New Trends in Constitution-Making: the Cases of Tunisia and Egypt
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Department of Political Science Chair: Comparative Public Law New trends in Constitution-Making: the cases of Tunisia and Egypt Supervisor Professor Cristina Fasone Candidate Kristina Gumroian Student Reg.N.632772 Co- Supervisor Professor Francesca Maria Corrao Academic Year: 2017/2018 Table of contents 1 Introduction .............................................................................................................. 4 2 Constitutions as drivers for the democratic development of societies ..................... 9 2.1 Constitutional waves in modern states ............................................................. 10 2.2 Basic constitutional models ............................................................................. 15 2.3 Constituent power and the legitimacy of constitution-making ........................ 21 2.3.1 Introduction into the concept of constituent power .................................. 21 2.3.2 Constituent power in the Constitutional thought ...................................... 24 2.4 Transitional Constitutionalism ......................................................................... 26 2.4.1 Transition and the Constitutional moment ............................................... 26 2.4.2 The Backward- and the Forward-Looking Constitution........................... 28 2.5 Introduction into Constitutionalism in Islamic World ..................................... 30 3 The Arab Spring in the context of the Arab World ................................................ 41 3.1 A historical overview of the Arab Spring ........................................................ 42 3.2 Autocracy and Democracy in Transition: Tunisia and Egypt .......................... 48 3.2.1 Social drivers of protest ............................................................................ 49 3.2.2 Authoritarian capacity .............................................................................. 58 3.2.3 Centralization of power and modes of contention .................................... 63 4 Framework for advancing Constitutional Legitimacy in Transition states ............ 68 4.1 Processual Legitimacy: Broadly participatory drafting process ...................... 69 4.1.1 Constitution Drafting Process: the case of Tunisia .................................. 70 4.1.2 Constitution Drafting Process: the case of Egypt ..................................... 92 4.2 Substantive legitimacy: International human rights law norms incorporation 118 4.2.1 Civil and political rights ......................................................................... 121 4.2.2 Equal protection of the Law ................................................................... 126 2 4.2.3 Due process and freedom from state abuse ............................................ 128 4.3 ‘Applicatory’ legitimacy: Enforcement and potential for further implementation 132 4.3.1 State Institutions in the pre-Arab Spring period ..................................... 133 4.3.2 State Institutions in the Post-Arab Spring period ................................... 135 5 Conclusion ............................................................................................................ 148 6 Bibliography ......................................................................................................... 155 6.1 Legal documents ............................................................................................ 155 6.2 Bibliographic references ................................................................................ 156 6.3 Online sources ................................................................................................ 163 7 Summary ............................................................................................................... 175 7.1 Introduction .................................................................................................... 175 7.2 Constitutions as drivers for the democratic development of societies ........... 176 7.3 The Arab Spring in the context of the Arab World ....................................... 180 7.4 Framework for advancing Constitutional Legitimacy in Transition states .... 183 7.5 Conclusion ..................................................................................................... 196 3 1 Introduction In 2011 an unexpected series of mass revolutionary protests hit the Middle East,1 namely, the ‘Arab Spring’. The bottom-up factors driving popular discontent and subsequent revolutions, included significant levels of inequality and a pervasive official corruption, an excessive youth bulge, high rates of unemployment, which were most noticeable among the college-educated, and new generation media ensuring more open access to information for the public.2 However, the outcomes of the revolutions were very different. For instance, in Syria and Bahrain, dictators remained in power through fierce repression. In Tunisia and Egypt, authoritarians had to step down without referring to great levels of violence, while in Libya rebels overthrew the dictator with foreign military aid and in Yemen after the high degree of violence the ruler stepped down in a negotiated transfer of power. Eventually, Tunisia, Libya and Egypt turned out to be three cases, where the Arab Spring led to at least an interlude of democratic and semi democratic politics.3 All three countries adopted new constitutions, even if the first Egyptian democratic constitution was repealed after a military coup in 2013 and Libya was governed by two provisional constitutions before collapsing into tribal warfare. It is important to note that the main intention of framers of these constitutions was to establish a new, democratic polity launching the future course of day-to-day politics. Politicians of all three states faced similar difficulties and a daunting task: how to ensure peace, stability and unity in the new polity while impeding a return to illiberal and authoritarian rule? Despite having similar backgrounds, these constitutions finally diverged widely in their degree of liberalism, in other words, the extent to which they structure institutions in order to preserve individual rights and the balance between majority and minority rights. 1 L. Anderson, ‘Demystifying the Arab Spring’, HeinOnline -- 90 Foreign Affairs 2, (2011). 2 V. Durac, ‘Protest Movements and Political Change: An Analysis of the ‘Arab Uprisings of 2011’’, Journal of Contemporary African Studies, (2013). 3 A. Stepan, J.J Linz, ‘Democratization Theory and the “Arab Spring”’, Journal of Democracy, (2013), p. 15-30. 4 In this thesis, I will analyze the constitution-making processes in Tunisia and Egypt in the aftermath of the Arab Spring, and how the political polarization among key fractions in both countries influenced the process of the constitution - making and, as a consequence, the legitimacy of their constitutions. My analytical framework will be drawn from comparative constitutional scholarship theory on constitution-making in post-conflict and transitioning states.4 Based on the theory of Gluck and Brandt, the framework includes three markers of the constitutional legitimacy. The first one is called processual legitimacy, an inclusive drafting and ratification process; the second is substantive legitimacy through the incorporation of international human rights law principles; the third sort of legitimacy is the applicatory one, ensured through the inclusion of institutional apparatuses for the fair and complete implementation of constitutional protections.5 In January 2014, three years after the outbreak of the Arab Spring revolutions, both Tunisia and Egypt adopted new constitutions. Throughout their constitution-making processes, Tunisia and Egypt faced the same challenge: how to balance the interests of dominant Islamist parties against the interests of secular and left-leaning parties that had historically controlled the government and its institutions. Despite the common challenge, the processes of constitution-drafting evolved quite differently in Tunisia and Egypt. In Tunisia, although the constitution-drafting process was characterized by conflict between Islamists and secularists, it led to a consensus constitutional text that revealed popular input. The drafting process in Egypt, instead, was managed by successive, closed, non- public bodies who did not establish consensus document, and whose actions polarized already existing divisions in Egyptian society. While in both constitutions adopted in January 2014, international human rights law norms are broadly incorporated, the Constitution of Tunisia contains more robust enforcement mechanisms for the rights 4 J. Gluck, M. Brandt, ‘Participatory and Inclusive Constitution Making: Giving Voice to the Demands of Citizens in the Wake of the Arab Spring’, United States Institute of Peace, (2015). 5 Ibidem. 5 guaranteed in the constitution. Egypt, in its turn, lacks such effective implementation mechanisms to ensure constitutional rights are fulfilled. In this work, I will answer the following research questions: What are the new trends in constitution making and how do they influence the constitution-making processes in Tunisia and Egypt? To what extent the substantive provisions of Tunisia’s and Egypt’s new constitutions comport with international human rights law norms? Do new Tunisian and Egyptian constitutions include institutional and enforcement mechanisms for the full and fair implementation of substantial constitutional rights? Are constitutions adopted by transitional