Tag Archives: constitution

The Need for Constitutional Protection of Private Enterprise

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Constitutions can play an important role in protecting economic liberties, in addition to political liberties. As the state’s foundational legal document, the constitution can provide the essential framework for establishing commercial freedom and promoting the development of the private sector. For example, CIPE partner the Syrian Economic Forum (SEF) is developing proposals for the constitutional protection of private enterprise during a future transition period in Syria.

Different countries have taken a variety of approaches in tailoring their constitutions accordingly, which should be examined in determining how Syria’s next constitution will promote and protect private enterprise.

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Democracy’s Fourth Wave?

Much has been written and said about the ongoing public uprisings in the Middle East and implications for democracy in the region. In a recent article in the New Republic, Carl Gershman, President of the National Endowment for Democracy, goes beyond the Middle East and ponders the global implications of these uprisings. Are we seeing the fourth wave of democracy develop before our own eyes?

As Gershman notes, one of the most interesting things about Mideast uprisings has been the fact that peaceful pro-democracy protests began to take place where most people least expected them. While the world’s attention was focused on Russia, Venezuela, Belarus, Iran, Cuba, Bolivia, North Korea, and other places where civil society strives for very basic freedoms, few had thought of even a possibility of the fundamental changes we are seeing today in the Middle East.

And as the changes are taking place, there are several reasons, according to Gershman, that current events will give rise to the fourth wave of democracy:

  • We are seeing that democracy is indeed a universal value, and “Arab exceptionalism” theory does not hold ground.
  • The majority of people in the Middle East, just as in other parts of the world, prefer democracy as the best form of government, according to public opinion surveys.
  • Autocratic governments are less stable than people think they are, especially given the expansion of new communication technologies and social networking that provide people with new means to expose corruption and push for freedom of expression.

In other words, transitions and demands for change in the Middle East should not have been unexpected – they are simply an expression of people’s deep rooted preference for democracy. They are likely to inspire others around the world, at least in showing that change is possible even when few expect it.

Yet, Gershman cautions, countries in the Middle East should prepare for a difficult road ahead – although they possess the energy and euphoria of change, the reality is that reform is never easy and democratic success is never guaranteed. To make that success a reality, several lessons from other transitions are key and among those, two stand out:

  • Developing a national dialogue and negotiation on reform is a prerequisite of success
  • The process for developing a new constitution is not as important as ensuring that it happens transparently and that the public has the opportunity to comment and provide input

But most importantly, when it comes to political reform, one can’t view it in isolation from economic change – something people tend to do in all corners of the world. Economic reform, says Gershman,

…must proceed in tandem with democratic political change. Political reform by itself is not enough. If democracy does not deliver for the people and continues to serve just the interests of entrenched elites that have dominated the economy for decades, public disillusionment and anger will reemerge and produce more upheaval. The answer is not economic populism which will not produce jobs and opportunity. The solution lies in fundamental institutional reform, including changes in the educational system to raise labor productivity and provide young people with the skills needed to compete in a global economy.

And more

A second priority will be removing barriers to entrepreneurship that have forced more than 80 percent of Egyptian businesses into the informal, extra-legal sector. This will require regulatory reform, the protection of property rights and contract enforcement, and changes in antiquated bankruptcy laws that inhibit risk-taking, all of which will require reform of the judicial system. The problem of corruption will also have to be addressed by building broad coalitions of business and civil society to ensure transparency and accountability in decision-making.

And bringing it back to the importance of civil society

This, in turn, will require a new opening for freedom of association—for business associations and trade unions as well as NGOs—which is the crucial link between democratic political change and economic reform. Building an inclusive economic and political system is a tall order, and it will not happen quickly. But it’s necessary to get started now.

Civil society is already leading the way. Just a few weeks ago, ahead of the constitutional referendum, at the request of the independent Egyptian daily Al Masry Al Youm CIPE helped organize a policy forum on constitution reform, which brought together more than 420 representatives of business associations, political parties, youth and other opposition movements, think tanks, media outlets, and academia to discuss the referendum that took place over the weekend. The participants came out with their own statement on proposed constitutional changes.

This is just one of the many examples of how countries in the Middle East are beginning to experience democracy. Democracy is not only about majority rule or winning elections. It is about dialogue, give-and-take, negotiations, reaching consensus, and necessary reforms that move countries forward and create societies that deliver benefits for all, not just the elites.  Expectations are high in the Middle East, and its up to reformers in the region to meet those expectations and provide inspiration for the rest of the world.

To vote like an Egyptian

 

An Egyptian woman displays her ink stained fingertip after casting her vote for a referendum on constitutional amendments at a polling station in Cairo March 19, 2011. (Photo: Reuters/Amr Abdallah Dalsh)

Fifty three days after the youth ignited a revolution in Cairo’s Tahrir Square that irrevocably changed the country’s and the region’s future, millions of Egyptians are lining up at thousands of polling stations all over the country to cast ballots for a YES or NO vote on a referendum on amendments to the 1971 constitution.  By all accounts, turnout is of historic proportions and Egyptians are freely taking their first democratic steps along a long path towards democracy.  Significantly, no one knows what the result will be.  A poll conducted by young Egyptians over the past week declared the referendum “too close to call.”

The debate leading up to the referendum has been animated and the accusations and counter-accusations furious.  Most Egyptians are deciding on the YES or NO today based on fears of the other alternative.

On the one hand, those who have advocated for a YES vote felt that the most important thing today is to move away from the provisional rule of the military, elect a new president and legislature, and then develop a new constitution that would be put forth for a new national referendum.  They insisted that a new constitution needs the legitimacy of en elected body to develop it, either a parliament or a constituent assembly appointed by an elected parliament.  They also intimate that the people are not ready for the compromises necessary to develop a lasting constitution.  Developing a permanent constitution now, they claim, would break the nation apart and throw it to the hands of the military.

On the other hand, those advocating for a NO vote felt that the country, and especially the secular political parties, are not ready for elections.  They insist that the fast-paced process of amending a void constitution is undemocratic and that what the country needs now is a broad-based constituent assembly to write a real constitution that should be the one to put forth for a referendum, not the “patchwork” of amendments that are put forth now.

Basically, one camp is stoking fears that a NO vote will keep the military in power (akin to what happened after the 1952 revolution), and the other is stoking fears that a YES vote will usurp the nascent democracy and throw control to undemocratic forces that were able to organize during the Mubarak regime.

In this writer’s humble opinion, both positions are exaggerated, but not so unexpected given the decades of mistrust among the political forces in the country.  However, what is lost to most are questions such as “what are Egyptians voting for or against today?” i.e. what are the amendments and what will their effect be? And, what will happen if the referendum fails?

Starting with the latter, a YES vote sends Egypt along a route for quick elections for the executive and legislature, followed quickly by a process to develop a new constitution.  However, no one seems to be certain of what happens if the NOs beat the YESes.  It seems that the ball will be kicked back to the military council to decide on the next steps.  There are no shortage of suggestions by pundits who’ve found a strong voice after the revolution, but most seem to point towards a longer process, overseen by the military, to develop a “legitimate” constitution.  Meanwhile, the political parties –of the old traditional variety and the new youth-led ones—would have a “fair chance” to “level the playing field”, and compete for elections.  Some are requesting a six-month period for the process to allow for the development of a “road map” to democracy and the development of a democratic constitution.

But, again, what are Egyptians voting for? The battle is over nine amendments that, according to the military, will allow the country to hold “free and fair” elections and to move the country to civilian rule.  The military had voided the 1971 constitution and disbanded the parliament.  Its provisional rule was thus rendered unconstitutional and, as a friend in the know told me, it felt it needed a precipitous process to give the country legitimacy, especially given how the world is watching Egypt with a microscope.

One of the controversial amendments was that of Article 75, where language for the eligibility to be a candidate for president was added to limit it to those who, and who’s parents, have not been citizens of other countries, and to those who are not married to a non-Egyptian.  (Of note – the Arabic language used to write the amendments is gender specific and assumed the candidate is a man and the spouse is a woman.)

On other fronts, most agreed with the amendment to Article 77 that limits the presidency to two terms of four years each, as well as the amendment Article 88 providing for full supervision over the elections to an independent judiciary, instead of the ministry of interior.

Most were also happy about the amendments to article 148, limiting emergency rule to no more than six months, unless a referendum approves an extension, and with the approval of a majority of parliament, as well as the removal of Article 179, known as the anti-terrorism article.

Other amendments affect article 189, articulating processes to establish a constituent assembly appointed by both chambers of parliament, mandate the development of a new constitution within six months, and a referendum to approve the new constitution within 15 days after that.

Regardless of what the result of the referendum will be and whether the YES or NO wins, the real winners are the Egyptian people.  As a Yemeni-American in Cairo on this historic day, I have to confess that I felt envious and wanted to have my finger dipped in the pink indelible ink.  I’ve been following the comments of Egyptians on television, radio, Twitter, Facebook, and through talking to Egyptians everywhere.  Below is a sampling of quotes that reflect how Egyptians felt today.  Please excuse the colloquialism.

  • So Exciting. First time to vote in my life. Real vote. We are a very lucky generation.
  • I voted in AlManial ElE3dadeya things are very positive, police officers are helpful. Things are great.
  • About a thousand people in front me now to vote. Still happy despite the fact that will take me an hour to vote :)
  • The evolution of the revolution: About a 1km of people waiting in a line to vote.
  • Today is a response to Husni Mubarak, Omar Suleiman, Ahmed Nazif & anyone who claimed that Egyptians are not ready for democracy
  • Good morning the whole world.  The picture shows me, my 2 daughters and my grandson at the polling station very early this morning.  For the first time in my life I feel thrilled to go and vote.  Congratulations our amazing Egypt for the well deserved freedom.  Have a great day all wherever you are on planet earth and the outer space , share our happiness and celebration.  Hold your head up high. You are Egyptian.
  • Our PM Essam Sharaf refused to cut in line, & stood with us and waited to vote.
  • Wow, even Amr Moussa refused to cut in line. Symbolic things, but they mean that so much has changed.
  • Cairo Governor kicked out of polling station for refusing to wait his turn http://ow.ly/4hM0A
  • First time [I tried to vote] was in May 2005 &they wouldn’t let me in & I vowed I would not let up until I saw this day!
  • My finger is pink and my head held high.
  • I was also at this polling station, and everyone allowed anyone 60+ to cut line. Including my uncle.
  • Just got into a heated debate with a [political opponent] and told him I’m against the const. cuz I don’t want people like him to be thrown behind bars.
  • Finally a real country, not a personal farm.
  • Aunt just called me, said I voted no because of you – I remembered what you told me when I argued that the people should leave Tahrir.
  • My dad above 70 never voted before. He said “for the 1st time in my life I felt that my voice counts and is heard”.

Kyrgyzstan’s Window of Opportunity

Kyrgyzstan’s self-named Interim Government of People’s Trust set the dates for the Constitutional Referendum and the Election only 2 weeks after taking power. The Interim Government’s Chairman Omurbek Tekebaev, who is also Chairman of the political party “Atameken,” and a likely presidential contender, scheduled the referendum on the new Constitution for June 27, 2010 and parliamentary elections for October 10, 2010. This gives the Interim Government six months to do a lot of important work to lay the groundwork for a democratic government. Few countries get their second chance to try again so soon after failing the previous time. Kyrgyzstan has this window of opportunity.

The Interim Government has committed to undertaking substantial constitutional reforms and economic policy changes to institute a market-based democratic government. The newly established Constitutional Council will work hard to institute a parliamentary government system in time for the elections and the newly established Coordination Council for Collaboration between Business and Government will undertake key economic policy changes, ensuring that they get adopted prior to the elections. This quick take to action illustrates that at least one lesson was learned in Kyrgyzstan since the previous revolution almost exactly five years ago.

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Ecuador: Going the Socialist Route?

On September 28, the Ecuadoran public voted overwhelmingly in favor of adopting a new constitution that had been swiftly drafted by the Constitutional Assembly and finalized by the government of President Rafael Correa. Little analysis has been applied to this 150-page document. What will this mean for the rule of law in Ecuador?

What is understood about the provisions of the new constitution is worrisome; the lack of understanding in Ecuador about how the constitution will be interpreted is of even greater concern. A number of the constitution’s provisions could present challenges to the rule of law and the future of private investment in Ecuador, including:

- Expanded executive control over the judicial and legislative branches of government, as well as the central bank.
- Respect for property rights is now based on ambiguous notions of social and environmental responsibility. The provisions leave huge discretionary decision-making to the government to define what this means.
- The government will be able to intervene in the pricing of market goods.
- International arbitrage is now prohibited in contracts for foreign investment.

While it is unclear how the government will implement the new constitution, the anti-business tenor of the document and its cloudy definition of property rights and contract law will likely inhibit future foreign investment in the country, and turn back progress made to date.

Dora de Ampuero of the Ecuadorian Institute of Political Economy (IEEP) explains that “the new constitution is structured in such a way that much of its content is confusing, which gives the executive the opportunity to interpret the new text however they best see fit.” She further explains that “It is still too early to know where the country is heading, but if the guiding principles of the constitution are followed, then Ecuador will become a closed economy that will be limited by government intervention.” IEEP has been engaged in an active campaign to promote better understanding of the market economy and the principles of democracy through a weekly radio and television program and public forums, with a particular focus on issues that are important to young leaders. This work is especially important now that the new constitution has been approved.

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