Constitutionalism, human rights, and Islam after the Arab spring / edited by Rainer Grote and Tilmann J. Röder ; assistant editor Ali M. El-Haj.
2016
KMC524 .C675 2016 (Map It)
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Title
Constitutionalism, human rights, and Islam after the Arab spring / edited by Rainer Grote and Tilmann J. Röder ; assistant editor Ali M. El-Haj.
Published
New York, NY : Oxford University Press, [2016]
Call Number
KMC524 .C675 2016
ISBN
9780190627645 (hardback ; alk. paper)
0190627646 (hardback ; alk. paper)
0190627646 (hardback ; alk. paper)
Description
xxxiii, 953 pages ; 27 cm
Other Standard Identifiers
99969812398
System Control No.
(OCoLC)947104992
Summary
"[This book] offers a comprehensive analysis of the impact that new and draft constitutions and amendments - such as those in Jordan, Morocco, Syria, Egypt, and Tunisia - have had on the transformative processes that drive constitutionalism in Arab countries. This book aims to identify and analyze the key issues facing constitutional law and democratic development in Islamic states, and offers an in-depth examination of the relevance of the transformation processes for the development and future of constitutionalism in Arab countries. Using an encompassing and multi-faceted approach, this book explores underlying trends and currents that have been pivotal to the Arab Spring, while identifying and providing a forward looking view of constitution making in the Arab world."--Publisher's website.
Bibliography, etc. Note
Includes bibliographical references and index.
Record Appears in
Gift
Purchased from the income of the Soll Fund
Gift
The Arthur W. Diamond Law Library
Purchased from the income of the Soll Fund
Table of 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.
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.
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
3.
Adoption of the Constitution
51
4.
International Standards Concerning the Content of Constitutions
51
III.
Conclusions
53
1.3.
Regimes' Legitimacy Crises in International Law: Libya, Syria, and Their Competing Representatives (d'Aspremont)
55
I.
Introduction
55
II.
External Legitimacy and Representation from an International Legal Perspective
56
III.
Manifestations and Sanctions of Governmental Illegitimacy
58
A.
Recognition as a Government vs. Recognition as a Legitimate Representative
59
B.
Mechanical Accreditation vs. Legitimacy-Appraisals in Multilateral Fora
64
IV.
Concluding Remarks: Diversification vs. Legalization
67
1.4.
Process of Institutional Transformation in Tunisia after the Revolution (M'rad)
71
I.
Introduction
71
II.
Difficulties Confronting Tunisian Institutional and Democratic Change
73
A.
Difficulties Linked to the Revolution
73
B.
Risks of an Islamist-majority Government
74
III.
Political, Constitutional, and Democratic Changes Stemming from the Transitional Process
77
A.
Emergence of an Independent Civil Society
77
B.
Multiplication and Structuring of Parties after the Revolution
79
C.
Constitution of January 27, 2014
80
1.
Process of Adoption of the New Constitution
80
2.
2014 Constitution Viewed from the Perspective of Constitutional History
82
3.
Form and Contents of the New Constitution
82
4.
Appraisement and Criticism
84
IV.
Conclusion: The End of the Transitional Process through the Parliamentary and Presidential Elections at the End of 2014
85
A.
Parliamentary Elections
85
B.
Presidential Elections
86
1.5.
Religious Authorities and Constitutional Reform: The Case of Al-Azhar in Egypt (Hefny)
89
I.
Introduction
89
II.
Evolution of Al-Azhar's Relation toward the Sovereign Power
90
III.
Islamic Principles on Statehood: Lacking Textual Provisions and Consequences
94
A.
Islam and the Concepts of Nation-State and Constitutionalism
94
B.
Jurisprudents and Scholars Integrating Themselves within Power
96
IV.
Evolution and Influence of Al-Azhar's Constitutional Ideologies
97
A.
Comparing Al-Azhar's Constitutional Visions: The 1979 Draft Constitution and Its 2011 "Document on the Future of Egypt"
97
B.
Explaining Al-Azhar's Ideological Shift
102
C.
Impact of the 2011 Al-Azhar Document on the Constitutions of 2012 and 2014
103
V.
Conclusion
106
Annexes
107
A.
Al-Azhar Declaration on the Future of Egypt (2011)
107
B.
Al-Azhar Statement on Basic Freedoms (2012)
109
C.
Al-Azhar Draft Constitution of 1979
113
1.6.
Arab Spring and Constitutional Reforms in Jordan: A Historical and Legal Appraisal (Al-Khasawneh)
123
I.
Introduction
123
II.
Brief Historical Review of Jordan's Constitutions
124
A.
Constitution of 1928
124
B.
Constitution of 1947
126
C.
Constitution of 1952
127
III.
Political, Social, and Ideological Developments since the Inception of the Emirate
129
A.
Political Developments
130
B.
Economic and Social Developments
131
C.
Ideological Developments
132
D.
Election of 1989
133
IV.
Constitutional Amendments of 2011
137
A.
Constitutional Court
138
B.
Independent Electoral Commission
139
C.
Provisional Laws
140
D.
Dissolution of Parliament
140
E.
Infringement of the Rights of Jordanians (Arts. 7 and 8)
141
F.
State Security Court
142
G.
Provision of Art. 128
142
H.
Arts. 34, 35, and 36 on the Rights of the King
143
V.
Developments after the Constitutional Amendments
143
VI.
Constitutional Amendment of 2014
146
VII.
Conclusion
146
1.7.
Winter Is Coming: Authoritarian Constitutionalism under Strain in the Gulf (Parolin)
149
I.
Not Just Ornaments
151
II.
Parliamentary Conundrum
152
A.
First Generation: The Constitutions of Independence (1960's-1970's)
155
1.
Kuwait (1961)
157
2.
Qatar (1970 and 1972)
158
3.
United Arab Emirates (1971)
159
4.
Bahrain (1973)
161
B.
Second Generation: Codifying Practice (1990's)
162
1.
Saudi Arabia (1992)
163
2.
Oman (1996)
164
C.
Third Generation: The Conservative Convergence (2000's)
165
1.
Bahrain (2002)
165
2.
Qatar (2004)
167
D.
Uprisings and the Quick Fix: Elections and/or Constitutional Amendments? (2011)
168
1.
Omani Amendments
168
2.
Kuwaiti Elections
168
3.
Bahraini Amendments
169
III.
Winter Is Coming
171
1.8.
Constitutional Reform in Oman: Rights Granted under Reserve (Al-Azri)
173
I.
Introduction
173
II.
GCC and Oman's Constitutions: A Very Brief Outlook
174
III.
Historical Background
175
IV.
Early Omani "Constitutional Monarchy"
177
V.
Oman's 1996 Basic Statute of the State
178
VI.
Constitutional Amendments of 2011 and a Constitutional Monarchy
183
VII.
Conclusion
186
Part 2: What Basis For Statehood: Religion Or Citizenship?
2.1.
Al-Dawlah al-Madaniyah: A Concept to Reconcile Islam and Modern Statehood? (El-Daghili)
189
I.
Origins and Development of the Notion of Al-Dawlah Al-Madaniyah
189
II.
Al-Dawlah Al-Madaniyah in Context of the Arab Spring
191
III.
Constitutional Relevance of AI-Dawlah Al-Madaniyah
193
IV.
Conclusion
197
2.2.
Islam and the Constitutional State: Are They in Contradiction? (Horchani)
199
I.
Introduction
199
II.
Achievements: Tunisia as the "Exception"?
200
III.
Obstacles to the Establishment of a Constitutional State
203
A.
Revival of Art. 1 of the Constitution
203
B.
What Protections Are There for a Democratic and Constitutional State?
204
1.
Civil Nature of the State
204
2.
Islam's Position in the Constitutional and Legal System
204
3.
Freedom of Religion and Belief and the Separation of Religion and Politics
205
4.
Place of the International Conventions
206
IV.
Conclusion
206
2.3.
State and Religion in the Aftermath of the Arab Uprisings (Jebnoun)
207
I.
'Arab Spring": Europe as a Model for Change
210
II.
Structural Crisis of the Arab Political and Economic Power
212
III.
Democracy and the Relationship between State and Religion
216
IV.
In Search of a Role Model
224
V.
Conclusion
229
2.4.
Relationship between Constitutions, Politics, and Islam: A Comparative Analysis of the North African Countries (Dupret)
233
I.
Introduction
233
II.
Implosion, Eclipse, and Come-Back in Politics
234
III.
Essential Reference, a Diversified Content
237
IV.
Reference to Islam and the Devolution of Power in Religious Matters
238
A.
Egypt
239
B.
Tunisia
241
C.
Morocco
242
V.
Conclusion: Shari'ah as an Ideology
244
2.5.
Contesting Islamic Constitutionalism after the Arab Spring: Islam in Egypt's Post-Mubarak Constitutions (Brown/Lombardi)
245
I.
Background: Classical and Modern Islamic Legal Theory
246
A.
Islamic Law before Modern Times: The Formation of a Sunni Consensus and Elaboration of Traditional Sunni Law
247
B.
Modernity and the Collapse of the Sunni Consensus
249
1.
Neotraditionalist
249
2.
Salafi
250
3.
Modernist
250
4.
Secularist
251
II.
Islamic Law in Egypt's Constitutions before the Arab Spring
252
A.
Religious Reticence in Egypt's First National Constitutions 1923-1971
252
B.
Evolution of Provisions Governing Islam in Egypt's 1971 Constitution
253
III.
Contesting Islam after the Fall of Mubarak
255
A.
State and Islam in the 2012 Constitution
255
B.
State and Islam in the 2014 Constitution
258
IV.
Back to the Future?
259
2.6.
Caliphate State: A Basis of Modern Statehood? (Khan)
261
I.
Introduction
261
II.
Precursor to the Caliphate
265
III.
Essential Characteristics of the Classical (Premodern) Khilafah or Imamah
270
IV.
Islamic State: Legitimate Governance and Rule in Islamic Law
274
V.
Principles of Governance in an Islamic State
278
VI.
Conclusion: Can the Islamic Model of Statehood Offer Anything of Value to Modern States that Espouse the Centrality of Islam in the Public Realm of the State?
279
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
I.
Introduction
283
II.
Tunisia: From Authoritarian to Democratic Control of the Armed Forces
286
A.
Military and Its Constitutional Status before the Revolution
286
B.
Military Support for the Revolution and the Drafting of a New Constitution
287
C.
Military and Its Constitutional Status after the Revolution
289
III.
Egypt: Triumph of the Military over the Civil State
290
A.
Military and Its Constitutional Status before the Uprising
290
B.
SCAF as Ruler and Pouvoir Constituant
291
C.
2012 Constitution and the Coup against President Mursi
294
D.
2014: Another Constitution for the Deepest of All Arab States
297
IV.
Syria: Staunch Support for the Regime
298
A.
Military and Its Constitutional Status before the Arab Spring
298
B.
Civil-Military Relations during the Uprising and the Civil War
300
C.
2012 Constitution and Syria's Military
302
V.
Yemen: Progressive Constitution-Making vs. Military Disintegration and Wahl Rebellion
304
A.
Military and Its Constitutional Status before the Uprising
304
B.
President Salih's Ouster and the National Dialogue Conference
305
C.
Theory and Reality: The 2015 Draft Constitution and the Wahl Rebellion
309
VI.
Libya: Total Loss of Control
312
A.
Military and Its Constitutional (Non-)Status before the Revolution
312
B.
From Uprising into the Civil War
314
C.
Constitution-making: Killed in Action
317
D.
Libyan National Army and Its Constitutional (Non-)Status as of 2015
319
VII.
Conclusion and Outlook
319
3.2.
Changes in Civil-Military Relationships after the Arab Spring (Droz-Vincent)
323
I.
Introduction: Change in Motion?
323
II.
What Is the Military in the Middle East?: From Constitutional Considerations to the Role of the Military in Authoritarian Settings
324
III.
Time of Change in 2011: Mass Mobilizations as an Essential "Stress Test" for Armies
328
IV.
Transitional Settings and the Military: Tunisia, Egypt, and Beyond
333
A.
Tunisian Case[—]The Military as a Safeguard of the Transition Process
334
B.
Egyptian Case[—]The Military Elephant in the Porcelain Shop of Egyptian Politics
335
C.
Yemeni Case[—]Incoherent Military Structures, Fragmentation, and Instability
337
D.
Libyan Case[—]Weak Military, Localism and Competing Militias
339
E.
Syrian Case: The End of the Syrian Military?
340
V.
How To Reassemble The Pieces Together? Transitions In Institutional Terms
340
A.
From the Specific Tunisian Case to Protecting the Military's Prerogatives Elsewhere
341
B.
Case of Egypt: From Apparent Extrication to Military Tutelage
342
C.
Military and Egyptian Constitutions
343
D.
Reinstating a Monopoly on "Legitimate Violence" or Falling into the Traps of Civil War in Libya and Yemen?
344
E.
Hijacking Transition in Egypt: A Return to Military-led Government or the End of Any Prospects for Democratic Control of the Armed Forces?
349
VI.
Conclusion
352
3.3.
Changing Role of the Military in Mauritania (Babana)
355
I.
Introduction
355
II.
Implication of the Conflict between the Al-Bidan and the Black-African Population
356
III.
Military and Their Role in Confronting Crises
358
A.
Military and the Western Sahara Crisis
358
B.
Military and Environmental Crises
361
IV.
Power of the Military in the Context of Government
361
A.
Impact of Military Coups d'État in Mauritania
362
B.
External Factors Influencing the Military's Role in Government, Leading to Internal Reform
363
V.
Conclusion
367
3.4.
Grip of the Army on Algeria's Political System (Benchikh)
369
I.
Introduction
369
II.
Circumstances Leading to the Army's Grip on the Algerian Political System
370
A.
Army's Role in the Nationalist Movement and during the Fight for Independence
370
B.
Frontier Army Marches towards the Control of Power after Independence
374
III.
How the Political System Works
376
A.
Army's Grip on the System of Government
377
B.
Army's Grip on the Multiparty Political System: The Cosmetic Democracy
380
IV.
Conclusion
386
3.5.
Role of the Army in a Multicommunity Society: The Case of Lebanon (Messarra)
389
I.
Introduction
389
II.
Political Attitudes toward the Army
391
A.
Contrition
391
B.
Mistrust
391
C.
Frustration among Military Personnel
392
III.
Six Schools and Their Common Denominator
392
A.
Demoralization of the Army
392
B.
Concern for the Unity of the Army
393
C.
Army Subordinate to the Politicians
393
D.
Army as Broom
394
E.
Army as Militia
394
F.
Army as Taxi
394
IV.
Army, Protector of Sovereignty
394
Part 4: The Fragile Basis Of Democracy And Development
4.1.
Anatomy of the Arab Spring (2011-2015) (Bassiouni)
401
I.
Introduction
401
II.
Historical Context
405
III.
Evolution of the Arab Identity
407
IV.
Nationalism and the Rise of Islamism
411
V.
Identity and Violence
414
VI.
Economic Failure
416
VII.
Geopolitical Factors, Exceptionalism, and Double Standards
418
VIII.
Assessing the 'Arab Spring" Outcomes
420
4.2.
Difficult Path toward Democracy: New Electoral Systems in Egypt, Libya, and Tunisia (Debbeche)
425
I.
Introduction
425
II.
Conquering Democracy: The Challenge of Organizing Free, Fair, and Transparent Elections
427
A.
Credible Electoral Process Overseen by an Independent Electoral Authority
427
B.
Competitive Elections
432
III.
Expressing Democracy: The Test of Choosing a Voting System
436
A.
Resounding Rejection of the Strict Majority Option
436
1.
Tunisia
437
2.
Egypt
438
3.
Libya
439
B.
Goal of Proportionality, Variously Expressed
439
1.
Tunisia
440
2.
Egypt
441
3.
Libya
443
IV.
Consolidating Democracy: The Ultimate Test of Exercising Power
446
A.
Majorities Put to the Test by the Exercise of Transitional Power
446
1.
Tunisia
446
2.
Libya
448
3.
Egypt
449
B.
Majorities Face the Test of the Exercise of Constituent Power
451
1.
Elaboration of Constitutions: A Process "Peppered" with Uncertainties
451
2.
Constitutional Debates Characterized by Points of Tension
455
4.3.
Centralized or Decentralized State Structures? Tendencies in the Arab Transition States (Philippe)
461
I.
Introduction
461
II.
Limited Attention Paid to the Issue of Decentralization
462
III.
Centralization or Decentralization: The Possible Combinations
463
A.
Transition
468
B.
Role Played by Subnational Structures
469
C.
Boundaries
469
D.
Trust
470
E.
Rights and Freedoms
471
F.
Capacity Building of Subnational Structures
472
IV.
Conclusion
473
4.4.
Legal Status of the Kurds in Iraq and Syria (Bammarny)
475
I.
Kurds as a People and as a Minority
475
II.
Status of Ethnic and Religious Minorities under Islamic Law
477
III.
Legal Status of Kurds and Kurdish Territory in Iraq
480
A.
Musul Question
480
B.
Recognition of the Kurds during the British Mandate
481
C.
Obligations of the Iraqi State under the League of Nations
482
D.
Legal Status of Kurds in the Republic of Iraq
484
E.
Legal Status of the Kurds after the 2003 Occupation of Iraq by the US-led Coalition
485
IV.
Unresolved Issues between Baghdad and Arbil
487
A.
Federal and Regional Competencies
487
B.
Oil and Gas Issues
488
C.
Kirkuk and Other Disputed Areas
489
V.
Legal Status of Kurds in Syria
490
VI.
Closing Words
493
4.5.
Separation and Distribution of Powers under the New Moroccan Constitution (Biagi)
495
I.
Introduction
495
II.
Distribution of Powers before the 2011 Constitution
497
III.
Reform of the "Old" Art. 19: The End of the "Confusion" Between Temporal Power and Spiritual Power?
498
IV.
Separation of Powers and the Form of Government: Toward the Establishment of a Parliamentary Monarchy?
501
A.
Strengthening of the Government's Powers
502
B.
King Reigns and Governs
503
C.
"Ultimate Leader" and a "Second-in-Command"
505
V.
Legislative Power: The Parliament, the Government, and a (Lame) King-Legislator
506
VI.
Judicial Power, Constitutional Justice, and the King's "Interference"
508
VII.
Concluding Remarks
510
4.6.
Quest for a New Economic Order in Egypt's Constitutional Transformation (Bälz/Schoeller-Schletter)
513
I.
Arab Spring and the Quest for a New Economic Order
513
II.
Economic Paradox of the 1971 Constitution
514
III.
Neoliberal Reform and Constitutional Justice
516
IV.
Economic Debates in the Constitutional Process
518
A.
Economic Demands
518
B.
Competing Ideologies
519
V.
Economic Principles in the Constitutions of 2012 and 2014
521
A.
General Principles
521
B.
Property
524
C.
Taxation
526
D.
Industrial Relations
527
E.
Economic Rights
530
VI.
Conclusion
531
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
I.
Introduction
535
II.
Human Rights in the Existing Constitutions of Arab Countries
536
III.
Effect of Islam on the Human Rights Provisions of the Constitutions of Arab States
538
A.
Equality of Rights
539
B.
Gender Equality
540
C.
Religious Equality
541
D.
Penal Law
542
IV.
Conclusion
543
5.2.
Civil and Political Rights as a Precondition for Democratic Participation (Al-Midani)
545
I.
Preface
545
II.
Introduction
545
III.
Part I: Nature of Civil and Political Rights
547
A.
Research Topic I: Nature of Civil and Political Rights
548
B.
Research Topic II: Enforcement Mechanism of Civil and Political Rights
550
1.
Requirement I: Enforcement Mechanism of Civil and Political Rights at the International Level
550
2.
Requirement II: Enforcement Mechanism of Civil and Political Rights at the Regional Level
550
a.
European Convention on Human Rights
550
b.
American Convention on Human Rights
551
c.
African Charter on Human and Peoples' Rights
551
d.
Arab Charter on Human Rights
551
IV.
Part II: Enforcement of Civil and Political Rights Contributes to Democratic Participation
551
A.
Research Topic I: Arab States and How They Honor Civil and Political Rights
552
1.
Requirement I: Arab States' Participation in the Preparation of the Two International Covenants on Human Rights
552
2.
Requirement II Arab States' Commitment to Honoring Civil and Political Rights
553
B.
Research Topic II: Guaranteeing Civil and Political Rights and Democratic Participation
553
1.
Requirement I: Democracy
553
a.
Concept of "Democracy"
553
b.
Democracy Enforcement Forms
554
c.
Key Areas for Promoting Enforcement of Democracy
555
2.
Requirement II: Activation of Democratic Participation through Enforcement of Political Rights
556
V.
Conclusion
557
5.3.
Citizenship Rights in Selected Arab Constitutions (Al-Awadhi)
559
I.
Introduction
559
II.
Significance and Relevance of Citizenship Rights
560
III.
Citizenship Rights on the Arab Peninsula
561
A.
Right to Citizenship and the Prohibition of Nationality Abrogation and Deportation
561
B.
Acquisition of Citizenship
562
C.
Results and Comparison between the Arab Spring Countries
567
IV.
Civil Rights on the Arab Peninsula
569
A.
Civil Rights of Citizens in the GCC States
569
B.
Civil Rights of Non-Citizens in the GCC States
570
C.
Results and Comparison
573
V.
Conclusions and Outlook
574
5.4.
Linguistic and Cultural Rights in the Arab Constitutions: From Arabism to Linguistic and Cultural Diversity (Karimi)
577
I.
Introduction: Cultural and Linguistic Rights in Arab Constitutions and in the Arab Spring
578
II.
Linguistic and Cultural Rights in the Maghreb Constitutions
579
A.
Cultural and Linguistic Rights in the Moroccan Constitution
580
1.
From Governmental Recognition to Constitutional Recognition
580
2.
Formalizing Tamazight in the 2011 Constitution
583
B.
Algerian Constitution and Consideration of Tamazight as a National Language
584
C.
Constitutionalizing Tamazight in Libya and Tunisia
587
1.
Libyan Constitution between Denial of, and Hesitation toward, Recognition
587
2.
Tamazight and Formulation of a Draft Constitution after the Revolution
588
3.
Tunisian Constitution: The Possibility of Recognizing Amazigh Cultural and Linguistic Rights as a Component of Amazigh Identity
590
III.
Cultural and Linguistic Rights in the Constitutions of Arab Levant States
591
A.
Iraqi Constitution
592
1.
Iraqi Experience and Constitutional Recognition of Kurds' Linguistic Rights
592
2.
Iraqi Constitution of October 15, 2005
593
B.
New Constitutional Experience in Syria and Jordan
595
1.
Jordanian Constitution: The Same Status as Before
595
2.
New Constitutional Experience in Syria and the Prospects for Non-Arab Linguistic and Cultural Rights
596
IV.
Conclusion
597
5.5.
Tunisia after the Arab Spring: Women's Rights at Risk? (Gallala-Arndt)
599
I.
Privileged Status of Women before the Arab Spring
600
A.
Family and Inheritance Law
601
B.
Constitution of 1959
603
C.
Tunisia and CEDAW
603
II.
Impact of the Revolution
605
A.
During the First Transitional Period
605
1.
Withdrawal of the Reservations to CEDAW
606
2.
Gender Parity in Electoral Law
606
B.
During the Second Transitional Period
608
1.
Attitude of the Islamist Party outside the Constitution Drafting
608
2.
Constitution Drafting Process
609
a.
Status of Islam
609
b.
Status of Women
611
c.
Adoption of the Constitution
612
III.
Conclusion
614
5.6.
Reflections on Women's Rights in Yemen: Opportunities and Challenges (Alawi)
615
I.
Introduction
615
II.
Historical Background of the Status of Yemeni Women
617
III.
Effectiveness of the Feminist Movement in Seeking the Advancement of Women and Sponsoring Their Problems
618
A.
Convention on the Elimination of All Forms of Discrimination against Women
618
B.
CEDAW and Yemeni Reservations
619
C.
Universal Declaration of Human Rights and the Yemeni Constitution
619
D.
Yemeni Women's Participation in the Revolutionary Movement and the Harvest of Change
620
E.
Equality in the Yemeni Constitution and Demands for Achieving Gender Equality
621
F.
Women Participation in the National Dialogue Conference
622
G.
Major Challenges that Lie in the Way of Securing Women's Entitlements in the Coming Period
624
H.
Position of the Political Establishment (Official and Party-wise) on Women's Issues
625
IV.
Constitutionalizing Women's Rights
626
A.
Women's Quota System for Their Representation
628
V.
Discourse of the Islamic Movement on Women in Yemen
629
A.
Problematic Nature of the Islamic Discourse on Women, between Extremism and Centrism
630
B.
Islamic Parties and Their Approach of Duplicity in Dealing with Women's Issues
633
C.
Position on Women's Labor
636
D.
Position on Women's Political Participation
637
VI.
Conclusion
637
5.7.
Religious Minorities under Pressure: The Situation in Egypt, Iraq, and Syria (Faraj)
639
I.
Introduction
639
II.
Religious Minorities and National Laws
641
A.
Egypt
641
B.
Syria
643
C.
Iraq
645
III.
International Legal Mechanisms and the Protection of Minorities
647
IV.
Conclusion
650
5.8.
Rights of Religious Minorities in Sudan (Ibrahim Abdelgabar)
653
I.
Introduction
653
II.
Background and Context
654
III.
Treatment of Religious Minorities in Sudan in Historical Perspective
656
IV.
Protection of Religious Minorities in the Sudanese Law
659
A.
Definition and Recognition of Minorities
659
1.
Definition of Minorities under International Law
659
2.
Definition of Minorities under the Sudanese Constitution of 2005
660
B.
Protection of the Rights of Religious Minorities under Sudanese Constitutions and Laws
660
1.
Recognition and Protection of the Rights of Religious Minorities in the Old Sudanese Constitutions and the Interim National Constitution
660
a.
Recognition and Protection of the Rights of Religious Minorities in the Old Sudanese Constitutions 1953-1998
660
b.
Recognition of the Rights of Religious Minorities under the Interim National Constitution 2005
662
2.
Recognition of Religious Rights under Sudanese Laws
664
a.
Recognition of Rights of Religious Minorities under the Criminal Law
664
b.
Recognition of the Rights of Religious Minorities under the Civil Law
666
V.
Implementation of Religious, Cultural, Civil, Political, and Socio-Economic Rights of Religious Minorities in Practice
668
A.
Special Commission for the Protection of the Rights of Non-Muslims in Khartoum
668
B.
Protection of the Rights of Religious Minorities in Practice
670
VI.
New Developments in Sudan: Secession of South Sudan
672
Part 6: Constitutional Courts: New Guardians Of The Constitutions?
6.1.
Constitutional Review in Arab Countries: Dawn of a New Era? (Grote)
677
I.
Introduction: Constitutional Review Prior to the Arab Spring
677
II.
Reforms of Constitutional Review in the Wake of the Arab Spring
679
A.
Embattled Institution: The Egypt Constitutional Court from 2011 to 2014
680
1.
Court's Role in the Immediate Aftermath of the Fall of the Mubarak Regime
680
2.
Growing Confrontation with the Islamists
680
3.
Denouement: Restoration of the Court's Role after the Fall of the Brotherhood
683
B.
Taking Constitutional Review Seriously: The Case of Tunisia
684
C.
Reforms from Above: Morocco and Jordan
686
1.
Morocco
686
2.
Jordan
688
III.
Conclusions
690
6.2.
Morocco's Constitutional Court after the 2011 Reforms (Bernoussi)
691
I.
Preface
691
II.
Spirit
695
A.
Distribution of Power
696
B.
Promotion of Positivism
697
C.
Reconciliations
697
D.
Deliberative Imperative
698
E.
References to Religion and Identity
698
III.
Engineering the Mechano-Institutional Space
699
A.
Fertile Framework
699
B.
New Statute
701
C.
New Competencies
702
D.
New Procedure
703
E.
Interpretations
704
IV.
Conclusion
705
6.3.
Mauritanian Constitutional Court after the Military Coup of 2008 (Bouboutt)
707
I.
Introduction
707
II.
Regulation of Relations between the Political Actors
709
A.
Disagreement between Government and Parliament in 2008
709
B.
Amendments of the Rules of Procedures of the National Assembly
710
C.
Comments on the Rules of Procedure[—]Decisions of the Constitutional Council
711
III.
Constitutional Arrangements for the Interim Head of State
712
A.
Plans for New Elections in 2009
712
B.
Decision of the Constitutional Court on the Resignation of General Old Abd
713
C.
Article 40 as an Alternative Solution?
713
IV.
Oversight of the Presidential Elections to Overcome the Crisis
716
A.
Dakar Framework Agreement
716
B.
Decision of the Constitutional Court about Decree on Convocation of the Electorate
717
C.
Elections of 2009
718
V.
Conclusion
720
6.4.
Constitutional Reform and the Rise of Constitutional Adjudication in Jordan: Background, Issues, and Controversies (Hammouri)
723
I.
Backgrounds of the Reforms
723
II.
Driving Forces behind the Reform Process
725
III.
Substance of the Reforms
726
A.
Prohibition of Torture (Art. 8.2)
726
B.
Protection of the Essence of Rights and Freedoms (Art. 128)
726
C.
Establishment of a Constitutional Court (Arts. 58-61)
727
D.
Judicial Power (Art. 98)
729
E.
Reform of the State Security Court (Art. 101)
729
F.
Provisional Laws (Art. 94)
730
G.
Dissolution of House of Representatives (Art. 74)
732
H.
Constitutional Amendment of August 2014
734
1.
Art. 67
734
2.
Art. 127
735
IV.
Important Issues Ignored in the Reform Process
735
A.
Senate as a Government-controlling Body
735
B.
Democratic Legitimization[—]The Elections
736
C.
Prime Ministers and Their Governments
737
D.
National Integrity Charter and the Dismissal of Judges
739
V.
Conclusion
739
6.5.
International Constitutional Court: Bulwark against the Erosion of Constitutional Democracy (Ben Achour)
741
I.
Introduction
741
II.
Law of Democracy: Its Legitimacy and Superiority
742
A.
Theoretical Superiority of Democratic Law
743
B.
Practical Superiority of the Law of Democracy
745
III.
International Constitutional Law
746
A.
Internationalization of Constitutional Law
747
B.
Constitutionalization of International Law
752
C.
International Constitutional Law and International Protection of Human Rights
755
IV.
International Constitutional Court
756
A.
Its Political Objective
756
B.
Its Composition
757
C.
Its Role and Submissions
757
D.
Its Powers
758
E.
Proceedings
758
F.
Applicable Law
758
V.
Conclusion
759
Part 7: International Influences And Interactions
7.1.
Relationship between International Law and National Law in New and Amended Arab Constitutions (E1-Haj)
763
I.
Introduction
763
II.
Theoretical Underpinnings
765
A.
Monism
765
B.
Dualism
766
C.
Criticism[—]Legal Pluralism
766
D.
Distinguishing Key Terms: Domestic Validity, Direct Applicability, Invocability, Direct Effect, and Self-Executory Treaties
767
E.
International Legal Provisions on the Relationship between International Law and National Law
768
III.
Relationship between Treaties and the National Legal Orders of Arab States with New or Amended Constitutions
769
A.
What Is the Scope of the Treaty-making Power of the Executive?
770
1.
Bahrain
771
2.
Egypt
772
3.
Jordan
773
4.
Morocco
773
5.
Syria
774
6.
Tunisia
774
7.
Conclusion
775
B.
Do Treaties Become Part of the National Legal System? If So, When?
775
1.
Domestic Validity
776
2.
Direct Applicability in Courts
776
3.
When Do Treaties Gain Domestic Legal Status?
777
a.
Direct Domestic Legal Force Once the Treaty Is Ratified and Enters into Force
777
b.
Direct Domestic Legal Force Once the Treaty Is Ratified and Enters into Force Plus Publication
778
c.
Indirect Domestic Legal Force
778
4.
Policy Reasons for and against Direct Applicability of Treaties
779
C.
What Is the Constitutionally Recognized Role of the Legislature in the Treaty-making Process?
780
1.
Bahrain
780
2.
Egypt
781
3.
Jordan
782
4.
Morocco
782
5.
Syria
782
6.
Tunisia
783
7.
Conclusion
784
D.
What Rank Do Treaties Have Internally?
784
1.
Bahrain
785
2.
Egypt
786
3.
Jordan
787
4.
Morocco
787
5.
Syria
788
6.
Tunisia
788
7.
Conclusion
789
E.
Are the Constitutional Courts Authorized to Monitor Treaties?
789
1.
Oversight by the Constitutional Courts over the Constitutionality of Treaties
790
a.
Morocco
790
b.
Tunisia
791
c.
Jordan
791
2.
Constructing the Power of Oversight by Way of Interpretation?
792
a.
Repressive Oversight over the Constitutionality of Treaties that Require Parliamentary Approval
792
b.
Repressive Oversight over the Conformity of Ordinary Laws to Treaties
793
IV.
Conclusion
794
7.2.
Turkish Constitutionalism: A Model for Reforms in Arab Countries? (Bali)
795
I.
Introduction: A "Turkish Model" for Reform in the Arab World?
795
II.
Perceptions of the "Turkish Model"
797
III.
Characteristics of the Turkish Constitutional Order
800
IV.
Challenges to the "Turkish Model" since the Arab Uprisings
806
A.
Revelations of the Gezi Protests and Their Aftermath
807
B.
Failed Constitutional Transition: 2007-2015
810
V.
Conclusion: The Limited Applicability of the "Turkish Model"
813
7.3.
Arab Spring and the Development of Islamic Constitutionalism in Iran (Banisadr/Rezaei)
817
I.
Introduction
817
II.
Conditions for Muslim Revolutions
818
III.
Revolution for Islamic Theocracy or Constitutional Democracy
819
IV.
Inter-Islamic Evolution of Modern Concepts of the State
820
V.
From the Revolution for Constitutionalism to the Absolute Rule of the Shiite Jurist
825
VI.
Revolutionary Constitution-Making and Its Risks
830
VII.
Between Islamism and Republicanism: An Unresolved Dichotomy
833
VIII.
Violence of Revolution and the Rule of Law
837
IX.
Conclusion and Prospects
839
7.4.
Lessons from the Iraqi Constitution-making Process (Hamoudi)
845
I.
Introduction
845
II.
Main Steps toward an Iraqi Constitution
847
III.
Who Wrote the Constitution? Sunni Participation, the Constitutional Commission, and the Leadership Council
849
IV.
Utilizing Foreign Experts: Useful or Constraining?
852
V.
Sectarian Crisis
853
VI.
Third-Party Influence: Between Meditation and Occupation
855
VII.
From Draft to Reality: Iraq's Constitutional Development since 2005
858
VIII.
Lessons from the Iraqi Constitutional Process
859
7.5.
Impulses from the Arab Spring on the Palestinian State-Building Process (Khalil)
861
I.
Introduction
861
II.
Constitutional Deadlock
863
III.
Building State Institutions during Occupation
865
IV.
Non-Member State Status at the UNGA
867
V.
Reconciliation Efforts
870
VI.
Hamas Rule of Gaza
872
VII.
PA Rule of the West Bank
875
VIII.
Conclusion
876
7.6.
European Union and the Constitution-making Processes in the Arab World: Observer or Actor? (Tohidipur)
879
I.
Introduction: Postcolonial Drift
879
II.
EU's External Action and the Access to the Arab Region
881
A.
Common Policies, Principles, Actions, and Cooperation
881
B.
Neighbourhood Policy, Union for the Mediterranean, and Partnership for Democracy and Shared Prosperity
885
1.
Views on the Barcelona Process
885
2.
European Neighbourhood Policy and Union for the Mediterranean
888
3.
Partnership for Democracy and Shared Prosperity
889
III.
Observation, Dialogue, and Influence
891
A.
Quest for (Common) Values and for a Vision
891
B.
Supporting State Transition: Framework of Constitutional Processes
894
1.
Democracy, Rule of Law, and Institution Building: Impact of the EU?
894
2.
Security, Stability, Military: Ambivalence Test
897
C.
Relevance of Law and/or Politics in EU-Arab Relations
901
IV.
Conclusion and Prospects: The EU's Ambivalent Observer-Actor Status
903
Epilogue: The Constitutional Legacy of the Arab Spring (Grote/Röder)
907
List of Contributors
919
Index
929