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The Arab World and the Polemics of Neo-Constitutionalism - ASHARQ AL-AWSAT English Archive 2005 -2017
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The question of the constitution has been brought back to the Arab political scene over the past few months. In Iraq, the constitution represents a complicated problem that has remained to this day insolvable or almost so. In Egypt, the constitutional change was a major card played by various contenders in the recent overloaded presidential electoral race. Presently in Mauritania, there is a revision of the July 2001 constitution that was promulgated by the former president Ould Taya who was overthrown by the military coup of August 3, 2005.

The current constitutional demands are very different from those that appeared at the end of the 19th century and the beginning of the 20th century. Back then, the constitutional demands aimed at reforming the deteriorating Ottoman Islamic State from a modernization perspective. Now the demands for constitutional reform are related to two main issues: the dilemma of the fragility of the national composition in multi- national and multi-factional societies, and the dilemma of political transition of power, which in effect paralyzes the Arab political realm.

The first dilemma, that of fragile multi-ethnic and multi-national societies, was sharply present in Sudan and Iraq amidst explosive conditions due to the long civil war in the former and two violent regional wars in the latter. Both events were followed by several crises related to various backgrounds. In both countries, the constitutional issue is related strongly to the identity of the state, the nature of its national project, and the relations between its components.

Despite that the various Arab post-independence constitutions were based on the contemporary human rights frame of reference (especially the concepts of equality and citizenship) and were embodied in a very centralized way. This way may have been inspired by the traditional European nation-state model but has nevertheless largely neglected the measures of that very same model to secure ethnic and minority rights. The most important measure that was neglected was that of pluralist democracy. Again, even though both the Sudanese and the Iraqi constitutions have adopted a pattern of federalism, reality refuted the claims. The Sudanese South and the Iraqi North have remained until very recently two areas with clearly violated political and cultural rights.

After a difficult creation, the Sudanese parties managed to achieve a brave reconciliation that entrenched the new consensual principles and systems of the new Sudan. The new state is to be a federation where the Southern Sudanese would enjoy their full rights including the right of self-determination, which they can practice as soon as the transitional period is over. Therefore, one can say that the new constitution in Sudan has legitimized these consensual principles, which was the reason for the end of the long civil war.

The Iraqi case is much more complicated than that of Sudan. The reason is the interrelatedness and correlation of the national, factional (ethnic and religious), and regional provisions. Furthermore, there is a large confusion in the local situation due to American occupation along with its own agenda. It is true to say, however, that Kurdish national rights were violated under the former regime, which abused Arab nationalism and used it as an excuse for despotic and exclusionary behavior. Nevertheless, the draft of the new proposed constitution has adopted an expansive federal pattern that goes beyond the needs of the Kurds and paves the way for &#34factional federalism&#34 which will only create a state based on factional and national rivalries between the Sunnis, the Shias, and the Kurds. This may eventually lead to the decomposition of the unified Iraqi identity rather than supporting it. In such case, the constitutional question in Iraq reflects a balance in the conflict of powers rather than to resolve the current crisis. Thus, we can easily realize the absence of minimal agreement between the different political components of the political rainbow, especially with regards to controversial issues related to identity and the sense of belonging to Iraq.

As for the political condition in Mauritania following the 3 August coup, one can say that it transcends the local concerns and extends to the essence of the problem of democratization in the Arab world as whole. The quintessential problem in this matter is the question of the restriction to a peaceful transition of power. It is well known that Arab constitutions do not offer any mechanisms for this option, which is in fact a pivotal point in any real democracy. In fact, most if not all Arab constitutions ignore the issue of the limitation of the period of presidential terms, and thus in effect legitimize absolute continued authority. Therefore, in the Arab countries the only two means for any rotation of power is either through military coups, or through external intervention as in Iraq.

Then, it is clear that the basic demands now of the forces of change in our world revolve around the legal and procedural ways to legitimize peaceful transition of power. It is from this that the importance of the expected constitutional reform in Mauritania stems. The reform will aim at limiting the presidential terms to two in Mauritania as well as strengthening the capacities of the legislative council. It will also aim at strengthening the powers of the government in order to help the parliament in the limitation of the president”s powers.

One can sense the same kind of tendencies debated and presented in several Arab countries albeit according to different backgrounds, root causes, and courses. One can note that the problematic democratization of the Arab world being reflected in certain mobility in various Arab societies, takes the form of demands for legal constitutional changes and amendments. This is based on the rationale that the constitution is essentially the contract of national agreement and not merely a symbolical document of reference that is duplicated from the international constitutions.

This article has highlighted two aspects that make up the dilemma of democratic change in the Arab world that takes place through the constitution issue.