Conceptualising authoritarian constitutionalism By Roberto Niembro Ortega

A reaction paper

A new term yet not new to us, Authoritative Constitutionalism. As the name gives away, it has something to do with Authoritarian which is strict obedience with the authority or (quoting Gunter Frankenberg) ‘right to command obedience’ and constitutionalism which is just opposite, limiting political powers (as said by Ortega) and/or a voice or so to say a perspective of citizens (as said by Upender Baxi). It was quite surprising for me to see these two terms together as diversity and freedom (between political bodies and/or citizens and government) are key to peace co-existence. The concept developed by legal scholar Mark Tushnet, authoritative constitutionalism for him meant (quoting Ortega), “intermediate normative model between liberal constitutionalism and authoritarianism” whereas Ortega holds the opinion that it is a concept where ‘ruling elites with authoritarian mentality’ exercise power. Ortega has emphasised ‘authoritative mindset’ as an essential to determine the regime of authoritative constitutionalism. However, to my personal belief people who gain power pre-own or develop authoritarian mindset. It is difficult to spotlight the actual intentions or mindsets however not as difficult as Ortega contemplates.

On the bare reading of authoritarian constitutionalism as talked by Tushnet, Ortega or Frankenberg, authoritarian constitutionalism basically is the authority’s exercise of self-serving supremacy with a liberal constitution. For here arises a question, a country without its citizens is a barren land, it has been however not pointed out yet that with institutions like communalist party China or Authoritarian constitutionalism America, a country can grow, however, not the citizens and a country is essentially its citizens. Authoritarian constitutionalism very much sounds like colonial rule. Ortega divided this reading in four major sections making it as informative as possible: (repetitive to an extent too)

  1. Constitutionalism- Ideology, Narrative, Theory, Specific Institutions and Ideologies
  2. Authoritarian constitutionalism in different countries
  3. Authoritarian mindset and Constitutionalism
  4. Constitutional theory to counteract Authoritarian constitutionalism 

Uses of the term Constitutionalism

 Constitutionalism, as very well put by Jeremy Shklar is, “liberalism of fear” which aims to eradicate abuse of power and powerless. However, when the necessity of coercion is a requirement here, for it to do away with arbitrariness is a mere utopian ideology. Also, when Ortega mentions that liberalism is not the only guiding ideal of constitutionalism, it made me wonder, what is the difference then? Where Ortega says, “constitutionalism is a compound of liberal, constitutional, democratic and progressive ideas” and that scholars suggest we shall consider non/illiberal constitutionalism, which of these compounds of constitutionalism as stated do not fit in liberalism? As per my understanding of constitutional, it is setting unbiased, public-benefitting, principles to govern a state and its citizens, democratic is for the people, of the people and by the people and progressive ideas are supportive of new change in new era and moving forward with it. People who are called liberalist today encompass all of the above. Liberalism is mere acceptance or consideration of opinions other than own’s, which wraps just state laws for all (government and citizens), people’s government with their opinions for their benefits and accepting of new changes and ideas. 

Ortega along the lines of Frankenberg, correctly points out how elites play the liberal constitution to favour themselves which sounds like an agency problem where no matter how many checks you impose, unless the authoritative mindset is irradiated, no liberal constitution can let democracy survive. However, quite struck by the statement of delinking human rights from judicial review and judicial supremacy and empowering legislatures by giving it the final say, how would liberal constitutionalism be ensured? Considering that past and present governments have been citizen centric, what can assure that in countries like UK, New Zealand and Canada, no authoritarian government will prevail, where UK and Canada does not even have a written constitution? 

Authoritarian constitution across the globe

Ortega began with the difference between authoritarian constitutionalism and constitutional authoritarianism, however till the end did not sound convincingly clear. It could’ve been more elaborated for this hairline difference is important to understand. Also, on bare reading of other authors, it seemed Ortega concluded in consistence with other authors. He also sounds confused to where set his foot as he claims distinction and pick the path of giving alternate meaning to authoritarian constitutionalism however end up to common consensus. In the example of people detained without trial and one being arbitrary and then going on to how relaxed the sedition laws are; however, detention laws have a huge scope of arbitrariness. This is one example, of one nation, but the truth is that contours are not defined in authoritarian constitutionalism, and even if they are, they are set by the authorities themselves, like being the judge in own case. You can call one authoritarian practice as conservative but practically the whole concept is conservative. 

Authoritarian mindset and theory to counter it

Mindset is similar to affirming mens rea, where Ortega claims, “faulty constitutional practices are a cue to Authoritarian ideology, however, there are ambiguities in this theory”, it is clear via many incidents we come across where when elections are near, all roads and cleanliness drives and good deeds begin just to win elections then why wont a gov want to run authoritatively when getting an opportunity at the cost of mere liberal constitutional text. It’s a show to be good to gain trust and enjoy the power after.  For today’s world of constitutionalism as authoritarian in disguise, Ortega offers a fairly utopian solution, implementation of which is unknown to Ortega himself. Where I understand this topic cannot be easily settled, I frankly hoped to find a solution to all these reoccurring thoughts we have. Nonetheless, the read was very informative on principles of constitutionalism all across the world and an extensive paper on authoritarian constitutionalism. 

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