Abstract
This essay addresses the constitutional question: Why draft and adopt a constitution in an autocracy where repression is always an option, as are show trials, deportations, arresting opposition groups, discriminating minorities, intimidating political adversaries, even murder, albeit not all of these measures to the same degree everywhere? Do constitutions actually have a say or do they function merely ‘as if’? In case constitutions have authority, who do they address, and which purposes do they serve in an authoritarian context? Do they come with practical import or are they meant to provide empty rhetoric and a deceiving appearance to make a regime look better? A matrix of internal and external audiences, as well as instrumental and symbolic purposes, is used here to find answers to the ‘constitutional question’.
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Notes
- 1.
In the following, I draw on a (revised and abbreviated) chapter of my book Authoritarianism. Constitutional Perspectives (E Elgar Publishing 2020) (forthcoming).
- 2.
See Günter Frankenberg, ‘Authoritarian constitutionalism: Coming to terms with modernity’s nightmares’, in Helena Alviar García and Günter Frankenberg (eds), Authoritarian Constitutionalism. Comparative Analysis and Critique (E Elgar Publishing 2019), 1 ff.
- 3.
I borrow the term from Michel Foucault and cautiously apply it to political authoritarianism. Regarding the difficult concept and its diverse applications, see Valerie Larroche, The Dispositif: A Concept for Information and Communication Sciences (John Wiley & Sons 2019).
- 4.
Basic Law of the Russian Socialist Federalist Republic of 10 July 1918. Praising this Constitution, Lenin said that it had ‘not been thought up by any commission, not elaborated by lawyers, not copied from other constitutions’, but rather, he argued, ‘the experience of the organization and struggle of the proletarian masses against the exploiters both at home and throughout the world’. Schlüsseldokumente, ‘The Basic Law (Constitution) of the Russian Soviet Socialist Federal Republic, July 10, 1918’ https://www.1000dokumente.de/index.html?c=dokument_ru&dokument=0005_ver&object=context&l=de/ accessed 8 July 2019.
- 5.
On 5 October 1988, a majority of almost 56 per cent voted against a further term of office. After all, the Pinochet Constitution at the time of the change of government secured the influence of the ancienrégime through numerous regulations during the democracy that followed. These clauses are known as ‘authoritarian enclaves’. See Codoceo, F., Democratic transition in Chile. Continuity or New Beginning? (wvb Wissenschaftlicher Verlag Berlin 2007).
- 6.
It is easier to oversee limited constitutional maneuvers, such as Xi Jinping’s lifting of the term limit or Hugo Chávez’s attempt in 2012 to remove the term limit. Although Venezuela’s president had already failed in a much more comprehensive constitutional referendum at the end of 2007, at that time a narrow majority of voters rejected the revision of a total of 69 articles of the constitution. Informative: Kurt Weyland, ‘Latin America’s Authoritarian Drift. The Populist Threat from the Left’, (2013) 24 Journal of Democracy, 18 ff.
- 7.
Martin Loughlin, ‘The Constitutional Silences’, (2017) 16 International Journal of Constitutional Law, 922 ff.
- 8.
As discussed above, an authoritarian regime can very well coexist with a formally democratic, parliamentary system of constitutionalism. This is illustrated by the Fifth French Republic, for example. Authoritarianism can also develop in a reasonably democratic institutional setting, as illustrated by the metamorphosis of the Abe Government in Japan. See the analysis by Hajime Yamamoto, ‘An authorization of Japanese constitutionalism?’, in Helena Alviar García and Günter Frankenberg (eds), Authoritarian Constitutionalism. Comparative Analysis and Critique (E Elgar Publishing 2019) 338 ff.
- 9.
For a more detailed characterization of the archetypes see Günter Frankenberg, Comparative Constitutional Studies – Between Magic and Deceit (E Elgar Publishing 2018) Ch II.
- 10.
Notably the representative bodies: ‘The PyidaungsuHluttaw, the Region Hluttaws and the State Hluttaws include the Defence Services personnel as Hluttaw representatives nominated by the Commander-in-Chief of the Defence Services’ (sec 14).
- 11.
See Gerassımos Karabelıas, ‘The Military Institution, Atatürk’s Principles, and Turkey’s Sisyphean Quest for Democracy’ (2009) 45 Middle Eastern Studies, 57 ff.; Julia Platter and Barış Çalışkan, ‘Das türkische Verfassungsgericht auf dem Weg zum ‘Hüter der Verfassung’, (2008) 39 Zeitschrift für Parlamentsfragen, 832 ff.
- 12.
See Omar El Manfalouty, ‘Authoritarian Constitutionalism in the Islamic World - Theoretical Considerations and Comparative Observations on Syria & Turkey’, in Helena Alviar García and Günter Frankenberg (eds), Authoritarian Constitutionalism. Comparative Analysis and Critique (E Elgar Publishing 2019)95 ff.
- 13.
Constitution of the Syrian-Arab Republic of 2012, Art 8: ‘1. The political system of the state shall be based on the principle of political pluralism, and exercising power democratically through the ballot box; - 2. Licensed political parties and constituencies shall contribute to the national political life, and shall respect the principles of national sovereignty and democracy; - 3. The law shall regulate the provisions and procedures related to the formation of political parties; - 4. Carrying out any political activity or forming any political parties or groupings on the basis of religious, sectarian, tribal, regional, class-based, professional, or on discrimination based on gender, origin, race or color may not be undertaken….’
- 14.
Nelson Goodman, Ways of World Making (Hackett Publishing 1978).
- 15.
US Declaration of Independence, 4 July 1776.
- 16.
Constitution of the Islamic Republic of Iran, 1979 (emphasis added).
- 17.
Constitution of the People’s Republic of China, 1982 (emphasis added). See also Cameroon’s Constitution of 1972, Art 1 (2) and the Constitution of the Democratic Republic of the Congo, 2005, Art 42 ff.
- 18.
‘Invoking the memory of our ancestors and calling upon the wisdom of the lessons of our shared history…’ Constitution of Angola, 2010 (emphasis added).
- 19.
‘Being guided by the interests of the working class as a whole, the Russian Socialist Federated Soviet Republic deprives all individuals and groups of rights which could be utilized by them to the detriment of the socialist revolution’ (Basic Law of the Russian Socialist Federative Soviet Republic of 1918, Art II no. 23).
- 20.
Peter Beaumont, ‘Paul Kagame: A tarnished African hero’, The Guardian (Rwanda, 18 July 2010) https://www.theguardian.com/theobserver/2010/jul/18/paul-kagame-rwanda-profile/ accessed 20 January 2020.
- 21.
Constitution of Turkey, 1982, Preamble. See also Penal Code of Turkey, Art 301: ‘A person who publicly denigrates the Turkish Nation, the State of the Turkish Republic or the Grand National Assembly of Turkey and the judicial institutions of the State shall be punishable by imprisonment from 6 months to 2 years.’—Italy’s post-fascist Constitution (1947) prohibited to reorganize ‘the dissolved fascist party in whatever form.’ (Art XII Transitional and Final Provisions).
- 22.
Yves Dezalay and Bryant G. Garth, ‘‘Lords of the Dance’ as Double Agents: Elite Actors In and Around the Legal Field’, (2016) 3 Journal of Professions & Organisations, 188 ff.; Yves Dezalay and Bryant G. Garth, The Internationalization of Palace Wars Lawyers, Economists, and the Contest to Transform Latin American States (Chicago University Press 2002).
- 23.
‘Modi’s revocation of Kashmir’s autonomy’, The Economist, 10 August 2019 https://www.economist.com/leaders/2019/08/10/modis-revocation-of-kashmirs-autonomy accessed 31 January 2020.
- 24.
Chris Miller, ‘Succession and Punishment’, Foreign Policy, 21 January 2020 https://foreignpolicy.com/2020/01/21/succession-and-punishment/ accessed 31 January 2020.
- 25.
For a regime to be qualified as authoritarian, not all elements have to be present. Rather, the various combinations lead to different types of regimes, such as authoritarian nationalism, unitary state, kleptocracy, competitive authoritarianism or dictatorship, and more.
- 26.
See G Frankenberg (n 2) 1 ff.; G Frankenberg (n 1).
- 27.
Concerning the concept of coordination, see G Frankenberg (n 9), Ch 6 with further references.
- 28.
E.g.: ‘Whenever the country is threatened by an imminent danger to its institutions, its independence or its territorial integrity, the President of the Republic shall decree the state of emergency’ (Constitution of Algeria 1989/2016, Art 107). For a more elaborate discussion, see G Frankenberg (n 9) Ch 8.
- 29.
Constitution of the Russian Socialist Federative Soviet Republic, 1918: ‘Article 23. Guided by the interests of the working class as a whole, the Russian Socialist Federative Soviet Republic shall deprive individuals and individual groups of the rights which are exploited by them to the detriment of the interests of the socialist revolution.’
- 30.
The Thai Constitution grants the King and Head of State a position of veneration that removes him from any accusation or criticism: ‘The King shall be enthroned in a position of revered worship and shall not be violated. No person shall expose the King to any sort of accusation or action’ (Constitution of Thailand, 2017, Sec 6).
- 31.
The symbolic dimension of the theory of democratic representation is discussed by Claude Lefort, L’invention démocratique: Les limites de la domination totalitaire (Paris: Fayard, 1994); Claude Lefort, ‘Die Frage der Demokratie’, in: Ulrich Rödel (ed), Autonome Gesellschaft und libertäre Demokratie (Frankfurt am Main: Suhrkamp 1990), 281 ff. See also UlrichRödel et al., Die demokratische Frage (Frankfurt am Main: Suhrkamp 1989).
- 32.
‘The Syrian Arab Republic is proud of its Arab identity and the fact that its people are an integral part of the Arab nation. The Syrian Arab Republic embodies this belonging in its national and pan-Arab project and the work to support Arab cooperation in order to promote integration and achieve the unity of the Arab nation.’ Preamble of the Constitution of the Syrian-Arab Republic, 2012 (emphasis added).
- 33.
Basic Law of Hungary, 2011, Art 12. Similarly: ‘The King is Head of State, and its nominal representative, and his person is inviolate. He is the loyal protector of the religion and the homeland, and the symbol of national unity’ (Constitution of Bahrein, 2012, Art 33). Cambodia follows the same path: ‘The King shall be the Head of State for life. The King shall be inviolable’ (Constitution of 1993, Art 7).
- 34.
Instructive: the ‘Two-States-Theory’ concerning the legal existence of the Federal Republic of Germany and the German Democratic Republic. See the decision of the German Constitutional Court—BVerfGE 36, 1; also the One-China-Doctrine: ‘Taiwan is part of the sacred territory of the People's Republic of China. It is the lofty duty of the entire Chinese people, including our compatriots in Taiwan, to accomplish the great task of reunifying the motherland’ (Preamble of the Constitution of the People’s Republic of China, 1982).
- 35.
‘Martyrdom for the sake of the homeland shall be a supreme value, and the State shall guarantee the families of the martyrs in accordance with the law’ (Constitution of Syria 2012, Preamble).
- 36.
‘The system of governance in the state shall be a republican system; Sovereignty is an attribute of the people; and no individual or group may claim sovereignty. Sovereignty shall be based on the principle of the rule of the people by the people and for the people; The People shall exercise their sovereignty within the aspects and limits prescribed in the Constitution’ (Constitution of Syria 2012, Art 2).
- 37.
Sean Conant (ed), The Gettysburg Address: Perspectives on Lincoln's Greatest Speech (New York NY: Oxford University Press 2015); John L. Haney, ‘Of the People, by the People, for the People’ (1944) 88 Proceedings of the American Philosophical Society 359 ff.
- 38.
For references, see G Frankenberg (n 9), Ch 8.
- 39.
As for instance, the ‘deep state’ in Thailand that includes the monarchy: Eugénie Mérieau, ‘Thailand’s Deep State, Royal Power and the Constitutional Court (1997–2015)’, (2015) 46 Journal of Contemporary Asia, 445 ff.
- 40.
See Mike Lofgren, The Deep State: The Fall of the Constitution and the Rise of a Shadow Government (New York: Penguin 2016).
- 41.
Soner Cagaptay, ‘What’s Really Behind Turkey’s Coup Arrests’ (Foreign Policy, 25 February 2010) https://foreignpolicy.com/2010/02/25/whats-really-behind-turkeys-coup-arrests/ accessed 28 December 2018.
- 42.
See Scott Newton, The Constitutional Systems of the Independent Central Asian States. A Contextual Analysis (Bloomsbury Publishing 2017).
- 43.
‘…the press, radio, television, movies and other organs of the mass media are State or social property and can never be private property. This assures their use at the exclusive service of the working people and in the interest of society’ (Constitution of Cuba 1976/2002, Art 53).
- 44.
For a look at the dark side, see David Satter, Darkness at Dawn: The Rise of the Russian Criminal State (Yale University Press 2003); and Jonathan Weiler, Human Rights in Russia: A Darker Side of Reform (Lynne Rienner Publishers 2004); Anna Politkovskaya, A Dirty War: A Russian Reporter in Chechnya (Harvill Secker 2001).
- 45.
‘Die Grundform der Herrschaft ist das Racket.’[‘The basic form of rule is the racket.’] Max Horkheimer, ‘Zur Soziologie der Klassenverhältnisse’, Gesammelte Schriften XII (Frankfurt am Main: Fischer1985) 75 ff.
- 46.
Margereta Mommsen, ‘Putins “gelenkte Demokratie”: “Vertikale der Macht” statt Gewaltenteilung’, in Matthes Buhbeand Gabriele Gorzka (eds), Russland heute – Rezentralisierung des Staates unter Putin (VS Springer 2007) 235 ff.
- 47.
For a rather elaborate version, see the limitation of the freedom of occupation in the Thai Constitution: ‘The restriction of such liberty under paragraph one shall not be imposed except by virtue of a provision of law enacted for the purpose of protecting public interest, for maintaining public order or good morals, or for preventing or eliminating barriers or monopoly’ (Art 40).
- 48.
The Constitution of Thailand permits censorship in times of war: ‘Censorship by a competent official of any news or statements made by a media professional before the publication in a newspaper or any media shall not be permitted, except during the time when the country is in a state of war’ (Art 35).
- 49.
For example, the Constitutions of Singapore (1963/2016) and Vietnam (1992/2013).
- 50.
Constitution of Turkey of 1982/2017, Art 68–69.
- 51.
TurkulerIsiksel, ‘Between Text and Context: Turkey’s Tradition of Authoritarian Constitutionalism’, (2013) 11 International Journal of Constitutional Law, 702 ff.; Li-Ann Thio, ‘Constitutionalism in Illiberal Polities’ in Michel Rosenfeld and Andras Sajó (eds), Oxford Handbook of Comparative Constitutional Law (Oxford University Press2012) 134 ff.
- 52.
The Constitution of the Russian Federation of 1993 proclaims: ‘Nobody may usurp power in the Russian Federation.’ Moldavia’s Constitution of 1994/2016 calls the usurpation of power ‘the most serious crime against the people’ (Art 2). The GDR Constitution ordained in ‘Soviet times’: ‘….under no circumstances shall other than the constitutionally determined organs exercise state power.’—See also Constitution of Venezuela, Art 138.
- 53.
Kim Lane Scheppele, ‘The Rule of Law and the Frankenstate: Why Governance Checklists Do Not Work’, (2013) 2 International Journal of Policy Administration and Institutions 559 ff.
- 54.
As for instance, Saudi Arabia’s Basic Law of 1992/2013, Art 11: ‘The Saudi society shall hold fast to the Divine Rope. Its citizens shall work together to foster benevolence, piety and mutual assistance; and it avoids dissension.’ And Art 34: ‘Defending the Islamic faith, the society and the homeland shall be the duty of each and every citizen.’
- 55.
The authors of the Constitution of Angola (2010) feel obliged by ‘the commitment to the values and fundamental principles of the independence, sovereignty and the unity of a democratic state based on the rule of law, pluralism of political expression and organization, the separation and balance between the powers of bodies that exercise sovereign power, the market economy and respect and guarantees for fundamental human rights and freedoms, which constitute the essential pillars supporting and structuring this Constitution’. Similarly, the Constitution of Myanmar (2008) propagates a catalog of ‘eternal values’, among them ‘justice, freedom, equality, wealth, equality of races, patriotism’. The duty to strive for reunification is laid down in the constitutions of partitioned nations (China, North Korea, the original version of the German Basic Law, whereas the GDR-constitutions sported a two-states theory (nevertheless the first constitution of 1949 followed the example of the One-China-Principle: ‘Deutschland is an indivisible democratic republic’ (Art 1) and ‘There is only one German nationality’).
- 56.
See the constitutions of Egypt (1956); Iran (1979); Algeria (1989); and Hungary (2016).
- 57.
The first Russian Constitution after the October Revolution promised to ‘pursue the goal to end the exploitation of man by man and introduce socialism where there would be no social classes’ (Russia 1918, Art II no. 9).
- 58.
See the Constitution of Rwanda, 2003.
- 59.
Examples are the Constitution of Cuba 1976; the constitutions of Belarus (1994), Bahrein (2012) and Myanmar (2008). The Constitution of Turkey invokes ‘the eternal existence of the Turkish Motherland and Nation and the indivisible unity of the Sublime Turkish State’.
- 60.
As to the body metaphor, see the examples mentioned before: ‘We honor the achievements of our historical constitution and we honor the Holy Crown, which embodies the constitutional continuity of Hungary’s statehood and the unity of the nation’ (emphasis added).
- 61.
In constitutional monarchies, this symbolization corresponds to the pre-democratic tradition, e.g., Cambodia: ‘Nation, Religion, King’, in Morocco: ‘God, the Land, the King’.
- 62.
After 1924 followed the (Stalin) Constitution in 1936 and the Brezhnev Constitution in 1977.
- 63.
Constitution of 1924: Declaration concerning the formation of the union of Socialist Soviet Republics.
- 64.
The Constitution of Egypt (1956), the constitutions of Hungary and Poland today.
- 65.
See the GDR-Constitution of 1949, Art 6.
- 66.
See above. Also the value catalogs of the constitutions of Myanmar (2008), Iran (1979), Vietnam (1992), and China (1982).
- 67.
Berbers understand Amazighe as the complex of their culture, language and identity. See Constitution of Algeria 1989/2016, Art 84. Morocco's 2011 Constitution speaks with a sense of diversity of the ‘convergence of its Arab-Islamic, Berber [amazighe] and Saharan-Hassan components, complemented and enriched by its African, Andalusian, Hebrew and Mediterranean influences’.
- 68.
Fernand De Varennes, ‘Constitutionalizing Discrimination in Bhutan: The Emasculation of Human Rights in the Land of the Dragon’, (2008) 2 Asia–Pacific Journal on Human Rights, 47 ff. with further references.
- 69.
Constitution of Russia 1918, Art 4, no. 65.
- 70.
Basic Law of Hungary 2011/2016, Art U.
- 71.
Carl Schmitt, The Concept of the Political (University of Chicago Press 2007).
- 72.
‘Ungarn: Feldzug gegen die EU’, Viktor OrbánquotedbyBundeszentrale für politische Bildung (bdp.de) (27 February 2014) https://www.bpb.de/179664/ungarn-feldzug-gegen-die-eu accessed 30 June 2019.
- 73.
See, the Preamble and Art B of Hungary’s Basic Law. Kazakhstan’s Constitution (1995/2017) adopted the formula of the ‘unitary state’, similarly Moldvia (1994/2016). Kyrgyzstan’s Constitution (2010/2016) corroborates the ‘plenitude of state power’ (Art 1).
- 74.
E.g.: Constitutions of Eygpt (1953); Democratic Republic of Congo (2005/2011); Djibouti (1992); Eritrea (1997), Preamble and Art 1. As regards the subalternity of states: Mahmood Mamdani, Citizen and Subject: Contemporary Africa and the Legacy of Late Colonialism (Princeton University Press 1996).
- 75.
Whether it works or not depends on context and constellations, see Qatar 2003: ‘The State respects the international charters and treaties and works on executing all international agreements, charters and treaties to which it is a party.’
- 76.
The Russian Constitution of 1993 confirms the validity of human rights (which does not mean they mean much in Putin’s governmental practice): ‘The recognition, observance and protection of human and civil rights and freedoms shall be an obligation of the State’ (Art 2). More restrained the Constitution of Turkey: ‘The fundamental rights and freedoms in respect to aliens may be restricted by law compatible with international law’ (Art 16).
- 77.
Morocco’s Constitution (2011) is quite explicit: ‘The constitutional regime of the Kingdom is founded on the separation, the balance and the collaboration of the powers, as well as on participative democracy of [the] citizen, and the principles of good governance and of the correlation between the responsibility for and the rendering of accounts.’ Exaggerated or not, the statement was at least put into practice by reforms.
- 78.
The referendum was officially accepted by 99.98%. See generally, Tom Ginsburg and Tamir Moustafa (eds), Rule by Law (Cambridge University Press 2008).
- 79.
China’s Constitution of 1982/2004, Art 18: China ‘permits foreign enterprises, other foreign organizations und individual foreigners to invest in China…’.
- 80.
‘The State encourages, provide favorable conditions for entrepreneurs, enterprises and individuals, and other organizations to invest, produce, and do business, contributing to the stable development of the economic branches and national construction. Private possessions of individuals, organizations of investment, production, and business are protected by the law and are not subjected to nationalization’ (Vietnam 1992).
- 81.
Examples for such cooperation offers: the Constitutions of Morocco (2011) and Oman (1996/2011). See also above Vietnam 1992.
- 82.
Sibylle Fischer, Modernity Disawowed (Duke University Press 2004), 227–228 and 233.
- 83.
Constitution of the Kingdom of Morocco 2011, Preamble.
- 84.
Marco Bünte, ‘Burma’s Transition to “Disciplined Democracy”: Abdication or Institutionalization of Military Rule?’, (2011) GIGA Working Papers https://www.giga-hamburg.de/en/system/files/publications/wp177_buente.pdf accessed 21 February 2020.
- 85.
‘Aung San Suu Kyi: Myanmar democracy icon who fell from grace’(BBC News, 23 January 2020) https://www.bbc.com/news/world-asia-pacific-11685977/ accessed 21 February 2020. See also G Frankenberg (n 9), Ch 7.
- 86.
Peter Boothroyd and Pham Xuan Nam (eds), Socioeconomic Renovation in Viet Nam. The Origin, Evolution, and Impact of Doi Moi (Ottawa: International Development Research Centre 2000).
- 87.
That is why Sadat’s invitation to foreign investors was generally not considered ‘inviting’.
- 88.
‘Ungarn – von der Krisenbewältigung zum Aufstand gegen das EU-Regime’, (2014) 4 GegenStandpunkt. Politische Vierteljahreszeitschrift 14 https://de.gegenstandpunkt.com/artikel/ungarn-krisenbewaeltigung-zum-aufstand-gegen-eu-regime/ accessed 30 June 2019.
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Frankenberg, G. (2021). Authoritarian Constitutions: Audience and Purposes. In: John, M., Devaiah, V.H., Baruah, P., Tundawala, M., Kumar, N. (eds) The Indian Yearbook of Comparative Law 2019. The Indian Yearbook of Comparative Law. Springer, Singapore. https://doi.org/10.1007/978-981-16-2175-8_7
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