Non-Resident Fellow for Legal and Judicial Analysis
Tahrir Institute for Middle East Policy
Nathan J. Brown
Professor of Political Science and International Affairs
George Washington University
Arab Center Washington DC
On May 23, 2017, the Arab Center Washington (ACW) held an event titled “Arab Constitutions in the 21st Century.” The two featured speakers were Dr. Nathan J. Brown, Professor of Political Science and International Affairs at George Washington University and a member of ACW’s Academic Advisory Board, and Mai El-Sadany, Non-Resident Fellow for Legal and Judicial Analysis at the Tahrir Institute for Middle East Policy.
ACW Executive Director Khalil Jahshan welcomed the speakers and audience. He said that the issue of constitutions in the Arab and Muslim worlds is not new, but recently the subject has been revitalized by the “Arab Spring” uprisings and the reactions to them. He added that the topics of constitutional reform and amendments are exciting though complicated.
Nathan Brown explained that the underlying assumption for many people is that constitutions define mechanisms of state on a secular basis. Certainly in the US educational system, one is taught early on that there is a line drawn between religion and state. Globally, however, this “wall of separation” is not tenable, as many countries incorporate religion into their constitutions—so Arab constitutions are not unusual in this way. Except for Lebanon, all Arab countries’ constitutions include Islam as a basis to outline values, such as the importance of the family. Personal status law is enshrined in Arab constitutions and undergirded by religion, and Islamic Sharia is the source of this law. Thus, giving Islam legal legitimacy in a constitution affects how legislation is written; further, when Sharia informs legislation, there is a need for legal institutions that can regulate rules and decisions.
Mai El-Sadany noted that when the Arab Spring began six years ago, people demanded human rights, as most of the countries that went through the uprisings had poor human rights records. There were attempts to draft new constitutions or constitutional amendments in all these countries, specifically Tunisia, Yemen, Egypt, Libya, Bahrain, and Syria. She said that most constitutions contain language that addresses different freedoms, such as of religion, expression, the press, and association; however, the governments of these countries fall short in the practice and implementation of the freedoms, as parliaments often pass laws circumscribing them. In addition, many add statements to the constitutional language, such as “in accordance to law” or “subject to Sharia,” which is often problematic because it leaves wide open the questions of interpretation and implementation. Human rights reform projects need to address these vague provisions. Further, she said that it is natural for each state to have its own constitution, and that states have obligations to heed that are beyond the texts of their constitutions, such as international norms. Constitutions are important and necessary, but they are not sufficient to regulate the behavior of all countries—political systems and people on the ground also play important roles.
Both speakers agreed that the Arab world has had its “constitutional moment,” which started before 2011 and was resuscitated during the Arab Spring, but they said that it may not see its fulfillment for another generation. Beyond constitutions, however, they reiterated that the important factor is the implementation of the rule of law. Brown cautioned that the structures for implementing such laws are often not present in Arab countries, especially those that have authoritarian regimes. El-Sadany added that the rule of law is crucial, but the quality and fairness of the laws are also central. Brown also said that for real constitutional reform to take place, the process must include meaningful engagement by different sectors of society along with the political actors—this is often the missing ingredient. The language must make all citizens and political groups feel that they have a stake in the constitution.