Writing Constitutions in the Wake of the Arab Spring | Foreign Affairs | November 30, 2011
November 30, 2011
Writing Constitutions in the Wake of the Arab Spring
The Challenge of Consolidating Democracy
ANTHONY BILLINGSLEY is a Lecturer at the University of New South Wales in Australia. He is the author, most recently, of Political Succession in the Arab World: Constitutions, Family Loyalties, and Islam.
The wave of revolutions that ousted dictators in Tunisia, Egypt, and Libya continues its sweep through the Middle East. In the countries that experienced upheaval first, however, the revolutionary phase has already given way to the process of democratic consolidation. One of the most important aspects of this phase will be the development of new constitutions to formalize each country's future political arrangements.
Even before this year, the nature of constitutions in the Arab world varied widely. In Saudi Arabia and Muammar al-Qaddafi's Libya, for example, the Koran stood in as constitution, with more technical matters, including succession and the nature of consultative councils, covered by a basic law. Other countries, such as Egypt and Tunisia, developed relatively secular constitutions in the 1980s.
All the codes, however, had two major features in common. First, they generally detailed the aspirations of the state, for example, to be part of the Arab Umma and uphold the principles of Islam. Such constitutions are in direct contrast to the U.S. one, which aims to limit the state. Second, like Western constitutions, Arab constitutions tended to be laden with strong guarantees for civil and political rights. The Jordanian and Egyptian canons, for instance, contained extensive sections outlining the rights of freedom of speech and assembly.
Of course, the first mandate of the Arab constitutions -- to empower the state -- routinely trumped the second -- to protect the people. Arab governments often ignored their generous legal protections for human rights, generally under the cover of emergency legislation that sidelined all or part of the code in order to give governments a free hand against "dangerous" opponents. This reflected many Arab governments' zero-sum understanding of the political process.
That said, the pre-revolutionary Arab constitutions were not empty documents. They formalized and legitimated government processes, power structures, and political understandings among factions of society. The Jordanian constitution, for example, has a long section dealing with the relationship between Jordan and the Palestinians. And even Syria recognized the importance of the constitution. In 2000, when Bashar al-Assad was tapped to succeed his father as president, the regime went through a long process of amending the constitution to make him eligible. In this case, it was important to the Syrian government that Assad's ascent to power and the formalities of the law tallied.
As the Arab spring turned to the Arab summer and fall, moreover, many beleaguered regimes turned to constitutional reform to appease their citizens. In Morocco, King Mohammed VI amended his country's constitution to recognize Tamazight, the Berber language, as an official language of Morocco alongside Arabic. The House of Saud, too, promised to allow women to vote in the next round of municipal elections.
It is too soon to tell exactly what forms the post-revolutionary constitutions of Tunisia, Egypt, and Libya will take. But each country's provisional codes, and the players involved in drafting new ones, offer some clues.
Tunisia remains the great hope for those who long for a democratic Arab world. The country successfully navigated its first big democratic challenge: the elections that took place last month. The vote reflected a genuine commitment to democracy, human rights, and the protection of minorities. And the military kept out of the political process. The popular new parliament will now draft a constitution to back the country's political progress with legal substance.
Of course, one of the major winners of the Tunisian elections was the Islamist party Al-Nahda. This should not have come as a surprise. Just as Christian Democrat parties are prevalent in Europe, parties that profess adherence to Islam are popular in overwhelmingly Muslim. Religion could well find expression in the new constitution. All this may not, however, be cause for concern; Tunisia's old regime persecuted members of Al-Nahda. That past experience might make the party more interested in formalizing -- and implementing -- human rights protections, even if only as a safeguard in the event it loses power again.
Of greater concern is the ambiguity among elements of the political elite toward the status of women. The law regulating the October elections required parties to give women a prominent place in their candidate lists. Many parties completely ignored this mandate. Even so, female candidates performed well, winning 24 percent of the vote and 49 of the 217 seats in the new assembly. This result may strengthen the hand of those seeking to incorporate gender equality into the new constitution.
The prospects for general human rights in the new Tunisian system also look somewhat promising. Because of the disparate nature of power in the country, no one group -- not even the armed forces -- holds enough power to be able to ignore the concerns of the others. Like Al-Nadha, each group might well promote the rule of law as a means to protect their own interests. Ultimately, however, the effectiveness of the rule of law will depend on the willingness of the country's political elite to play by the rules. An early indicator of their intention to do so will be how they deal with emergency law in the new constitution. A positive sign will be if the document requires the government or president to seek parliamentary approval before resorting to emergency measures and places a strict time limit on that approval process.
In Egypt, the future appears less promising. The new parliament that forms after this week's elections will be torn by competing interests and hemmed in by the military. Some factions, including the young veterans of Tahrir Square, advocate a total restructuring of the political system and rewriting of the constitution. But the more powerful ones, the military, the Muslim Brotherhood, and their opponents, seek mainly to amend the charter with protections for their own interests.
Although Egyptian protesters succeeded in driving former President Hosni Mubarak from office, the military retained its central place in the country's political system: The Supreme Council of the Armed Forces remains the ultimate power in the land. Moreover, even as concern over the military's attitude toward human rights and inter-communal relations grows outside Egypt, the institution retains considerable respect among the Egyptian people. Even the recent unrest in Egypt has been focused on the Supreme Council and its Chairman, General Mohamed Hussein Tantawi, rather than the institution of the armed forces itself. What the military wants, therefore, will have great bearing on the elections and on the country's new laws.
Indeed, in April, the Supreme Council issued a declaration  that addressed some relatively uncontentious constitutional issues: the commitment to habeas corpus, a ban on torture, a guarantee of freedom of expression. The declaration also bore many features in common with the social aspects of the last few Egyptian constitutions. For example, although Egypt's earliest constitutions described Islamic law (sharia) as "a" principal source of legislation, under former President Anwar Sadat, this wording changed to "the" principal source. The Supreme Council's declaration retained Sadat's wording, possibly in recognition of the Muslim Brotherhood, which, in the guise of its Freedom and Justice Party, is expected to fare well in elections. The declaration also established Islam as the state religion, but like Mubarak was wont to do, bans parties based on religious grounds. The move made few waves, but it indicated that the military had no intention of sitting on the sidelines of the constitutional process.
That intention became clearer in mid-November, when the Supreme Council released a set of draft constitutional provisions  that would give the military immunity from civilian supervision and empower the armed forces power to approve legislation proposed by the parliament. This went well beyond the "Turkish model" -- parliamentary sovereignty limited by military oversight -- that has been widely suggested, and precipitated a crisis in the military's relations with the civilian population and a new round of protests.
The constitution that emerges over the next year will likely lay out a parliamentary system. It will be influenced by Islamic ideas but will be characterized by the need for the dominant parties to form coalitions if they are to govern. It is unlikely, and probably undesirable, that a single party will be able to secure a simple majority in the parliament. This should lead to some compromise and moderation among the most extreme parties. But while certain human rights will be codified in the new code, the parties might be forced to focus on the political status of the civilian government and religious rights. The future status of Egyptian women is thus cause for concern. The Supreme Council already set aside some Constituent Assembly seats for women, but gender is not listed in the declaration's provisions banning discrimination. Women were also excluded from the preparations for the recent elections.
Finally, Libya's future is the least clear of all. The country has no history of the rule of law and no experience with a competitive political process. Under Qaddafi, sharia was the formal basis of law and was frequently applied to matters of family law. In questions relating to the role of government, however, the regime tended to wield power arbitrarily, with little attempt to cloak its actions in legal cover.
Nevertheless, despite international concerns about the outsized influence of hard-line Islamist groups trying to do away with democracy, Libyans appear to be genuinely committed to an open system. Libya's draft constitutional charter, which the rebel government in Benghazi penned in early August before Qaddafi fell, is encouraging. The document prohibits discrimination on the grounds of race, religion, and political opinion. The charter also guarantees women "all opportunities" to participate in the political, economic, and social spheres.
These are important and encouraging achievements. There is a danger, however, that they will be swept away by the eruption of tribal and regional rivalries and the struggle for power among various militia groups. If the new constitution is to succeed in providing a firm legal basis for the new government, competing groups will have to suppress their ambitions and accept the principle of a united Libya. This is the challenge that faces all Arab countries and has proven to be the biggest obstacle to constitutional rule.
The destiny of democracy in Arab countries is tied to the rule of law and the nature of the countries' constitutions. But constitutions are political instruments, and their creation will be part of a dynamic and complicated battle to define each nation's future. Ultimately, the impact of the new constitutions will depend on the willingness of major political forces to abide by the rules of the game, as spelled out in their constitutions. It will be necessary for the different forces involved in the current revolutions to realise that their interests are best served by systems that are based on the rule of law and to accept the need for compromise if that is to work. But that is a tall order, indeed.