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Constitution and Human Rights in the Countries of the Arab Revolutions: Tunisia, Egypt and Libya as a Model

Executive summary

The study of DAAM center depends on the dialectic of the relationship between the revolution as a historical cross-dimensional concept and the constitution as a project and as an essential product in the history of countries that went through the revolutionary experience. At the same time it is the outcome of this historical fact and a measure of its effect.

The study focuses on this dialectic based on the experience of three countries that went through the revolutionary experience which are: Tunisia, Egypt and Libya.

The study analyzes each experiment separately considering the different circumstances and data from one experiment to another, but the three parts share a unified structure based on two basic elements.

The first element is the presentation of the framework that surrounds the dialectic of the revolution and the constitution in relation to supporting human rights, whether at the structural level, by reviewing the structure or the institutional structures from which the constitutional text is created or in the process of establishing it, or at the temporal level by reviewing the elements that influenced the constitutional experiment, either directly regarding the elements that coincide with the experiment or affected it in the near term or indirectly through historical elements that preceded the experiment but influenced it.

The second level focused on the content or the text of the constitution itself and studied its articles related to rights and freedoms of different generations in comparison with the previous constitutional texts, with the adoption of international standards of human rights system to measure the real extent of the addition granted by the new text to human rights and at the same time the extent of the capacity of these rights to ensure an effective role of this text and take it out of the form of formal text, which completes the image of the “state of law” that we want.
The purpose of the study is not to identify the drivers of these revolutions or to assess the transitional phase. However, the study aims to study the impact of these revolutions on the projects of establishing constitutions and what these constitutions offered to respect human rights in the three countries (Egypt, Tunisia and Libya). The study seeks to answer several questions raised regarding these constitutions:
1. Were the previous constitutions of the three countries a major reason for allowing the executive authority to violate citizens’ rights? In other words, did these constitutions allow the executive authority to dominate the legislative and judicial authorities, thus depriving the citizen of the protection of his violated rights in the absence of explicit and decisive constitutional provisions for the protection of human rights in the three countries?

2. If we assume that the constitutions did not limit the protection of human rights, could the legislative authorities in the three countries be the reason – if they exist and which were not elected through free elections before our revolutions – has never been under the control of the executive, administrative, and security authorities?

3.In the absence of judicial and legislative control and their authoritarian nature, were the executive and administrative authorities in the three countries the reason that they violated all these rights in a clear transgression of the provisions of constitutions and legislations with total neglection to the implementation of judicial verdicts?

4.Could the reasons be poor economic, social, and cultural conditions, a long legacy of despotism that prevented citizens from exercising their right to organize, whether as peaceful associations, or trade unions, or political parties, and deprived them for partnership in decision-making, and the existence of religious extremist groups that have allowed violations of human rights and discriminated against citizens on the basis of sex, race, color or religion, as guaranteed by some citizens’ acceptance of such discrimination.

5.Citizens of the three countries in their revolution against those despotic regimes, who had different political circumstances and economic and social conditions, had unified slogans to achieve human dignity and social justice, which its concepts certainly differ between political and cultural currents and citizens due to their different orientations. Was it among citizens’ requests and slogans to change existing constitutions or to establish constitutions that protect human rights situation? Or at least was there consensus among political currents on the need to change constitutions?

6. How did constituent assemblies form constitutions in the three countries and did their formation had an impact on the various constitutions in terms of respecting human rights?

7. Did the dispute over constitutions affect the compatibility in the three countries and the success of their transitional phase?

In its attempt to assess the paths in which the constitutions of the three countries (Tunisia, Egypt, and Libya) were created and the impact on articles organizing the protection of human rights, the study was based on researchers’ vision, hearing sessions with constitutions’ makers from constituent assemblies, social and political figures, and a workshop held in Tunis in July 2017 to present the study’s draft on jurists, politicians and trade unionists in the three countries with the appreciation of all participants and their recognition that the characteristics of the three countries and the economic, social and political conditions of the three countries were taken into consideration as well as drivers of mass uprisings, or the political process in transition periods, or even in the completion and evaluation of the experiences of democratic transition. The study endeavored to reach multiple conclusions and recommendations. However, some of them are common and others concern each of the three countries.

Conclusions

First: Long decades of tyranny have hindered a genuine democratic transition from authoritarian to pluralistic democratic regimes resulting from depriving the citizens of the three countries over many years of organizing themselves in peaceful, free, and independent associations that enable citizens to participate in the management of public affairs of the country. The authorities of the three countries were singled out for power after the wave of their national independence experience and deprived political and social forces of organizing themselves, and a peaceful transfer of power through free and fair elections. Administrative and security services of the executive authority interfered in all public affairs of the country which led to the obstruction of all peaceful means of change and resulted in either one political organization of the executive branch, or extremist religious groups that wish to change through the use of force, which led to the weakness of peaceful political and social currents that were unable to play a key role in the process of democratic transformation after the uprisings and make them in need of long periods of training, construction, training, and communication with citizens, and put forward a rational and peaceful alternative, which certainly influenced the process of democratic transformation, including the manufacture of constitutions.

Second: several mistakes were made in the transitional periods of the three countries, while each of them maintained its specificity, which led to elements of the systems that were involved in decision-making prior to the popular uprisings controlling the transitional periods in addition to the lack of understanding by democratic forces to the nature of the transitional period. Some of them suggested ideas and experiments that do not fit the process of democratic transition to find rational solutions that fit the process of development of societies and suit the nature of democratic transition in them, as well as to reach solutions in which they can reach a civil constitution that guarantees freedoms for them with a minimum level of community consensus.

Third:  the political forces of the three countries were divided into two currents (civil, secular) and (religious or Islamic), which is a wrong and dangerous division. There is certainly a difference and diversity in each faction. There could have been a different division that gathers parties that believed in the true importance of compromise and dialogue leading to a smooth democratic transition that would avoid constitutions to be the subject of an electoral political conflict that could have been in presidential or legislative elections away from the formulation of the phase of democratic transition, the formation of constituent assemblies, or the constitutional articles themselves related to the protection of human rights or ruling regimes.

Fourth: Social and political elements of the three countries were unable to express their views on the drafting of constitutions and the selection of constituent assemblies, as the success or failure of the democratic transition, and achieving state or social stability, and each party’s attempt to either force the other party to accept its constitution draft, or agree on a constitution draft that do not fit the aspirations and dreams of citizens in building a pluralistic democratic society and a constitution that protects the rights of all.

Fifth: Transitional constitutions Drafts should have been presented for five to ten years depending on the circumstances of each of the three countries related to transitional provisions for the management of the country’s public affairs, the achievement of a national reconciliation process, and a successful transitional justice, that was a condition that has been missed in both Tunisia and Egypt but still can be made in Libya.

Sixth: Long decades had passed, and with different social, economic, and cultural conditions, the absence of good governance and the accountability of authoritarian regimes produced networks of corruption and wasted the economic resources of the three countries, which led to impoverishment and the marginalization of social classes. The creation of class, religious, categorical, and gender discrimination led to economic and cultural marginalization, and impoverishment that had been exploited by either the authoritarian regimes or extremist groups that see marginalization and exclusion as a success of its project. There can be no talk about the success of a democratic transition except through legislative and executive intervention, constitutional protection to lift injustice and marginalization, economic and social rebalancing that fix a number of educational, health and cultural matters, and resistance to masculine culture or potential extremist religious currents.

DAAM center is working to provide an English version of the study in the near future.

 

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