The Arab Center for Research and Policy Studies concluded the conference on “The Constitutional Issue and Democratic Transition in the Arab Countries,” held via Zoom 24-29 September 2020 in cooperation with the Arab Association for Constitutional Law, on Tuesday 29 September.
Constitutions, Identity and Democracy
The first session of the conference’s fourth day (comprised of three sessions total) dealt with the relationship of constitution to identity as illustrated by the cases of Sudan and Morocco, and presented by each of Abdelwahab El-Affendi, Professor of Political Science and Acting President of the Doha Institute for Graduate Studies and Mohamed Blilid, a researcher specializing in issues of identity and cultural diversity in Morocco.
El-Affendi, presenting his paper “The Constitutional Dilemma in Sudan: Identity, Law and Politics,” stated that the chronic political crisis in Sudan has remained a constitutional crisis with an absence of consensus around a constitutional framework that strengthens democratic stability. The roots of this crisis go back to the beginning of colonial rule, which anchored a state of impasse concerning constitutional guarantees that should have immunized the democratic system against instabilities and turmoil, but instead themselves remained contentious during the country’s four transitional periods.
Blilid reviewed dimension of identity in the Moroccan constitutional trajectory, contrasting Amazigh and Islamic roles in the development of the constitutional document in 2011; differences relating to language and culture reflected their opposing perceptions regarding a civil and a religious state. The absence of a democratic culture among these actors turned their participation into a factor for further undermining democracy. The moment of constitutional review was an opportunity for them both, through alliances within their ideological circles, to intensify pressure on the legislature to recognize and meet the demand for a constitutional document, and this was reflected in the pragmaticism of the emergent constitutional document.
The Tunisian case
Mehdi Mabrouk, Director of the Arab Center branch in Tunis, then moderated the conference’s discussion of the Tunisian case, with presentations by Mohamed Chafik Sarsar, professor of law and former president of the Independent High Authority for Elections in Tunisia; by Chaker Al-Houki, professor of public law at Al-Manar University; and by Omar Al-Boubakri, professor of public law at Sousse University.
Chafik Sarsar outlined the milestones and the limits of consensus evidenced during the creation of the Tunisian constitution, during which national dialogue and consensus among political forces, along with the support of civil society, contributed to crises in constitutional establishment being successfully overcome. Presenting the key contents of the achieved constitutional consensus, Sarsar concluded that six years after the constitution’s drafting, opinions are still divided in its evaluation, to the point of calls for constitutional reform without a precise diagnosis of its defects, their causes, or suggested reforms.
Al-Houki addressed the feature of internationalization in the Tunisian constitution, through its incorporation international law, and explicated the democratic import of that: the constitutional legislator’s preference was to adopt the traditional concept of sovereignty as the supreme law of the state, without submission to international standards or taking into account the proposals of international governmental and non-governmental organizations, except within the limits of what legislators deemed appropriate and in conformity with the legislature’s perceptions.
Al-Boubakri discussed the choice of political regime in the Tunisian constitutional path and considered its repercussions, notably debate over the nature of the political regime, in which deliberations ended with the adoption of the formula of a pseudo-presidential system, meeting the aspirations of different ideological parties, to varying degrees. While this signaled consensus, the pseudo-presidential system soon came under criticism for the tensions that it created within the executive branch.
Constitutions and Combating Corruption
Director of the Arab Center Paris branch Salam Kawakibi then chaired sessions devoted to comparative approaches to Arab constitutional problems, featuring contributions from Adnen Nouioua, Professor of Law at the Higher Institute for Technological Studies in Bizerte, and Nidhal Al-Mekki, a researcher at the Canadian University of Laval. Nouioua reviewed new rules, procedures and institutions for governance and combating corruption seen in Arab constitutions, and emphasized that
the regimes ’suspicion and reservations about international human rights law. this new entry in the texts had encountered quite a few difficulties upon implementation, linked to weakness of the rule of law and gaps between text and actual practice. He underlined the importance of linking anti-corruption with democracy and strengthening institutions of constitutional oversight, to ensure a sound interaction between constitutional text and political practice in the fight against corruption.
Al-Mekki discussed the impact of international human rights law on new Arab constitutions, citing the cases of Tunisia, Egypt and Morocco, with disparities observed between the three constitutions in terms of the foundational paths of their constitutions. There is a causal connection between foundational democratic path and the concentrated effort seen in a more open and democratic system; distance from this varied according to the country and the extent of its misgivings regarding international law and human rights.
The Case of Morocco
Two sessions were held on the fifth day of the conference (28 September 2020). The first, headed by researcher and editor-in-chief of the Center’s journal Istishraf for Future Studies Mourad Diani, focused on the Moroccan constitutional experience. Speakers included Professor of Common Law and Political Science at Université Moulay Ismail Abdellatif Al-Moutadaine; Professor of Higher Education at Université Ibn Zohr Mohamed Al-Mesaoui; and Professor of Constitutional Law at Université Cadi Ayyad in Marrakesh Mohamed Baske Manar.
Al-Moutadaine brought up the issue of sovereignty of the people in the provisions of the Moroccan Constitution, and its formation through power relationships, making note of the powers granted to political actors within the executive, legislative, and judicial branches. He stressed that, in spite of the constitution’s adoption of the principle of separation of powers, the wide-ranging prerogatives it grants the king have yet to bring that principle into effect; in this sense, the constitution has become a mere tool for constitutionalizing the king’s powers rather than a mechanism for regulating the exercise of political authority.
Al-Mesaoui spoke on restricting the king’s executive powers; the opposition has hedged its bets, historically speaking, on transforming the king’s wide authority into symbolic powers in accordance with the idea of constitutionalism. However, the researcher elucidated that the constitutional legislature employed the idea of parliamentary monarchy so as to limit the executive authority reserved for the king, most especially the appointment of presidents and prime ministers. This measure, nevertheless, left room for interpretation; the constitution, during the implementation phase, became a mechanism for crisis management, not a means of limiting the king’s powers.
Baske Manar offered a critique of the institutional and legal activation of the 2011 Constitution, highlighting disturbances in institutional stability between a ruling royal establishment and subordinate institutions reined in by an “unwritten constitution.” He critiqued the loose phrasing and use of a conservative constitutional interpretation, together forming to “a dual constitutional barrier” that preserves the hierarchy of power in its past particularities, despite the constitution’s more progressive contents, along with the barrier of “a conventional, administrative constitution” [dustur makhzaniyy ‘urfiyy] offering resistance to the democratic values imposed by the need to adapt to a context of ongoing protests.
The Other Arab Cases
In a session reopening discussion of the Arab cases and of Arab constitutional development led by Lebanese attorney and Member of Parliament Ghassan Moukheiber, speakers included Professor of Common Law at Qatar University Hassan Abdelrahim Al-Sayed and Professor of Common Law and Political Science at Université Cadi Ayyad in Marrakesh Omar Ihrchane.
Abdelrahim Al-Sayed brought up the matter of the democratic standard for constitutions, using the constitutions of the Gulf states as a case study. He divided his paper into three foci—first, the preparation of constitutions and the related procedures for introducing amendments; second, the particularities of the democratic constitution as relates to rights and general freedoms; and third, probing the depths of public authorities—in order to highlight the particularities of democratic constitutions.
Ihrchane, on the other hand, dealt with the dimensions of the relationship between the political context and legal text, and its impact upon the process of democratic transition in Morocco. The researcher examined the movement of actors, the impact of the balances of power in drafting of the Moroccan Constitution, and whether or not the constitution meets the demands of democratic transition. He concluded that the constitution might well constitute an entry point for strengthening authoritarianism, whether because it did not include any real guarantees or the fact that its provisions were tainted by so-called “grey areas” that open the door for challengers to offer an interpretation at odds with the desires of those in power.
The Constitution in Algeria
On the sixth and final day of the conference (29 September 2020), business began with the issue of Arab constitutional development. In a session headed by professor at the Arab Center and Editor-in-Chief of the Center’s journal Ostour for Historical Studies Ayat Hamdan, among those who spoke were Professor of Law at University of Sharjah Simon Badran and law researcher Rashad Tawam.
Badran presented a gateway to strengthening systems of representation through the ballot box, as a means of preserving the paradigm of democratic representation and avoiding the slippery slope into the trap of “direct democracy,” attempting to apply it to the Lebanese political regime. He offered a solution to the arbitrary selection of members of the Lebanese Senate and emphasized the possibility that the Lebanese political system may transform, in accordance with this solution, into a representative “case” of carrying out legislative appointments through the ballot box in states whose societies are vertically divided.
Tawam offered a comparative proposal for the implications of constitutional engineering upon the transitional process, posing the question of what effect the transitional establishment might have in shaping the foundational authority and the legacy of its smaller constitutions within the larger constitution. The researcher concluded that this consolidation can be attributed to the very moment of the constitution’s drafting, dominated by the transitional establishment, and that the mini-constitutions in the Egyptian case—compared relative to the Tunisian experiment—were utilized in a way contrary to the recommendations offered by the literature on0 democratic transition.
In a session devoted to discussing the constitutional developments in Algeria, headed by Arab Center researcher Mohammed Hemchi, speakers included Professor of Constitutional Law and Institutions at Université de Djelfa Kamal Djealab; lecturer and researcher in the Department of Political Science at Université Kasdi Merbah in Ouargla Mouslem Babaarabi; and Professor of Constitutional Law and Political Regimes at Université Mustapha Stambouli in Mascara Abbes Ammar.
Djealab examined the issues related to the notion of the democratic state of law and what must be done to constitutionalize it—joining together the state of law and democracy—by searching for the value the two have in common, sufficient to serve as a constitutional tool in service of the process of democratic transition. The researcher concluded that reconciliation between the power of the majority, as derived from democratic principles, on one hand, and the exercise of rights and individual freedoms on the other, is considered to be one of the essential challenges any democratic transition process might face in constitution-forming.
Babaarabi discussed the idea of constitutional management of the Algerian political transition, making use of the transitional constitutionalist approach as an gateway through which to probe the ongoing experience and find out to what extent it may be possible to achieve peaceful political change through constitutional mechanisms, or structures, derived from inherited texts. He concluded that the Algerian experiment stood out in comparison to similar Arab cases, in that the military establishment imposed a political blueprint for managing the transitional stage based on constitutional measures derived from current documents, viewed by the opposition as a hindrance in the path toward change tending toward reproducing the old regime at the expense of any possibility of achieving peaceful political change.
Ammar discussed the issue of expanding notification of the Algerian Constitutional Council to members of parliament, which he described as “a rationalized opening.” The researcher argued that amending notification measures will contribute to activating the constitutional committee’s oversight role and strengthening its interference in making the authorities respect the rules of jurisdiction and procedure along with protecting the rights and freedoms guaranteed by the constitution. The researcher argued that the conditions of notification and its difficult procedures have prevented MPs from passing any notification related to the unconstitutional nature of some legal texts which sparked controversy within the halls of parliament.
The conference closed its business in a concluding session headed by Radwan Ziadeh, researcher at the Arab Center’s Washington Office, discussing many issues including how the process of constitution drafting is impacted by the nature of ruling regimes; constitutions as a reflection of power dynamics through the conflicts that accompany the process of democratic transition; the important role played by the Constitutional Court; the Francophone impact upon Arab constitutions; the relevance of political culture and political elites’ awareness of the success of constitutions and democratic transition; the question of when these constitutions are to be written and the reality of amending existing constitutions or, in some cases, reviving old ones; the relevance of the time factor, the continuing peaceful exercise of politics, and of avoiding the resort to weapons or foreign intervention in the success of the democratic-constitutional transition; and taking note of the goals of the constitution and the ways to empower the rule of law and institutions.
The conference concluded with experts’ and researchers’ recommendation of the imperative of continuing investigation into the topic of constitutional reform in the Arab world and related issues and challenges.