CONSTITUTIONALISM

Virtually all the Arab countries, as well as Turkey and Iran, have promulgated formal, written constitutions. As they and other Muslim nations have learned, however, a constitutional document does not always reflect or ensure constitutionalism, just as constitutionalism does not always require a written constitution. Constitutionalism is the idea that political order ought to be subject to a higher authority beyond the arbitrary human will expressed through an autocrat, a minority faction, or a democratic mob. Although constitutionalism is commonly identified with liberal democracy, any regime that provides for limited and accountable government, adherence to the rule of law, and the protection of fundamental rights to all its citizens may be said to be constitutionalist. Defined in this way, constitutionalism has had a troubled history in the countries of the Middle East, and no country has to date fully implemented constitutionalist principles.

The earliest constitutionalist experiments in Arab states occurred in Tunisia and Egypt. In 1857, under pressure from European governments, Muhammad Bey issued the ?Ahd al-Aman, or Fundamental Pact, under which all residents of Tunisia were granted equal rights of security, legal redress, and employment. In 1861, Tunisia promulgated the first constitution in the Muslim world, under which the legislative and judicial powers of the bey and his ministers were limited by the establishment of a Grand Assembly. The assembly consisted of sixty members, appointed by the bey for five-year terms, and all drawn from the country's elite. The constitutional experiment lasted but three years, collapsing in 1864 in the wake of popular demonstrations in the provinces.

Constitutional reforms would not resume until 1955, as the French protectorate over Tunisia was nearing an end. The constitution promulgated in June 1959 declared Tunisia a republic, with executive power vested in a president and legislative power in a National Assembly, both elected by universal suffrage. The judiciary was declared to be independent. The constitution was significantly amended in 1988 to strengthen executive control over the legislature, and to specify that the prime minister succeeds the president in case of death or disability.

Egyptian constitutionalism gained ground during the reign of the Khedive Isma?il, fueled mainly by the notables' growing concern with Egyptian indebtedness to European powers. In 1866, Isma?il agreed to create the Consultative Assembly of Deputies, comprised of Egyptian notables, and in 1878 he formed the Council of Ministers, to which he transferred a great deal of executive authority. In 1882, when Isma?il's successor, Tawfiq, attempted to reverse his predecessor's concessions, the Assembly of Deputies pressured the khedive to approve their draft constitution. Under this document, the Assembly was to be an elective body whose members served five-year terms. Both it and the Council of Ministers could initiate legislation, subject to the final approval of the khedive. Most importantly, the prime minister could be summoned and questioned by the Assembly, and if a conflict arose between the two, the Assembly's will was to prevail.

The 1882 constitution was never fully implemented, and when the British occupied Egypt the same year, it was suspended. Shortly after independence, Egypt promulgated a new constitution in April 1923, which established the supremacy of the king over the cabinet and the parliament. Following the Free Officers' overthrow of the monarchy in 1952, a new constitutional charter was enacted in January 1956 that declared Egypt a republic, with most powers vested in the president. A new constitution was drafted in 1971, soon after Anwar Sadat's assumption of the presidency. This document retains a strong presidency but adds provisions for an expanded role for the judiciary, including the creation of a Supreme Constitutional Court. The courts' powers have effectively been curtailed, however, by the invocation of Emergency Laws by Hosni Mubarak, ostensibly to combat terrorism within the country.

Iraq's constitution was drafted and promulgated in 1925, while the country was still under a British mandate. It created a constitutional monarchy, with a strong king and a bicameral legislature. Once the British mandate ended, the king's authority over the cabinet was enhanced through constitutional amendments in 1943. The July 1958 revolution that ended monarchical rule effectively ended constitutionalism as well. From 1958 to 2003, the country was run by the Revolutionary Command Council (RCC). The RCC's authoritarian rule was formalized in the 1970 "interim" constitution adopted by the Ba?thists, which continued in place until it officially became Iraq's constitution in 1990. Amendments in 1995 made the election of the president subject to national plebiscite, but in effect bolstered the authoritarian rule of Saddam Husayn by eliminating the RCC's ability to dismiss the president.

The Lebanese constitution is among the most intriguing of all the Arab republics. Given the deep sectarian cleavages in the Greater Lebanon that was created under the French mandate, the 1943 National Covenant established a consociational democracy. Seats in the Chamber of Deputies were divided according to a 6:5 formula, giving the Christian population a permanent majority in the legislature over the Muslims. The president had to be a Maronite Christian, the prime minister a Sunni Muslim, and the speaker of the parliament a Shi?ite Muslim. This "elite cartel" continued to function until the outbreak of the civil war in 1975. Under the Ta?if Agreement of 1989 that ended the civil war, the sectarian apportionment of high offices was retained, but the Christian-Muslim allocation of seats in the legislature was brought to parity and the powers of the prime minister relative to those of the president were substantially increased.

All of the extant Arab monarchies, including Morocco, Jordan, Kuwait, and the other emirates of the Persian Gulf, have adopted constitutional instruments that make token attempts at creating popularly elected legislatures, but which retain effective powers in the hands of the monarch. Kuwait is a notable, but qualified, exception; the emir has battled parliaments demanding a greater role since the 1960s. The parliament's authority was enhanced following the liberation of Kuwait from Iraqi control in 1991. As for Saudi Arabia, no real constitutional document was enacted until 1992, when the Basic Laws codified the complete dominance of the Saudi ruling house in the country's administration. The king appoints the Consultative Council and heads the Council of Ministers.

Turkey's experience with constitutionalism began with the Ottoman constitution of 1876, which formalized the central place of the sultan in the government of the empire, but created a bicameral parliament to share the sultan's legislative functions. Sultan ?Abd al-Hamid II suspended this constitution within months of its enactment. It was revived, with modifications that enhanced executive powers, following the Young Turks revolt in 1908. Turkey's transformation to a secular republic began with constitutional enactments passed by the Grand National Assembly following the empire's defeat in the First World War. In January 1921, the Law of Fundamental Organizations vested legislative authority in the Grand National Assembly. Another decree in November 1922 abolished the sultanate. Finally, on 20 April 1924, following the abolition of the Ottoman caliphate, the constitution of the Turkish republic was announced.

By the 1950s, Turkey had evolved firm republican and what seemed to be strengthening democratic institutions, going so far as to see the triumph of an opposition party in the 1950 general elections. Increasing paralysis in the parliament caused by party differences led to the first military intervention in 1960. The military seized power again in 1971 and 1980, leading to the proclamation of a constitution that legitimated the military's political role in 1982. In 1995, with Turkey attempting to join the European Union, constitutional amendments attempted to lessen the political profile of the military.

Iran's constitutional revolution of 1906 launched that country's attempt at constitutional monarchy. In 1925, the constitution was amended to effectuate the transfer of monarchical authority from the Qajar dynasty to the new Pahlevi dynasty that was founded by the erstwhile minister of war, Reza Khan. The only period during the Pahlevi era when constitutional practices were even partially implemented was from 1941 to 1953, when the young Muhammad Reza Shah was not strong enough to exert his will against the Majlis, the national parliament. Through the late 1960s and early 1970s, the shah's rule became increasingly despotic.

In January 1979, the monarchy was overthrown in the Islamic revolution led by Ayatollah Khomeini. The constitution of the Islamic Republic of Iran was enacted in December 1979. Its most notable feature was the implementation of direct rule by the Shi?ite religious scholars, chiefly in the institution of the vali-ye faqih, or the supreme religious guide of the nation. Significant amendments were made in 1989 to allow for a transfer of supreme authority after Khomeini's impending death. The changes did nothing, however, to alleviate the fundamental tension built into the 1979 constitution, namely, the rivalry between two executive authorities, the president and the supreme religious guide.

See alsoMajlis ; Modernization, Political: Administrative, Military, and Judicial Reform .

BIBLIOGRAPHY

Arjomand, Saïd Amir. "Constitutions and the Struggle for Political Order: A Study in the Modernization of Political Traditions." Archives Européennes de Sociologie 33 (1992): 39–82.

Brown, Nathan J. Constitutions in a Nonconstitutional World: Arab Basic Laws and the Prospects for Accountable Government. Albany: State University of New York Press, 2002.

Brown, Nathan J. Dustur: A Survey of the Constitutions of the Arab and Muslim States. Leiden: Brill, 1966.

Sohail H. Hashmi