Constitutionalizing democracy in fractured societies.

• Author: Issacharoff, Samuel

Much as the terms "constitutional" and "democracy" are linked in the definitions of a just liberal society, the two embody antagonistic impulses in organizing the body politic. Democracy vests decisionmaking in majorities; constitutionalism removes from immediate popular control certain significant realms of politics. Nonetheless, no democratic selection process exists without ground rules of governance, and constitutionalism may be thought of as a particularly strong form of regulation of democracy.

Viewing constitutionalism as the enabling ground rules for democratic governance provides an insight into the emergence of a strong form of constitutional constraint in stabilizing democratic governance, in what I term fractured societies. The argument is that constitutionalism emerges as a central defining power in these societies precisely because of the limitations it imposes on democratic choice. For purposes of this discussion, I do not wish to explore the full dimensions of what is meant by either democracy or constitutionalism. Instead, I accept a rather spare definition of democracy as a system through which the majority, either directly or through representative bodies, exercises decisionmaking political power, and 1 use the term constitutionalism only to refer to the creation of a basic law that restricts the capacity of the majority to exercise its political will. (1) For these purposes, it does not matter whether the restraint is an absolute, as with the non-amendable provisions of the German constitution, or simply the "obduracy" of Article V of the United States constitution, or the temporal constraints requiring successive parliamentary action for constitutional reform, as in some European countries. (2) Under any such system, the constitution serves as a limitation on what democratic majorities may do. (3)

I want to focus on a function that constitutionalism serves that is not widely noted: the role of securing legitimacy for the exercise of political power in fractured societies. I have in mind societies that are characterized by deep racial, ethnic or religious animosities in which cross-racial, ethnic and religious political institutions do not exist. Under such conditions, the emergence of stable democratic rule requires dampening such animosities so that the population as a whole views the exercise of state authority as being politically legitimate, or perhaps more modestly, does not rise in armed rebellion against the state. This ability of legal restriction to provide the basis for reconstituting society has begun to attract attention as a distinct form of ordering the transition to democratic rule. Ruti Teitel, for example, dubs this phenomenon a species of transitional constitutionalism in which law itself plays "an extraordinary constituting role" in the stabilization of democratic governance. (4)

There is a rich political science literature addressing the problem of nation building in complex, divided societies. For John Stuart Mill, democratic governance in fractured societies was a non-starter:

Free institutions are next to impossible in a country made up of different nationalities. Among a people without fellow-feeling, especially if they read and speak different languages, the united public opinion, necessary to the working of representative government, cannot exist. (5) Subsequent work, however, looked to the national experiences in European countries such as Austria, Belgium, the Netherlands and Switzerland to claim that "consociational structures" could forge a national integration of rival elites and yield a politically stable democracy. (6) In his classic study; Arend Lijphart identified the critical elements of the consociational experiment:

(1) government by a grand coalition of all significant segments; (2) a mutual veto or "concurrent majority" voting rule for some or all issues; (3) proportionality as the principle for allocating political representation, public funds, and civil service positions; (4) considerable autonomy for various segments of the society to govern their internal affairs. (7) The key to the consociational model is that power will be allocated across competing interests in the society independent of the political process. Thus, elections in consociational democracies can decide which among the candidates of a particular ethnic or racial group will hold an office that was predetermined to be assigned to that particular group. Whether a particular group or interest should hold office is decided outside the electoral process through the formation of what Lijphart terms the "grand coalition." (8)

Whether such consociational governmental structures can be transported out of the Western European context and whether they can deliver the promised political stability have been subjects of intense debate. (9) However, the role of judicially enforced constitutionalism offers a different avenue of nation building. Rather than securing national unity through formal power sharing along the major axes of social division, constitutionalism tends to impose limits on the range of decisions that democratically elected governments may take. In many cases, as will be seen in the central discussions in this paper, constitutionalism emerges as a rejection of the formal political arrangements that characterized consociational experiments in nation building. Rather than forecast the division of power that must hold in a fractured society, as does consociationalism, robust constitutionalism substitutes the "struggle to regulate political competition" so that the victors do not devour the process. (10)

In what follows 1 examine some of the different forms of constitutional restraint on democracy that have been employed in fractured societies from the vantage point of constitutional review of the resulting institutional structures. Examined from this perspective, it is possible to ask, "What features of constitutionalism serve best to address the problems of fractured societies?" Or, put another way, "What constitutional restrictions on majoritarian power appear conducive to the emergence of stable democratic governance?"

In part, this inquiry is a recognition of how much more sophisticated the world has become since the simple consociational models that were supposed to yield stability through formal power sharing, as in Lebanon or Sri Lanka or Cyprus or the Ivory Coast--before those countries descended into fratricidal war. (11) In part as well, this is a recognition of the stakes in truly fractured societies. The unfortunate lesson of history is that stable civilian governance is most likely to emerge from post-conflict societies when one ethnic group has accomplished clear dominance or destruction of the other. (12) Even with the introduction of more aggressive international peacekeeping, the key issue in nation building remains the creation of an integrated political authority claiming legitimacy beyond an ethnic or racial base. (13)

There is an emerging literature on the strong role that constitutional courts are assuming in attempting to diffuse ethnic or racial antagonisms. (14) In each case, national or international courts have been forced to rule on the bounds of majoritarian politics in order to consolidate a constitutional order. Although this inquiry is informed by a broader number of national studies, for purposes of this article I focus on only two: Bosnia and South Africa. The two are unique, as far as I know, in that each represents a constitutional court required to, in effect, adjudicate the constitutionality of a constitution itself. More centrally, the two represent markedly distinct positions in the attempt to create stable democratic rule in the context of extreme social polarization, along lines of ethnicity and religion in Bosnia and race in South Africa.

As will be developed below, the Bosnian arrangement stemming from the Dayton Accords hewed more closely to the consociational model described above. The Dayton Accords created a formal power-sharing arrangement along clear ethnic lines, cemented by a tripartite executive that would be assigned geographically to an area predetermined to represent one of the warring peoples. The litigation discussed emerged primarily from the organization of the executive, which ensured that the Bosniak minority living in the Bosnian Serb Republic could only choose for its executive representation from among the population that had committed the worst communal atrocities seen in Europe since the Second World War.

In some sense, South Africa confronted the same dilemma as Bosnia with two critical differences. First, the minority threatened by the exercise of untrammeled majoritarian rule was the militarily dominant white population. Second, the looming presence of apartheid made any attempt at formal assignment of power along racial lines an impermissible hearkening to the past. Whatever allure consociational models may have held for Dayton, they could not be directly involved in the critical Johannesburg negotiations leading to the transfer of power from the apartheid rulers. Therefore, South Africa had to confront how to permit the creation of democratic political structures, and the inevitable emergence of black majority rule, while allaying the fears of the white minority that this "democracy" would simply be the code for racial revanchism. Without assurances to the apartheid rulers that there would be limits to demands for revenge and redistribution, power would only have been ceded at the conclusion of a civil war--if at all. The task therefore was to create limitations on majoritarian power without formal power sharing of the Bosnian sort.

The experiences of Bosnia and South Africa fit into a broader international context. The demise of the Soviet Union and the fall of apartheid opened up the largest minting of new democracies since the end of the colonial period. Many, if not all, of these societies...