commentary

(International Herald Tribune)

November 7, 2005

The World Needs a Prefab Constitution

by Cheryl Benard

WASHINGTON — Governments and relief agencies working feverishly in areas stricken by recent natural disasters aren't trying to win architectural awards with innovative new designs for permanent housing. They are trying to provide emergency shelter for the homeless. In the same way, officials trying to rebuild nations ripped apart by war can't be expected to come up with groundbreaking new constitutions that will last for the ages. With the bullets still flying, nation-builders must create governmental structures as quickly as possible to run their countries.

Just as providers of housing can rely on standard-design tents, trailers and prefabricated shelters, nation-builders need a new tool at their disposal — the prefabricated constitution.

The idea may sound silly at first — but on closer examination it makes a lot of sense. Every representative government needs a legislature, a court system and an executive branch running governmental agencies that keep a country operating. A neutral, generic post-war constitution developed by international agencies could take a country recovering from conflict through its first volatile years. Discussion of more fundamental issues of national principle could then be postponed until a bit of normality has been restored.

This is not what has happened in Afghanistan and Iraq. In these war-torn nations, the United States and national governments have pushed to get constitutions in place quickly, treating them as tools for stabilization. But as we saw in Afghanistan and can see now in Iraq, post-conflict countries are in serious disarray not just physically but socially and ideologically. Getting all factions to agree on the text of a new constitution requires heavy external engagement. The process is marked not only by the debate and grave consideration due to such a solemn task, but also and less inspiringly by arm-twisting, threats and behind-the-scenes horse-trading.

With the clock ticking loudly on timelines for approving new constitutions, the quickest way out of ideological deadlocks is through deliberate ambiguity. Constitutions become riddled with vague, differentially interpretable formulations. They then become agreements to commence disagreeing over important basic issues as soon as the ink is dry.

A prefabricated emergency constitution could be commissioned by the United Nations and created by a group of recognized experts in international law, constitutional law and governmental administration. This document would be put in place for a limited period of time, perhaps five years. This would give societies time to recover from the immediate turmoil of conflict, put their daily affairs in order, regain a measure of stability and civility, and begin to sort out their values and priorities.

After five years, demobilization and disarmament would have made greater strides, giving a greater role to civil society. More settled, the country could consider what modifications it wished to make to the basic constitution, tailoring it to its culture and specific needs. And in the concluding referendum, people ideally would not literally have to risk their lives just to go to the polling station — a frame of mind that surely is not optimally suited to calm deliberation.

The argument of culture is sure to be raised against this suggestion. But a comparison of constitutions reveals that they are not all that different from one another. Modern constitutions in particular are far more alike than they are different, with many of the essentials — like a bill of rights guaranteeing individual liberties, acknowledgment of the most important international conventions and treaties, and acceptance of the principles of human rights — standard issue and de facto beyond debate.

Nor is this without historical precedent. After World War II, Japan received a constitution drafted entirely by Americans. On the instructions of General Douglas MacArthur, a committee led by two U.S. Army officers with law degrees wrote up the text. They referred to the old Meiji Constitution, but did not shy away from bold innovations. Women, for example, were granted not just the vote, but an equal rights amendment. The 1947 Constitution proved so popular in Japan that it remains unchanged today, even though it could have been amended by the Japanese.

Would countries today accept the imposition of a generic document? Again, we need to recall our natural disaster analogy. A country that needs a new constitution is a country in a state of total collapse. We're not talking about a small war or a minor conflict; we're talking 7 or 8 on the political Richter scale. These are countries that cannot govern, support or administer themselves. Instead, they are reliant on external funding and outside management — usually by the United Nations, an assortment of nongovernmental aid groups and donors, or by a foreign power like the United States.

For some years, the sovereignty of a newly established state that results from these efforts is a polite fiction and not much more. Just as a new police force must be trained and a new army must be raised, so too must governance develop through a process that optimistically cannot take less than five to 10 years. In this situation, it would be quite useful for a prefab constitution to be part of the reconstruction package for nations recovering from war — saving significant energy and resources for the more pressing tasks of helping a new national governmental structure survive.


Cheryl Benard is a senior political scientist at RAND Corp.

This commentary originally appeared in International Herald Tribune on November 7, 2005. Commentary gives RAND researchers a platform to convey insights based on their professional expertise and often on their peer-reviewed research and analysis.