CONSTITUTIONALISM, HUMAN RIGHTS, AND ISLAM AFTER THE ARAB SPRING CONSTITUTIONALISM, HUMAN RIGHTS, AND ISLAM AFTER THE ARAB SPRING Edited by Rainer Grote and Tilmann J. Röder Assistant Editor Ali M. El- Haj 1 1 Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trademark of Oxford University Press in the UK and certain other countries. Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America. © Oxford University Press 2016 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by license, or under terms agreed with the appropriate reproduction rights organization. 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Identifiers: LCCN 2016018915 | ISBN 9780190627645 ((hardback) : alk. paper) Subjects: LCSH: Constitutional law—Arab countries. | Constitutional law (Islamic law) | Human rights—Arab countries. | Arab Spring, 2010– Classification: LCC KMC524 .C675 2016 | DDC 342/.14927—dc23 LC record available at https://lccn.loc.gov/2016018915 1 3 5 7 9 8 6 4 2 Printed by Sheridan Books, Inc., United States of America Note to Readers This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is based upon sources believed to be accurate and reliable and is intended to be current as of the time it was written. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional services. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. 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Contents Preface (Grote/Röder/El- Haj) xxxi Editors’ Note on the Transliteration xxxiii Introduction (Grote/Röder) 3 Prologue: Constitutional Debates in the Arab Spring (Grote/Röder) 9 PART 1: POWER AND LEGITIMACY 1.1 The Legitimacy of Constitution- Making Processes in the Arab World: An Islamic Perspective (An- Na’im) 29 1.2 Legitimacy of Constitution- making Processes: Reflections from the Perspective of International Law (Wolfrum) 43 1.3 Regimes’ Legitimacy Crises in International Law: Libya, Syria, and Their Competing Representatives (d’Aspremont) 55 1.4 The Process of Institutional Transformation in Tunisia after the Revolution (M’rad) 71 1.5 Religious Authorities and Constitutional Reform: The Case of Al- Azhar in Egypt (Hefny) 89 1.6 The Arab Spring and Constitutional Reforms in Jordan: A Historical and Legal Appraisal (Al- Khasawneh) 123 1.7 Winter Is Coming: Authoritarian Constitutionalism under Strain in the Gulf (Parolin) 149 1.8 Constitutional Reform in Oman: Rights Granted under Reserve (Al- Azri) 173 v vi Contents PART 2: WHAT BASIS FOR STATEHOOD: RELIGION OR CITIZENSHIP? 2.1 Al- Dawlah al- Madanīyah: A Concept to Reconcile Islam and Modern Statehood? (El- Daghili) 189 2.2 Islam and the Constitutional State: Are They in Contradiction? (Horchani) 199 2.3 State and Religion in the Aftermath of the Arab Uprisings (Jebnoun) 207 2.4 The Relationship between Constitutions, Politics, and Islam: A Comparative Analysis of the North African Countries (Dupret) 233 2.5 Contesting Islamic Constitutionalism after the Arab Spring: Islam in Egypt’s Post- Mubārak Constitutions (Brown/Lombardi) 245 2.6 The Caliphate State: A Basis of Modern Statehood? (Khan) 261 PART 3: WHAT KIND OF GOVERNMENT: CIVILIAN OR MILITARY? 3.1 State Control over the Military or Military Control over the State? A Comparison of Selected Arab Constitutions (Röder) 283 3.2 Changes in Civil- Military Relationships after the Arab Spring (Droz- Vincent) 323 3.3 The Changing Role of the Military in Mauritania (Babana) 355 3.4 The Grip of the Army on Algeria’s Political System (Benchikh) 369 3.5 The Role of the Army in a Multicommunity Society: The Case of Lebanon (Messarra) 389 PART 4: THE FRAGILE BASIS OF DEMOCRACY AND DEVELOPMENT 4.1 The Anatomy of the Arab Spring (2011–2015) (Bassiouni) 401 4.2 The Difficult Path toward Democracy: New Electoral Systems in Egypt, Libya, and Tunisia (Debbeche) 425 4.3 Centralized or Decentralized State Structures? Tendencies in the Arab Transition States (Philippe) 461 4.4 The Legal Status of the Kurds in Iraq and Syria (Bammarny) 475 Contents vii 4.5 The Separation and Distribution of Powers under the New Moroccan Constitution (Biagi) 495 4.6 The Quest for a New Economic Order in Egypt’s Constitutional Transformation (Bälz/Schoeller-Schletter) 513 PART 5: LIBERTY, EQUALITY, AND THE RIGHTS OF MINORITIES 5.1 International Human Rights Law as a Framework for Emerging Constitutions in Arab Countries (Mahmoudi) 535 5.2 Civil and Political Rights as a Precondition for Democratic Participation (Al- Midani) 545 5.3 Citizenship Rights in Selected Arab Constitutions (Al- Awadhi) 559 5.4 Linguistic and Cultural Rights in the Arab Constitutions: From Arabism to Linguistic and Cultural Diversity (Karimi) 577 5.5 Tunisia after the Arab Spring: Women’s Rights at Risk? (Gallala- Arndt) 599 5.6 Reflections on Women’s Rights in Yemen: Opportunities and Challenges (Alawi) 615 5.7 Religious Minorities under Pressure: The Situation in Egypt, Iraq, and Syria (Faraj) 639 5.8 Rights of Religious Minorities in Sudan (Ibrahim Abdelgabar) 653 PART 6: CONSTITUTIONAL COURTS: NEW GUARDIANS OF THE CONSTITUTIONS? 6.1 Constitutional Review in Arab Countries: Dawn of a New Era? (Grote) 677 6.2 Morocco’s Constitutional Court after the 2011 Reforms (Bernoussi) 691 6.3 The Mauritanian Constitutional Court after the Military Coup of 2008 (Bouboutt) 707 6.4 Constitutional Reform and the Rise of Constitutional Adjudication in Jordan: Background, Issues, and Controversies (Hammouri) 723 6.5 An International Constitutional Court: Bulwark against the Erosion of Constitutional Democracy (Ben Achour) 741 viii Contents PART 7: INTERNATIONAL INFLUENCES AND INTERACTIONS 7.1 The Relationship between International Law and National Law in New and Amended Arab Constitutions (El- Haj) 763 7.2 Turkish Constitutionalism: A Model for Reforms in Arab Countries? (Bâli) 795 7.3 The Arab Spring and the Development of Islamic Constitutionalism in Iran (Banisadr/Rezaei) 817 7.4 Lessons from the Iraqi Constitution- making Process (Hamoudi) 845 7.5 Impulses from the Arab Spring on the Palestinian State- Building Process (Khalil) 861 7.6 The European Union and the Constitution- making Processes in the Arab World: Observer or Actor? (Tohidipur) 879 Epilogue: The Constitutional Legacy of the Arab Spring (Grote/Röder) 907 List of Contributors 919 Index 929 Detailed Contents Preface (Grote/Röder/El- Haj) xxxi Editors’ Note on the Transliteration xxxiii Introduction (Grote/Röder) 3 Prologue: Constitutional Debates in the Arab Spring (Grote/Röder) 9 PART 1: POWER AND LEGITIMACY 1.1 The Legitimacy of Constitution- Making Processes in the Arab World: An Islamic Perspective (An- Na’im) 29 I. Introduction 29 II. Constitutions and Constitutionalism 31 III. Islamic Legitimacy of Constitution- making in the Arab World 35 IV. The Secular State as Framework for Mediation of Paradox 38 1.2 Legitimacy of Constitution- making Processes: Reflections from the Perspective of International Law (Wolfrum) 43 I. Introduction: Sovereignty of States— A Limitation to Any Attempt to Influence the Procedure of Constitution- making as Well as the Content of a New Constitution 43 II. Human Rights and Other International Standards as Potential Limitations for Constitution- making 47 A. Introduction 47 B. Standards Concerning the Procedure of Constitution- making 48 1. In General 48 2. Preparation of the First Draft of a Constitution 50 ix