The Arab Center for Research and Policy Studies inaugurated its ninth conference on democracy issues and democratization under the title “The Constitutional Question and Democratic Transition,” held in cooperation with the Arab Association for Constitutional Law 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 then welcomed and thanked the attending Arab and foreign researchers and experts for their participation in the conference via Zoom and the Arab Center’s social networks. He expressed his gratitude towards the referees and supervisors for their moderation of remote-conferencing sessions via social media. He 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.
Experiences in Yemen, Iraq, Algeria
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.
The Cases of Sudan, Libya, Syria, and Morocco
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.