Preliminary Thoughts on the Problem of Sequencing Constitution-Drafting in Democratizing States

Feisal Amin al-Istrabadi

the Michael A. and Laurie Burns McRobbie Professor in Global Strategic Studies, Professor of Central Eurasian Studies, and Founding Director of the Center for the Study of the Middle East, Hamilton Lugar School of Global and International Studies, Indiana University, Bloomington.

Introduction

In 2013, less than two years after long-lived autocrats in Tunisia, Egypt, and Libya were brought down by popular protests, it was still possible to consider these revolutions “successful,” at least insofar as they toppled their respective ruling systems. By the time Francesco Biagi published his volume Constitution-Building After the Arab Spring, authoritarianism had returned to Tunisia. A popular military coup restored a stricter authoritarianism to Egypt than was the case prior to 2011. Libya, at best, teeters on the brink of state failure. Each state, of course, has its own reasons for the ultimate defeat of its democratic aspirations. But a feature common at least to Tunisia and Egypt was the relatively early drafting of constitutions after the fall of their previous regimes.

This post is a preliminary exploration of the efficacy of early efforts to draft constitutions in states that have sustained the collapse of long-lived despotic regimes. It is written in light of Professor Biagi’s work, but it is also informed by my experience as principal legal drafter of Iraq’s interim constitution, the Law of Administration of the State of Iraq for the Transitional Period (“the TAL”). Biagi notes the ultimate failure of the outcomes: even where states ostensibly democratized through relatively peaceful means, genuine constitutional democracy proved elusive. Their current constitutions, which might be termed “the post-post-2011 constitutions,” remain characterized by weak separation of powers and weak checks and balances. He uses such words as “façade,” “fake,” “untrue,” and “trap constitutions.”

This post, then, begins where Biagi leaves off. It asks whether  the rush to early sequencing in drafting constitutions itself might have contributed to the dismal failures to which his book so rightly points. It adds to a relatively nascent literature questioning the conventional sequencing of constitution-making after long-lived authoritarian regimes fall, e.g., in Iraq in 2005 and the Arab states post-2011. The latter view still frames the issue in terms of the appropriate parameters of the post-change constitutional debate, as opposed to the former, which posits that a constitutional debate should be deferred altogether until a more propitious time.

The Problem of Democratic Transitions

Regina Smyth’s seminal study of the failure of democratization in the Russian Federation after early elections provides the analogy for the failure of democratization in the case of early sequencing of constitution-making. In her work, Smyth concluded that elections “can actually undermine the development of an effective and representative democracy.” Elections scholars have known for at least a generation that it is not the mere existence of elections but a threshold of competitiveness that defines a liberal democracy, and that competitive elections translate into meaningful democracy only when key centers of power are subject to the electoral process rather than insulated from or dominating over it. Indeed, notwithstanding repeated timely elections, Russia’s standing in the indices of freedom has steadily declined, such that it now ranks as non-free in the Freedom House index, alongside Belarus and the post-Soviet Central Asian states.

So, what went wrong in Russia? Smyth’s empirical study of the factors that coalesced to yield a return to authoritarianism is summarized in her view that, without the appropriate democratizing infrastructure — she calls it an “electoral infrastructure,” but this essay seeks to broaden the concept beyond elections — repeated elections do not lead to the consolidation of genuine democratic praxis. The existence of “strong bases” or a “foundation” for a democratic vision is  an a priori condition for consolidation through elections; repeated elections do not, by themselves, inevitably build it.

Sufficient infrastructure, in Smyth’s view, requires three elements. The first she terms “information”:  available to the candidate and voter, allowing the candidate to assess voter preferences. Such information often does not exist in foundational elections, and in the case of long-lived despotic regimes throughout the Middle East and North Africa it almost certainly did not: agreement in the broadest sense—say, on what democracy actually means—likely did not exist across the political spectrum in Egypt, Libya, Syria, Yemen, or Tunisia, so that there would have been no way of knowing what electoral strategies best served the electorate. The second is coordination: behaviors that converge across the political class to promote mutual self-interest, which again rely on information unlikely to be available where early founding elections are held. The third is cooperation: like-minded parties not fielding candidates against one another in contested districts, lest opponents win by splitting the vote. In a rush to set a founding election date, with no prior contested elections from which to draw lessons, such nuances may be impossible to calculate.

Moreover, even a transitioning democracy that develops the necessary infrastructure may subsequently “backslide.” In the two decades since Professor Smyth’s study, the trend has run the other way, with one set of observers writing convincingly of a “third wave” of autocratisation now underway. Nor is it only new democracies such as Turkey and Hungary that are backsliding; even the United States is in the process of losing its status as a liberal democracy. How much more so for a nascent democracy attempting to arise out of the ashes of decades of autocracy and tyranny.

Professor Smyth’s empirical work on elections, persuasive as it is, does not apply directly to the sequencing of constitution-drafting in the strict sense of “electoral infrastructure” as she defines that term. The argument here, by analogy, is that there is a similar “constitutional infrastructure” that should be in place before states undertake to draft long-term constitutional arrangements. Like holding elections on an inadequate foundation, drafting constitutions before a stable political equilibrium has been achieved is unlikely to engender genuinely democratic constitutional systems. That has certainly been the experience of the post-2011 Arab states studied by Biagi—each and every one of them without exception.    

Constitutional Infrastructure: Tunisia and Egypt

The balance of this post considers only two of the states in Biagi’s volume: Tunisia, where the so-called Arab Spring began, and Egypt. They are the two cases of actual regime change followed by elections, a constitutional process, a constitution in force, elections under it, and then a coup, palace or military, that ousted the new regime. Jordan and Morocco saw cosmetic constitutional changes, but no regime change; Libya and Yemen descended into civil war.

Tunisia should have worked. As Biagi points out, of all the post-2011 Arab states, only Tunisia was categorized as a “free country” by Freedom House in 2015, albeit a palace coup by the president in 2021 caused it to backslide. For almost a decade, the various Tunisian opposition parties had been discussing how a post-autocratic dispensation might be designed. Once elections were held, a moderate Islamic party, Ennahdha, won, and there was relatively wide participation in constitution-drafting, including by civil society organizations. The resultant constitution was liberal on such issues as women’s rights, positing formal equality with men rather than an initial draft’s assertion of “complementarity.” None of that was enough to secure lasting constitutional democratic governance after the departure of Zine El-Abidine Ben Ali.

Egypt had a much more difficult time from the beginning. The ground of political contestation was between the Muslim Brotherhood and their fellow travellers, the Salafists, on the one hand, and disorganized secularists on the other. None of the competing opposition groups had had the time or space for the kind of constitutional negotiations that had occurred in Tunisia. The Egyptian processes were shambolic: multiple early elections, multiple interventions by the Supreme Constitutional Court, and failure at the end of it. To an outsider, they appeared to be played as a game of hardball with the winner taking all. In the end, the same masses that had demanded the end of the Mubarak regime returned to the same Cairene streets in support of a military coup that returned control of Egypt to the generals.

Donald Horowitz, the scholar of democratizing constitutionalism, bemoans the unrealistically early timelines often imposed for the drafting of constitutions, including in the post-2011 Arab states. He notes correctly that constitutions are often unsuccessfully substituted for peace treaties between warring factions. He distinguishes between why Egypt failed, yet Tunisia was still a success at the time of his writing, resting on whether the regimes had truly been overthrown. In Egypt, while Hosni Mubarak was overthrown, real power—the efficient coercive power of the state—remained in the same hands. In Tunisia, it appeared that that was not so, though when the president effectively seized power—after Horowitz wrote—the organs of the state where coercive power lay went along.

When is the optimal time to start constitution-drafting? At a bare minimum, it appears that conditions of peace should prevail. The passage of time may also be determining, not for its own sake, but to calm unsettled conditions, political or economic, and to reach an equilibrium in the larger polity. Time also allows the new political elites to develop genuine trust that they are committed collectively to the rules of the new game. Confidence-building measures, in the parlance of the United Nations, also take time; working jointly on threats to the commonweal, such as drought, may engender them.

Iraq may not be an example of very much that is salutary, but there is a lesson to be learnt from the attempt to transition it to democracy. The TAL, in effect from 2004 to 2006, was perhaps the last document produced in the intervening twenty-two years to achieve consensus. It was a modus vivendi between the new political parties in which the most contentious issues—federalism, the role of religion, control of Iraq’s oil wealth, women’s rights, and the rights of religious and ethnic minorities—were all compromised. Rather than allowing that compromise to play itself out and affect the new politics of the country, Iraq was plunged into a cycle of elections, constitution-drafting, a referendum, and another election, all within the space of one year. So, it was in Egypt and Tunisia. The expectation of early constitution-drafting, before the politics of the country had sorted itself out after decades of authoritarian rule, simply could not be sustained. In the end, constitutional democracy aborted.

Conclusion

In 2006, I participated in a roundtable convened by the United Nations Development Program to evaluate the processes of constitution-writing that had taken place in rapid succession in Timor-Leste, Afghanistan, and Iraq, in each of which many of the participants had contributed. One thing became clear. The international civil servants had a checklist for transitioning states from long-term dictatorship, and early elections or early constitution-drafting—or both, followed by another round of elections—were on it. Since the transitions from autocracy in Latin America and the post-Soviet states in the 1980s and 1990s, a literature has cautioned that holding elections, absent the adequate development of a sufficient foundation,  may stall rather than promote transitions to true democracy. Yet the extant literature on the necessary conditions for constitution-drafting to promote sustainable constitutional governance is far too scant.

The process of constitution-drafting is centrifugal at best. It becomes destructive when the new political class has not had the time and space to take one another’s measures as they are transformed from the politics of opposition, often in exile, to the role of governance. Before trust has been engendered, before security guarantees have had the time to be tested, the pressure mounts on political elites to commit themselves to long-term arrangements, long before the polity itself may know how it wishes to be organized. Interim arrangements to keep the state functioning avoid these problems and lower the political temperature.

Given the experience of Iraq, where an interim constitution achieved actual consensus of the new political elites, it is posited that this is a promising route for states transitioning to democracy. Consensus was achievable exactly because the TAL was a temporary document that did not substantively bind future drafters of a permanent constitution. This is a very complex subject that requires much thought. The foregoing is but the first step in that long journey.

Feisal Amin al-Istrabadi is the Michael A. and Laurie Burns McRobbie Professor in Global Strategic Studies, Professor of Central Eurasian Studies, and Founding Director of the Center for the Study of the Middle East, Hamilton Lugar School of Global and International Studies, Indiana University, Bloomington. He is grateful to Prof. Alemayehu Weldemariam for organizing this symposium and for his many helpful suggestions regarding this article, and to Prof. Francesco Biagi for encouraging him to write on this topic.

Suggested citation: Feisal Amin al-Istrabadi, ‘Preliminary Thoughts on the Problem of Early Constitution-Drafting in Democratizing States’ IACL-AIDC Blog (24 September 2026) Preliminary Thoughts on the Problem of Sequencing Constitution-Drafting in Democratizing States