Independence and constitutions

On 15 June 1920 in Tunisia, under the French protectorate, “the nationalists formed the Constitutional Liberal Party, which they named the Destour (Constitution [from the Arabic dustür]), and presented their demands to the bey (Abadi 2013, 361). They were calling for a constitutional monarchy—and hence, implicitly, for autonomy from French occupation. The politics grew more complex when onto the scene came a younger group, the Neo-Destour, which was formed in 1934 breaking off from the main party. Faced with opposition from both parties, France finally recognized Tunisia as an independent state in 1956.

This was the year when a constituent assembly was elected. It was dominated by the Neo-Destour party, led by Habib Bourguiba, and it “moved to abolish the monarchy entirely” (Brown 2002, 76).

At this point, the work of the assembly shifted sharply in the direction of presidentialism. Parliamentarism was abandoned: an elected parliament was retained but had limited influence over the executive (ministers were appointed by and responsible to the president); and the executive was granted some legislative authority as well. (Ibid., 76-77)

But such a setup undermines a fundamental principle of constitutionalism, namely, the separation of powers—and with it the separation of the functions assigned to the different branches of government. By comparison with the constitutional traditions of Western countries, we can see here an evident anomaly of the constitutions of Arab countries, which tend to accord a primacy to the executive by reason of a sort of preconstitutional basis of legitimacy. (In the case of Habib Bourguiba this basis of legitimacy came from the role he played in the struggle for liberation from French rule.)

The primacy of the executive was maintained even under the government of Zayn al-'Abdln Ben Ali, who in 1987 deposed Bourguiba, claiming “that Bourguiba’s senility prevented him from continuing in office” (ibid., 77). That same year, having assumed the presidency, Ben Ali introduced some modest constitutional reforms, in particular through the establishment of a constitutional council, though restricting its powers to the exercise of a preventive constitutional review of laws, while “the authority of the president and the cabinet remains quite extensive. The opposition needs a supermajority of two thirds of the parliament before it could bring down a single minister” (ibid., 78). It was in the scenario framed by this constitutional scheme that the Arab Spring found its spark in Tunisia.

We can turn now to the complex constitutional story of Egypt once it gained independence from Great Britain in the 1950s (postponing to the next chapter a discussion of the first constitution, of 1923). This is a story in which two key moments can be singled out, marking two turning points. The first came in 1952, when “a group of army officers overthrew the Egyptian government and deposed the king. A self-proclaimed Revolutionary Command Council (RCC) maintained full authority,” and it “appointed a committee of leading jurists and political figures to draft a new constitution. As they began work, the RCC issued a series of constitutional declarations” under which (among other things) “popular sovereignty was proclaimed as a principle” (ibid.). “Only after considerable delay [...] did the RCC allow the constitution to be submitted to a popular plebiscite. In 1956, Egypt finally had a fully functioning constitution” (ibid.)—one that, as in Tunisia, set up a strong presidential system. In fact the monarchy had been abolished in 1953, and with the 1956 constitution came “the replacement of the king by a president. The new presidency was not a mere substitution, however, because the constitution ensured that the cabinet would clearly be responsible to the president” (ibid., 79). In this way,

the parliament even found its dominance of the legislative process weakened with the president’s ability to issue decrees with the force of law enhanced in comparison to his royal predecessor. With the entire constitutional system under presidential domination, constitutional guarantees and freedoms [...] lost whatever limited force they had previously held. Egypt had perfected the art of writing anticonstitutionalist constitutions. (Ibid.)

The second key moment was that of Egypt’s socialist turn. It came in 1958, when “the union between Syria and Egypt produced a hastily issued constitution” creating “a unified state with its capital in Cairo. Syria withdrew from the United Arab Republic in 1961; the following year Egypt abandoned the 1958 constitution” (ibid.).

In 1962, a national congress was elected to confirm a new document, the National Charter, which President Jamal Abd al-Nasir presented to the delegates in draft form. The National Charter proclaimed the country’s basic policy directions and the components of its political system: [...] the major change introduced by the National Charter was to elevate Arab socialism into the official ideology. The Charter was not designed to serve as a basic law, however. Egypt’s new constitution was to be drawn up by a popularly elected assembly. This body was elected in 1964 and swiftly approved a provisional constitution that functioned as Egypt’s governing document for the next seven years. This constitution was designed to implement the principles of the National Charter. (Ibid.)

Once more, the 1964 constitution set up a weak parliament around the central figure of the president, whose power was especially enhanced by the ability to declare a state of national emergency essentially at will. It followed that “in practice the President would exercise far more powers than the Assembly and civil rights were not always adequately protected” (ibid., 80, quoting from Boyle and Shcrif 1996).

“While formally labeled a ‘provisional’ constitution, the 1964 constitution survived until the death of Abd al-Nasir in 1970. His successor, Anwar al-Sadât, sanctioned the effort to write a permanent replacement” (Brown 2002, 80), which came in 1971.

 
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