Experts convene to discuss constitutional successes and failures
Discussants and participants
Denis GALLIGAN, Oxford University, Director of Programmes FLJS
Monika MAGYAR, Head of Development, Science of Constitutions Programme, FLJS
Frank VIBERT, London School of Economics
Finola FLANAGAN, Council of Europe’s Venice Commission
Daniel SMILOV, Sofia University
Adam BODNAR, Ombudsman for Poland
Pierre AURIEL, Maison Française d’Oxford
Elham FAKHRO, Oxford University
Cristobal BELLOLIO, Universidad Adolfo Ibanez, Chile
John HOWELL, J. Howell Ltd
At the end of last week, academics and legal experts came together to discuss and debate the science of constitutions, using case studies from France, Chile, Poland, the Gulf States and Turkey to demonstrate successes and failures in countries experiencing change, conflict or crisis.
The event was a continuation of the Science of Constitutions Programme that the FLJS has been developing. It applies academic research to practical issues of constitution-making and amending and the resolution of practical constitutional problems and conflicts.
Denis Gallagan, Professor of Socio-Legal Studies, University of Oxford and Director of the Foundation for Law, Justice and Society, opened the workshop by questioning the social foundations of constitutions, asking what the basic social role and function (or place) constitutions have and what variables contribute to their success or failure.
Prof Galligan asked what was behind people’s decisions to ‘acquiesce’ and accept the principles and decisions of those in authority. He questioned what it was that led people to stay within the ‘rules’ of society, even when there were known injustices and misuse of power.
Instead of social contract, moral or religious principles alone, Prof Galligan proposed a new theoretical model to explain a harmonious and fruitful social order: rational self-restraint. By taking that as an alternative to the social contract, the theory of rational self-restraint could be empirically tested and researched as a ‘type’.
A successful constitution, argued Prof Galligan, was one which matched the social, political and economic order of society. A failure was the converse.
Understanding rational self-restraint, through empirical research, investigation and context, would lead to a greater understanding of the importance of the alignment of social, political and economic factors in generating greater acquiescence and societal acceptance.
Frank Vibert, Senior Visiting Fellow at the Department for Government, London School of Economics, asked ‘Where’s the Mischief?’. In an argument that will be played out in more detail in a forthcoming book (as yet untitled), he examined the gap between constitutionalists and democracy theorists, asking whether constitutions offer the support democracies need.
He approached the analysis by examining the overarching (contracts, choice, co-ordination) and the structural (foundational, canonical and purposive elements before discussing other elements of a successful constitution, including fairness, reciprocity and short versus long-term benefits.
Finola Flanagan, former Irish member of the Venice Commission for Democracy through Law from 2002 to 2014, gave an outline of the Council of Europe and the Venice Commission and how it responded to countries’ requests for advice and assistance with constitutional matters.
She explained how the Venice Commission offered opinion, studies and reports, plus information through publications, conferences and training on a variety of activities including protection of fundamental rights; constitutional justice; co-operation with constitutional courts; ordinary courts and mediators; elections; referendums; and political parties.
Recent examples of opinion given includes constitutional amendments in Belgium, Finland and Hungary; constitutional reforms in Armenia, Georgia, Iceland and Tunisia; and defamation issues in Azerbaijan and Italy. More detail can be found on the Commission’s website: www.venice.coe.int
Daniel Smilov, Associate Professor in the Political Science Dept at the University of Sofia and Programme Director at the Centre for Liberal Strategies, Sofia, outlined the major features of Turkey’s constitution. He explored the transition from parliamentarism towards semi-presidentialism and charted the country’s political history. He examined the trends and current challenges Turkey has with a dual executive model.
Adam Bodnar, Ombudsman for Poland, looked at Poland’s constitution in terms of the judiciary and parliamentary decisions and how organisations such as the ombudsmen are used for proper checks and balances.
He gave an outline of Poland’s constitutional court crisis of 2015, in which the new parliament has battled with decisions made by the outgoing parliament in relation to the election of constitutional tribunal judges and the decision by the ruling party (Law and Order) to change the tribunal court’s decision-making power (to a two-third vote and mandatory participation of at least 13 of the 15 judges). He raised the question of how this will affect the constitutional landscape and what solutions could be found.
Pierre Auriel. Academic visitor at Maison Française d’Oxford, gave a presentation entitled Between Scylla and Charybdis: The Constitutional Reaction to Terrorist Attack
In which he examined the Scylla and Charybdis (the Greek mythological idiom translated as having to choose between two evils) of constitutional amendments in light of the recent terrorist attacks in France.
He outlined the two key issues: that the current constitutional rules are based on a very different political and social situation and should they be kept (Charybdis)?; and the move to enshrine the state of emergency powers in the constitution (Scylla). He asked whether constitutions should be amended in an emergency, with little time to think through the long-term consequences.
The issues he identified were whether the current state of emergency is a state of exception, whether the country is still thinking as it’s dealing with a state of exception and whether the powers that be are able to clearly think through the modification of the balance between freedom and security.
Elham Fakhro, of St Antony’s College, Oxford, outlined the emerging constitutions of Bahrain, Kuwait and Saudi Arabia and asked whether they are codifying authoritarianism or can be seen as pathways to accountability. She examined the social significance of each of the constitutions and asked how success could be defined.
She gave examples of where social movements can – and have – negotiated the middle ground, such as the public campaign to reduce electoral regions from 25 to 5 in Kuwait (the Orange Movement) and public protests in Bahrain to protect constitutional reform.
In the last presentation of the day, Cristobal Bellolio, lecturer in political thought at Universidad Adolfo Ibanez School of Government, Chile, gave an account of the history of Chile’s constitution, amendments to it, the movement for a constituent assembly and the recently-announced seven steps to a new constitution. He examined the procedural versus the substantive and looked at the role for new generations in the political future.
Podcasts and policy briefs from the day will be available on the FLJS website over the coming weeks and months. To be notified when these resources become available and to receive invitations to future events, please follow us on Twitter or subscribe to our bimonthly e-newsletter.