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Islamic Constitutionalism and Forms of Government of Tunisia, Morocco, and Jordan

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Islamic Constitutionalism and Forms of Government of Tunisia, Morocco, and Jordan Department of Political Science Master Degree in International Relations, Global Studies Chair Comparative Public Law Islamic Constitutionalism and Forms of Government of Tunisia, Morocco, and Jordan SUPERVISOR Prof. Cristina Fasone CANDIDATE Cecilia Berardi Student no. 635782 CO-SUPERVISOR Prof. Francesca Maria Corrao ACADEMIC YEAR 2018/2019 1 Contents Contents....................................................................................................................... 1 Introduction ................................................................................................................ 2 I Constitutionalism and Forms of Government’s Features ....................................... 5 1.1 Setting the Scene: Definition and Historical Development of Constitutionalism ...................................................................................................... 6 1.2 Islamic Constitutionalism ............................................................................... 11 1.3 Forms of Government .................................................................................... 22 II From the Arab Revolutions to the Constitutional and Democratic Transition .. 29 2.1 Towards the Arab Revolutions ....................................................................... 29 2.2 The Case of Tunisia, Morocco and Jordan ..................................................... 33 2.3 Constitutional Process After the Arab Revolution in Tunisia, Morocco, and Jordan ...................................................................................... 41 III Comparative Analysis of the Institutional Arrangements of Tunisia, Morocco, and Jordan: Is there a Democratic Transition Under Way?................................... 54 3.1 Comparative Analysis of the Institutional Set Up ................................................ 55 3.1.1 State order, Head of the State, Executive power .......................................... 55 3.1.2 The Legislative Power ................................................................................. 59 3.1.3 The Judiciary ............................................................................................... 65 3.2 Critical Reflections on the Tunisian, Moroccan, and Jordanian Transition to Democracy .................................................................................................... 69 3.2.1 General Trends ............................................................................................ 69 3.2.2 External Factors Affecting the Democratic Transition .................................. 72 3.2.3 A “New” Separation of Powers ................................................................... 73 Conclusions ............................................................................................................... 77 Bibliography .............................................................................................................. 80 2 Introduction The area of Middle-Est and North Africa is today the theatre of the major challenges to global security and stability (Talbot 2017, p. 7). In this precise region, there are concentrated a multiplicity of issues of various nature: the presence of radical Islam, the contrast between Sunnis and Shiites, the Libyan crisis, the migration plague, to name but a few (Talbot 2017, p. 7). These are the reasons why the dynamics of the MENA area have recently been at the core of the most compelling debates and insidious analysis. Some problematics related to the configuration of this specific area had ancient roots, as are the academic discussions related to them. Then, the impact of the 2011 uprisings fostered the emersion of a new multiplicity of themes to be faced. This research seeks to answer an old question, in light of a more recent series of events. The aim is to verify the existence of an “Islamic Constitutionalism”, through the analysis of the latest events in Tunisia, Morocco, and Jordan starting from the year 2011. The Islamic Constitutionalism is considered as a specific connotation of Constitutionalism in presence of countries with a prevalent Muslim majority. Specifically, it has been defined as “all the provisions derived from the sources of Islamic law related to the organization of the Islamic polity” (Longo 2013, p. 2-41). Subsequently, by adopting a comparative approach, the thesis investigates the constitutional and institutional implications of the Arab revolts in the three Countries. Firstly, an overview of the notion of Constitutionalism is provided. By retracing the development of the various theories of Constitutionalism throughout the history, the research individuates the main features of this doctrine, which specifically lie in the principle of separation of powers, in the protection and inviolability of fundamental human rights, in the limitation of power. Once the notion of Constitutionalism is clarified, the research proceeds by individuating elements of the latter within the Islamic paradigm. What emerges is that it is possible to talk about an Islamic Constitutionalism starting from the XIX century at the dawn of the independences ‘recognition from the colonial powers. In this first phase, the newly born Arab-Muslim States activated a Constitutional process mainly based on the attempt to find a collocation for Sharia within the architecture of the institutional system. The priority here seemed to be the creation of a State on Islamic grounds, in order to ensure the Islamic identity despite the influence of the foreign model 3 of codification (Longo 2013, p. 2-41). It is at this very point that one of the most complex questions arose: what is the relationship between Sharia and Constitutionalism? A question that inevitably opens the ground to further debates, since the answer might be strictly connected to the notion and the nature of Sharia itself. Even though the opinion of the scholars is not univocal, most of them do not exclude a priori the compatibility between Islamic law and the western conception of Constitutionalism (Baldwin 2007). Moreover, the research provides a set of elements that highlight similarities between the Islamic and the western political thought. It is worth noting that a deeper analysis even detects traces of Islamic Constitutionalism at the time of the first Muslim Community. Specifically, in reference to the Medina Charter of 622 C.E. (Faruki 1971). By having determined the existence of Islamic Constitutionalism, the main features of the latter can be individuated. These lie in the consensus of the Ummah (the Islamic community), in the principle of wakala (representation), in the protection of human rights. All the just mentioned elements represent fundamental principles that can “support Constitutionalism in the Islamic world” (Esposito, Voll 1996). The second part of this thesis focuses on the comparative analysis of Tunisia, Morocco, and Jordan’s institutional system to then determine the existence or not of a democratization’s process after the 2011 revolts. To this purpose, by reconstructing the history of each Country from the moment of their independence, it is reported the framework and the factors that eventually unleashed the protests. By following the red wire of the history, the analysis shows the peculiar dynamics within which the considered States’ institutional systems emerged: the three examined Countries since their independence have been caught between strong religious traditions and secular pushes, and between inheritances of the colonial phase and incentives towards innovation (Oliviero 2003, p. 554-574). The ideological fracture that characterized the Arab societies during this phase strongly divided the leadership’s policy between the option of sustaining modernity or tradition with a direct impact on the constitution-making discourse. In particular, the latter revealed itself to be a tortuous process of changes, often characterized by discontinuity since it has experienced periods of acceleration followed by backward steps. It is within these very dynamics that the roots of the Arab revolts can be retraced (Mercuri, Torelli 2012). Overall, the evolution of the MENA’s Countries has been historically characterized by the acceptance or the net rejection of democratic features. In 4 some cases, the reception of a more democratic model resulted to be only partial, leading the entire system toward periods of paralysis or abuse of the constitutional rules. The events of 2011, although occurred trough different modalities from one Country to another, led the leadership of the three States to the awareness that democratic reforms were the only alternative for the stability and legitimacy of their respective regimes. Indeed, starting from this point, Tunisia, Morocco, and Jordan seem to be engaged in a new constitutional process, oriented (or apparently oriented) toward the absorption of more democratic standards (Dalmasso, Cavatorta 2013, p. 230-240). The third part of this thesis focuses on these constitutional changes. Considering the reforms adopted by Tunisia, Morocco, and Jordan after 2011, a comparison between the different branches of the State is provided. The comparison shows that the changes brought in the three States were focused on the same aspects: the increase of representativeness and civil society’s participation, the enlargement of the conceived human rights, the guarantee of judicial power independence, a higher level of transparency in the electoral process. At the same time, there have been some dissimilarities
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