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«GAIR-MITTEILUNGEN 2012 4. Jahrgang Herausgegeben von Hatem Elliesie – Peter Scholz durch die Gesellschaft für Arabisches und Islamisches Recht ...»

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– 41 – Arab Political and Constitutional Debate”. Prof. al-Ġarārī clarified that researchers need to revise their pre-understandings and assumptions on Arab societies. He pointed out that the Arab World is changing fundamentally. Therefore, notions like “reform” do not have the same meaning as they had in previous times. Until today, discourse on political change in Arab countries has been elitist and has led to decisions without popular consensus. Furthermore, debate on constitutional reforms in Arab countries with monarchic systems such as Jordan, is very different to countries with republican structures like Egypt or Tunisia. In Arab societies organized political parties are rare, although they are essential for a parliamentary system. In countries such as Jordan the main question is how to balance the rights of parliament and the discretion of the King. In Libya, one must seriously consider the role of tribes in the new political setting. A lack of respect for the rule of law is a chronic cultural issue within Arab societies. Prof. al-Gharārī concluded with the statement that significant emotional and cultural developments are needed to sustain fundamental change.

Prof. ʿAbd al-ʿĀlī Ḥāmī ad-Dīn commented from the Moroccan perspective. He explained that the Moroccan experience is different from other Arab countries. In Morocco, public demonstrations and demands for change occurred as well. But the King responded quickly and promised to undertake a constitutional reform of the monarchic structures. An advisory committee for constitutional reform was formed and Morocco is on its way to have a constitutional monarchy based on the rule of law in which the executive powers of the King are delegated to the Prime Minister. There will be free elections, and the King will have a more formal and symbolic role.

Prof. Xavier Philippe (Aix-En-Provence) presented his thoughts on “Centralized vs.

Decentralized State: Common Discussions and Tendencies in the Transition States”. He started out by reviewing the developments in different countries in transition, such as Libya, Tunisia, and Egypt. He emphasized that local government is not a mere technical choice; it is a strategic political choice. Social, political, geographical and ethnic aspects are influential factors. Decentralization requires a minimum trust between the central government and local authorities. Decentralization should support the rule of law and national unity. In many contexts, decentralization has been utilized as a peacemaking tool to overcome transitional challenges.

Following Prof. Philippe’s presentation, Šaiḫ Humām Ḥamūdī (Iraq) commented on state-building in Iraq: decentralization is regarded as a major part of statebuilding and national peace in Iraq. On recommendation of Āyatullāh Sīstānī, all Iraqis (secular and religious groups) participated in the process. Decentralization was chosen because Iraqi people were aware that it could better stabilize the new democracy – although Iraq had been a centralized state for more than seven decades. Federalism, though, was not the choice in the first place. During political debates in which Kurds stressed the issue, some politicians wanted to limit this choice to Kurdistan only. In Iraq, public discussions on federalism and constitutionalism have greatly contributed to a progressive political cul 42 – ture. Islamic scholars under the guidance of Āyatullāh Sīstānī paved the way for this new culture.

Prof. Kamali concluded the panel with remarks on his experience in Afghanistan. In Afghanistan, a strong demand for a federalist structure existed during the drafting of the constitution in 2003 but was neglected by the constitutional committee. It was felt that after three decades of war and conflict, the state needed to concentrate its power before decentralizing it. In the Afghan context – a tribal society with diverse geography and ethnicity – centralization was therefore preferred.

Panel 3: The Role and Functions of the Military in a Democratic state The third panel was chaired by Prof. İlhan Uzgel of Ankara University and was concerned with the role of the military in selected Arab countries. Prof. Nūr Faraḥāt, speaking on Egypt, stated that military forces play an important role in guaranteeing legitimacy and democracy in a pluralist state. In Egypt, the legal organization of the military forces was regulated already in the Constitution of 1923. The question in the current situation is whether the armed forced should protect democracy, especially during political unrest. The question was considered difficult. There is certainly no universal solution for all Islamic countries.

Šaiḫ Ḥamūdī, speaking on Iraq, stated that the Arab Spring occured in countries with a strong military or secret service. The challenge seems to be how military interference in politics can be averted in the future. In regard to Iraq, a lot has been learned from the international experience. Moreover, a crucial issue might be how to prevent the military from participating in elections. Šaiḫ Ḥamūdī expressed that one important requisite is that the leader of the military should be a civilian. Generally, the army’s role should be limited, as its job is to protect the borders, and not to get involved in internal affairs.

Panel 4: Institutional Safeguards against Breaches of Constitutional Law The fourth panel was chaired by Judge Abdul Gadire Koroma (Sierra Leone) of the International Court of Justice. The first presentation by Prof. Rāʾid Faqīr dealt with “Considerations of a Constitutional Review Mechanism: the Example of Jordan”. Concerning safeguards, Prof. Faqīr stated that the constitutional legislator should not deal too much with details. He presented Morocco as a good example, where only general guidelines are existing. Detrimental is the Jordanʼs conceptual understanding, where the judges of the Constitutional Court (nine judges elected for a six year term) have political affiliations which, obviously, has an impact on the work of the Court.





Judge al-Maḥmūd shared his views on “Constitutional Jurisdiction in Times of Crisis:

Experiences from Iraq”. He stated that in 2003, after the regime change in Iraq, a Federal Supreme Court was established. The Court includes nine members, nominated by the High Judicial Council of Iraq, and tops the judiciary pyramid.

Like all Iraqi courts, it is independent from the executive branch and the Ministry of Justice in terms of staff, facilities and budget. Al-Maḥmūd sees the estab 43 – lishment of the Court as a positive turning point in the history of the Iraqi judiciary.

Dr. Thomas Markert (Secretary-General of the Council of Europe Venice Commission) shared his thoughts and experiences concerning the reasons for establishing constitutional courts. The main factor is usually political pressure on governments. Another key factor is the protection of human rights. In situations of crises, it is often difficult for a constitutional court to resist attempts to undermine the democratic system and to strengthen authoritarian regimes. Kyrgyzstan, for example, tried to establish a democratic system. However, the president claimed more powers and with the help of parliament, had a new constitution written in his favour. But, in general, constitutional courts play a positive role in safeguarding democracy and the rule of law.

In the ensuing discussion, several participants underscored the importance of an independent judiciary (and a proper separation of powers) in order to successfully perform the judicary’s role in safeguarding the constitution. Moreover, it was stressed the need of the independence of the judiciary not only financially but also administratively. Questions were raised with regard to the courts’ role in monitoring the constitutionality of legislative and executive acts and in overseeing authorities. Furthermore, it was pointed out that it is not only the constitutional court (or the judiciary) which are responsible for safeguarding the constitution but that all three powers are tasked with this.

Panel 5: Political and Civil Rights The panel on political and civil rights was chaired by Asifa Quraishi-Landes (University of Wisconsin Law School). In the first presentation, Prof. Muḥammad Amīn al-Midanī (Arab Centre for Humanitarian Law and Human Rights Education) pointed out that he considers respect for civil rights a prerequisite, more important than political rights. As to the nature of civil and political rights, Prof. al-Midanī established that civil and political rights, such as, e.g., freedom from torture, free speech, and freedom from slavery, are enshrined in most constitutions. Civil and political rights are different from social and economic rights because they are absolute and part of human dignity. Prof. al-Midanī explained that human rights always have a vertical and a horizontal aspect.

Whereas the former – in the case of civil and political rights – concerns the relationship between citizens and the state, the latter concerns the relationship among citizens. As to the mechanisms of applying rights, Prof. al-Midanī emphasized the fact that signing and ratifying international human rights instruments is not enough – human rights must be applied in practice. In his conclusion, Prof. al-Midanī highlighted that it is not only important how democracy functions in practice but also that people are educated and made aware of their democratic rights.

The presentation was followed by comments on the situation in selected countries.

Ḥanafī Ǧabālī, speaking on Egypt, stressed the fact that democracy cannot be achieved without respect for human rights, and, that in this context constitutional oversight regarding compliance with human rights is of utmost im 44 – portance. Georges Kadige, speaking on Lebanon, pointed out that it is not only essential that a constitution stipulates rights but also that they are implemented in practice. In his view, Lebanon is one of the Arab countries that respect individual freedoms the most. This also includes freedoms for religious groups. He indicated that currently the Lebanese constitution contains six articles relating to different freedoms. In particular, the freedom of belief is well implemented.

Being a multi-religious state, Lebanon guarantees that no religious group may impose its will on other religious groups. Faḍl Mūsā, speaking on Tunisia, stressed the importance and the role of civil and political rights in the Arab revolution in general, and in the Tunisian revolution in particular. He elaborated on the difficulties of enforcing civil and political rights under the previous regime. Tunisia is currently still in a phase of transition and in the process of drafting a constitution but the situation concerning fundamental freedoms will, according to his view, definitely improve.

Dr. Hudā ʿAlī ʿAlawī from Aden University in Yemen spoke on “Women’s Rights at Risk?”. She focused on the attitude of (modern) Islam towards women’s rights.

Dr. ʿAlawī stated that women are suppressed by some interpretations of Islamic rules. In addition, she emphasized that Islamic rules are also open to an interpretation that is favourable to women’s rights. This would require that views need to change and rules need to be rephrased. Several constitutions, when addressing the issue of equality, follow international human rights standards; yet, they do not go far enough. Islam and especially the Quran stipulate equality for all, notwithstanding radical rulings and interpretations have cast a wrong reflection on Islam with regard to women’s rights. Dr. ʿAlawī went on to explain that a lot of Arab countries have signed international human rights conventions, CEDAW in particular. Oftentimes reservations are made with regard to Islam.

She gave the example of Yemen which made the reservation of not applying CEDAW articles that are in contradiction with Islam. However, parliament is currently discussing these issues, so there is hope for change.



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