Democracy in Islam and Western democracy: Convergences and divergences

Constitutional transformations

In the previous chapter we looked at the way the colonial powers imposed the structure of the Western administrative state on the countries they colonized, but we also saw that these countries were made to absorb the principles of European civil law. In this chapter, then, we will turn to the task of examining the constitutional models used in the same countries and the shape that was imparted to the forms of government introduced under these models. We will be confining our analysis to two cases—Tunisia and Egypt—highlighting the transformations that, against the backdrop of the Tunisian and Egyptian constitutional stories, have been brought about by the so-called Arab Springs.

In 1861 “the first written constitution in the Arab world” was enacted in Tunisia (Brown 2002, 16). This document—called qânün al-dawla al-tünisiyya (law of the Tunisian state)—was the work of a monarchical regime that introduced limited elements of constitutionalism in an international context shaped by the presence of the European powers, especially Great Britain.

Growing European [...] interest in Tunisia [...] led the European powers to demand that the Tunisian bey (hereditary governor) adopt some of the reforms recently promulgated in the Ottoman Empire. Thus, in 1857, the bey enacted the 'ahd al-ïmân [Charter of Faith], which promised protection of persons and property [...] and concessions to non-Muslims in the adjudication of disputes.

Shortly after the issuance of the 'ahd al-ïmân, the bey formed a commission of Tunisian officials to study the application of Ottoman legal reforms and draft a constitution. (Ibid.)

This constitution, enacted in 1861, scarcely contained any constitutional element. It is worth pointing out in this regard that a supreme council was set up

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Nathan J. Brown’s excellent study will be the main source on which the initial sections of this chapter are based.

Democracy in Islam and Western democracy 109 called (al-majlis al-a'la),1 made up of ministers, officials, and notables. It was entrusted with protecting the rights of the people, but in reality its commixture of legislative, administrative, fiscal, and judicial functions was the very negation of the fundamental principle of constitutionalism, namely, the separation of powers, which stands as the necessary condition for the protection of rights.

As Brown points out, while the Supreme Council “was clearly conceived as representing the Tunisian population, it was not to do so through any recognizably democratic procedures” (Brown 2002, 19): “popular sovereignty was not even considered” (ibid.). In fact, “the constitution was designed to serve the political elite” (ibid., 18): “it promises no democracy and [...] authority is to be held accountable only to the existing political elite” (ibid., 19).

Brown analyses the considerations on the Tunisian constitution offered by Khayr al-Dïn al-Tünisî, a statesman and important political thinker of the second half of the nineteenth century who envisioned an Islamic constitutionalism conceived against the backdrop of European constitutionalism. He located the essence of constitutionalism in the ability to hold those in government accountable to the people (Khayr ed-Din 1987). On the Islamic view, this accountability was to be based on the shart'a. But in reality, as will be discussed shortly, the two approaches to constitutionalism—the Western one and the Islamic one— cannot in any way be brought into comparison.

Like the Tunisian constitution, the constitution approved in Egypt in 1882 (the Fundamental Ordinance) was the work of a political elite and was promulgated in a political context very much shaped by the European presence. In Egypt in 1878 a “bankruptcy had led to the introduction of a French and a British minister into the Egyptian cabinet” (Brown 2002, 27; cf. Cecere 2012, XLIIIff.). Faced with growing tensions in the relations these two ministries held with the Consultative Council of Delegates that had convened to draft an earlier constitutional text of 1879, the Egyptian khedive (hereditary governor), Ismâ'îl Pasha, dissolved the government and entrusted Prime Minister Muhammad Sharif with the task of drafting a new constitution. The draft constitution introduced a principle of “balance between royal prerogatives and parliamentary powers” (Brown 2002, 27), vested in the Consultative Council. However, the European governments took exception to this shift towards a liberal form of government, since it gave them no control over Egyptian finances, and they

2 See Abadi 2013, 283ff. “The prerogatives of the supreme council were defined in Article 63 of the constitution, which authorized it to make new laws, modify existing ones, increase or decrease expenses, [...] and interpret the law” (ibid., 284). “The sovereign’s power was limited by the constitution, by the power of the legislative assembly to depose him and by tribunals that were organized according to a European model, but the constitutional regime established along these lines lasted for no more than three years” (ibid.). In fact, “the relations between the supreme council and the executive branch, which was controlled by the bey [...], were rarely in harmony because the bey did not seem to be able to relinquish old habits and refused to renounce his prerogatives” (ibid., 284-85).

got the sultan of Constantinople to depose Isma'Tl “before any action could be taken on the draft” (ibid.).

The khedivate passed to his son, Muhammad Tawflq Pasha, who under the pressure of the national liberal movement was compelled to restart the constitutional process by calling for the election of a new Consultative Council. The Council went back to Sharif’s draft constitution and shaped it into the Fundamental Ordinance of 1882: a “fairly brief” document (ibid.) of only fifty-two articles, this constitution “provided a sounder basis for constitutionalism than the Tunisian constitution of 1861” (ibid., 28).

As Brown observes, the Egyptian constitution of 1882 placed limits on the power of the khedive, while making “ministers [...] responsible to the Council” (ibid.)—an “elected body” (ibid., 27) that in turn “was given an extensive role in legislation and in oversight of public finances” (ibid., 27-28). Indeed the Council was intent on exercising control over the share of the budget apportioned to it and over fiscal policy, thereby limiting European influence in shaping Egypt’s economy and its politics.

It would be a mistake, however, to see the Fundamental Ordinance of 1882 as an exercise in parliamentary constitution-making: “The delegates [...] did not have in mind at all the establishment of a system of ‘parliamentary government’” (Scholch 1981, 213, quoted in Brown 2002, 28). “Their aim was not to end all khcdival prerogatives—nor did their draft even contain them all within constitutional channels—but to diminish the khedive’s discretion and allow him to be as responsive to domestic as to foreign concerns” (Brown 2002, 29). In fact, “democracy was hardly an issue: the Council, though elected, was essentially a way to ensure representation primarily of the provincial notability” (ibid.). Be that as it may, “in the summer of 1882, Great Britain occupied Egypt, restored Tawflq, and allowed the constitution to be forgotten” (ibid., 28).

As can be appreciated, the early constitutional efforts, under the heavy influence of the European governments, sought to hold competing interests together, on the one hand preserving the preexisting institutional legacy, in the person of the bey and the khedive, while at the same time giving the traditional Tunisian and Egyptian elites the ability to elect representatives in the Council. The path towards constitutionalism had just begun.

 
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