Animal Rights in the Egyptian Constitution

By Mara Alioto, Juris Doctor Candidate (2015), Northwestern University School of Law

While many Egyptians are of the opinion that “[a]nimal rights are of no concern to [them] until human rights are abided by,” sexual harassers, serial killers and child abusers all often start as animal offenders[1].  Professor Stilt’s talk highlights the evolution of the role of animal rights in the Egyptian constitution.

Focusing on animal law in the Egyptian constitution, Northwestern Law Professor Kristen Stiltmerged her interests in Islamic law and society and her activist interests in animal law in her talk “Constitutionalizing Animals,” given at the American Bar Foundation on April 9. Her talk focused on Article 45 of the 2014 Egyptian constitution: Professor Stilt translated al-rifq bi-l-hayawanliterally as “kind treatment of animals,” and noted that the phrase has deep roots in the Islamic tradition.

Even though animal rights are gaining increasing attention worldwide, few countries provide for protections for animals in their constitutions. Egypt is a surprising new member of this tiny club because it is one of the worst countries in the world for animal welfare.  Millions of feral dogs and cats are on the streets, and the government kills them with poison or by shooting them, often causing slow and painful deaths. At Cairo University’s Veterinary school, the animals used to train the students are treated cruelly. In the cities, children set cats’ tails on fire as a game and throw puppies in the Nile to drown. Even the zoos are not safe havens for animals. At the Giza Zoo, animals are beaten and chained and suffer from malnutrition and disease[2].  Work animals, such as horses and donkeys, work in inhumane conditions and are often worked to death or starved.

The clause on animal protection was included as the result of activist groups in Egypt, not because the drafters came up with it on their own. The animal rights activists had to decide how much emphasis to put on Islamic law and how much to focus on arguments based on international standards. In Islamic law, the hadith has much more to say about animals than the Quran. In the hadith, there are provisions that call for the protection and kind treatment of animals, but there are also provisions that restrict dog ownership and indicate that dogs are impure and disfavored. Dog ownership is seen by some as a “western” or “non-Muslim” tradition that is not permissible. On the other hand, cats are given more protections in the Hadith.

Activists approached the Salafist party during the drafting of the 2012 constitution. The proposed article and the arguments supporting it were based mainly on Islamic law, especially the Quran. However, when the 2012 constitution went into force, there was nothing on animal rights.

Luckily for the animal activists, the 2012 constitution did not last for very long. The new constitution drafting committee was made up of a very different group than the previous committee since the Muslim Brotherhood was excluded from the drafting process. Dina Zulficar and her activist group submitted their proposed article to the new committee, but heard nothing. However, another animal activist, Amina Abaza, prepared a proposed article focusing on international agreements instead of Islamic law. Her proposed article said “[t]he state is required to adhere to all of the international agreements and conventions that it has ratified regarding al-rifq bi-l-hayawan [kindness to animals] as part of achieving rights for animals, and the citizens of Egypt are also required to adhere to them.” While Abaza in her advocacy for animals previously relied on the same Islamic arguments that Dina Zulficar and her group relied on, Abaza decided to rely on different arguments. She focused on international standards as well as the connection between animal abuse and human abuse.

While the committee reacted favorably to Abaza’s proposal, the provision that was actually included in Article 45 of the constitution was not as strong as the various proposals submitted by the activists. The committee also relied on the Islamic phrasing of “kindness to animals” in the final version. By doing so, the drafting committee might have been guarding against accusations of prioritizing frivolous or western concerns.

[1] http://www.dailynewsegypt.com/2014/02/03/student-corner-cares-animal-rights/
[2] http://www.dailynewsegypt.com/2014/02/03/student-corner-cares-animal-rights/

 

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Pakistan’s Blasphemy Law: Persecution and Prosecutions

By Nida Jafrani, Juris Doctor Candidate (2015), Northwestern University School of Law

The preamble to Pakistan’s constitution states that the principles of “tolerance and social justice, as enunciated by Islam, shall be fully observed” and that “adequate provision shall be made for the minorities freely to profess and practice their religions and develop their cultures.” The professed tolerance in the Constitution stands in stark contrast to the pervasive persecution of religious minorities in Pakistan, aided in part by the country’s infamous blasphemy laws. Pakistan, like Indonesia, is an example of a country in which some there are some constitutional guarantees of freedom of religion, but subsequent laws severely curtail that right, with a disparate impact on unpopular minorities.

Pakistan has undertaken more blasphemy prosecutions than any other Muslim-majority country. The Human Rights Commission of Pakistan reports that between 1988 and 2010, over 1,000 individuals were prosecuted under the provision regarding desecration of the Quran.

Pakistan’s Penal Code section 295, or “Blasphemy Law,” dates back to 1860, but was little utilized until the era of General Zia ul Haq (1978-1988). Between 1980 and 1986, General Zia added several clauses to the code as part of his Islamization of Pakistan, including anti-Ahmadi laws (§ 298-B-C), punishment by death for blasphemy against the Prophet Muhammed (§ 295-C), and life imprisonment for willful desecration of the Holy Quran (§ 295-B). Although Christians are not specifically mentioned in the Blasphemy Law, they have been prosecuted using the provisions. In April 2014, a Christian couple was sentenced to death for sending a text message insulting the Prophet Muhammed.

The blasphemy law has been utilized to prosecute religious minorities, lending a legal basis to pervasive discrimination against religious minorities like Ahmadis and Christians. The troubling nature of the prosecutions isn’t limited to the courtroom.

Persecution and Prosecution

In 2012, a young Christian girl, Rimsha Masih, was accused of blasphemy for allegedly burning pages of the Quran. Even though she was eventually acquitted by the Islamabad High Court, the accusation alone created upheaval that forced the girl’s family and the entire Christian community to which they belonged to flee their homes (HRCP Report).

Politicians who have spoken out against the law have been killed for their views. In 2011, Salman Taseer, governor of Punjab, was assassinated for his opposition to blasphemy laws, and later that year, Shahbaz Bhatti, Federal Minister for Minorities Affairs, faced the same fate.

Pakistan topped the list in a ranking of countries with very high social hostilities involving religion, but was thirteenth on the list of countries with very high government restrictions on religion (Pew Study). This reinforces the idea that the laws serve as a tool for persecution of already unpopular minorities, even if the text of the Blasphemy Law is not externally recognized as the most stringent restriction on minority religions. An accusation of blasphemy using the law, even if legally insufficient, can incite the violence and upheaval. Reforming the penal code’s blasphemy and Ahmadi provisions could be an important part of a reversal of Pakistan’s increasing religious violence, by eliminating the law used to bring blasphemy challenges.

Indonesia and Pakistan

In contrast to the declaration in Pakistan’s constitution that Islam is the state religion, the Indonesian constitution says that the state is based on the belief in the “One and Only God,” without reference to one specific religion. However, Indonesia does officially recognize six religions, and has a blasphemy law. As Melissa Crouch has discussed, the Indonesian blasphemy law allows space for only the officially sanctioned expression of each of the country’s six recognized religions. The blasphemy law, which has been upheld by the country’s constitutional court, provides criminal penalties for those who diverge from the tenets of each of the officially recognized religions. For example, in 2012, Tajul Muluk was prosecuted under the law for propagating Shia teachings in a Sunni community, and was sentenced to two years in prison.

In Pakistan, the sentences for blasphemy are much more stringent than in Indonesia, including death and imprisonment for life. The stakes in Pakistan are much higher, while the space for religious differences is much narrower. Yet on a basic level, the problem in Indonesia and Pakistan is similar: each constitution protects religious freedom to a certain extent, but blasphemy laws limit that right, and are used disproportionately to prosecute unpopular minorities.

Although any punishment for practicing a minority version of a religion is not ideal, the Indonesian example may also serve as a positive contrast to Pakistan: the fact that not constitutionalizing a state religion can help maintain religious tolerance among the population. Indonesia and Pakistan both have large majority Muslim populations – close to 90% in each country – yet blasphemy prosecutions in Indonesia are more rare, and seem to be less violent, than in Pakistan. As stated earlier, the violence surrounding the blasphemy prosecutions in Pakistan is inflicted by Pakistani citizens on each other. A top-down policy of leaving space for religious minorities by refraining from recognizing Islam as the religion of the state could be one factor among many to explain the difference.

Dealing with the high stakes of Pakistan’s blasphemy prosecutions would involve reforming the Penal Code’s troublesome blasphemy sentencing provisions. Refraining from recognizing one state religion, as in Indonesia, could also increase the space for religious differences in Pakistan. Unfortunately, given that politicians have been assassinated for their opposition to the blasphemy laws, these reforms do not seem likely in the short term.

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Islamists and Illiberal Democracy in a New Middle East – A Review

By Ariel Murray, Juris Doctor Candidate (2015), Northwestern University School of Law

On April 22, 2014, Northwestern University welcomed Shadi Hamid to the Evanston Buffett Center to discuss his recently published book, Temptations of Power: Islamists and Illiberal Democracy in a New Middle East. Hamid is a fellow with the Project on U.S. Relations with the Islamic Word in the Saban Center for Middle East Policy. He also served as a director of research at the Doha Center.

Hamid’s book discusses and analyzes the progression of Islamist movements in Arab states such as Egypt, Tunisia, and Jordan, with a specific focus on the Muslim Brotherhood. Hamid argues that the progression of the Muslim Brotherhood essentially occurs in two, non-linear phases in these regions. In the first phase, which Hamid labels the “oppressive phase,” Islamist groups, such as the Muslim Brotherhood, are forced into moderation, as opposed to radicalization. This period of oppression is marked by a minimization of calls for the implementation of the sharia, democratization of internal group structures, cross-collaboration with leftist and secularist groups, and finally, the embracing of democratic tenets.

While the Islamists’ movement towards moderation during times of repression seems, at first glance, counterintuitive, Hamid argues that this shift occurs for two reasons. First, Islamists become more liberal-minded during these periods as they become more appreciative of democracy in its absence. Without a basic modicum of freedom, it becomes impossible to focus on Islamist goals, such as the implementation of sharia and sexual segregation. Second, Islamists seek leftist ideological collaboration due to the simple notion that Islamist groups don’t want to be alone in the face of repression. Essentially, cross collaboration can serve as a buffer against repression as it becomes more difficult for the state to legitimize such actions when Islamists no longer seem as fanatical when supported by moderate liberal groups.

The second phase of Islamist movements Hamid characterizes under the label of “democratic openings.” During these periods, Hamid argues, Islamist groups tend to become more radicalized. When faced with “democratic openings,” Islamists will “double-down” on conservatism, emphasizing further the necessity for sharia law. This observation runs counter to modern discourse surrounding Islamist patterns, which hypothesizes that as Islamists are allowed to become more involved in the democratic process, their ideologies and practices will liberalize. In countering this argument, Hamid referred specifically to the mid-1980s in Egypt and the period between 1989-1993 in Jordan. In Jordan in 1991, for example, the Muslim Brotherhood proposed three laws—an alcohol ban, a ban on interest, and a ban on co-education. In Egypt in the mid-1980s, the Muslim Brotherhood focused heavily on efforts to implement Islamic law through parliament.

Hamid argues that the Islamists’ conservative shift during democratic openings occurs due to a number of factors. First, in conservative societies like Egypt and Jordan, popular sentiment supports the implementation of a more traditionalist legal system. For example, in a 2011 Gallup poll, 65% of Egyptian respondents believed that religious leaders should advise those in authority on drafting national legislation. In March 2012, a YouGov poll demonstrated that only 18% of Egyptian respondents would support a female candidate for president. In short, Hamid argues that political parties have to respond to popular sentiment during periods of “democratic openings.” Thus, it seems logical that Islamists would vocalize a more conservative platform given popular sentiment.

Second, Hamid reasons that Islamist groups grow more conservative due to the simple fact that Islamists are deeply and honestly committed to a distinctive worldview that has at its core illiberal elements. While Islamist groups are committed to the democratic process, this process inevitably is used to pursue what liberals would label “illiberal ends.” To this end, Hamid argues that perhaps conceptions of liberal democracy and Islamism are “diametrically opposed,” as Islamism at its core promotes an illiberal democracy, or at the very least a society quite different from that imagined by secularists and liberals. For example, from a liberal perspective, certain rights and freedoms are considered non-negotiable. From an Islamist perspective, government and religious officials should be involved in the private lives of citizens. Hamid illustrates this point by examining the example of Tunisia. While Tunisia is widely considered the “lone bright spot” of the Arab Spring, Hamid points to a “dark undercurrent.” During the constitutional design process in Tunisia, Islamists compromised such that there is no mention of the word sharia in the constitution. From an Islamist perspective, sharia law is a central tenet in their worldview. However, the liberal opposition still labeled the constitution as too fundamental. Thus, even between the “most moderate Islamists” and liberal groups, a fundamental ideological gap persists.

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Influence Through Ambiguity – A Debate on Religious Power in Constitutions

By Kelly O’Halloran, Juris Doctor Candidate (2015), Northwestern University School of Law. 

At first glance, the Sri Lankan constitution presents religion in a way that seems to find a middle ground between a state-established religion and the separation of church and state. In Sri Lanka, the constitution includes both a codified preference for Buddhism as well as language that protects minority religions. “The Republic of Sri Lanka shall give to Buddhism the foremost place and accordingly it shall be the duty of the State to protect and foster the Buddha Sasana, while assuring to all religions the rights granted by Articles 10 and 14(1)(e).” (Chapter II §9). While the constitution gives preference to Buddhism, Sri Lanka does not take the further step of establishing Buddhism as the state religion.

In the colloquium on Sri Lanka’s constitution, Professor Benjamin Schonthal claimed that by giving Buddhism preferential treatment, the Sri Lankan Constitution gives Buddhist leaders more influence than they (and by extension the religion itself) would have if Buddhism were the state religion. Schonthal supported his assertion by arguing that when the state is in control of a religion, political leaders, rather than religious leaders, determine the content of the religion. For example, Indonesia’s Blasphemy Law empowers government officials to determine whether a practice or belief falls within a religion. Similarly, Iran provides the classic example of political control of a state religion. In Shi’ite Iran, Khomeini exercised his authority over Islam and borrowed a Sunni doctrine to create a guardianship of the jurist.  In contrast to these examples, Schonthal argues Buddhism gets the benefits of a state religion (such as preferential treatment and protection) without its leaders ceding political control over the internal affairs of Buddhism. Thus, Schonthal raises a relevant question: Do religious leaders have more political influence as an inherent part of the state, or do they have more political influence when formally protected but not under the government’s control?

Notwithstanding the above examples, in countries that have established religions, it is not always clear whether the state controls the religion or the religion controls the state. A government may have the power to determine the qualifications for religious leaders, whether places of worship can be built, and issues of land ownership. And, in this context, the government exercises immense control because followers of the religion are dependent on the willingness of the government to continue supporting the religion. On the other hand, the preamble of the constitution usually appeals to the established religion as a source of authority. Phrases like “so long as consistent with [the state religion]” are common in political or human rights clauses, putting religious leaders in a prominent and powerful position, and perhaps giving them independent authority regardless of their connections to the government. The tension between the two perspectives suggests that we cannot view religious power in the state through a generalized theory.

When applying these perspectives on religion to the Sir Lankan context, Schonthal’s assertion becomes less convincing. First, Buddhism may look more like an established religion than Schonthal acknowledges. For example, the government retains power to govern disputes over temples and religious services (§105(4)) and to make laws concerning religious institutions (154G(5)(a); List III(27)), disposition of land (List I(18)), and religious societies (List I(28). If Buddhism is treated like an established religion, then the religion’s power could be the product of state control, not ambiguity in the constitution. This would mean that the religion’s power is dependent upon the uncertainty of whether the state controls the religion or if the religion, as a source of legislation or aspiration of the constitution, controls the state.

Second, it is unclear how Schonthal quantifies Buddhism’s political influence and at what point in government that influence is felt. The Buddhist political party introduced a broad law against proselytizing and forced religious conversions. While, the party’s success in getting the bill passed demonstrates Buddhism’s (or at least Buddhist political leaders’) influence in the legislature, in a judicial challenge to the constitutionality of the bill, the court found for the non-Buddhist challengers by stating that some of the law’s substance violated the constitution. However, the Court in this case did agree with the Buddhist party that forcible conversions would violate the constitution. And the Court’s efforts to appease both parties could provide evidence that the judiciary is unwilling to completely check the religious leader’s influence in politics.

In some ways, Schonthal’s colloquium raised as many questions as it clarified: Do religious clauses in constitutions indicate the role that religion plays in government? Does the appearance of compromise in Sri Lanka give Buddhism power without limitations? How can constitutional drafters be certain of the power they are giving to religion in general and religious authorities in particular? How is political influence quantified and defined? At what level of government is the influence exerted? And, is there a way to meaningfully categorize religious clauses or is each unique, even when the textual language is exactly the same in two or more countries?

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Amending Myanmar’s Constitution

By A. Morris, Juris Doctor Candidate (2014), Northwestern University School of Law

In anticipation of presidential elections slated for 2015, the government of Myanmar is taking a closer look at the 2008 Constitution. The former military government drafted the Constitution before the civilian transition, and some observers, in both Myanmar and abroad, have taken issue with the 2008 Constitution. They claim the constitution does not go far enough to ensure democracy.

Reflecting this renewed interest in the constitution, Sydney Law School conducted a three-day Constitutional Reform Workshop in Yangon last spring. The purpose of the workshop was to discuss a broad range of issues related to constitutional law and was moderated by constitutional scholars. Topics included federalism, the role of the military in relation to the constitution, bills of rights, and independent accountability of institutions. This workshop was significant because it was the first of its kind to be held in a public forum and discuss substantial issues of constitutional law.

The workshop was also a major event because Members of Parliament, judges, lawyers and a number of representatives from civil society organizations in Myanmar participated. In addition, scholars from around the world, including Melissa Crouch, PhD and research fellow at the National University of Singapore, attended. In an interview with Dr. Crouch, she praised the workshop and constitutional committee for engaging in open dialogue.

More recently, the government has taken a keen interest in ensuring free and fair elections in 2015. In August 2013, in part as a response to the clamor for change, the government in Myanmar established a Parliamentary Constitution Review Committee to review the Constitution. The government tasked the committee with putting forward draft amendments to the 2008 Constitution. The committee is comprised of 109 representatives, including members from the ruling party, opposition parties and military, in proportion to political representation in Parliament.

On January 31, 2014, the committee submitted its recommendations to the government. The report includes over 28,000 recommendation letters from the public and political parties. Preliminary reports suggest that the committee’s recommendations are superficial because key issues remain unaddressed.

Most of the media’s attention has been given to Article 59(f). Under Article 59(f), an individual whose spouse or children “owe allegiance to a foreign power” cannot become president. One of the frontrunners in the 2015 elections would likely be Aung Sang Suu Kyi, who was awarded the Nobel Peace Prize in 1991. She is recognized as the voice and symbol of democratic freedom in Myanmar. However, her children retain foreign citizenship thus making Aung Sang Suu Kyi ineligible.

Although much of the focus has been on Article 59(f), there are other provisions that deserve similar scrutiny. For example, the current constitutional amendment process gives the military too much veto power in Parliament. Under Article 436 of the Constitution, key provisions of the Constitution including eligibility for presidency requires a seventy-five percent parliamentary approval rate for amendment. This is a very high bar because twenty-five percent of the seats in parliament are reserved for members of the military, and the military has strong support in at least one of the political parties represented in Parliament. Article 436 essentially gives the military a veto over constitutional amendments.

In addition, Dr. Crouch identified another significant issue that has yet to be addressed. According to Dr. Crouch, although ethnic tolerance has not been at the forefront of discussions, it is likely to become a prominent factor in the election and future constitutional debates. Under Articles 347 and 348, the Constitution protects citizens and promises equal rights before the law. This includes protection from discrimination based on religion. However, there are a number of ethnic minorities in Myanmar who do not qualify for citizenship and as a result, are not protected under the Constitution.

But for now, discussions about Myanmar’s path to constitutional reform are focused on the review committee’s recent report. In February, the government formed an implementation committee to assess the report. The new committee has yet to issue a statement and it remains to be seen what will happen in the future. However, it can be said with certainty that if the military’s power is preserved in Article 436 then free and fair elections will not be achievable in 2015.

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Ethnic Tension in China: the Case of the Uighers

By Ranran Zao, Juris Doctor Candidate (2014), Northwestern University School of Law

On the night of March 1, 2014, a group of black-clad attackers slashed indiscriminately for half an hour, as people queued to buy tickets at the train station of Kunming, the capital of a China’s southwestern province, Yunnan. They targeted victims randomly, and stabbed them with half-meter long bayonets in a professional and lethal manner, perhaps suggesting that they had been trained for the attack. As a result, 33 innocent commuters were killed and 141 were injured.Chinese security agents quickly identified eight suspects who carried out the assault as members of a Uighur separatist group, which, on multiple occasions, spokesmen of China authority referred to as a terrorist organization.

Who is Uighur? Uighurs are an ethnic minority group in China, the population of which approximates10 million, and constitutes 0.76% of the population of the country, and 46% of Xinjiang Uyghur Autonomous Region, an area bordering Russia, Mongolia, Afghanistan, Pakistan and India. Most Uighurs follow a folk Islam, and they speak Uyghur, a language vastly different from Mandarin, the official language of China. Nowadays, the tension between Uighurs and Han Chinese, the ethnic majority of China, has escalated to ethnic violence, epitomized by the recent attack and the 2009 Urumqi riots, in which a total of 197 people died, with 1,721 others injured and many vehicles and buildings destroyed. A common feature of these riots is that they are carried out under the slogan of regaining genuine autonomy or even independence for Uighurs, which in a sense announces the failure of the Communist Government to instill a sense of national identity as Chinese among Uighur population. This failure is also evident by a survey conducted by a Han scholar: according to the responses to the survey, more than 90% of Uighur youths (under 18 years old) expressly refuse to identify themselves as Chinese.

National identity is often constructed based on a certain core values, such as religion, ethnicity, or a memory of common past. With the rapid development of new information technology and the industrial economy, however, the expectation of equality has also been instilled into the general public’s mind. This new foundation of national identity is not only gradually replacing the role of ethnicity and religion, but also asks a difficult question of countries, especially those with an authoritarian regime: how to live up to such an expectation of the public? Failure to answer this question properly isassociated with severe penalties, including but not limited to rampant separatism.

Unfortunately, what the Communist government has been done thus far to assimilate Uighurs into the Han-dominating society is the exact opposite of fostering the sense of equality. On one hand, the China authority is generous with granting a very wide range of political and legal privileges to ethnic minorities groups, including Uighurs: first, roughly 10% of the Constitution is dedicated to creating more autonomy power for the regions heavily populated by ethnic minorities; second, Yaobang Hu, a supreme leader of China in office from 1981 through 1987, created a national judicial principle the original text of which is “when dealing with criminals from ethnic minorities, we have to adhere to the principle of killing less and arresting less, and, as a general rule, we must be lenient in those matters”. This in effect makes the leniency of sentence dependent on the ethnicity of the criminal. Although most of Hu’s policies have subsequently been abolished, the said judicial principle somehow survives and is being applied to each and every criminal cases involving ethnic minority; last but not least, ethnic minority is not subject to some enforceable decrees, such as the notorious birth-control policy.

On the other hand, the central government has long been ignoring the Uighurs demand of equal economic opportunity: the region populated by Uighurs has the richest oil and natural gas reserves in the country. These gifts from god are normally sold by the regional government to the central government at what appears to be a discount in exchange for the latter’s investment on new transportation infrastructure and oil pipelines. The investment propels Xinjiang into the 10th– fastest- growing region in the country, but the majority Uighur population has been left behind. As a matter of fact, while the best jobs have gone to the Han immigrants, Uighurs lucky enough to find jobs often end up doing manual labor on account of the language barrier, and thus cannot benefit from the economic boom.

To summarize, the aforementioned privileges and economic disadvantage hinders the development of the Uighurs sense of belonging to the same community as the Han. On the contrary, due to the absence of equality, an independent national identity has been cultivated among Uighur population based on some ancient factors, such as subjective belief in common descent because of similarity of physical type. This encourages the Uighurs to agitate for higher level of autonomy. When relentlessly rejected by the Communist government, the Uighurs have resorted to terrorism, which only fuels this counterproductive and even deadly cycle.

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Non-Judicial Constitutional Review in Ethiopia

By Carolyn Hill, Juris Doctor Candidate (2015), Northwestern University School of Law

Melaku Fenta, the former director general of the Ethiopian Revenues and Customs Authority, and a number of other government officials have been on trial for corruption charges before the Ethiopian Federal High Court’s Criminal Bench since May 2013. In addition to the standard legal questions implicit in a high-profile grift trial, the Fenta case has given rise to an important constitutional question. In Ethiopia’s Constitution, constitutional review powers are vested not judicially, as they are in many other countries, but legislatively. The High Court, uncertain of the constitutionality of two provisions, sought clarity from the responsible legislative body. However, the Court’s referral to the legislative body has come under fire from some Ethiopian pundits. This post examines both the practice of non-judicial review in general and the Fenta case specifically.

When an issue of a constitutional magnitude arises in a case, the court may seek constitutional clarity from the House of Federation, the upper house of Ethiopia’s parliament, as required by Article 83 of the 1995 Ethiopian Constitution. To receive a determination on a constitutional question from the House of Federation, a court first refers its constitutional question to the Council of Constitutional Inquiry (CCI), which includes members of Ethiopia’s Federal Supreme Court, members of the legal community, and legislators. The CCI then makes a recommendation to the House of Federation, which then renders a decision on those questions within thirty days.

In the Fenta case, the Federal High Court sought constitutional clarity on whether it or the Federal Supreme Court could have first instance jurisdiction over corruption offenses. The Court was concerned that two statutory provisions that apparently authorized such jurisdiction might violate two constitutional provisions: the right to appeal and the right to equal treatment before the law. The CCI agreed, recommending that the House void the provisions as unconstitutional. The House of Federation did just that, striking down the contested provisions.

However, the incident sparked some controversy in the pages of Addis Fortune. The High Court certified a question to the CCI sua sponte. In early February, the Fortune published an op-ed entitled Unconstitutional Declaration of Constitutionality, which argued that the Court could not constitutionally question the constitutionality of a provision of its own accord. Instead, the author argued, the court should have made an initial determination of its own jurisdiction which then could have been appealed by the aggrieved party. The author relied heavily on Article 84’s text, arguing that a court could only refer “disputes” to the CCI and that “disputes” must be raised by a party, not the court itself. Moreover, the author argued that the constitutional division of powers required that a court only direct a controversy to the legislative branch when “there is a real, actual, vital, and earnest case or controversy.” In short, the author argued that the court did not constitutionally have “authority” to raise the question of constitutionality because a party had not raised it. Furthermore, the author argued that both the CCI and the House of Federation should have rejected the claim as improperly before them.

The op-ed received a few responses, including one from a member of the CCI who was also involved in drafting the constitution. He indicated that the Amharic version of the constitution does not, in fact, use a word meaning “dispute” but rather a word meaning “issue.” Moreover, he argues that “[c]onstitutional interpretation is not about litigation or jurisdiction. It is all about maintaining constitutionalism.” Another commentator argued that courts should, in fact, be active participants in seeking to apply only constitutionally sound laws to the litigants.

Ethiopia is not the only country to rely on non-judicial constitutional interpretation. However, similar constitutional designs are relatively rare and often occur in authoritarian nations, including North Korea, Zimbabwe, and the Congo.[1] Perhaps the most famous examples of non-judicial constitutional review are China and the former Soviet Union. In China, constitutional interpretation is vested in the Standing Committee of the National People’s Congress. Constitutional interpretation is extremely rare, occurring “less than eight times in fifty years.”[2] Instead, constitutional interpretation serves predominantly “to validate the Chinese Communist Party mandates.”[3] In the Soviet Union, the body that declared laws unconstitutional was both nonjudicial and impotent. Although laws were declared unconstitutional, “other government bodies ignored the CCS [Committee on Constitutional Supervision]’s decisions if they were in conflict with socialist doctrine and state power.”[4]

Ethiopia’s system of non-judicial constitutional review has been described as “illusory,” as it provides only the image of rigorous independent constitutional review.[5] Courts have no power to hear constitutional questions; they merely serve to direct such questions to the CCI. This has a number of problems. First, it creates delays, as seen in the Fenta case. More importantly, it means that lower courts cannot serve as judicial laboratories from which an upper court can select the best reasoning. Instead, Ethiopians must hope that the CCI fully analyzes the constitutional issues and presents them thoroughly and convincingly to the House of Federation. Finally, even the CCI only hears cases related to federal and state laws; “no other court has been given jurisdiction” over executive acts or decrees.[6]

The controversy surrounding the Fenta case reflects the thorniness of non-judicial constitutional review. Because Ethiopia has so few predecessors in developing such a process, the House of Federation and the CCI must carefully weigh the concerns raised in Addis Fortune and those described above. There are two possible paths forward: either the House may pass a law giving the courts authority to raise constitutional questions of their own accord or the courts may have a mini-Marbury moment wherein they claim that right. Either way, the Ethiopian courts must, at bare minimum, be granted the authority to flag constitutional questions for review.

[1] This post excludes a discussion of the Nordic countries, which also largely do not have constitutional courts. Victor Ferreres, The Consequences of Centralizing Constitutional Review in a Special Court: Some Thoughts on Judicial Activism, Seminario en Latinoamerica de Teoria Constitucional y Politica, Paper 39 (2004), http://digitalcommons.law.yale.edu/yls_sela/39. Those countries set forth a “clear mistake” rule, whereby a law may be set aside only if it clearly unconstitutional. Id. Because the Ethiopian Constitution provides for substantial constitutional review, albeit through the legislature rather than the courts, a comparison to these countries would be inappropriate.

[2] Chi Mgbako, et al., Silencing the Ethiopian Courts: Non-Judicial Constitutional Review and its Impact on Human Rights, 32 Fordham Int’l L. J. 259, 278 (2008).

[3] Id.

[4] Id.

[5] Minasse Haile, 20 Suffolk Transnat’l L. Rev. 1, 54 (1996),

[6] Id.

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Problems in Process: Post-Arab Spring Constitutional-Making

By Zahira Flores, Juris Doctor Candidate (2014), Northwestern University School of Law

The post-Arab Spring has resulted in constitutional-drafting processes in many Muslim-majority nations. This wave of constitutions has attempted to put an end to post-revolutionary conflict in the region. While it is too soon to determine the outcome of the constitutional-drafting processes of countries, such as Egypt and Tunisia, there are many aspects of such processes that have been vehemently criticized.

Constitutions are typically drafted or substantially modified at moments of rupture, in the wake of a crisis or exceptional circumstance of some sort, such as social and economic crises, revolutions, regime collapse, fear of regime collapse, reconstruction after war, or liberation from colonial rule.[1] A new constitution, and the process the drafters employ, helps many countries along a path to national reconciliation. Given the varying political and socio-economic factors that influence a country, there is no perfect constitutional-making process. However, some scholars establish that there are certain mechanisms that can provide for the creation of a more durable document in a post-conflict setting.

During a presentation at Northwestern University School of Law, Zaid Al-Ali, a senior adviser on constitutional building for International IDEA, and Sujit Choudry, NYU Professor of Law, discussed the constitutional-drafting processes of post-Arab-Spring states. They noted that the failure of these constitutional-drafting processes has been attributed to the presence of pre-conceived notions of constitutionalism in the Arab World, the lack of preparation by drafters, and the time constraints imposed on the process itself.

The media in these countries has created a false image of a healthy constitutional process, Al-Ali said, and has reinforced pre-conceived notions of what kinds of constitutional structures are needed in the region. For example, arguments are employed that Arabs need a strong leader; that the environment is not conducive to protect against human rights violations; and that short constitutions provide states with the flexibility to adapt to change. As Al-Ali asserted, the effect of these kinds of misperceptions on constitutional norms has negatively influenced the process employed.

Al-Ali mentioned that no “constitutional autopsies” were undertaken to identify the problems with the pre-Arab spring constitutions. This led to a lack of preparedness by the elite population, which had an effect on the substance and process of post-Arab-Spring constitutions. Al-Ali suggests that had there been warning signs that a revolution was a possibility, drafters would have been better prepared for constitution-making.

However, the problem goes far beyond a failure to conduct a constitutional post-mortem; the pre-revolutionary constitutions have been used as models in the modern drafting process. Egypt used its 1971 constitution as a starting point for its deliberations in that resulted in the 2012 and 2014 constitutions. Libya did the same. In fact, Tunisia was the only regional counterpart that decided to set aside the failed 1959 Tunisian constitution and to start anew. Public participation and the nature of the interim power in Tunisia’s constitutional-making process resulted in the Constitution of 2014 that so far has been characterized as the “lone” success story of the post-Arab Spring.

Another issue critical to the constitutional-making process is timing. Some argue that President Morsi’s biggest mistake during his short rule was his decision to maintain the drafting process that had been established by the Supreme Council of the Armed Forces (SCAF) in March 2011. The SCAF, clearly not expert in democratic transition, imposed a 6-month timeframe for the entire constitutional drafting process. The Libyan text prescribed an even shorter time frame – a mere 2 months. In times of crisis, there is often a sense of urgency that the country needs a governing document quickly. Al-Ali noted that once a deadline was in place, every delay in the constitutional-making process diminished the credibility of the drafters. While too much time for the constitutional-making process could threaten the process, it is important to allow the process sufficient time to develop a constitution that is inclusive of the views of oppositional factions and civil society actors.

In addition to the lack of preparation by the governing elites and the timing faced in the wake of post-Arab Spring constitution-writing, there is one more issue that scholars often overlook: leadership. Professor Choudry raised the importance of having an influential leader who has the legitimacy and charisma to push forward a constitutional-making process to produce a durable document. He particularly highlighted the remarkable process that gave birth to the Constitution of South Africa. Post-Arab spring states may be in need of their own “Mandela” to have a successful constitutional-making process. The danger is that a single inspirational and powerful person could lead a post-Arab Spring state back towards dictatorship.

Although there is no single process that will work in every post-Arab Spring state, it is important to break ties with old constitutions and implement mechanisms that have proven successful. Only in this way will these countries win the uphill battle in their transition to democracy.

[1] Jon Elster, Forces and Mechanisms in Constitution-Making, 45 Duke Law Review 364 (1995).

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The Long Awaited Tunisian Constitution: Solving Problems or Solidifying Cleavages?

By Laura Kelly, Juris Doctor Candidate (2015), Northwestern University School of Law

On January 14, 2011, President of Tunisia, Zine El-Abidine Ben Ali, fled the state after protestors flooded the streets demanding work, freedom, and national dignity (shugl, hurriyya, karama wataniyya). In November of 2011, the newly elected National Constituent Assembly (NCA) began work drafting a constitution that would replace its 1959 predecessor and projected that the constitution would be submitted to the citizenry for ratification a year later. On January 26, 2014, over two years later, the NCA finally adopted a new constitution.

Recently, I sat down with Malika Zeghal, Prince Alwaleed Bin Talal Professor in Contemporary Islamic Thought and Life at Harvard University, to discuss the state of Tunisian constitutionalism. We began our conversation examining why the constitution process was likely so protracted. Professor Zeghal largely attributed this to three key “obstacles:” (1) the NCA was a legislative body; (2) the NCA was focused on procedure; and (3) there was a political crisis in Tunisia.

Regarding this first obstacle, Professor Zeghal clarified that as a legislative body the NCA’s sole responsibility was not drafting the constitution; rather, it had to also pass legislation, which occupied a substantial amount if its time, distracting from and thus extending the constitutional process. Likewise, the NCA was forced to focus on meeting procedural standards in its constitution drafting process. In June of 2013 several NCA members threatened court action, alleging that the drafting and writing committee, which was tasked with simply combining the drafted language in one polished document, had significantly altered the constitution’s content when it released the constitution draft to the public. Reconsideration of proper procedure within the NCA significantly stalled the process. Professor Zeghal described this focus on procedure as helpful for democracy as a tool of legitimacybut noted that heightened procedural requirements can also be dangerous because it takes so much time. Finally, Professor Zeghal explained that Tunisia was in a state of political crisis following the assassinations of prominent political leaders, including secular, opposition politician Mohamed Brahmi in July. It is suspected that Islamic extremists were responsible for the assassination. Moreover, it has been suggested that the assassination was in response to the decision by Ennahda, the moderate Islamist party that leads the Tunisian government, to compromise with secularists on certain issues in the constitution. Professor Zeghal explained that these assassinations of secular political figures created an atmosphere of distrust and instability that only served to deepen existing cleavages between Islamist groups and secularists and further stalled the completion of the new constitution.

Despite these obstacles, the NCA has finally adopted a new constitution, which has been heralded by many as “An Arab Spring success story.” However, even after the adoption of the new constitution, problems persist – particularly those resulting from Ennahda’s “compromises” within the framework of an Islam-versus-secularism dichotomy.

One such compromise appears in the first few articles of the new Tunisian constitution. Specifically, the first clause states:

Tunisia is a free country, independent, with sovereignty; Islam is its religion, Arabic its language and the republic its regime.

This clause has been largely unchanged from the 1959 constitution. This is likely in part because the clause has “different meanings for different constituencies, without these differences being explicit in its formulation” (Zeghal). According to Professor Zeghal, “Islam is its religion” (emphasis added) could mean any number of things because “its” could refer to the country Tunisia, the collective people of Tunisia, or the state itself. Thus, rather than saying the state’s official religion is Islam, this first clause could simply state that Islam is the identity of Tunisia or that the majority of Tunisians are Muslim. For this reason, some have asserted that the clause “does not matter, because it does not mean anything” (Zeghal). As Professor Zeghal explained, the clause is likely strategically vague in the hopes that it will evade conflict.

The beginning of the constitution also asserts that Tunisia is a civil republic based on the rule of law and that its source of legitimacy comes from the people. Despite demands from the Salafi-influenced Reform Front and other Islamist groups, there is no mention of sharia as a source of law. At the same time, Article 6 of the newly enacted constitution proffers that the Tunisian government is “the guardian of religion” and “the protector of the sacred.” Such vague language similarly leaves the clause open to interpretation and was likely adopted in order to garner the most support for ratification purposes.

Such strategic vagueness remains a risky compromise because the clauses entrench certain ambiguities that cause some to argue that the language goes too far while others argue that it does not go far enough. Since the constitution’s adoption, secularists have charged that Article 6 is too vague and leaves the door open for abuses while 120 members of parliament have already signed a petition in favor of an amendment to Article 6 that would bolster the state’s authority against those who “insult the sacred.” Moreover, hundreds of Islamists with the radical Tunisian group Hizb ut-Tahrir have protested the new constitution, calling it “secular” and arguing that the proper source of sovereignty should be Islamic law.

Ultimately, the vague constitutional language provided a malleable enough meaning to garner the kind of support necessary to ratify the new Tunisian constitution, but it has done nothing to resolve the underlying tensions in Tunisia.

Additional Reading:

Agence France-Presse, Hundreds of Islamists Rally Against New Tunisia Charter, Global Post (Jan. 24, 2014).

Carlotta Gall, Second Opposition Leader Assassinated in Tunisia, The New York Times (July 25, 2013).

Jeremy Farrell, Tunisian Constitution: Text and Context, Jadaliyya (Aug. 23, 2012).

Malika Zeghal, Competing Ways of Life. Secularism, Islamism and Public Order in the Tunisian Transition, 20 Constellations 2 (2013).

Riddhi Dasgupta, An Arab Spring success story: Tunisia’s New Constitution, CNN Money (Feb. 19, 2014).

Robert Joyce, Tunisia’s Neglected Constitution, The Cairo Review of Global Affairs (Oct. 14, 2013).

Tunisia Accepts Civil Law Rejects Sharia, Best Current Affairs (Jan. 7, 2014).

Tunisia: Ennahda and the Role of Religion, The North Africa Post (Jan. 24, 2014).

Tunisia Opts for Civil, not Sharia law as assembly votes on new constitution, RT (Jan. 5, 2014).

Zaid Al-Ali and Donia Ben Romdhane, Tunisia’s New Constitution: Progress and Challenges to Come, Open Democracy (Feb. 16, 2014).

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Egypt’s Unfinished Revolution and its Implications for Constitutional Design

By Imran Ahmad, Juris Doctor Candidate (2014), Northwestern University School of Law

On the eve of the Egyptian elections in 2012, Francis Fukuyama wrote an article “The Failures of the Facebook Generation in the Arab Spring” in which he argued that the protest movement responsible for toppling the Mubarak regime, in large part by using social media sites like Facebook and Twitter, failed to live up to its promise and present a viable “liberal, modernizing” presidential candidate who would represent their democratic aspirations. Instead, the Egyptian populace was forced to choose between candidates with ties to Egypt’s authoritarian past on one hand and with Islamists on the other. Apparently what unfolded in Tahrir Square was something less than a revolution. According to Fukuyama, “Facebook, it seems, produces a sharp, blinding flash in the pan, but it does not generate enough heat over an extended period to warm the house.”

Such a premature and pessimistic assessment should come as no surprise from an author famous for declaring the “End of History,” a thesis he had to later revise after the emergence of “radical Islam.” After all, Egypt was on the verge of conducting the first free elections in the country’s long history as a result of young activists tweeting and posting on Facebook. However, for Fukuyama, democracy means little where it does not result in an accepted version of “liberal democracy.” Hence, where the only choices are “liberal democracy” and “radical Islam,” Fukuyama saw only radical Islam, or a return to authoritarianism, in Egypt’s future.

Given the turmoil in Egypt following the 2012 elections, it would seem that Fukuyama has been vindicated. The country is already prosecuting the winner of the 2012 election, Mohamed Morsi of the Muslim Brotherhood, and the 2012 Constitution has been suspended. The military coup everyone expected eventually came to pass. As predicted by Fukuyama, the protesters who toppled Mubarak are no longer a relevant political force, sitting passively or even collaborating in the military coup.

However, it would be a mistake to conflate the failure of the liberal protesters with the failure of the democratic process and return of emergency rule we now see in Egypt. Rather, it appears that a number of events related to the process of writing a new constitution ended up extinguishing the promise symbolized by the protests.

Dr. David Faris, a professor of International Studies at Roosevelt University who has written a book on the role of social media in the Egyptian revolution, Dissent and Revolution in a Digital Age: Social Media, Blogging and Activism in Egypt, presented an account of these post-Revolution events at a recent talk he delivered in Chicago at the Niagara Foundation. The talk, which makes up part of his soon to be released article, “Deep State, Deep Crisis: Egypt’s Failed Transition and the Limits of American Policy,” gives much needed context to the present crisis, presenting it as a result of structural problems inherent in Egyptian politics and a number of unforeseen circumstances.

According to Professor Faris, it seems that the revolution did not go far enough. Rather than impose a radical shift in institutional design, a decision was made that the Egyptian constitution would simply be amended. Moreover, the constitution writing process was immediately imperiled after a 2012 court decree dissolved the Islamist dominated parliament finding that candidates from political parties had been allowed to compete for seats reserved for independent candidates.

What was seen by many observers as an attempt to limit the power of Islamist backfired when Morsi won the presidential election. Now Morsi held power without the check of a sitting Parliament and no functioning constitution. As president, Morsi chose members of the new constituent assembly, raising fears that his unchecked power would result in permanent change based on questionable legitimacy. Misreading his mandate, Morsi also granted himself broad legislative powers and limited the role of the military. Framed as attempt to safeguard the revolution, he also decreed that no judicial authority could rescind any constitutional declarations, laws and decrees made since he assumed power. Finally, Morsi ratified a constitution written by the constituent assembly that many feared was too influenced by Islamists. This eventually led to protests in late 2012 that resulted in Morsi’s removal from office.

According to Professor Faris, the larger problem existing right now in Egypt is the “deep state,” a sort of shadow government consisting mostly of the military elite that is running the country underneath the surface of politics. The “deep” state goes largely unchecked and prevents the restoration control in the Egyptian government: “The process of large portions od the Egyptian economy and then the ultimate direction of the Egyptian state being controlled by these elites is really destructive.” Unless something is done about the “deep state,” a new constitution won’t change the status quo.

With the military back in power, there was little transparency with regard to the Committee of 50 in charge of drafting constitutional amendments to the 2012 Constitution ratified by Morsi. Professor Faris offered his own recommendations for a new Egyptian constitution. He insisted that there needs to be a shift of power from the Executive to the Legislative branch. Presently, the president appoints the regional governor of each province. He also appoints the prime minister. Professor Faris proposed a system whereby the president plays largely a ceremonial role and the prime minister is named from the largest party in parliament. He also advocated for a mixed-member proportional representation system (MMP) to ensure broader representation that more accurately reflects the populace. Under the MMP system, people vote for a party as well as a parliamentary candidate. The make-up of parliament must reflect the percentage of votes each party receives. Professor Faris would also require parliamentary quotas for women and local elections for provincial governors.

Professor Faris had very little hope that these proposals would be implemented. A member of the Egyptian consulate was present at the talk and assured the audience that the Committee of 50 was considering all these proposals. However, he added, transforming a centralized institution like the office of the president is very difficult.

The new Egyptian constitution, approved by voters in a referendum in January, 2014, addresses some of Professor Faris’s concerns while at the same time indicating that the “deep state” is becoming further entrenched. It reduces the length of a presidential term to four years from six and allows for a president to only be re-elected once. Parliament can also now hold a confidence vote in the president. Further constraining the president’s authority, the president’s choice for prime minister must win a parliamentary confidence vote before taking office.

However, the new constitution significantly enhances the authority of the Egyptian Armed Forces. The president must now choose a defense minister from among the military’s top officers. For the first two presidential election cycles, this choice must be approved by Supreme Council of the Armed Forces. Moreover, the power to set the armed forces budget is granted to the National Defense Council and therefore beyond the scrutiny of the government. Finally, in a bid to undermine the Islamist elements that might threaten the status quo, the new constitution prevents parties from forming on the basis of religion, gender, race or geography, delivering a significant blow to the Muslim Brotherhood.

Post-revolution Egypt, as described by Professor Faris, is an example of Gramsci’s observation, “The crisis consists precisely in the fact that the old is dying and the new cannot be born.” The process of building a democracy takes time and patience. It would be too much to ask, as Fukuyama does, that the revolution immediately result in a liberal democracy. Rather, the democratic process, in whatever form it emerges, must be nurtured and allowed to develop over time. Professor Faris’s suggestions would have gone a long way in helping Egypt shed its past and cultivate whatever embers of the revolution that may still be burning. Unfortunately, the new constitution indicates that the old is going to die a slow death.

 

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