The Arab Center for Research and Policy Studies held in cooperation with the Arab Association for Constitutional Law the ninth conference on democracy issues and democratization under the title “The Constitutional Question and Democratic Transition,” on September 24-29, 2020. Mehdi Mabrouk, Director of the Arab Center branch in Tunis, addressed the opening session of the conference and observed that more than one reason justifies selecting the constitutional issue as a topic of scientific study of the utmost currency and timeliness, most notably that constitutions “in our Arab countries” are - in a strange paradox - one of the catalysts of revolutions and uprisings on the one hand, and one of the reasons for their faltering and failure on the other. Notwithstanding the different approaches and the multiple viewpoints observable in the conference papers, most of the countries that have gone through these stalled transitions have witnessed important constitutional trajectories in which sometimes new constitutions were drawn up, or new draft constitutions, or sometimes old constitutions were amended so that some of the protesters’ aspirations, needs and desires (both among elites and broad social groups) such that the emergent constitution appeared to be a close contract between the ruler and the ruled, in which the nature of the state, the pillars of the political system, the distribution of powers and the relationship between them were determined – in addition to the rights and duties that not only determine the citizen’s citizenship, but also complete her humanity. Mabrouk noted that comparative experiences in building constitutionalism confirm that the constitution cannot be not a ready-made prescription for solving all the problems and issues from which national groupings suffer. Rather, it is a complex construction that reflects the various social forces and wills that make writing and drafting a constitution a challenging process that reflects not only the balance of power, but the accumulated culture of elites and socio-cultural nature of societies as well, in addition to their political and constitutional heritage.
Conference Coordinator and Democratic Transformation project director Abdel-Fattah Mady emphasized that the topic of the conference covered a broad scope of research that encompassed extended stages, some of which precede the writing of the constitutions themselves, with others arriving later in this process. All stages involve a multiplicity of issues, such as: political consensus and political, social and economic contexts; the formation of constituent bodies; the relationship of temporary or small constitutions to permanent constitutions; dealing with the legacy of old regimes; assessing the roles of local and external experts; constitutional enforcement guarantees; stabilizing and bolstering constitutional democratic systems; addressing the deficiencies of representative democracy; and success guarantees in divided societies.
Mady referred to the process of research submissions management, whereby studies received by the scientific committee were then subjected to the Arab Center’s arbitration process and rules, in order to ensure scientific rigor and enhance the contribution to Arab knowledge production and its products – noting that the committee had received more than 70 research papers, with 54 papers of these were judged. Subsequently 22 papers passed the next stage, following the committee’s reception of more than 106 arbitration reports. He concluded by noting that there are many topics that still need further research and study, including how to control the relevant concepts, especially those relating to a democratic constitution and associated concepts, in addition to researching the interactions that took place between the perceptions of different Arab parties, the limits to the external role, as well as methods of activating constitutions and ensuring guarantees of their continuation.
Following the opening session, two sessions were held via Zoom, both including some of the most prominent Arab experts to take part in putting forth a new constitution following 2011 or to be linked directly to that process. The first session, headed by Khaled Ziade, director of the Arab Center’s Beirut branch, saw testimonies solidifying the experiences of Yemen, Iraq, and Algeria with constitutional reform and its relation to democratic transition. It was attended by Professor of Sociology at Taiz University in Yemen Olfat El-Dabie; Professor of political science at the University of Baghdad Nadeem Al-Jabiry and Professor of Common Law at University of Tebessa, Amar Boudiaf.
El-Dabie offered a proposal outlining the Yemeni experience post-2011, relating to the attempt to procure a new democratic constitution, while working within the transitional justice and national reconciliation team at Yemen’s Conference of National Dialogue. El-Dabie opened her testimony with the outcomes of the Gulf Initiative and the legal and political framework for compromise after the “February Revolution” of 2011. She stressed that the conference adopted the slogan “the people will write their constitution” as a result of this initiative, in an attempt to ensure wide-ranging participation from all segments of Yemeni society in the forging of the country’s new constitution. The impacts of increased popular awareness of the constitution’s importance included the formulation of a document of guarantees in support of carrying out the agreements to which discussants agreed, and the establishment of the constitutional committee that produced a draft in accordance with the outcomes of the National Dialogue. It was received by the national committee for monitoring the execution of the dialogue’s outcomes, who then reviewed it to ensure its adherence to the document’s authority, in preparation to put it to a popular referendum after the National Committee’s consolidation. However, this constitution has stalled in light of political discord and the deterioration of the situation the point of civil war. This draft constitution, El-Dabie emphasized, is still the best text to encompass Yemenis’ prospects for change and, if adopted, to strengthen the possibility of democratic transition in the future. This is in addition to the rights and freedoms it mentions, especially those of women and youth, as well as the guarantees it sets to prevent a return to authoritarianism.
Nadeem Al-Jabiry, on the other hand, explored the political and intellectual dimensions of the writing of the permanent Iraqi constitution of 2005, first stressing that the goal of putting forth a constitution established for post-occupation democracy was beset by complications in light of a significant deterioration in the Iraqi state’s capabilities and the decomposition of its military and national security institutions. Al-Jabiry outlined the many appearances that contributed to defeating the purpose of creating a constitution, namely the elite’s lack of a viable political project and the domination of sectarian customs and inclinations, to say nothing of its inability to break free of its authoritarian heritage. He demonstrated how the national transitional organization formed a committee for constitution writing, in accordance with power-sharing agreements between the elements of society, wracked by structural disorder as well as a weakness in the authority represented by the state administration law for the transition phrase imposed by the occupation. Moreover, Al-Jabiry clarified that foreign interventions and conflicts between political camps have led in turn to a curtailment in the impact this constitution might have. Nevertheless, the 2005 constitution, in his opinion, gained relative success in organizing the political process between 2006-2010; however, it appeared the complete opposite from 2010-2020 where its weakness became clear as a result of the transformation of the conflict in Iraq from political, fought over power and influence, to a social conflict revolving around taking control of land and people.
As relates to the link between the Algerian popular movement’s demands in 2019 and the current preliminary efforts to implement the proposed constitutional amendments, Amar Boudiaf explained that the peaceful popular movement, launched in February 2019, solidified a number of demands which defined the characteristics of the new constitutional proposal, including the issue of determining the presidential terms—considered to be the demand that relates to the spark that set off the popular uprising, inasmuch as it related to preventing the reelection of President Abdelaziz Bouteflika. Boudiaf addressed the provisions within the new project that achieve independence for essential institutions such as the judiciary and parliament, in addition to incorporating the rights and freedoms that form the foundation of democracy, and the reform of political institutions—most especially an independent committee to carry out elections. In the end, he emphasized several recommendations related to the meaning of the document, linking it to the popular movement’s demands in such a way as to strengthen the power of the people to affect change and democratic transition.
During the second session of Arab experts, chaired by Haider Saeed, Director of Research at the Arab Center and Editor-in-Chief of the journal
Siyasat Arabiya, four testimonies were presented that crystallize several Arab experiences in constitutional transformation: Sudan, Libya, Syria, and Morocco. The session included the Sudanese lawyer and human rights defender Nabil Adib Abdullah, who headed the investigation committee into human rights violations during the Sudanese protests; the Libyan lawyer Mohamed Abdelkader al-Tumi, a member of the founding body to draft the constitution in Libya; the Syrian lawyer and professor of public international law at Qatar University Mohamed Hosam Hafez; and Professor of Higher Education at the University of Mohammed V in Rabat and former member of the Constitutional Council and the Constitutional Court of the Kingdom of Morocco, Mohamed Aterguine.
In his intervention, Nabil Abdullah reviewed the developments of the constitutional issue in the Sudanese situation since the ouster of President Omar al-Bashir, also reviewing constitutional developments prior to 2011, especially the declaration of the Sudan Interim Constitution of 2005, a fruit of the Comprehensive Peace Agreement signed with the Sudan People's Liberation Movement. He showed how this constitution bore a contradiction between a text suggesting the possibility of democracy on the one hand, and the reality of the authoritarian experience on the other. Abdullah indicated that the overthrow of al-Bashir by the armed forces placed
de facto authority in the hands of the military council, with a promise of it remaining only a transitional period, after which the reins of power would be handed over to an elected legitimate authority. In this context, Abdullah presented the transitional dilemma of holding elections without reforming the legal system and liberating the judicial and executive authorities from the control of the former regime, which entailed violating the will of the people. Abdullah also pointed out the balance between the
de facto authority lying in the hands of the army and the authority delegated by the people to the Forces of Freedom and Change, effectively authorizing “conduct,” in the language of the jurists, and leading towards consensus. Finally, the handover of power was carried out according to a constitutional document between the two parties and reflecting realities while defining the structures of government and their powers during the transitional period to ward off intrusion into public freedoms.
Mohamed Abdelkader al-Tumi presented a presentation on the constitutional experience in Libya after 2011, highlighting the formation of the founding body to draft the constitution by electing 60 members from the three regions (Tripoli, Cyrenaica, and Fezzan) to represent the components of Libyan society in their cultural and linguistic specificity, explaining the defect in such a configuration, namely the conditions set by the Constitutional Declaration for the approval of the draft constitution. This posed a challenge for the completion of the project within the specified period that the constituent body was faced with. The conditions for its approval constituted a clear impediment, considering the climate of conflicting views between political currents as well as security concerns and political turmoil. al-Tumi also presented the contents of the draft constitution, touching upon the issue of the referendum in the constitution. He concluded by noting that the Libyan draft constitution has not yet seen the light of day because of political division and regional and international interference in Libyan affairs.
From another standpoint, Mohamed Hosam Hafez assessed the constitutional issue in Syria and its impact on the ongoing conflict since 2011, explaining the reasons why demands for changing the constitution did not occupy a very prominent position throughout the conflict: the priority was placed upon achieving a political transition. Hafez provided an explanation for the constitution’s low status in the political process derived from the two factors of representation and legitimacy as they are characterized in totalitarian regimes: the Syrian regime built its legitimacy on foundations that are not governed by constitution and law; rather, it has used electoral processes and referendums as a cover for repressive practices that are at their core unconstitutional practices. Hafez expected that political conflict over the constitution and its provisions would likely arise following the current regime, a surmise based upon discussions that took place in past years within the Syrian opposition. He called for close attention to be paid to the referential aspects of the constitutional issue in the Syrian political context, highlighting the import of discussions and outputs of Syrian-Syrian dialogues on constitutional issues, especially given the formation of the so-called “Syrian Constitutional Committee”.
Mohamed Aterguine presented the role of the constitutional judiciary in Morocco, especially regarding its jurisprudence in matters of positive discrimination. In relation to the Moroccan constitution, he emphasized the role played by
open writing in expanding the space for the constitutional judge to clarify and interpret the constitutional document, offering as an example the text of the Moroccan constitution and related documents regarding non-discrimination on the basis of gender: Does the establishment of a mechanism for positive discrimination in the representation of women in the House of Representatives contradict the prohibition of discrimination, and with the constitutional principle of equality? Aterguine asked: is it possible to achieve “unity” between these constitutional principles? Such questions were posed to the Moroccan constitutional judge, in a context of pressure, contradictory demands, and within a political situation in which everyone demanded a “democratic interpretation” of the constitution! Aterguine explained the regulatory controls that the legislator employs within his “discretionary power,” limited bound by the constitution’s supremacy and the jurisprudence of the constitutional judiciary.
Each session was followed by comments and questions from conference attendees on Zoom and via social networks, relating principally to discussing the consensuses that took place in various cases and the extent to which they constituted truly major consensuses, as well as the various ways of addressing the legacy of previous regimes and confronting the obstacles arising from those regimes: arbitration of power, force of arms, and external interference in resolving political conflicts and disputes. Discussions for the day concluded with: the issue of possible guarantees that can reflect the demands of the people and their perceptions of the dominant political forces, as evidenced by experience in the two waves of popular revolutions erupting in 2011 and 2019; mechanisms for enforcing constitutions and avoiding their remaining mere texts that have no effect on reality; the roles of external actors; and how best to benefit from other experiences.
The Right to Rebel Against an Oppressive Government
In his approach to the study of this issue Ginsburg relied on data from the Comparative Constitutions Research Project that he co-administers, a project revealing the critical intent of constitutions encompassing “the right of resistance,” and clarifying their effective performance in many instances. Ginsburg made reference to the evolution of this right in the ancient civilization of China and in Islamic history, and subsequently among Western liberal thinkers of the seventeenth and eighteenth centuries, also touching upon on the Universal Declaration of Human Rights and its enshrinement of the right to self-determination in the event of a foreign domination. In discussing the upcoming United States presidential elections and their uncertain outcome – with some anticipating a constitutional crisis after several recent statements made by the current president, Donald Trump – Ginsburg noted that in the United States certain state constitutions – such as in Kentucky – incorporate the right to rebel against authority.
The opening lecture was followed by two sessions,
the first, devoted to reviewing experiences related to constitutional transformation in many countries of the world, was moderated by Sultan Barakat, Professor at the Doha Institute for Graduate Studies and Director of the Center for Conflict and Humanitarian Studies. It featured: Nathan L. Brown, Professor of Political Science at George Washington University and former president of the Middle East Studies Association; Markus Böckenförde, Professor of Comparative Constitutional Law in the Department of Legal Studies at the Central European University and Acting Director of the Constitutions Building Project at the International Foundation for Democracy and Elections in Stockholm; and William Elliott Bulmer, Professor at the University of Dundee in Scotland and Director of the Research Project on “Preliminary Preparations for Building Constitutions”.
At the outset, Nathan Brown reviewed the process of constitution-writing in the Arab region, observing that despite a century and a half of familiarity among Arab countries with constitutions, most of the constitutions of the region were laid down by the central authority, and constitutions were not instrumental in
establishing that authority, until the advent of the “Arab Spring”. With the latter development, a debate arose over the nature of the regime and new constitutional frameworks were proposed, raising the profound question: does a mass movement lead to different constitutional documents, or different constitutional processes? Did they lead to the development of
applicable constitutional principles? Brown referred to some Arab experiences, such as Kuwait, Egypt, Palestine and others, highlighting the concept of
the constitutional moment and the importance of political pluralism to ensure the implementation of constitutions, as well as of studying
contexts above and beyond constitutional
Marcus Böckenförde raised the issue of presidential term limitation, citing the Arab countries of North Africa persisting under a long-term dictatorial rule until the Arab Spring came and toppled autocrats and their constitutions, thereby handing elites the difficult task of drafting new constitutions. Among the difficulties they faced was the determination of the powers of the executive authorities, at the heart of which lies the issue of restricting the period presidents spend in their posts. Böckenförde reviewed the design options that North African states had adopted to limit the power of the president by restricting the constitutional term, and assessed how successful they have been thus far, in the process comparing the experiences in the decade of the Arab Spring with those in countries of sub-Saharan Africa and in some Latin American countries.
In his lecture, William Elliot Bulmer discussed comparative case-study knowledge in constitution-building, based on his years of work at International IDEA in support of constitution-building and constitutional reform processes in a number of countries, through the presentation of comparators. Bulmer elucidated the importance of providing direct technical information to parliamentarians and negotiators during the stages of democratic transition and at the moment of enacting constitutional reforms; the importance of the role of specialized technical institutions in providing vision and technical evaluation notes on draft constitutions; the critical role of educating civil society organizations on constitutional knowledge, referencing also the writing and editing
The Constitution Building Introductory Series that was published by International IDEA on the topic of comparative constitutional design, globally. Bulmer concluded by underlining the importance of comparative constitutional knowledge and the role of constitutional expertise, calling for more “south-south” and “south-north” knowledge transfers.
The second session of foreign experts was moderated by Omar Ashour, Professor at the Doha Institute and Head of the Master’s Program in Critical Security Studies, with interventions by Katia Papagianni, Director of Policy Support and Mediation at the Center for Humanitarian Dialogue in Geneva and an expert in designing processes of national dialogue, and Gabriel Negretto, Professor of political science at the Institute of Political Science at the Catholic University of Santiago de Chile, an expert in institutional design, and constitutional and electoral reform.
Katia Papagianni reviewed lessons learned from peace processes and their relevance to constitution-making in countries affected by conflict. She explained the differences between the constitution-making process in countries that have suffered from conflict and the constitution-making process in countries undergoing a transition that did not result from armed conflict, highlighting factors such as an absence of foundations for civil order and a continuation of violent conflict during the negotiations on the constitution: these have implications for the usefulness of large-scale broad-ranging consultations and public participation, as well as the impact of an absence of security on participation. As a result of these factors and their repercussions, draft constitutions may be produced that are dominated by the views of the armed actors, rather than by the considerations of society as a whole. In addition, sometimes the negotiations may exclude major societal groups from the negotiating table for various reasons, and the ensuing drafts remain as a result closer to being peace agreements than constitutions – ordering gains achieved from military equilibrium but which do not establish a basis for a permanent political settlement.
Gabriel Negretto presented the lessons that can be learned from the institutional design of Latin American constitutions and the wave of democratization that began in Latin America at the end of the 1970s and that led to a series of constitutional changes aimed at dismantling the institutions inherited from the dictatorial past. Such constitutional adjustments have not always deepened democracy, whether in terms of its principles, contents, or implementation. At the beginning of the transition to democracy, multiple authoritarian regimes had enough bargaining power to retain constitutional articles that severely limited the electoral and institutional power of the majority. At the same time, the multiple constitutional changes carried out under democracy have served to strengthen the power of presidents and reduce legislative or judicial oversight, as well as restricting the power of elected representatives to enforce accountability. In Negretto’s view, the changes that contain the greatest potential for deepening democracy are those that have been approved because of comprehensive negotiations and deliberations that have taken place between most of the elected political forces.
Following this session a prolonged discussion took place on many interrelated issues, most notably authoritarian rulers’ manipulation of constitutions, the importance of
implementation of constitutions, the centrality of the constitutional issue in Arab countries after the 2011 uprisings and right up to the current wave of protests, and the importance of caring for societies that have witnessed civil wars.
The third day of the conference, 26 September 2020, opened with two sessions devoted to international experiences related to constitutionalizing transformation and inaugurating efforts for the transition to democracy. During these two sessions five papers were presented discussing constitutional experiences from various regions of the world, through a comparative case study approaches to South Africa, Spain, Chile, Poland, and Indonesia.
In the session headed by Marwan Qabalan, Director of the Political Studies Unit at the Arab Center, presenters included Ahmed Edali, Professor of Political Science at Ibn Tufayl University in Morocco; Mohammed Ahmed Bennis, professor and researcher at the Regional Center for Educational and Vocational Professions in Tangiers; and Mohammed Naimi, Professor of Organizational Sociology at the Center for Social Development in Rabat.
Ahmed Edali discussed the South African case, which he highlighted as an example of pragmatic constitutionalism.
Context forced parties to the country’s protracted conflict to seek out a consensus-based route forward to put a stop to the whirlwind of violence: this by employing constitutional bases upon which to democratically rebuild the political system and its institutions. The South African case offered a new constitutional architecture that fortified the interconnection between the processes of constitutional and democratic transition, in that the negotiators who adopted the logic of consensus found their way to wide-ranging constitutional norms that functioned as regulators to reduce the degree of hesitation and uncertainty inherent in transition periods. The constitution succeeded in bringing the army under civilian administration and turning it into the defender of democracy. Edali isolated an element demonstrating the constraints that stood in opposition to this experience, explaining that the transition process is more than merely a legal phenomenon. Standard-setting and constitutional limits are not enough to entrench the values of democracy; rather, a prerequisite for its achievement is embodied in policies guaranteeing that the constitutional standard will be translated into lived reality.
Mohammed Bennis, presenting his research on the Spanish experience, enumerated the factors that led it to success as a high point in the wave of democratization that swept several countries across southern and eastern Europe. Bennis focused on the elite consensus factor, which made this experience a unique case of the constitutional issue’s relationship to democratic transition through incorporating a deeper understanding of ideological and political contradictions among political actors during the 1976-78 transition period. The constitution contributed to framing a social, economic and political consensus that transcended the political and constitutional legacy of the past, and overcame the foundational problems that faced the actors, opening the way for a complex process of rebuilding the Spanish state. He added that the role of the elites in understanding the necessity of not dismantling the previous regime all at once, to avoid sharp polarization was critically important for a peaceful democratization process. Bennis pointed out that the consensus achieved around the 1978 constitution ended decades of societal division and opened the way for mutual recognition between various social and political forces.
Mohammed Naimi spoke on the constitutional experience in Chile, stating that while there were limitations on the success achieved in this instance relating primarily to the constitutional issue and latent manifestations of authoritarianism in the constitution that had been inherited from military rule, there were other constraints. The most important of these was the economic problem imposed through the adoption of neoliberal policy options from the time the dictatorship was established. Here, Naimi drew attention to the crucial role played by social movements, especially their ability to sustain peaceful protest against the military regime. This feature, effectively driving the transitional process, depended on the ability of democratic forces to transcend their political and ideological differences and forge strong alliances amongst themselves, enabling them to lead a transition towards democratic solid ground. Then he showed how the elites leading the transitional process had the primary role in laying out the foundations and rules of the state of law and subsequently their incorporation within a constitutional document that represented the supreme law expressing a social contract between rulers and the ruled.
Discussion followed these presentations of the lessons applicable in the Arab world from these cases, the roles played by the armies, and of the ways to maintain equilibrium with military power during negotiations over the transition to democracy. The session closed with attention focusing on the economic dimension and the struggles that these cases witnessed in seeking to integrate social and economic rights in the emerging constitutions.
In the session headed by Khalil Al-Anani, Researcher at the Washington branch of the Arab Center, Marwa Fekry, Professor of Political Science at the Faculty of Economics and Political Science at Cairo University, spoke, followed by Ahmed Hussein, Researcher at the Arab Center and Managing Editor of the journal
Marwa Fekry offered a comparative perspective on designing constitutions and building confidence, citing four cases that succeeded in achieving democratic transition, namely Poland, Chile, South Africa and Indonesia. Fekri reviewed the common factors that contributed to this success, concluding that the political and social aspects of the constitution design process outweigh, in terms of importance, the legal and technical aspects: the role of the elites in conducting bargaining and negotiations was of critical importance in these contexts. In the four cases, the transition followed not a revolutionary but a gradual path of negotiation and bargaining, that extended during several years. The constitution-design process in these instances was comprehensive, with none of the main political actors being excluded – including elements of the
ancien regime and forces allied with it, regardless of what they may have committed in the past; the approach to transitional justice in these cases was remote from any logic of revenge or settling of scores. The four cases were furthermore characterized by the adoption of arrangements limiting the absolute power of the majority, thereby instilling confidence among political contenders in the midst of a climate of uncertainty, such as may prevail during transitional periods.
Ahmed Hussein then spoke of the constitutional experience of the European Union, reviewing the conjunction of constitutional framing through unification treaties, with the expansion of the group and the inclusion of new members. The countries of the European Community, entering a new phase of cooperation and integration, signed the Maastricht Treaty in 1992 which ushered the European Community into a
Union, in form and substance, with multi-treaty tracks generating the idea of a European “Constitutional Treaty”. Hussein presented the contexts that led to the drafting of the Constitutional Treaty and its contents, the methods underlying the failure of its ratification, and the resulting shift of attention to the signing of the Lisbon Reform Treaty. Hussein outlined many of the elements of this treaty that render it
clearly democratic: its direct election of the President of the European Commission; its expansion of the voting circle by the qualified majority; its encompassing of new areas for joint action by member states.
The discussions of this session touched on importance of the European Court of Human Rights, political conditionality and criteria for accession in the European case, the factors of Indonesia’s success versus the Arab countries’ failure, the concept of transitional constitutionalism, the importance of external factors in Arab cases, and the role of the external factor in the dynamics of the transition in South Africa.
The Annual Conference on Democratic Transition
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