Constitution Drafting After the Arab Spring: A Comparative Overview

Indiana Journal of Global Legal Studies Volume 29 Issue 1 Article 1 2-15-2022 Constitution Drafting After the Arab Spring: A Comparative Overview Francesco Biagi University of Bologna, Follow this and additional works at: https://www.repository.law.indiana.edu/ijgls Part of the Comparative and Foreign Law Commons, Constitutional Law Commons, and the Law and Society Commons Recommended Citation Biagi, Francesco (2022) "Constitution Drafting After the Arab Spring: A Comparative Overview," Indiana Journal of Global Legal Studies: Vol. 29: Iss. 1, Article 1. Available at: https://www.repository.law.indiana.edu/ijgls/vol29/iss1/1 This Article is brought to you for free and open access by the Maurer Law Journals at Digital Repository @ Maurer Law. It has been accepted for inclusion in Indiana Journal of Global Legal Studies by an authorized editor of Digital Repository @ Maurer Law. For more information, please contact . Constitution Drafting After the Arab Spring: A Comparative Overview FRANCESCO BIAGI* Scholars have written extensively on the content of post-Arab Spring constitutions, highlighting these constitutions'strengths and weaknesses. Less attention has been devoted to the processes that led to the adoption of these new documents. By providing a comprehensive comparative analysis of these constitution-drafting processes, this Article aims at contributing to filling this gap in the literature. Special focus is placed on the constitution-makingprocesses followed in Morocco (constitution of 2011), Syria (constitution of 2012), Tunisia (constitution of 2014), and Egypt (constitutions of 2012 and 2014 the latter being amended in 2019), as well as on the constitutional reform processes that took place in Jordan (2011, followed by the constitutional amendments adopted in 2014 and 2016) and Algeria (2016 and 2020). Reference is also made to the ongoing constituent process in Libya and to the UN-facilitated process aimed at adopting a new constitution for Syria. The Article shows that the cast majority of these processes were characterized by major shortcomings, a fact that had a negative impact on the legitimacy and sense of ownership of the new constitutions and, ultimately, on the transitionprocesses as a whole. The only notable exception appears to be Tunisia, where the 2014 constitution was the outcome of a profoundly democraticprocess. * Senior Assistant Professor of Comparative Public Law, Department of Legal Studies of the University of Bologna. I would like to express my gratitude to Susanna Mancini, Islam Mohammed, and two anonymous reviewers for their precious comments and suggestions on a previous draft of this paper. The usual disclaimers apply. Indiana Journal of Global Legal Studies Vol. 29 #1 (Winter 2022) © Indiana University Maurer School of Law 1 2 INDIANA JOURNAL OF GLOBAL LEGAL STUDIES 29:1 In tro d u ction ............................................................................................ . . 2 Four Waves of Constitution Drafting in the Arab World: A Historical P ersp ectiv e ............................................................................................... . . 4 The Arab Spring Constitutions: An Analysis of the Constitution-Making and Constitutional Reform Processes...................................................... 8 The Body in Charge of Drafting the Constitution and the Role Played by the R uling R egim e .......................................................................... 9 "B ottom -up" Processes.................................................................... 11 "Top-dow n" Processes .................................................................... 16 Degree of Openness and Transparency of the Process.................... 21 D uration of th e P rocess ...................................................................... 24 The Role Played by Political Parties ................................................. 28 The Role Played by Civil Society ....................................................... 33 The Role Played by External Actors................................................. 42 The Influence of Previous Domestic Constitutions .......................... 48 The Influence of Foreign Constitutional Models .............................. 50 C oncluding R em arks .............................................................................. 54 I. INTRODUCTION Major constitutional transformations occurred in the Middle East and North Africa (MENA region) following the outbreak of the Arab Spring. During the protest movements, demonstrations, and, in some cases, even revolutions that have taken place between the end of 2010 and the beginning of 2011, the Arab people have not only called for profound political, social, and economic reforms, but have also demanded radical constitutional changes aimed at reinforcing the safeguarding of fundamental rights, strengthening the principle of separation of powers, and increasing the independence of the judiciary. A new wave of constitution building thus began in the Arab world, one that-in the aspirations of the protesters-should have made a clean break with the previous autocratic or semi-autocratic regimes. Scholars-both constitutional lawyers and political scientists-have mainly focused on the content of post-2011 Arab constitutions, CONSTITUTION DRAFTING AFTER THE ARAB SPRING 3 highlighting these constitutions' strengths and weaknesses. 1 Less attention has been devoted to the processes that led to the adoption of these new documents. Admittedly, there are some works that have examined the constitution making and the constitutional reform processes, but mainly with a case-by-case comprehensive comparative processes, this Article seeks literature. Special focus will processes followed in Morocco approach.2 By providing a analysis of these constitution-drafting to contribute to filling this gap in the be placed on the constitution-making (constitution of 2011), Syria (constitution of 2012), Tunisia (constitution of 2014), and Egypt (constitutions of 2012 and 2014-the latter being amended in 2019), as well as on the constitutional reform processes that took place in Jordan (2011, followed by the constitutional amendments adopted in 2014 and 2016) and Algeria (2016 and 2020). Reference will also be made to the ongoing constituent process in Libya and to the UN-facilitated process aimed at adopting a new constitution for Syria. As will be shown, the vast majority of these processes were characterized by major shortcomings, a fact that had a negative impact on the legitimacy and sense of ownership of the new constitutions, and ultimately on the transition processes as a whole. The only notable exception appears to be Tunisia, where the 2014 Constitution was the outcome of a profoundly democratic process. After a brief historical overview of the four waves of constitution drafting in the Arab world (which began in the mid-19th century (...truncated)