America – A Constitutional Midwife for the Arab World!

A recent article by Nathan Brown in the FP (Americans, put away your quills), argues very eloquently against the advocacy and promotion of ‘American constitutional ideas’ (and ideals) in Arab countries currently in transition due to the Arab Spring.  Although the history of U.S. constitutional transplantation is mixed at best (failed in Latin America in the eighteen hundreds, was somewhat more successful in Germany-Japan-Italy after WWII, remains to be seen what happens in Iraq), I respectfully disagree with Mr. Brown’s assertion that “much of our advice will be bad and most will be irrelevant.”

The Middle East – North Africa (MENA) region represents that last remaining undemocratic region of the world.  No other region has the highest concentration of authoritarian regimes and absolute monarchies.  Although the U.S. has a lot of baggage on its side, especially when it comes to its foreign policy during the past 60 years, the one thing that America can still brag about is its system of governance.  The one thing that the U.S. can still educate the rest of the world is governance!  [Do as I say, not as I do!]

Mr. Brown is right in pointing out that the U.S. constitutional experience is very idiosyncratic.  On the other hand, I would venture to say that the U.S. system of governance is what has contributed immensely to the longevity of the republic and the overall success of the American economy.

For comparison, consider Greece (my home-country, with a population of similar temperament but only slightly better luck then the Arab people) and its current sovereign debt crisis.  The true reason of Greece’s economic misfortunes (the high government spending and low tax collection) is DUE TO (what I like to call) the dictatorship of the Prime-minister.  For the majority of the past 30 years, the office of the Prime-minister exercised complete control over the Greek government – no checks and balances, no divided government between different parties, just a Westminster model tailored to the ‘idiosyncratic needs’ of the Greek society where the prevailing political philosophy/ideology demands a strong executive branch with enhanced legislative powers in order to ‘swiftly pass vital reforms.’  Greece’s system of governance, in itself a foreign transplant that has now become part of the Greek political identity, is primarily responsible for the current state of overall disrepair.

The right form of governance for the right society has never been easy to identify.  A lot of times, societies have adopted forms of governance that were imposed to them by past colonial masters or short sighted revolutionary uprisings.  The MENA region, with its long set of constitutional traditions, is no different.

The prevailing parliamentary system of governance currently in effect in most North African countries, which Mr. Brown argues should be respected because of its long routes in the various societies and the familiarity of local actors (politicians, academics, judges) with it, is also a transplant of European origin.  Parliamentary democracy where the executive and the legislature come from the same body (united against ‘the crown’) is not indigenous to Egypt or Tunisia, let alone Jordan or Morocco (not to mention Libya!).

Instead of tweaking around the edges of the current political/constitutional systems (as Mr. Brown suggests), the people of the region might be better served if their opted for a whole new system of governance!

It is time to end the experiment with the Westminster model: of government being derived, depended and tethered of the legislative branch.  American federalism is hard to implement because it demands too much from both the people and politicians – constant participation on the part of the people (at multiple levels of government) and mature restrain on the part of politicians.  However, the world has changed since Latin American countries tried to implement U.S.-style federalism, and I believe young people are now better prepared to adopt a system of governance that demands much but can deliver even more!

Constitutional Suggestions for the ‘Arab Spring’

When federalism at the national level is applied properly it leads to multiple centres of power (and thus multiple leaders), not just one strongman (a president or a prime-minister with all the power).  What could be more appropriate for the people of North Africa and the Middle East, which have suffered so much at the hands of a few dictators, than to adopt a political system that does not deify one person or one family?  The U.S. federal system of governance provides an excellent starting point for any discussion about constitutional reform in the region.

The most fundamental tenet of the U.S. federal system of governance is the complete institutional separation of powers at the national level, while at the same time every decision at the national level requires the consent of all the branches of government.  Therefore, Legislative (Congress), Executive (President) and Judiciary (Supreme Court) branches are completely separate, but laws passed by the legislature need the approval of the President), and are subject to review by the Courts.

Second, the legislative process is performed by a bi-cameral legislature, where one chamber represents the people (House of Representatives) while the other (Senate) represents the sub-national units (States), and both chambers are equal in power and responsibility.  Furthermore, by staggering the terms of legislators (2 years for House members, 6 years for Senate members) and staggering the election of Senators (one third up for re-election every two years), the legislature is being renewed every two years while being insulated from dramatic swings in popular opinion.

Third, Cabinet and sub-Cabinet officials, Ambassadors, and Judges have to be considered and approved by the legislature.  This oversight role of Congress continues after Cabinet members are appointed, when they are required by law to appear in front of select legislative committees and report on their departments activities, answer questions, and make available to legislators any and all information’s that legislators deem relevant.

Finally, the independence of the judiciary branch is guaranteed through life-time appointments.  Although judges are selected by the President and approved by the legislature, they are appointed for life, and their removal is exceptional and very hard to achieve.  Furthermore, judges have the power to review the constitutionality of laws, and through the years have many times struck down laws which were not consistent with the letter or the spirit of the Constitution.

Add to these fundamental elements of the U.S. system, term limits for politician, clear provisions for amending the constitution and removing the President, an independent Electoral Commission, and an independent and competent Office for the protection of Human Rights, and you have a recipe for political stability and economic success.

The Right Form of Governance

The history of modern economic development is full of successes and failures.  The failures appear to be more than the successes; from the many African nations that have never truly improved their condition since independence 60 years ago, to the Middle East, rich with oil but stagnant economically and democratically.  Now, the nations of the Arab world are going through some major changes to their regimes and future systems of governance.  Identifying the right form of governance for the right society has never been easy, but federalism could be the most appropriate of all possible choices for the nations of the ‘Arab Spring’!

During the 19th century, the exportation of U.S.-style federalism was deemed detrimental to the political development of Latin America nations.  I believe the times have change, and U.S.-style federalism could serve as a future system of governance for the ‘Arab Spring’ nations.  Furthermore, by advocating for constitutional reforms that promote federalism and good governance, and by rewording those nations that truly adopt such changes, the U.S. can restore its role in the world stage as a champion of democratic principles.

We owe it to the world, whether they need our advice or not!

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About Nasos Mihalakas

I am an Assistant Professor of International Business and Government policy, and a former U.S. Government policy analyst. I have over nine years of experience with the U.S. government as a trade policy analyst, and U.S.-China trade relations. I have worked for both a Congressional Commission advising Congress on the impact of trade with China and for the U.S. Department of Commerce investigating unfair trade practices. However, my education has been on constitutional and comparative law, with an LLM from University College London, and a JD from the University of Pittsburgh. Currently I am writing a book on the evolution of Federalism in the U.S., and the application of Federalism as a form of governance around the world. You can contact me at: nasos.mihalakas@gmail.com
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