Everybody in the Middle East is talking about reform these days. Hand in hand with democracy comes a clamor for constitutions. But what is the function of a constitution? When I was a student in the 1970’s, my classes in constitutional law discussed the impeachment of Richard M. Nixon, the right of schools to admit students from disadvantaged minorities on the basis of lower standards than other students, equal rights under the laws for black Americans, and the right of women to choose whether to have an abortion. These issues reflected the liberal agenda of the times.
I would imagine law students today grappling with different issues reflecting the conservative agenda of the Bush era. With the coming appointment by George W. Bush of one, possibly two, new justices to the Supreme Court, and a new Chief Justice, the battle between liberals and conservatives will continue among those who interpret the US Constitution.
In Europe, constitutions reflect the unique historical, political and social make-up of each country. Take the constitutional monarchies in Europe as an example. Of the eight remaining constitutional monarchies in Europe, Spain, Norway and Belgium offer interesting contrasts, which are illuminated below. One can generalize that all three constitutions limit the power of the monarch. The constitutions of Kuwait, Bahrain and Qatar all reserve ultimate power in the hands of the monarch, but the European constitutional monarchies have largely ceremonial kings.
The crux of constitutional monarchies comes down to just how much power the monarch retains. European monarchs were not always ceremonial figureheads. Over time, monarchical power devolved to the elected parliament and the elected prime minister. After nearly 40 years under the dictatorship of General Franco, his democratic successors in Spain not surprisingly drafted a constitution that granted the monarch very limited powers with largely non-political duties. As the Constitution was being formulated, parties of the left were strongly opposed to a monarchy, which they saw as a Francoist legacy; they favored establishing a republican form of government. At the same time, reactionary elements wanted to preserve the monarchy in order to use it as a means to perpetuate Francoism. In between these two extremes were the reformers, who thought that the monarchy could serve as an element of stabilization during the transition to democracy. The success of this arrangement has been largely attributable to King Juan Carlos, whose calming, regal presence was so apparent in the memorial services for the 11 March 2004 victims of the Madrid terrorist attacks.
In contrast, the constitution of Norway, which formally vests significant powers in the king, reflects the fact that modern democracy was still in its infancy in 1814 when the Constitution was written. In Belgium, the people had endured centuries of rule by external governments and wanted more involvement in the role of its government, evidenced by the opposition faced by King Leopold III, who was forced by the public to abdicate in favor of his son in 1950. Belgium’s constitution is closer to the Spanish model of a ceremonial monarch than Norway’s constitution, which still preserves certain formal powers in the hands of its king.
Constitutions reflect whether a country’s inhabitants are homogeneous, as in Norway or heterogeneous as in Belgium. Norway’s constitution mirrors the country’s religious and cultural homogeneity, stating that “the Evangelical-Lutheran religion shall remain the official religion of the State,” although the Constitution also provides for freedom of religion. Except for one provision protecting the Eskimos, the drafters of Norway’s constitution were silent about immigrants, minorities and foreigners.
On the other side of the spectrum lies Belgium, whose constitution protects the rights of differing peoples governed by one nation. The Belgian Constitution was drafted in 1831, and revised in 1980 after the country became a federal state comprised of three administrative regions, the Walloon region, the Flemish region and the Brussels region. The Constitution specifically refers to these regions along with the three communities, French, Flemish and German and four linguistic regions, French, Dutch, German and the bilingual region of the Brussels Capital. The updated 1980 Constitution provides the different communities and regions with greater autonomy and power, rendering the role of the monarch even more ceremonial than before.
Spain also has sharp regional versus center issues, with the capital of Madrid in the center of the country and the autonomy-seeking Basque and Catalonia regions resting on the periphery. The Spanish Constitution navigates this minefield by making Castilian (Madrid) Spanish the national language, but allowing regions to speak other Spanish languages “in the respective Self-governing Communities.” Additionally, Spain now allows the Basque region to collect its own taxes, a major concession to regional autonomy but not enough to extinguish the ETA Basque resistance.
European constitutional monarchies reflect the democratic trends over differing time spans – the last two centuries in the case of Norway and the last few decades in the case of Spain. European constitutions are not as pre-occupied with the protection of minorities from the tyranny of the majority as is the American constitution, although they all have checks and balances between the Executive, Legislative and Judiciary. It is noteworthy that the Kuwait, Qatari and Bahrain constitutions are also based upon the separation of powers. The difference is that the Gulf constitutional monarchies give the ruling family power in both the executive and legislative branches. This may change, however, as Kuwait’s Parliament has shown a growing independence and assertiveness, sometimes requiring Emiri-appointed ministers to come to Parliament to negotiate.
The European constitutional monarchies offer a model of governance for monarchies in the Middle East in one important respect. The institution of the monarchy can be preserved by law, and the amount of power retained by the monarchy can be stipulated in the constitution in a way that can evolve over time as municipal and national elections and other democratic procedures become better understood and accepted. The trend of reform is to transfer some of the power of the King to either an elected executive, usually the Prime Minister, or to the parliament. Kuwait illustrates the power of parliament, but an alternative model for reform is to strengthen the office of the prime minister, initially with a crown prince.
Executive governance would be divided between the King and the Prime Minister/Crown Prince. Over time, the Prime Minister might well be an elected representative, and the monarch would gradually have the ceremonial role now seen in Spain and Belgium. Reformers in Middle Eastern monarchies may choose to draw on European constitutional monarchies as a model for continuing the institution of the ruling family while circumscribing its power in accordance with the democratic demands of its people.