Tunisia and Egypt: Two constitutional models
Constitutionalism and revolutions
The Arab Springs have resulted in new constitutions under a constituent process that has tried to effect deep change in the Arab countries’ constitutional traditions. As previously discussed, the initial thrust of Arab constitutions was essentially to legitimize the elites in power (Le Roy 2012, 110), so if we look at the countries of the Maghreb before these uprisings, it is hard to make the case that elements of modern constitutionalism can be detected in them (ibid.. 111).
With the establishment of constitutional courts in three Maghreb countries—Algeria, Tunisia, and Morocco—a milestone was reached in the march towards constitutionalism, but this development did not in any significant way alter the existing balance of powers, which is tilted in favour of the executive. Furthermore, the relation between constitutionalism and Islamic law still looks unresolved, even in societies as secularist as those of Tunisia and Algeria. It therefore makes sense to ask, what will be the position of the shari'a in the hierarchy of sources of law?
Thierry Le Roy (2012, 115) finds that “three conclusions can be drawn about the divergence between secular law and religious-inspired law in the countries of the Maghreb: their constitutions make ample reference to Islam; but compliance of the legislation with the Sharî'ah is not explicitly required; at the same time, laws can be inspired by the Sharî'ah without meeting any constitutional obstacles.”
It should also be observed that if in the constitutions of the Maghreb countries until the time of the Arab Springs there was no express provision requiring the law to be compliant with the sharï'a, this requirement did exist in the constitutions of other Muslim countries, such as Egypt, Pakistan, Afghanistan, Iran, and the Persian Gulf states. This difference can be explained by pointing to the fact that the Maghreb countries have had greater exposure than other Arab-Muslim countries to the influence of the West, and that is particularly true of French influence (see Association Henri Capitant 1994; cf. CEDROMA 2005). This influence has mainly exerted itself on constitutional and public law, and less on civil law. It is this influence that can explain, for example, why religious pluralism is guaranteed in the Maghreb countries, and why the Moroccan constitution protects freedom of religion and the Algerian constitution freedom of conscience.
Still, even though “the Maghreb constitutions are built, mainly, on the model of the French constitutions, particularly the Constitution of 1958” (Le Roy 2012, 117), they confer emergency powers on the head of state in ways that the French model does not envision. And indeed, as concerns the Maghreb, “it can be said that the drawing up of constitutions has more to do with the strengthening of the state than with the definition and protection of citizens’ individual rights” (ibid., 118).
Have the Arab Springs managed to turn the tide in favour of a stronger protection of rights? And will it be possible to complete the march towards constitutionalism by introducing a true separation of powers and their functions and, consequently, a system of genuine constitutional review?