On this week’s podcast, Marc Lynch speaks with Asli Ü. Bâli about drafting techniques in writing constitutions. Bâli is a professor of law at the UCLA School of Law and director of the UCLA Center for Near Eastern Studies.

“In the Egyptian context, there were key divisions about the relationship of religion to state, about the status of religious identity and religious law. These questions escalated dramatically when it seemed as if a zero sum game might be produced in the constitution writing process— where one normative vision would be entrenched, and the other one would be essentially discarded. We think is at least part of an explanation for why the constitution drafting process devolved into a series of politically unstable arrangements yielding what has become the return to authoritarianism,” said Bâli.

“There are debates about what the identity of the state should be— how it ought to commit itself to particular ethical and moral system— and that’s different than kinds of debates that are about the share of the pie that different parties might be able to get,” said Bâli. “We found that religion is different. In particular, from the other category, a divided society has often thought about in constitutional design questions: namely, ethnically divided societies.”

“Turkey is a perfect example of a country that very much falls into the category of countries with which we’re concerned,” said Bâli. “The government basically advertised to the population that it was impossible to engage in a consensual constitution making process in Turkey and that the only alternative would be for the majority to impose a vision on a top down basis. Our argument is precisely to say that there is a middle ground between these two models.”

“In Turkey, what we see today is in the aftermath of a coup, in the aftermath of a threatened exercise of violence to disrupt civilian governance,” said Bâli. “The government has used a window of opportunity to consolidate power and dramatically authoritarian way, essentially suspending the rule of law and ruling by decree and against this backdrop. And during the continuation of a state of emergency in which ordinary legislative processes have been suspended and a substantial number of parliamentarians from the third largest political party in the country are being detained the government with a bare majority is forcing through a vision of constitutionalism. We view that as a very poor prescription for a durable resolution of the identity and conflict that has animated Turkey for the last 80 plus years.”

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Drafting a Constitution: A conversation with Asli Ü. Bâli