'We should take them by their word' - The Libyan Report

'We should take them by their word'

zenith: Mr. Naeem, in your new book you looked at the constitutions of the Arab republics, and you marked the year 2005 as a decisive turning point. Why?

Naseef Naeem: After the Iraq war, Iraq adopted a federal constitution and rebuilt its state institutions. This led me to examine the new Iraqi federalism in my PhD dissertation. And in Sudan, the north and south concluded an agreement that greatly changed the relationship between the two parts of the country at that time and set in motion a new constitutional process. Aside from the development in these two states, the constitutional processes in the Arab world were in a kind of coma. When I started writing this book in 2009, I initially wanted to analyse how these two developments could affect other Arab countries.

Then came the Arab Spring 2011.

The Arab Spring was about much more than just protests. The events of 2011 shook the Arab republics in their foundations. To a constitutionalist, this is very interesting. The effects of 2011 led to such a profound disruption that we should think at least twice before we use the term "state" when we talk about the Arab world. I am thinking of Syria, Libya or Yemen. It seems quite unclear to me, that in our age of uncertainty in which any form of order appears to be decaying, whether statehood, as we know it, will last in the long term as a form of organising societies. However, until then, the constitutional question about how to model a state will remain the key issue.

“The fathers of the Iraqi constitution opted for a parliamentary democracy, some might like to add, with German character. A novelty in the Arab world”

What are the similarities between the constitutions of the Arab republics?

All constitutions reflect their genesis. The Arab constitutions are often written in an aggressive and revolutionary tone. They propagate a strong, male state. Moreover, their starting point is not the individual, but they rather reflect a collective understanding of the state. Such thought patterns tend to leave a mark.

Why do so many constitutions in the region give more weight to the collective than to the individual?

More importantly, the state structures that I analysed are often unstable. The constitutions are primarily designed to guarantee preserving the power of the framers of the constitution. The interests of the citizens are of secondary importance.

To what extent are the Arab constitutions tailored to the interests of the ruling elite?

So far, Arab constitutionalists have been strongly inspired by the model of the Fifth Republic in France from 1958. At that time, Charles de Gaulle tailored the constitution to suit himself. After independence, the former colonies, especially the former French colonies, adopted this model of a strong executive, that can decide and do what it wants. Instances such as the sectarian-based constitution in Lebanon are the exceptions that prove the rule.

You have been studying Iraq in detail since 2005. How then do you make sense of Iraq constitutionally?

The fathers of the Iraqi constitution opted for a parliamentary democracy, some might like to add, with a German character. This is really novel in the Arab world. Although the executive since then has curtailed, with the help of the Supreme Court, the power of parliament, the legislature still remains the strongest body in Iraq. The reason for that lies in the fact, that no new center of power was able to emerge after the Iraq war. Instead, several power blocks arose and their political arena was the Iraqi parliament. It is obvious how the constitution of the state reflects its political developments.

“All states, including the Arab ones, want their decisions to be constitutional”

Is a parliamentary system better suited for representing informal structures? In post-colonial states, there are often traditional decision-making structures that have not necessarily been institutionalised.

In the Arab world and in the West, it is believed that political decisions are usually taken outside the formal state structures. However, in my opinion, this is not the case. All states, including the Arab ones, want their decisions to be constitutional. Take the election of the Syrian president in 2000 as an example. From a legal point of view, the election of Bashar al-Assad after the death of his father Hafiz Al-Assad was held completely in compliance with the constitution. It is difficult to claim that the election was informal or secret. Instead, the constitution was changed.

That, too, is a frequent accusation against Arab states. If the constitution does not suit the state actors, it is changed to suit them.

Yes, but still, the formal framework of the constitution will be respected. It has to be legal. Constitutional processes are an arena for political decision-making. They can of course be harnessed by rulers for their own purposes.

Does that mean that the constitution can also be a weapon?

Exactly! By the way, foreign actors could be much more effective in dealing with the constitutional situation in Arab states if they demanded that these states abide by their own existing constitutional framework instead of insisting on international standards. After all, it is the states who wrote and adopted their own constitutions. We should take them by their word.

To what extent does democracy in the constitutions of the Arab world exceed the formal aspects, such as elections, and is instead also linked to the protection of basic rights?

Barely. However, from my point of view, the problem lies less in the Arab states and more in Western political science, which deals with ambiguous terminology. In Europe, the term democracy refers to much more than in the Arab constitutional law. This is why I advocate for a clear and unambiguous terminology when dealing with the Arab world. We should limit the contents of the term democracy to its formalistic concepts. From a European point of view, this may be a step backwards, but a democracy in terms of basic rights is not yet emerging in the Arab world. Even in Eastern Europe, this meaning of democracy is at times controversial.

“The international community sees federalism and decentralisation as a panacea to solve conflicts in the region, but it won’t work as it used to”

Are constitutional processes at least able to contribute to stabilisation?

Except in the case of Tunisia, this has rarely happened since 2005. One of the reasons is that the drafters Arab-world constitutions mostly understand democracy as the power of the majority. This has nothing to do with pluralism. In the constitutions of the region, power is dominantly understood as absolute power.

However, the constitutional process in Tunisia does not only negotiate power but also basic rights.

The report of the “Commission for Personal Liberties and Equality” of 2018 deserves attention, in particular because it includes basic rights that are not influenced by religion. The fact that issues such as gay rights or the right to privacy are discussed within the official framework of a state commission is, regardless of the outcome, a highly exciting development. However, with regard to matrimonial law for example, Tunisia’s legal history is different from that of other Arab states. Additionally, with its 11 million inhabitants, fewer inhabitants than Cairo, Tunisia is too small to serve as a blueprint for the entire Arab world.

In political science and consultations, the slogan of decentralisation has long been considered an important means of better governance. How do the constitutions around the region deal with federalism?

The international community sees federalism and decentralisation as a panacea to solve conflicts in the region, but it won’t work as it used to. The implementation of federalism and decentralisation in the region is still in its infancy.

In Iraq, there were attempts to establish a federal system in the constitution. ...

... but without defining the shape of the federal regions. Many constitutional questions were never answered. For example, under which material conditions can provinces join together to form a region? Both the constitution and the law have remained until now silent on this central question.

“Europe’s latitude is therefore narrowing – not least because of the increasing attractiveness of the Chinese model”

Would the federal approach be an option for Syria in the future?

The establishment of decentralised structures will be much more difficult in Syria. Power is enormously fragmented, even within those areas that are under government control. This leads to the paradoxical conclusion that, at least from a legalistic point of view, decentralisation can only be successful after the respective central states are strengthened. In federal post-war Germany, there was a set of tools that served exactly this purpose. The framework legislation of which was only abolished in 2006. Framework legislation is a tool to ensure a uniform legal interpretation in the various areas of a legal system.

Now comes the crucial question: What role does religion play in the constitution-drafting processes of the region?

Above all, religion is a wonderful way to waste time. Allow me to exaggerate a bit and say that religion is discussed for 11 months and then there are 11 days to negotiate all other issues. The problem is that discussions about religion often remain vague. Even if it is difficult, as a conversation partner you should always try to be concrete: Where exactly does religion touch which basic rights? It is also important to insist on a clear answer to the question about the constitutional ranking of religious basic rights.

What recommendations can be derived from your work that will aid dialogue with Arab constitutionalists?

Europe’s latitude is narrowing. Not least because of the increasing attractiveness of the Chinese model, which also takes a strong collective as its starting point, rather than the individual. It therefore makes sense to put more emphasis on legal issues when we are in dialogue with the countries of the Arab world. The possibility of talking to states in their own constitutional language still offers untapped potential for European foreign policy.

Naseef Naeem, born 1974 in Fairouzeh, Syria, studied law in Aleppo and Damascus and specialised in state and constitutional law. From 1999 to 2002, he worked as an independent lawyer in Syria. In 2007, he earned his doctorate at the University of Hannover with a thesis on the Iraqi constitution. Until the end of 2017, Naeem had been involved in the transformation process in Yemen on behalf of the GIZ. He is head of research at the consulting group zenithCouncil. His book “The State and Its Foundations in the Arab Republics” was published in 2019 by the German Levante Verlag. source