On Constitutional Transition out of Hybrid Regimes

Constitutional change has become a stock-standard campaign promise of powerful incumbents and their opponents around the globe: lifting or restoring presidential terms limits are equally respectable campaign slogans, depending on the political opportunity structures of local contexts. The newly inaugurated Uzbek president felt compelled to outline a comprehensive constitutional reform as a blue print for the country’s new development for the future.

Constitutional transition from hybrid regimes is not simply about crafting a new, democratic constitution for a diverse society complete with checks and balances, rule of law and fundamental rights (i.e. transition to democracy in a Third Wave sense). Rather, it should address the manner of reclaiming constitutions as constraints on political powers and as charters of self-government. That in hybrid regimes an illiberal incumbent can undermine its opponents by pre-emptive constitutional engineering goes without saying (e.g. via a packing the constitutional court or adopting forward-looking amendments that prevent future reforms). Constitutional reform plans that offer revenge over the incumbents via carefully crafted legal and constitutional tools are fated to lead to polarization and paralysis of the kind that the authors of the open letter sought to avoid.

Unlike in the paradigmatic cases of Third Wave transitions to democracy, the logic of adversative constitution-making will not work automatically in the context of hybrid regimes that strategically draw on the ideas, language and design of ‘constitutions with (and not without) constitutionalism.’ In doing so, hybrid regimes hijack the vocabulary and imagination of constitutional democracy, its ability to chart a future for a self-governing political community that respects the fundamental rights of its members. This is a gradual process. In the Americas, the contestation about presidential term limits can be explained in terms of a ‘dialogue’ between constitutional courts that interpret rights of political participation (Article 23, ACHR) as a license to lift presidential term limits and other bodies (such as the Colombian Constitutional Court (C-141/10) or the Inter-American Court (OC 28/21)) that emphasize the contribution of term-limits to electoral replacement and limited government. Furthermore, the resilience and diffusion of authoritarian regimes appear to depend on the same forces and techniques that sustain constitutional democracies (e.g. popular mobilization, management of political diversity, international linkages and leverage).

An account of constitutional transition out of a hybrid regime has to offer a vision for a forward-looking constitutional (re-)settlement, while keeping in mind the key features of hybrid regimes.

Taking stock: constitutions in hybrid regimes

Hybrid regimes rely on a trifecta of plebiscitary mobilization, ruling by cheating (complete with the chilling effect of legal regulations) and abusive constitutional borrowing for the purposes of illiberal constitutional normalization and illiberal constitutional learning.

Plebiscitary mobilization permits incumbents to make claims ‘in the name of the real people’ and blurs the boundaries between protest and public acclamation. As such, it undercuts constitutional accountability processes and makes popular opposition to hybrid regimes especially difficult. Delegative democracies are especially potent when they are able to adjust the constitutional foundations of political rule to their policy preferences with the semblance of public support. In hybrid regimes, where direct or violent suppression of dissent is rare, the chilling effect of legal rules (and government action) impairs fundamentally the sheer willingness of ordinary citizens to get involved in recasting or reimagining the political regime. As a result of a decade of ruling by cheating, in illiberal regimes constitutions obtained a reputation that has very little to do with constraining political powers and facilitating constitutional accountability. For a new generation of lawyers and legal scholars socialized in a hybrid regime, the (packed and unconstitutionally constituted) Polish Constitutional Tribunal performs a respectable function of confirming the constitutionality of legislation that violates the language of the Constitution on its face. Its judicial role now includes finding international obligations unconstitutional in defense of Polish national sovereignty (K. 3/21, K. 6/21).

Hybrid regimes learn from each other and also from the global constitutional canon that has plenty to offer on the vulnerability and mockery of constitution-making processes. The multiple steps of the 2020 constituional amendments in Russia were meant to supply President Putin’s plan with different modalities of legitimacy (including constitutional review and public support) without an opportunity for contestation or compromise. As any autocratic or hybrid regime can fix a referendum, a single nation-wide vote is highly unlikely to ‘fix’ a legitimacy deficit. Also, a packed constitutional court requiring multiple referenda for constitutional reform is easily read as a staling tactic by the regime (Thailand 2021). At the same time, it looks ‘bad’ when there is no referendum in support of a new constitution.

The reputation of constituent assemblies has also become somewhat curious recently. In 2017, President Maduro called a constituent assembly in Venezuela in order to circumvent the opposition-controlled legislature (and to be able to remove public officials who stood in his way). The constituent assembly adopted legislation that was used to remove Maduro’s critiques out of his way. President Maduro closed the constituent assembly only in late 2020 when his party won a majority in the regular legislature — in an election that was boycotted by the opposition.

Despite such cautionary tales, comparative constitutional scholarship tends to focus on the successful constitution-making processes (and often downplays ’near misses’). This focus easily leaves behind the critical study of failed endeavors that are an important source of learning for illiberal regimes (e.g. on opportunities for stalling the work of constituent assembly under the guise of procedural complications (Tunisia) or the implementation of a new constitution as a separate phase of constitution-building (e.g. Kenya 2010)). These blindspots are especially important for debates on formats for manufacturing constitutional change (constituent assemblies, conventions, crowdsourcing constitution-making, the institutional design of public participation). Proponents of constitutional democracy easily get trapped in thinking about procedural tools for generating public participation (as a technical matter), instead of engaging in a discussion on facilitating genuine deliberation on matters of public concerns (to temper polarisation) that can restore the hijacked constitutional vocabulary and imagination that is essential for transition out of hybrid regimes into constitutional democracy.

State of scholarship: Shifting the focus

The focus on legal continuity (adherence to legal and procedural formalities) is closely tied to concerns about the legitimacy of the constitution-making process and the resulting constitution. The classic, comforting example is how across decades of democratic governance and multiple amendments the German Basic Law shifted (or settled) from being an interim constitution into a lasting one without nation-wide referenda (although adopting a new constitution would arguably require one (Article 146)).

In the context of hybrid regimes, where constitutional change is gradual, the search for a magical (if not revolutionary) ‘moment’ of constitutional reset is futile. Instead, constitutional scholarship is better off with envisioning a process of constitutional (re-)settlement through legally imperfect processes of trial and error.

Imperfect processes of constitutional settlement (and re-settlement) are aplenty in reasonably stable and well-regarded constitutional democracies. The case-book example is the making of the US Constitution. Consider also post-WWII France. The 1958 Constitution was developed in response to a political crisis on the heels of two recent constitutional projects. The first was rejected in a referendum (in May 1946), while the subsequent one was approved (in October 1946) by roughly the same number of votes in favor as the first, at a lower voter turn out. The 1958 French Constitution was discussed, but ultimately was not adopted in a manner prescribed by the 1946 Constitution. The 1958 Constitution drew on the decade-old plans of the Gaullist movement, going back to the days of Liberation. It was confirmed by a referendum that exceeded the support of the 1946 Constitution by 2.8M votes in metropolitan France, and by 17.5M votes in total. Subsequently, in 1962, the 1958 Constitution survived an unconstitutional amendment (championed by President De Gaulle) that tarnished the reputation of the newly created Constitutional Council for a good decade.

The focus on legal continuity diverts attention from a closer, critical study of built-in tensions and inconsistencies that feature in every written constitution. This internal incoherence means that each constitution holds repositories for safeguarding the status quo as well as repositories that foster constitutional change (as e.g. Chile 1980). The rule of law is a force that decelerates constitutional and legal change (through adherence to formalities, deadlines etc.), while the protection of fundamental rights tends to be seen as a repository of anti-establishmentarian progress. Provisions on checks and balances cut both ways: they enable veto players who stand in the way of constitutional change, but may also empower the parliamentary opposition that seeks to foster such change.

In practice, a lot depends on how political actors mobilize such repositories to safeguard the status quo or to foster constitutional change. For the purposes of constitutional scholarship a lot turns on how such actions are explained to a broader audience. Since 2008, the constitutional reforms of Myanmar (Burma) have been narrated in terms of hope for democratization, as well as attempts by the military to constrain constitutional change (through a constitutionally scripted veto power). The creation of an extra-constitutional office for the de facto head of state (Aung San Suu Kyi, styled as state counselor) could be explained as an ingenious constitutional innovation that circumvented formal constitutional constraints — or as a solution that compromised democratization.

In the context of transition out of hybrid regimes the broader question remains straightforward: what does it take to secure the consent of the governed for a particular constitutional settlement? It helps if the consent of the governed is obtained for constitutional change before the elections (event if the election yields a narrow majority for the opposition). At the same time, it is pretty bad news for the friends of constitutional democracy if the elections return the incumbents, even if only a simple majority stands for preserving the status quo.

Towards constitutional (re-)settlement

Due to the very nature of hybrid regimes constitutional (re-)settlement out of hybrid regimes should draw on genuine popular involvement for the purpose of reclaiming the vocabulary — and the imagination — of ’constitutions with constitutionalism.’ Such constitutional (re-)settlement is a multi-step process that requires a broad agreement on the reasons that necessitate profound constitutional change, its manner and its format.

Despite persistent good practice recommendations to this effect, there is very little empirical evidence on the impact of public participation in constitution-making processes. Scholarship on public participation in constitution-making confirms an increase in constitutional and political literacy that produces distrusting democrats. In turn, these engaged citizens remain interested in asserting the constitutional accountability of political power-wielders. At the same time, such critical engagement does not necessarily prompt political actors to give effect to critical constitutional provisions (see the parliament’s failure to appoint members to the constitutional court in Tunisia).

Likewise, the role of supranational (international) institutions is important during contestation concerning constitutional design options and the interpretation of the relevant evidence in the context of post-truth politics. In constitution-making, supranational institutions are routinely presented as sources of minimum standards, facilitators of dialogue, fora of accountability, sources of expert advice (for constitution building) and transnational embedding. The impact of international linkages and leverage may have waned in the past decade, reducing the supranational political costs of de-democratization in East-Central Europe and the Americas. In practice, supranational institutions have an increasingly important validation and archival function: supranational litigation, monitoring and inquiry serve a key function in establishing a transparent and trustworthy public record of domestic events, a record that can be relied upon for setting a starting point for constitutional transition out of hybrid regimes.

The window of opportunity for constitutional (re-)settlement is open because hybrid regimes benefit from the veneer of respectability that their adherence to democratic routines supplies in regular (if not free or fair) elections and their international embedding. Illiberal regimes seek to reduce the risk of constitutional (re-)settlement through thwarting opportunities for constitutional change and undermining aspirations that fuel such endeavors. To be able to counter illiberal chicanery, efforts of constitutional (re-)settlement should embrace the force of constitutional imagination informing constitutional design.