Constitutionalism after the Arab Spring

Under Morocco’s 2011 Constitution, Morocco’s Council of Government is selected by the Prime Minister, the leader of the largest party in the legislature. They serve as the cabinet, meeting to deliberate upon policy and establish governmental direction. So far, so Parliamentary. However, when issues of security or strategic policy are to be decided, the King appears at these cabinet meetings, with his attendance transforming a mere ‘Council of Government’ into a grand ‘Council of Ministers’. Yet because the King’s word cannot be disputed in such deliberations, he determines policy. Further, in the absence of a clear constitutional definition of strategic policy, the King can decide the decisions which fall within this remit. So the King is limited only to interventions in specific policy areas, yet he is also the authority who specifies.

This is a peculiar monarchy in which the King is neither absolute nor constitutional, no longer ‘sacred’ yet still ‘inviolable’. Such an arrangement is a distillation of the constitutional debates which have blossomed across the region following the Arab Spring: a coexistence of clearly defined constitutional governance with lingering tradition, both impermeable to debate and demanding of deference.

All politics, to some extent, embodies this negotiation between a conservative attachment to proven tradition and a liberal aspiration towards a different future. It is within this debate that Zaid Al-Ali’s commentary on Arab Constitutionalism, the latest UCL Constitution Unit seminar on the 10th February, is firmly situated. Author of ‘The Struggle for Iraq’s Future’, and an expert on constitutions across the Arab world, Zaid Al-Ali offered an  informative narrative of the progress of constitutions since the Arab Spring, from Egypt’s repeated attempts (2012 and 2013) to Algeria’s absent document (promised reforms to assuage 2011 protestors have as yet been unrealised).

Al-Ali demonstrated the legacies of an authoritarianism which closed debate, centralised power and closely regulated society with an examination of articles concerning ‘freedom of expression’. He drew upon constitutions such as Egypt’s 2013 document, which offers a ‘guaranteed’ right to freedom. Yet such assertive wording is immaterial and disingenuous, he argued, if it coexists with the legacies of previous regimes in existing laws which preclude criticism of the actions of governments or the police. Al-Ali even ironically lauded the honesty of Iraq’s constitution, which notes that its recognition of rights is subject to qualification by the government’s assessment of the needs of public order and the demands of morality.

However, Al-Ali did offer optimism in the struggle against such legacies, describing the promise of a ‘limitation clause’, a provision which he advocated not only in his lecture, but in his discussions with Tunisian constitutional drafters as they embarked upon the creation of an entirely new document. A ‘Limitations Clause’ is a provision which clearly stipulates the conditions under which rights may be restricted, exemplified by Section 36 of the South African Constitution:

“limitations must be reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom”

By its demarcation of a strictly delimited area in which rights can be restricted and clear parameters by which this area can be assessed, such a clause offers a firm reinforcement for rights established elsewhere in a constitution. Such a provision is inspired by the ‘Canadian Charter of Rights and Freedoms’, German constitutional law and the South Africa 1997 Constitution quoted aboveIt is such a cross-pollination of principles, borrowing from the efforts of other constitutional drafters across the world which the ‘Constitute’ project, co-directed by the Constitution Unit’s James Melton, is seeking to facilitate. This free online resource compiles searchable texts of every national constitution currently in force, allowing comparison of the form, structure and content of these documents, a source not only for academics but also constitutional practitioners. The essence of a ‘Limitation Clause’ was included in the fourth draft of the Tunisian Constitution, and although it was not in the exacting form favoured by South African and Canadian drafters, it was nonetheless a move celebrated by Al Ali. Similarly lauded was the open manner of the Tunisian process, permeable to the experience of domestic, foreign and international sources: a very modern form of draftsmanship.

However amidst his discussion of totalitarian legacies and constitutional drafting which remains fettered by history, it was a novel provision raised by Al-Ali which was most chilling. Article 31 of the Egyptian Constitution, approved by 98.1% of those who voted in a January 2014 referendum, states that:

“Cyberspace security is a fundamental element of the economy and national security. The state is responsible for taking necessary procedures to protect it, in a manner regulated by law”

In its absence of specificity, this Article offers an ominous breadth of potential action, declaring the digital domain the realm of the government, a reminder that it is not only the legacies of totalitarianism which need to be considered, but the threats of the modern world.

After the blossoming of the Arab Spring, the period of ‘Arab constitutional drafting’ does not have quite the same aphoristic appeal, nor does it provide a telegenic spectacle. Yet whilst constitutions are living instruments subject to interpretation and change, it is clear the continued remaking of Arab constitutional governance requires both a lexical precision and an awareness of the legacies of authoritarianism.

Edward Lucas is an intern at the Constitution Unit.

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Comparing the 1971, 2012, and 2013 Egyptian Constitutions

The Comparative Constitutions Project has developed a new tool that allows one to compare the 1971, 2012, and 2013 Egyptian constitutions:  We have assigned the topics from the Constitute site to the texts of those three constitutions, which allows one to select a topic and see how each of the three constitutions addresses it.  If you are interested in how much (or little) the Egyptian constitution has changed as a result of the Arab Spring, then I encourage you to take a look.

(Please send me an e-mail or make a comment if you notice any errors in our assignment of topics.)