Note by the Editors
We are very pleased to present the fourth issue of the Journal of Constitutional Law in the Middle East and North Africa (JCL-MENA) titled “Arab Constitutional Responses to the Revolutions and Transformations in the Region.” JCL-MENA is a double-blind peer- reviewed bilingual journal managed and edited by the Arab Association of Constitutional Law (AACL). This special edition of the Journal is published jointly with the Legitimacy and Civicness in the Arab World research project at the London School of Economics and Political Science (LSE), with the support of the Carnegie Corporation of New York.
2011 was an exceptional year in the Arab world. The Tunisian and Egyptian revolutions that broke out that year were successful in ousting the presidents of both countries while barely witnessing any violence. The winds of change spread quickly across the region. Popular protests erupted in several countries, beginning with Libya and Syria. While these were met with violent repression by the regimes in place, elsewhere, governments moved swiftly to preempt calls for revolution by enacting a number of constitutional amendments, as was the case in Morocco or Jordan, for instance.
There is no doubt that the events that the countries of the region witnessed in the context of what became known as the “Arab Spring” were not random, nor did they come out of nowhere. Rather, the underlying factors that drove them had been unfolding for decades: the suppression of freedoms, the lack of social justice, and repressive security policies all contributed to the implosion.
The slogans raised differed, as did the chants, but the demands that were voiced by millions of Arab men and women all pointed in the direction of the “constitution”. Dignity, equality, social justice and the end of tyranny are necessarily linked to the principles upon which the state operates. Long ignored as irrelevant at best, constitutions became centre stage. Be it because they had originally been designed to limit the power of the people rather than the state, or because the way they were implemented had left a big gap between constitutional promises and actual practice, the response to the series of protests that swept the region was to turn to those constitutions. Within two years between 2011 and 2012, seven new constitutions, including three interim ones, were written in six Arab countries, which is exactly the number of new and interim constitutions written in the Arab world in the ten years before 2011.
However, constitutional reactions varied. In some countries like Syria, the response was the adoption of a new top-down constitution whose failure to end the crisis was followed by an internationally mandated constitutional process that is yet to produce any results despite more than four years of meetings. In others, like Tunisia, the process of drafting a new constitution appeared to be more inclusive and consultative, yet the political events that followed left many open questions. In Yemen and Libya, on-off constitutional drafting processes developed amid violent conflict and political instability. In some other countries like Jordan and Morocco, pre-emptive top-down constitutional changes were quickly introduced after the first signs of public unrest. Still, constitutions in some countries, like Lebanon, remained immune to any change despite waves of public unrest.
All of this brings into question the purpose and function of constitutions, and recent constitution-making and constitutional amendment processes in the Arab world. At the heart of the matter lies the question of legitimacy and the extent to which, more than a decade down the road, the constitutional transformations that were brought about by the Arab Spring have been successful in meeting the popular demands that drove them.
The literature that has been produced around the Arab Spring is abundant. Multiple studies have addressed it from a political science perspective. Social movement scholars have attempted to make sense of protest and revolutionary processes that seemed unpredictable. The case was even made to revive transitology – despite its many detractors in recent years – in the quest for a useful perspective to understand the dramatic political changes that swept over the region. Constitution-making, particularly in Egypt, Tunisia and Libya, initially had the attention of scholars too, and a number of studies were produced, including from a comparative perspective, mostly focused on the formal processes and the constitutional texts they yielded. Yet as transitions stalled, increasingly registering regressions or the outright outbreak of violence and conflict, constitutions quickly faded into the background. There have been no systematic attempts at measuring the impact that the Arab Spring has had on the state of constitutionalism in the region. While many of the challenges that arose in the framework of a number of constitution-making processes were shared – examples include the civic nature of the state, decentralization and federalism, and the distribution of resources – they have not been looked at from a broader comparative perspective. Among other things, such perspective could help identify the specificities of Arab constitutionalism and how they manifest themselves in different contexts, and, more importantly, help assess the adequacy and legitimacy of the constitutional responses that have been attempted so far.
In an attempt to begin to fill that gap, the Legitimacy and Civicness in the Arab World research project and AACL reached out to ten scholars/practitioners from ten of those countries (Tunisia, Egypt, Lebanon, Algeria, Syria, Yemen, Libya, Bahrain, Morocco, and Jordan) and asked them each to produce a paper that would assess the constitutional response to the demands for change that manifested themselves differently across those countries. Among the questions that were put forward to the authors is the question of the extent to which the constitutional drafting/amendment process respected the principles of inclusivity and public participation. To the degree that inclusive and participatory constitution-making are increasingly understood as a necessary condition for the constitution to be perceived as legitimate, the question of how these changes are brought about becomes crucial. Another question concerns the degree to which the new/amended constitution responded to and met public aspirations and demands. In this regard, the system of government and the extent to which it upholds the principle of separation of powers as well as the constitutional guarantee of fundamental rights merit special attention. Yet another (oft ignored) question concerns the degree to which the constitutional changes that were introduced were effectively implemented. While notable innovations were introduced to a number of constitutions, particularly with regard to the powers of Constitutional Courts, the question is whether their implementation was not hindered by a lack of political will.
The papers that were submitted on this basis were publicly presented and discussed in a regional conference that LSE and AACL jointly convened in Beirut in December 2022. The authors engaged with each other and a broader group of academics, experts and practitioners from the region and beyond. Following a thorough review process, the papers are featured at present in this special issue.
In “The 2014 Constitution of the Republic of Tunisia: The Desired Transformation vs the Imposed Reality,” Dr. Mouna Tabei takes on Tunisia’s ground-breaking constitution-making process and the constitution it bore. The author acknowledges both the legitimacy of the process, which was characterized by the establishment of a pluralistic and democratic constituent authority, as well as the distinctly democratic features of the 2014 Constitution, which introduced a rights-based system and an institutional framework capable of promoting the rule of law. Dr. Tabei posits that the failure of the 2014 Constitution to fulfil its transformative potential was primarily owed to its selective implementation in accordance with political interests, which perpetuated the status quo. This was most evident in the failure to establish the Constitutional Court, which required consensus within parliament to appoint part of its members. Although it was endowed with the means to protect itself, the 2014 Constitution was left unprotected in the absence of political will, which led to its suspension and replacement in 2022 by a top-down constitution that paves the way for the return of hyper-presidentialism. The Tunisian experiment raises challenging questions with regard to the mechanisms that can ensure that constitutions are properly implemented.
In “Constitution-Making during Political Turmoil and Change: Egypt 2011-2014,” Dr. Ahmed Morsi draws on Egypt’s experience in the aftermath of Mubarak’s fall to offer a sobering reflection on the perils involved in constitution-making in the immediate aftermath of an autocratic collapse or amidst revolutionary fervour. The author argues that constitutions must both reflect to an extent the distribution of existing political and social forces to earn acceptance, while also be capable of accommodating future shifts in that distribution to outlast the constitutional moment. Turning to Egypt’s experience in both 2012 and 2014, Dr. Morsi points to the political flux and impossibility to gauge the weight and power of the various political factions at the time as polarizing factors that played into both constitution-making processes. A crucial insight in this respect is that rushed constitution-making in a changing political environment deepens instability instead of generating long-term consensus.
In “The Lebanese Constitution: A Hampered Transition from the Rule of Sects to the Rule of Law,” Mireille Najm-Checrallah considers Lebanon’s constitutional trajectory both from the perspective of its historical specificity and against the broader transformations in the region. The author argues that, while it may be surprising to consider the impact of the Arab Spring on Lebanon, its repercussions did eventually surface there, particularly following the severe financial and economic crisis that struck the country in October 2019. Lebanon’s ongoing constitutional crisis is considered against its distinctive features: a secular state, a pluralistic society, and a liberal system. The author considers the crucial question of whether the Lebanese Constitution continues to provide a sound framework for transitioning from a state controlled by sectarian logic and sectarian leaders to a state based on citizenship and the rule of law. Najm-Checrallah carefully considers the constitutional framework that was laid down by the Taif Agreement against the practices of a state that has gradually submitted to the will of the sects and the factional interests of their leaders at the expense of public interest. The author leaves open the question of whether the recovery of legitimacy and the establishment of the rule of law can be achieved by maintaining the sectarian foundations of the system of government while introducing appropriate corrective mechanisms, or by abolishing political sectarianism, through the mechanisms stipulated by the constitution, or according to other formulas.
In “The Effectiveness of Algeria’s Constitutional Amendments,” Dr. Zahia Aissa considers Algeria’s recent constitutional amendments, with a particular focus on the amendments that were adopted in 2016 and in 2020. While the author attributes the adoption of the 2016 amendments to the popular protests of 2011, her analysis of the manner in which those amendments were introduced points to a top-down, executive-driven process that does not differ qualitatively from past processes, except perhaps for the consultations that were undertaken with different political parties and national figures. At the substantive level, she highlights a number of provisions aimed at consolidating the rule of law. Most notably, indirect individual access to the Constitutional Council was introduced and the presidential number of terms was limited to two. The degree to which these amendments effectively responded to people’s aspirations was brought into question with the eruption of the popular Hirak in 2019. The amendments of 2020 were also introduced on the initiative of the President, although, unlike in 2016, they were approved through referendum. While the institutions and bodies introduced in 2020 have been successfully established, the question remains as to whether the amendments can be deemed effective. The Constitutional Court, which replaced the Constitutional Council in 2020, remains under-used by ordinary citizens, signalling perhaps a lack of a sense of popular ownership of the constitution.
In “Syria: The Constitution of the “Crisis” or the Crisis of the Constitution?” Dr. Ibrahim Daraji considers the adoption of the Constitution of 2012 against the backdrop of a multifaceted armed conflict of regional and international dimensions. The author purports to consider the arguments of both its supporters and its detractors, whether with respect to how it was drafted, the extent to which it contained “revolutionary” provisions, or whether it has been effectively implemented. In considering whether the drafting process could be deemed inclusive and participatory, Dr. Daraji shifts the focus from the how to the environment in which it unfolded, which was characterized by a lack of trust-building climate and significant division. In terms of the content of the new constitution, the author offers an analysis of the key changes that were introduced, particularly with respect to the recognition of political pluralism, the direct election of the President, or the broadening of the powers of the Supreme Constitutional Court among others. The author concludes that the 2012 Constitution did not establish a new a political system; rather, it provided a new constitutional framework for an existing political system, enhancing its powers, safeguarding its position, and legitimizing its dominance while further exacerbating the crisis it purported to address.
In “Yemen’s Constitutional Process after the 2011 Revolution,” Dr. Abbas Mohammed Zaid methodically considers the questions of public participation in Yemen’s constitution-making process initiated in 2011, the draft constitution and whether it responded to key popular demands – namely, the establishment of a secular and federal state – and how likely the draft constitution is to succeed were it to be adopted. A distinctive feature of the constitutional drafting process is the fact it was embedded in a broader constitution-building process that largely drew on the outcomes of an inclusive and participatory national dialogue process that lay the foundations for the future constitution. In this case, it would seem that constitution-building was trumped by conflict fuelled by external actors.
In “The Libyan Constitutional Narrative Since 2011: Facts, Assessment, and Recommendations,” Azza Kamel Maghur reviews Libya’s long constitutional trajectory since the adoption of the Constitutional Declaration of 2011. It considers the circumstances under which the Constitution Drafting Assembly – Libya’s first elected constitutional body – was elected and discharged its mandate amidst ongoing conflict and a competing constitutional track led by the international powers. It analyses the 2017 draft constitution that was approved by the assembly but failed to be adopted by parliament and considers the possible way out of the country’s ongoing stalemate. The author draws on Libya’s experience over the past decade to reflect on constitution-making in a time of conflict, and makes the case for the adoption of temporary constitutions and settlements that can provide the stability needed to draft a constitution, instead of turning the constitution-building process into a long tale of conflict and division. At the same time, the author acknowledges that the country has come a long way in terms of constitution-building, where increased awareness of constitutional issues among Libyans, as well as the nature of their disagreements and their limited scope, have helped prepare the ground for the adoption of a lasting constitution.
In “Between Law and Crisis: Creating and Changing the Constitution in Bahrain,” Bader AlNoaimi draws on the concept of crisis – understood as inherent in constitutionalism – to offer an analysis of Bahrain’s 2012 constitutional amendments, which were a direct response to the 2011 protest movement and the recommendations reached at the National Consensus Dialogue held in July 2011. The author analyses the amendments introduced to the Chamber of Deputies as well as to the powers of the monarch, only to conclude that the features of a parliamentary system were scarcely enhanced. Most interestingly, Al-Noaimi considers the abstract interpretation of the “bicameral” system as the “joint will of the people and the King” as a generalization of the interests of the ruling family at the expense of the popular will, pitting constitutionalism against democracy. His is an account of how constitutionalism can be employed to effectively impose a formal constitution stripped of any political or social considerations at the expense of the material constitution.
In “The Shifting Balance between Representative and Post-representative Forms of Governance: Evidence from Moroccan Constitutionalism,” Dr. Abderrahim El Maslouhi considers Morocco’s 2011 Constitution from the perspective of the counter-majoritarian institutions it introduced and how their functioning constitutes a major challenge for the dictates of popular sovereignty and representative democracy. Despite some attempts at enhancing the parliamentary form of government, the parallel quest to preserve the monarch’s prerogatives meant it features overlaps with both the logic of presidentialism and post-parliamentary governance.
In “Jordan’s Constitutional Amendments: A Coup against the Parliamentary System?” Omar Al-Atout offers a comprehensive overview of Jordan’s constitutional amendments following the 2011 protests. The author addresses the questions of public participation, responsiveness to popular demands and effective implementation, only to conclude that the 2011 amendments merely aimed at appeasing public discontent and did not produce any substantial changes in power dynamics. Even more, the amendments introduced in 2014, 2016, and 2022 consolidated power in the hands of the King, effectively undermining the very nature of the parliamentary monarchy upon which the 1952 Constitution was originally based.
Taken together, the ten contributions capture both the opportunities that were raised by the prospect of a constitutional change in the wake of the Arab Spring, as well as the many challenges it faced. At first glance, the outcome is somewhat disheartening. More often than not, constitution-making seemed to exacerbate divisions instead of laying the foundations of a consensus constitution, as witnessed in both Syria and Egypt. Constitutional drafting remained predominantly a top-down affair, with the notable exception of Tunisia’s National Constituent Assembly. In a number of instances, confrontation over constitutional issues revealed a deeper lack of consensus over the very identity of the state. The relation between religion and the state was hotly debated in Yemen and Libya, but also in Tunisia and Egypt. The tension between maintaining the unity of the state and laying the foundations for the deconcentration of power was prevalent in both Libya and Yemen. The largely unilateral amendments that were introduced by the monarchical regimes of Bahrain, Jordan and Morocco did little to curb the monarch’s prerogatives or strengthen the parliamentary nature of the monarchy, contrary to what was claimed. Conflict and war swept over Syria, Yemen and Libya, largely fuelled by external actors pursuing their strategic interests in the region. Lebanon remained mired in institutional paralysis.
However, cosmetic reforms aside, constitution-making processes that have so far failed in the sense of delivering a constitution must perhaps be considered through the broader lens of constitution-building, understood as a long-term process that lays the foundations for a constitution to be both adopted and implemented in a manner that fulfils its purpose. In this regard, both Libya and Yemen offer compelling instances of what can be characterized as incremental constitution-making. Yemen’s broad national dialogue effectively laid the foundations for the constitution-making process, and even as the draft constitution was rejected, it can legitimately be built upon.
The Arab Spring may have done little to effectively address the legitimacy deficit in the region. However, it did bring constitutions and constitution-making to the fore, signalling just how much they matter – also in the Arab world. While most of the constitution-making processes that were undertaken in the past decade failed to adequately address people’s demands, there is no denying that ordinary citizens across the Arab world became acutely aware of how important constitutions are and can be. Awareness levels among the general public with respect to constitutional matters increased significantly, and while the uprisings that broke out a little over a decade ago may have been entirely unexpected, that ordinary citizens will continue to push for constitutional change in the coming years will not come as a surprise. With this special issue, we hope to have contributed to address the gap in the literature with respect to what the constitutional response to the Arab Spring looked like and where we stand today. We also hope to keep providing a space for constitutional experts from the region and beyond, but also political scientists, to engage with constitutional developments as they continue to unfold throughout the MENA region.
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