ARI Thematic Paper 3, A. Al Messaoudi, Constitutional Reform

Thematic Papers N°3 January 2010 Constitutional Reform in the Arab World Amina El Messaoudi ∗∗∗ Constitutional reform in the Arab world derives legitimacy from its importance in the process of modernization, reformulating the relationship between state and society, and effecting changes that reflect evolving ideological and intellectual systems, as well as regional and international political developments. While most Arab states have had a succession of different constitutions, there were a particularly high number of constitutional reforms over the last two decades. This study is particularly concerned with these amendments. It will try to answer essential questions, such as, what are the reasons behind these reforms, and are they due to internal or external factors? What has been the effect of discussions on constitutional reform between parties and civil society, and other political actors? What are the most important areas that have been affected by reform and has reform been sufficiently comprehensive? And what direction was taken by these constitutional reforms? Through an analysis of five cases (Morocco and Bahrain, monarchical regimes; Egypt, Algeria, and Mauritania, republican regimes) this study will explore different experiences of constitutional reform in the Arab world. ∗ Professor in Consitutional Law, University Mohammed v, Rabat 2 Overview of Constitutional Reform in the cases national treaties served as the entry Arab World point for amendments (Algeria and Bahrain). The existence of such a large degree of Nevertheless, despite some differences in constitutional reforms in the 1990s may be terms of process, the amendments enacted explained in part by the many economic and generally share similar features, namely an political changes that took place in the world emphasis on rights and freedoms, and the after the fall of the Berlin Wall and their reform of the relationship between impact on the Arab world: increased institutions. More precisely, these include: political awareness within Arab societies, the authorization of multiple political • State support of human rights law . parties, and the emergence of civil society. International reports on the human rights In addition, after the fall of the Soviet situation in Arab countries found that Union, and after numerous conferences on rights and freedoms were not well the subject of democracy, it was made clear safeguarded; as such, constitutional by Western representatives that the granting amendments were made in order to of aid or loans to developing countries reinforce citizens’ status and liberties, would be fundamentally concerned with albeit in different ways. While certain “the democratic shift” and policies of countries subscribed to universal human economic reform and human rights. 1 These rights and stipulated this in their external factors weighed evenly on the Arab constitutions (Morocco and Mauritania), countries in terms of pressures or trends others made the status of rights and towards reform. freedoms immune from constitutional However, while the external factors may review (Bahrain), or stipulated that they have been the same across the region, the are “guaranteed” (Algeria). internal factors leading to reform in each of the countries differed, as did the methods of • Gender equality and women’s demanding it. Reforms were either initiated representation .Equality between the by the ruling power (Egypt, Algeria, and sexes has been an important feature of Tunisia) or by opposition parties (Morocco). recent constitutional changes. Algeria, In certain cases, civil society actors and the Bahrain, Egypt, Mauritania, and Yemen media also played a role (Morocco, Egypt, have all passed amendments granting 2 Lebanon, and Mauritania), whereas in other women the same rights to political participation as men, while other states have changed their electoral laws to 1 include a required quota of women in The American Assistant Foreign Minister representative institutions (Morocco and Hermann Cohen explained in 1990 that “in Algeria). addition to a policy of economic reform and human rights, the democratic shift has • Reinforcement of constitutional law . become the third condition for receiving Constitutional amendments have also American aid.” At the same time, the British been passed in order to appoint special Assistant Minister for Foreign Affairs committees mandated to verify the explained that British aid is granted to constitutionality of laws. Members of countries moving in the direction of these committees are generally chosen by pluralism and to those who respect the law the legislative and executive authorities. and principles of the market. 2 Examples include but are not limited to: the Constitutional Conference in Bahrain, human rights and political associations in the “Kefaya” movement in Egypt, and the Morocco. 3 • Multi-party system . The transition from a (Algeria, Bahrain, Tunisia, Yemen, Egypt, single-party system to a multi-party one and Morocco). in certain Arab countries (Egypt, Tunisia, Algeria, and Mauritania) Conversely, to lessen the power of the allowed the organization of competitive executive authority - at least in theory - the elections, at least in appearance. This Arab states changed their laws to strengthen proved more effective when combined the legislative and supervisory powers of with other changes to the electoral their parliaments. Similarly, most of these system (Egypt). countries restructured their legislative bodies • Financial regulation . In certain cases, by creating bicameral parliaments (Morocco constitutional amendments named (1996), Bahrain (2000), Algeria (1996), organizations responsible for financial Mauritania (1991), Egypt (1980) and 4 inspection such as the High Council of Tunisia (2002)) . However, three obstacles Accounts in Morocco, and the Diwan prevent these bicameral parliaments from for Financial Inspection in Bahrain.3 rectifying the imbalance between the legislative and executive authorities. First, In addition to these domains, new laws or while the members of the first chamber were amended laws were enacted with regards to to be directly elected, those of the second political parties and general freedoms are chosen either through indirect voting (Morocco, Egypt, Algeria, and Mauritania), (Morocco) or through a combination of or were accompanied by the creation of new different kinds of voting and appointment. institutions (for example, the Consultative In certain cases, the head of state alone has Council for Human Rights in Morocco). the power to appoint a proportion of Yet while this wave of constitutional reform members of the second chamber (Bahrain, affected the vertical relationship between the Algeria, Egypt, Jordan). Second, the Arab central and local authorities by encouraging constitutions grant almost the same decentralization, the horizontal relationship legislative and supervisory powers to the between the authorities did not change. two chambers, despite the difference in how Indeed, most Arab countries preserved the their members are chosen. This impedes a presidential nature of their regimes by dynamic relationship from forming between creating amendments reinforcing the power them. Third, only the heads of state have of the president or monarch. In certain the power to dissolve parliament. cases, this was achieved by amending sections dealing with the length of the president’s duration in office, either 4 Whilst a bicameral legislature was extending it or making it renewable (Algeria, Egypt, Tunisia, and Syria). In implemented after the experience of a other cases, this reinforcement of power was unicameral legislature in Algeria (the achieved by making the government constitutions of 1976 and 1989), subordinate to the president or monarch Mauritiania (the 1961 constitution), and Bahrain (the 1973 constitution), the first constitutional experience in Morocco was, 3 The third chapter of the National Action in contrast to the above-mentioned Charter of Bahrain entitled “Economic countries, based upon a bicameral regime, Fundamentals of the Society” stipulates in accordance with the constitution of 1962. that “public property is inviolable. It is After the experience of a unicameral incumbent upon every citizen to protect it legislature in accordance with the while the public authorities are under a constitutions of 1970, 1972, and 1992, duty to take all necessary measures to there was a return to a bicameral regime maintain it.” (Sixth principle) once again with the constitution of 1996. 4 These general features of constitutional and in accordance with Article 106, the reform in the Arab world, along with their monarchical system and prescriptions nuances, will be shown in the following relating to Islam may not be subject to cases studies, organized in chronological constitutional review. order of reform: Morocco (1996), Bahrain (2002), Mauritania (2006), Egypt (2007), The failure of structural adjustment and Algeria (2008). programs in the 1980s resulted in economic and social crises, which led to political Morocco: The Quest for Balance between change. There was a change in the Powers relationship between the royal institutions and the parties of the national movement Since its independence in 1956, Morocco and new developments in the field of human has had five constitutions, issued in 1962, rights (a Ministry of Human Rights and a 1970, 1972, 1992, and 1996. The first two Consultative Council for Human Rights constitutions dealt with the establishment of were founded,

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