Rainer Grote, Tilmann J. Röder
Since the end of 2010, popular protests, revolts, and revolutions have shaken North Africa and the Middle East. The so-called Arab Spring, which had been triggered by the desperate self-immolation of the Tunisian street vendor Muḥammad Būʿazīzī, turned into a historical opportunity for fundamental political and constitutional change. Massive uprisings erupted in Egypt, Libya, Syria, Tunisia, and Yemen, while major protests broke out in Algeria, Bahrain, Iraq, Jordan, Kuwait, Morocco, and Sudan, and minor protests occurred in Djibouti, Mauritania, Oman, Saudi Arabia, Palestine, and Western Sahara. Other countries in the region were at least indirectly affected, such as Lebanon and Turkey, which received large numbers of refugees from neighboring Syria. Some of them saw an opportunity to extend their influence abroad, often in direct competition with other states from the region. Qatar supported the Muslim Brotherhood in Egypt and rebel groups in Libya, Syria, and other countries, both financially and through its global multimedia conglomerate, Al Jazeera Media Network, while Saudi Arabia worked assiduously to counter the Brotherhood’s mounting influence in the region by propping up its enemies. The Gulf monarchies denounced Iran’s hand behind the stirring of Shīʿah discontent in the region, notably in Bahrain and Yemen. All of these states plus Turkey, Russia, the United States, the United Kingdom, France, and Canada actively intervened in the Syrian civil war, providing their allies with both money and weapons, and in the cases of Russia and several NATO member states, with air strikes.
In the early stages of the Arab Spring, many rulers reacted with a combination of repression and concessions to the mounting public protest (“days of wrath”). After a while, the events in the individual countries took different directions but continued to influence each other. Two monarchies and five republics receive special attention in this book in view of the important repercussions the events of the Arab Spring had on the development of their respective constitutional and political systems: Morocco, Jordan, Tunisia, Egypt, Libya, Syria, and Yemen.
The rulers of Morocco and Jordan introduced constitutional amendments that combined limited reforms with safeguards for their own power. In June 2011, King Muḥammad VI of Morocco presented his plans for constitutional reform, which included the strengthening of the (p. 4) parliament and the prime minister, the introduction of a constitutional court, and an extension of civil liberties. Muḥammad VI decided, however, to retain many powers of an absolute monarch. Particularly, the powers associated with strategic policy choices, security and religious issues, and the dissolution of the parliament and dismissal of the prime minister were to remain his exclusive domain. The proposed constitution found strong popular support in a referendum held in July 2011 and was promulgated at the end of the same month. Only small groups continued their protests, demanding the establishment of a truly constitutional monarchy.
King ʿAbdullāh II of Jordan decided not to involve the citizens but only the parliament of his country in the constitutional reform process. In September 2011, both chambers of the Majlis al-Ummah approved amendments, which on the whole were more limited in scope than those adopted in Morocco. The most important innovation was the introduction of a constitutional court. As protests continued, the cabinet was reshuffled several times, the parliament was dissolved and a new legislature elected; additional constitutional amendments were adopted in August 2014—signs of instability in a country located awkwardly geographically speaking and which found itself in a difficult economic situation that got even more complicated when hundreds of thousands of refugees poured in from neighboring Syria as the civil war drove ever more people from their homes.
In comparison, Morocco stands as a model for the modernization of an Islamic monarchy tightly controlled from the top. However, the strengthening of the powers of parliament and of the opposition, the introduction of checks and balances between the branches of the government, and the increased protection of fundamental rights were possible primarily due to favorable conditions that cannot be reproduced easily in other parts of the Arab world. Meanwhile, five authoritarian regimes—Tunisia, Egypt, Libya, Syria, and Yemen—experienced major upheavals; of the pre-2011 leaders, only President Bashār al-Assad of Syria managed to stay in power, but in the process lost control over extended areas of the country. His effort to quell the protests with a new constitution adopted in 2012 on the one hand, and bloody repression on the other, failed. At the time of writing, an end to the civil war in Syria was not in sight. The jihadist militia that presumptuously adopted the name “Islamic State” (IS) exercised control over about half of the national territory and brutally oppressed millions of citizens. Kurdish groups established a radically different, libertarian model of self-governance in their settlement areas in northern Syria.
Yemen also fell into the abyss of civil war. After tough bargaining and the political intervention of the Gulf Cooperation Council (GCC), President ʿAlī ʿAbdullāh Ṣāliḥ withdrew; in February 2012, his former deputy ʿAbd Rabbuh Hādī Manṣūr became president in elections in which he was the sole candidate. A year later, a National Dialogue Conference (NDC) began in Ṣanaʿāʾ; however, the process was marked by protests and violence throughout the country. Calls for independence grew louder in the south, which had been a socialist republic of its own until 1990, while tensions between the Zaydī Ḥūthī group that originates from the north and government-aligned forces increased and the jihadist group al-Qāʿidah on the Arab Peninsula (AQAP) continued to destabilize the country. Results reached by the NDC could not be implemented as the Ḥūthī movement revolted, took control of the capital in September 2014, and installed a Revolutionary Committee led by Muḥammad ʿAlī al-Ḥūthī. Since then, the civil war has engulfed nearly all of Yemen.
Sadly, Libya also descended into chaos. The revolutionary phase of 2011 had been promising, with an Interim Constitutional Declaration drafted by a National Transitional Council (NTC) that generated legitimacy by incorporating representatives from all parts of the country and gained wide international recognition as the de facto government of the country. In October 2011 militias killed the reviled “Brotherly Leader” of Libya, Muʿammar al-Qadhdhāfī. Almost a year later, the NTC formally handed over power to the newly elected General National Congress. However, the transformation process had already gone (p. 5) astray due to deep ideological divides and rivalries between different clans and political factions. Further constitutional amendments could not keep it on track. For many months, two political bodies claimed to be the legitimate representative of Libya: the internationally recognized Council of Deputies and the General National Congress, which was dissolved following the June 2014 elections but later reconvened by a minority of its members. In December 2015, the competing bodies signed a UN-brokered agreement on the formation of a unity government. However, this deal might be difficult to put into effect as tensions between the two bodies remain high and parts of the country are not under the control of either of them, but of various Islamist, rebel, and tribal militias.
While these three country examples illustrate which factors can potentially derail a political and constitutional transformation process following a popular uprising—ideological and sectarian tensions, an overly powerful regime, power vacuums that are filled by destructive militias or terrorist groups, and the lack of legitimate and integrative, reform-minded institutions or figures—the cases of Egypt and Tunisia demonstrate what diametrically different directions a transformation process can take.
In Egypt, the Supreme Council of the Armed Forces (SCAF) assumed power after President Ḥusnī Mubārak’s resignation in February 2011. Despite their promises to act as a neutral arbiter, the military institution turned into being a political actor, issuing constitutional declarations, appointing interim presidents and prime ministers, and being directly involved in virtually all public affairs. Two constitutions were suspended, and two new constitutions were submitted to referenda and enacted. A candidate affiliated with the Muslim Brotherhood, Muḥammad Mursī, became the first democratically elected president of the country and the first who did not stem from the military ranks—only to be overthrown by the military after just twelve months. He was tried for various charges before criminal courts and sentenced to death in May 2015 (with the appeal still pending). Under the presidency of ʿAbd al-Fatāḥ al-Sīsī, the rift between the different political groups in Egypt is wider than ever before. The Muslim Brotherhood has been outlawed as a terrorist organization, and its supporters have been killed, jailed, or driven into the underground. The military has re-established its iron grip on Egyptian politics, and the opportunity to create a pluralist democracy with a place for both Islamists and non-Islamists has been lost for probably a long time.
Only in Tunisia, the transition process led to a result that probably comes close to what most of the protesters in 2010–2011 had aspired and fought for: a democratic state that does not deny the country’s Islamic tradition but provides space for much of the diversity that it comprises. The “Dignity Revolution” (thawrat al-karāmah), as the events were called in the country, met favorable circumstances and was prudently led. First, and most important, the military decided not to use force against the protesters and paved the way for an orderly transition process. The main opposition forces were able to form an interim National Unity Government under the chairmanship of Yadh Ben Achour, a widely respected scholar and lawyer, and the High Commission for the Realization of the Objectives of the Revolution prepared the ground for elections to a constituent assembly. The elections were held in October 2011 and resulted in the formation of an interim coalition government led by the moderate Islamists of the al-Nahḍah Party, with the participation of the center-left Congrès pour la République and the left-leaning al-Takattul as junior partners. Al-Nahḍah declared that it would respect the secular nature of the state and not insist on Sharīʿah to become the main source of legislation in the new constitution. The constitution drafted by the Constituent Assembly is a compromise between Ennahda and the non-Islamist groups in the Assembly, brokered by Tunisia’s vibrant civil society, which intervened at a crucial moment when the constitutional process seemed to have broken down. Replicating in a way the events of a century and a half before, when Tunisia was the (p. 6) first Arab country to adopt a constitution in 1861, the small country thus emerged as the vanguard of constitutional change in the Arab world. Only here the dawlah al-madanīyah or civil state—in the sense of a constitutional democracy that is neither controlled by the military nor theocrats nor other oppressive forces—became reality. The constitutional changes after the Arab Spring, which have so far resulted in the enactment of new constitutions in Morocco (2011), Jordan (2011), Syria (2012), Egypt (2012 and 2014), and Tunisia (2013), the adoption of interim constitutions or transition agreements in Yemen (2011) and Libya (2011 and 2015), and the enactment of constitutional amendments in other Arab countries, constitute the most important legal development in this world region since the multiple state transformation processes after the disintegration of the Soviet Union in the early 1990s. So far, only a surprisingly small number of scholarly publications deal with them.1 None of these works examine the relevance of the transformation processes for the development and future of constitutionalism in Arab countries using an integrated and multifaceted approach. The present volume shall provide this integrated analysis. It seeks to capture the constitutional trends and patterns emerging in the post–Arab Spring world. Most of its chapters were written by authors from the region, and about one-third of the contributions have been translated from Arabic or French into English. The diversity of styles also reflects the diverse backgrounds of the authors.
In seven parts, the book seeks to analyze the constitutional transformations undergone by Arab countries since 2011 from a multidisciplinary perspective, drawing on the methods and insights of comparative constitutional law, international law, Islamic law, comparative politics, jurisprudence, and legal history. The main parts of the book are preceded by a reflection on the way in which the transition processes triggered by the Arab Spring have unfolded in different countries, and a concluding chapter tries to assess the lasting impact of the Arab Spring for the advancement of (Islamic) constitutionalism, democracy, human rights, and rule of law in the region.
Part 1 of the book covers questions of the legitimacy of constitution-making processes as such. It begins with theoretical perspectives from an Islamic and international legal standpoint. Chapters examining developments in specific countries follow. The institutional changes that have taken place in the Tunisian transformation process are examined as well as the involvement of the most important authority of Sunni Islam, Al-Azhar University, in Egypt. The current civil war in Syria has raised questions about the legitimacy of constitutional change through international recognition. A chapter dealing with this subject (p. 7) also examines events concerning Libya and Palestine from a comparative perspective, while another looks closely and through a comparative analysis at the competing representatives of the Syrian “sovereign”. This is followed by an evaluation of the constitutional changes that have taken place in Jordan and, moving slowly toward the Arab Gulf, on the possibilities and limits of constitutional developments in the monarchies there.
Part 2 looks at the relationship between state and religion. The prominence of parties with a moderate or radical Islamist agenda, such as in Tunisia, Egypt, and Libya, has raised the question of whether the concept of dawlah al-madanīyah (the civil state) can be used to reconcile Islam and modern notions of statehood and democracy. Moreover, provisions defining the Islamic character of the state and the role of Sharīʿah as a (or the) source of legislation nowadays figure prominently in most Arab constitutions. Their application frequently raises difficult issues in practice, also because these provisions often result from complex and at times nontransparent constitutional bargaining processes between the relevant political actors and constitute an uneasy compromise between those groups which call for the establishment of a constitutional system in which political rule is based entirely on the precepts of Islam and those forces which essentially want to maintain the secular character of the main institutions of governance and thus will accept only a moderate or limited Islamization of the constitution and the legal and political system.
Part 3 focuses on the role and functions of the military in the state. It begins with an overview of the position and functions of the military in the constitutional systems of selected Arab countries, followed by a study of the changes in civil-military relationships after the Arab Spring. Little attention has been given so far to the role of the military in Mauritania, which is the subject of a separate contribution. Another chapter deals with the military’s sway over the political system of Algeria, a country that set an important precedent for the bloody repression of Islamist reform movements in the 1990s. Moving on to the Levant, the integrative function of the military in the pluralist state of the Lebanese people is examined more closely. The relevant chapter seeks to draw lessons from the Lebanese experience with regard to the role an army can play in a state plagued by sectarian conflict.
Part 4 analyzes the fragile basis of democracy and development in the Arab world. It opens with a tour d’horizon of the historical, political, and economic factors that have shaped the region since independence. The following chapters address key issues of democratic reform: electoral systems and decentralization. A chapter on Morocco examines the various aspects related to the constitutional modernization of a traditional Islamic monarchy. The legal status of Kurds in Iraq and Syria, which has important political and legal repercussions far beyond those two countries, is analyzed in the next chapter. A final chapter deals with the huge economic challenges faced by the constitutional transformation processes in the region.
Part 5 focuses on civil and political rights, minority rights, women’s rights, and citizenship rights, which have all been crucial issues in the context of the Arab Spring. International human rights law defines certain red lines that may not be crossed if the countries want to abide by their international commitments. One chapter looks specifically at the respect of civil and political rights as a precondition for democratic participation, followed by a study of linguistic and cultural rights in Arab constitutions. With regard to women’s rights, two chapters ask if they are at risk in Tunisia and if there is any hope for their strengthening in Yemen. The rights of religious minorities in postsecession Sudan and in Egypt, Syria, and Iraq is the subject of a separate contribution. Constitutional developments on the Arab Peninsula have largely been overshadowed by the reform processes taking part in other Arab countries, especially after the Arab Spring. They are here dealt with in separate chapters on civil and citizenship rights in the region and constitutional reform in Oman.
(p. 8) Part 6 takes a closer look at the establishment and strengthening of constitutional courts in Arab countries. So far, Morocco, Tunisia, Syria, and Jordan have adapted these institutions as means to uphold their constitutions and to enforce the rule of law and citizens’ rights more effectively. All of these will be analyzed in the introductory chapter and subsequent country studies. A final chapter examines the concept of an International Constitutional Court, which was developed by Tunisia’s post–Arab Spring President al-Munṣif al-Marzūqī and a group of international lawyers and presented at the General Assembly of the United Nations in September 2012. It demonstrates the innovative thinking that exists in one of the world’s most instable regions.
Finally, Part 7 seeks to contextualize events in the Arab Spring countries by studying the wider international context of the constitutional dynamics in the region. The role occupied by international law in the newly adopted or amended Arab constitutions is discussed in the introductory chapter. The following chapters feature essays on the relevance of reform experiences and debates in Turkey, Iran, Iraq, and Palestine to the countries of the Arab Spring. Finally, the influence of international organizations on the transformation processes in the region (and its limits) is addressed in a case study on the role played by the European Union in the Arab Spring and its aftermath.
1 Some of the more important works that are written in or translated into European languages are: Chibli Mallat, Philosophy of Nonviolence: Revolution, Constitutionalism, and Justice beyond the Middle East (Oxford University Press 2015); Mehran Kamrava, Beyond the Arab Spring: The Evolving Ruling Bargain in the Middle East (Barnes and Noble 2015); Antonio Abat i Ninet and Mark Tushnet, The Arab Spring: An Essay on Revolution and Constitutionalism (Elgar 2015); Sonia L. Alianak, The Transition Towards Revolution and Reform: The Arab Spring Realised? (Edinburgh University Press 2014); Justin Frosini and Francesco Biagi, Political and Constitutional Transitions in North Africa (Routledge 2014); Khair El-Din Haseeb (ed.), State and Religion in the Arab World (Routledge 2014); Bruno Menhofer and Dirk Otto (eds.), Recht nach dem Arabischen Frühling. Beiträge zum islamischen Recht IX (Peter Lang 2014); Nathan J. Brown and Saïd Amir Arjomand, The Rule of Law, Islam, and Constitutional Politics in Egypt and Iran (SUNY Press 2013); Elizabeth F. Thompson, Justice Interrupted: The Struggle for Constitutional Government in the Middle East (Harvard University Press 2013); Joshua Castellino and Kathleen A. Cavanaugh, Minority Rights in the Middle East (Oxford University Press 2013); Bassam Tibi, The Sharia State: Arab Spring and Democratization (Routledge 2013); Ann Elizabeth Mayer, Islam and Human Rights: Tradition and Politics (5th edition, Westview Press 2012).