Constitutional Change after the Arab Spring (past project)

Research Project in Cooperation with the Max Planck Institute for Comparative Public Law and International Law, Heidelberg

Since the beginning of 2011, massive protests and civil unrest have brought about both political and constitutional change in various North African and Middle Eastern countries. The recent developments in several Arab countries, beginning in Tunisia after the self-immolation of Mohamed Bouazizi on 18 December 2010, opened a window of opportunity for constitutional change in the Arab region. The Max Planck Team immediately began to observe these developments and supported reform actors in Egypt, Tunisia, Libya, Jordan, Yemen and other countries with various projects. The work of the MENA team culminated in an international conference on “Constitutional Reform in Arab Countries” that was held in Heidelberg, Germany from 22 to 24 February, 2012. Distinguished Arab and non-Arab constitutional lawyers, judges and other experts discussed prevalent constitutional issues in the Arab world.

Already in 2011, Rainer Grote and Tilmann J. Röder had begun to work on a book that focuses on the current constitutional developments in Arab countries. This would follow their previous work, entitled: “Constitutionalism in Islamic Countries: Between Upheaval and Continuity” (Oxford University Press, 2012). OUP has agreed to accept another manuscript. The working title of the next book is “Constitutional Change after the Arab Spring”. More than 50 authors – predominantly constitutional lawyers – have been invited to contribute draft articles. Many of them have been, or are still actively involved in the ongoing developments.

The planned book will be published in English in order to inform a broad readership about the most recent happenings in the Arab Spring countries. With regards to the content of the planned book, the aim is to gather some of the most appealing legal issues that arise when studying the developments in the region. The book is divided into six main parts (see below), each of which consists of several articles by different authors, specialised in their respective fields:

  1. Legitimacy of Constitution-Making Processes
  2. The Foundations of Statehood
  3. The Role and the Functions of the Military
  4. Civil, Political and Equality Rights
  5. Institutional Safeguards against Breaches of Constitutional Law
  6. The International Context of the Constitutional Dynamics in Arab Countries

Part One covers questions of legitimacy of constitution-making processes as such. It includes perspectives from an international and Islamic legal standpoint. This is followed by chapters examining constitutional legal issues concerning specific countries. Thus, for example, the institutional changes that have taken place in the Tunisian transformation process are examined as well as the dialectics of popular protest and military control in Egypt’s transformation process, which is a topic of even greater significance since the removal of President Mohamed Morsi on 3 July, 2013. The current civil war in Syria has also raised interesting questions about the legitimacy of constitutional change through international recognition. A chapter dealing with this subject also examines events concerning Libya and Palestine from a comparative perspective, while another looks further in-depth, 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 towards the Arab Gulf, on the possibilities and limits of constitutional developments in the monarchies there.

Part Two – “The Foundations of Statehood” – looks initially at the emerging concept of al-dawla al-madaniyya – or “civil state” – and asks whether this relatively modern form of statehood can be reconciled with Islam. With regards to the organisation of the State, there have been growing discussions in various Arab countries on whether to move towards a centralised or decentralised State. A chapter dealing with this topic will examine the common discussions and tendencies in the Arab transition States from a constitutional perspective. In relation to the emerging constitutions in the Arab world, a further contributive chapter looks at the role that international human rights law can play as a framework within which these constitutions can develop. Keeping the focus on the intersection of international and constitutional law, a subsequent chapter looks at the position of international law in the emerging constitutions.

A study of new electoral systems as steps towards democracy also features in the study of the foundations of statehood in the Arab world. Given that there are growing moves towards democracy, it will be important to dedicate a chapter on the very subject of transitions from monarchical to democratic systems. Accordingly, a case-study of Morocco will be offered in this regard.

Part Three focusses on the role and functions of the military in a State. This includes a legal evaluation of the military in the constitutional systems of Arab countries and will be followed by a study of the changes in civil-military relationships after the Arab Spring, which is of particular relevance in the case of Egypt. A relatively understudied area is the changing role of the military in Mauritania, which will be the subject of a further chapter. In the case of Libya, one contribution studies the (attempted) transformation of rebel forces to a regular State army and at the broader question of the military in the emerging Libyan constitutional framework. A chapter will also be dedicated to the military’s way over the political system of Algeria. Finally, going back to the Levant, the integrative function of the military in the pluralist State of Lebanon will be the final area of focus. It seeks to draw lessons of the unique role an army can play in a State consisting of various minorities.

Part Four focusses specifically on civil, political and equality rights in relation to the Arab world. It combines minority rights, women’s rights, citizenship rights and the rights of protesters, such as bloggers, which have played a crucial role in the developments in Egypt and elsewhere. One chapter looks specifically at the respect of civil and political rights as a precondition for democratic participation, followed by another covering bloggers, protesters and voters’ rights in revolutionary Egypt. With regards to women’s rights, one important question, discussed in a separate contribution, is whether these are at risk in Tunisia. New perspectives for women’s rights in Yemen will be discussed, at length, by a Yemenite lawyer, working specifically in the area of women’s rights.

Citizenship rights on the Arab Peninsula, rights of religious minorities in the New Sudan and the question of minorities who are under-pressured in Egypt and Syria will also feature in separate pieces. Two relatively under-researched areas, to be dealt with in separate chapters, are (1) constitutional reform affecting rights of citizens in Oman; and (2) linguistic and cultural Rights in the Arab Constitutions. The latter examines, inter alia, the 2012 Syrian Constitution.

Part Five deals with institutional safeguards against breaches of constitutional law. While it is perfectly legitimate for a transition State to gear its efforts towards drafting a constitution and constitutional court structures, it is equally important to contemplate ways in which these can be protected, maintained and nurtured. One overarching chapter focusses specifically on constitutional review in Arab countries. Subsequent chapters look at specific countries. Thus, the role of the Egyptian Supreme Constitutional Court in the transition process and future will be examined, as well as the possibilities for and limits of constitutional review in the monarchical State of Jordan. Subsequent chapters (i) focus on constitutional jurisdiction in times of crisis, with experiences from Iraq; (ii) provide an assessment of the Mauritanian Constitutional Court and military coup of 2008; and (iii) in the case of Bahrain, looks at new safeguards against human rights violations. A final chapter examines Tunisia and Morocco’s new constitutional courts from a comparative perspective.

Part Six seeks to contextualise events in the Arab Spring countries by studying the international context of the constitutional dynamics there. Thus, the international and foreign influences on constitution-making processes are examined as well as the repercussions of the constitutional changes in Arab countries in Iran. A further chapter assesses whether the role of the European Union and the constitution-making processes in the Arab world is that of observer or actor. Lessons from the Iraqi constitution-making process will be identified and evaluated in a separate chapter.

While developments in the Middle East and North Africa are taking place at a great pace, this book seeks to capture, as much as possible, the all-encompassing and underlying trends and currents in the Arab world following the Arab Spring.

Editors

Prof. Dr. Rainer Grote (Max Planck Institute for Comparative Public Law and International Law and University of Göttingen)

Dr. Tilmann J. Röder (Max Planck Foundation)

Assistant Editor

Ali El-Haj, Humboldt University of Berlin

Publisher

Oxford University Press (New York)