you did it by avoiding just the sort of vexing-but-necessary public discussions crucial to building democratic consensus. While constitutions seek to restrain government, they play an equally vital role in protecting democracy from its own excesses. But this can go completely wrong with unilateral shows of majoritarian force. In any case, majorities are short-lived; Constitutions shouldn't be. 

Well my friend, what's done is done -- but know that your constitution faces some stormy seas ahead. Also know that amending your way out of this mess will likely prove more traumatic on its own than the entire process should have been. 

That's why writing a constitution is not something to be taken lightly. Someone should have told you about the Locrian Code. This ancient Greek law system (one of the world's most ancient) required that anyone proposing a modification to it had to do so with a noose around their neck, so as to facilitate their immediate execution should the measure be defeated. That may sound harsh, but it's not far off. Rewriting a constitution is not free: it's an investment, and a very risky and expensive one at that. Whenever a government decides to redesign the constitution in accordance with its own specifications, previously established procedural and institutional norms will rarely carry over. These are crucial to successful governance, and can take decades to develop. The resulting vacuum is itself destabilizing. Worst yet, such changes can trigger vicious cycles. Woe betide the state whose constitutional ADHD becomes habitual. (My own, Venezuela, has endured 26 different constitutions since its founding. You can judge for yourselves how good it's been for the country.) 

All this goes to show you, Tunisia, why you were so lucky to have Rachid Ghannouchi, a singular figure who acted as the voice of reason during the chaotic post-revolutionary period. Ghannouchi's influence and willingness to seek consensus with the opposition, even though his Ennahda party could have hijacked the process -- just as Egypt's Islamists did -- have been vital. There's no question that this strategy has drawn out the whole process, but that was the right choice. 

Now you just have to avoid falling apart just as you reach the goal line. Recently some of the members of your National Constituent Assembly (NCA) have been talking about sending especially thorny issues to a national referendum if they can't arrive at consensus on their own. That is a really, really bad idea. Popular majoritarian sentiment, particularly of the post-revolutionary variety, doesn't usually lend itself to dispassionate compromise. But that's exactly what you'll need to drive a successful constitutional project home. 

Which brings me to you, Libya and Yemen. I know you want to jump in. And I hope you won't mind if I'm frank. 

Now don't take this personally, Libya, but right now you're still kind of a mess. Sure, you managed to pull off a remarkably inspiring election, and there are promising signs your economy may be rebounding. But the constitutional project hasn't even entered the drafting stages, while the largely unelected National Transition Council (NTC) and your legislature are still butting heads over who the drafters will be. Meanwhile, the security situation has been going steadily downhill. Just look at the recent efforts by militias to take over government ministries in Tripoli. That certainly doesn't bode well. 

Nor, for that matter, does tightening social controls that have forced many of your more progressive voices on issues like personal rights and minority protections to flee the country. Honestly, any constitution that emerged from such conditions would already be born on life support. 

It's important to remember, that drawing up a constitution isn't an end unto itself. It's supposed to serve the aim of establishing stable ground rules for a functioning polity. But you can't just charm that into existence if the conditions aren't right. How are you going to draft a viable constitution while there are still armed gangs running the place? 

After all, the Spanish transition from Franco-era dictatorship to democracy, a model that you've looked to for inspiration, took several years to reach the point where establishing a new constitution seemed appropriate. The drafters didn't force themselves into onerous timetables. Here's a thought: Why not just extend the provisional constitution for two or three years at a stroke (rather than a few months at a time) to allow you some space to get back on track? Like Tunisia, you've still got some of the institutional structures from the old regime to keep you going in the interim. Think about the fact that you're following a thirty-year period in which you essentially had no constitution at all. (It was replaced by Qaddafi's Green Book.) So why not give yourself the chance to get it right? 

Or, to phrase it differently: Why put the catharsis before the horse? (Ahem.) 

Same goes for you, Yemen. It's hard to know precisely what's going on with you, but it's clear enough that you're going through a phase of violence and instability comparable to Libya's -- but without the benefit of those inherited institutions. But your situation is even more complicated because of all the outside powers that are now involved. I know that you actually asked the French to come in and advise you on your constitutional transition. But both Russia and Iran simply invited themselves to the party -- as has the United States. You need to get some of these guys out of your house. 

I know. None of this is easy. It's one of the sad ironies of the business that the very countries most desperate to write new constitutions are usually in the worst positions to do so. Revolutions or changes in regime are almost invariably followed by periods rife with chaos, economic turbulence, power struggles -- not exactly the right environment for cool heads and brokered compromise. But it is what it is. 

Which reminds me: It's getting late. How about I spring for the check?

Peter Macdiarmid/Getty Images


The Most Dangerous Border in the World

Why is China picking a fight with India?

Editor's note: On Monday, India's foreign ministry announced that India and China had agreed to withdraw troops from their disputed Himalayan border and end a tense three-week standoff between the world's two most populous countries. 

The night before Beijing released its biennial defense white paper in mid-April, avowing that it would not "engage in military expansion," roughly 30 Chinese troops marched 12 miles into Indian-controlled territory. For at least the last five years, the Chinese military has routinely made forays across the disputed 2,400-mile-long Line of Actual Control that divides the two countries. The Indian government counted 400 similar incursions last year, and already 100 in 2013.

But for the first time since 1986, the People's Liberation Army (PLA) troops refused to return home after being detected. They instead pitched three tents. New Delhi quickly summoned the Chinese ambassador, and Indian military officials protested to their Chinese counterparts. The Chinese soldiers responded by pitching two more tents, and erecting a sign, in English, that said "You are in Chinese side." Three rounds of unsuccessful negotiations broke off May 1, with Beijing demanding that New Delhi unilaterally withdrawal from its own territory before it would consider removing its encampment. Meanwhile, China's Foreign Ministry spokeswoman denied that PLA troops had even penetrated the boundary, paradoxically noting, "China is firmly opposed to any acts that involve crossing the Line of Actual Control and sabotaging the status quo."

On April 25, India's External Affairs Minister Salman Khurshid situated the crisis in the context of Sino-Indian relations: "One little spot is acne, which cannot force you to say that this is not a beautiful face. That acne can be addressed by simply applying ointment." Khurshid will likely regret this remark, not only because it is a bad metaphor, but because it is wrong. Initial diplomatic efforts have failed, and even though war is unlikely, the standoff is a reminder of the deep and potentially dangerous rivalry that simmers below the Sino-Indian relationship.

It is a strange time for China to pick this fight. With potential instability on the Korean Peninsula and sovereignty disputes in the East and South China Seas, it belies strategic logic for Beijing to open a new front of territorial revisionism. And it seems India agrees: One Indian general called the move "an inexplicable provocation."

Perhaps it was a case of a PLA officer going rogue. Perhaps China wanted to send a message of strength in advance of high-level visits in May, when foreign minister Khurshid goes to Beijing and Chinese Prime Minister Li Keqiang visits Delhi on his first official trip abroad since taking office in March. Or perhaps, as many in the Indian media are speculating, Beijing is signaling it will no longer tolerate India's stepped-up patrols and infrastructure development along the border.

While China's motivations remain unclear, the potential implications are massive. The Sino-Indian dynamic is often seen as a sideshow to Beijing's more immediate rivalries with the United States and Japan. But more intense strategic competition between India and China would reverberate throughout the continent, exacerbating tensions in Central Asia, the Indian Ocean, and Southeast Asia. Disruptions to the Asian engine of economic growth caused by these tensions could debilitate the global economy.

The history of today's crisis predates the founding of both the People's Republic of China and the modern Indian state, in 1949 and 1947 respectively. The now-disputed border was established between Britain and a then-independent Tibet in 1914; China and India confirmed it as the de facto border in a 1954 treaty. In 1962, tensions stemming from India granting asylum to the then 27-year-old Dalai Lama, Chinese official maps claiming Indian-administered territory, and Indian border patrols in disputed areas boiled over into a one-month conflict. Although the Sino-Indian War was a decisive victory for China, it resulted in a return to the status quo.

Mutual antagonism persisted for decades amid periodic border skirmishes. Only in this century have the two sides begun to improve relations, with bilateral trade growing from less than $3 billion in 2000 to over $70 billion in 2011. And leaders are sticking to a $100 billion target for 2015, despite a roughly 12 percent contraction in 2012. But as China's rocky relationship with its second largest trading partner Japan shows, economic interdependence is no guarantee of friendly relations, and severe trade imbalances in China's favor have been an ongoing source of tension in India.

Numerous other friction points persist between the two nuclear powers. China frequently complains that India's offering of refuge to both the Dalai Lama and the headquarters of the exiled Tibetan government constitutes tacit support for China's territorial disintegration. And India is dismayed by Chinese plans to build a series of dams on the Brahmaputra River, which originates in Tibet but flows into India. Tens of millions depend on the river, and water competition between the two countries will likely continue to grow.

Chinese expansion into the Indian Ocean -- which India regards as its backyard -- also raises hackles in New Delhi. Indian media reported in April that a classified Defense Ministry document alleged Chinese submarines have been making routine forays into the Indian Ocean. In February, a Chinese company assumed administration of Pakistan's strategic Gwadar port, reviving fears that China is seeking a stronger foothold along India's periphery. Geostrategic competition also extends to Myanmar, where China and India have long competed for influence, and is complicated by China's friendship with India's archenemy, Pakistan.

And popular mistrust aggravates these political disputes: A 2012 poll by the Pew Research Center found that only 23 percent of both Indians and Chinese hold a "favorable" view of each other.

Now, with Chinese troops in Indian-controlled territory, it is New Delhi's move. There will be immediate diplomatic implications on the content and atmospherics of upcoming high-level visits. The Indian military will have to consider augmenting its presence and capacity at the border, as it has during previous crises. Some Indian commentators are also suggesting that Delhi re-open the question of China's legitimate rule over Tibet, which would certainly anger Beijing.

Over the last decade, India has conducted a landmark naval exercise with Japan, trained Vietnamese fighter pilots, and held increasingly sophisticated maritime exercises with Singapore. Even if diplomacy prevails and both sides find a face-saving resolution to the current standoff, the incident will likely cause India to strengthen its political and military relations with countries throughout East and Southeast Asia. Delhi should lend "a shoulder to countries such as Japan, Vietnam and even Singapore who are fearful of China's hegemonism," argues Swapan Dasgupta, a leading Indian journalist.

A rerun of the 1962 conflict is unlikely; neither country is mobilizing for war and the presence of a few dozen PLA troops does not harbor the potential for rapid escalation like the high-seas gamesmanship in the South and East China Seas. Nevertheless, if the two sides cannot reach a lasting political solution soon, competition could overwhelm the positive tenor that has defined Sino-Indian relations in recent years. There are few worse things that could happen to Asia than its two biggest giants backsliding into rivalry.

BIJU BORO/AFP/Getty Images