Dr Nimer Sultany, Senior Lecturer in Public Law at SOAS University of London, has been awarded the Peter Birks Book Prize for Outstanding Legal Scholarship for his book Law and Revolution: Legitimacy and Constitutionalism After the Arab Spring. The book is also joint winner of the 2018 inaugural book award of the International Society of Public Law.
The book examines the effect of societal upheaval on legal systems, using case studies from the countries involved in the Arab Spring uprisings.
Dr Sultany describes his work:
In what way did the rule of law and constitutionalism break down during the Arab Spring?
“Revolutions often presuppose that only a radical change can make the legal-political system responsive to democratic and popular demands. Authoritarian rulers tend to legalise and bureaucratise political issues (to insulate political decision-making from electoral and majoritarian processes), politicise the judiciary and bureaucracy (to decrease opportunities of conflict with them and secure preferred outcomes in important cases), and engineer electoral campaigns (to lower the stakes of holding elections and allowing political pluralism).
“These conditions, which existed in both Tunisia and Egypt prior to the revolutions, drastically limited the ability of the existing order to provide a space for meaningful change. The citizens lost confidence in these institutions. Thus, the difference between protest tools like civil disobedience and revolutions is that civil disobedience presupposes appeals to presumably shared lofty principles that are enshrined in the constitutional order and that merely need to be enforced.
But revolutions do not seek a better application of already existing principles.
“Rather, they express the need for establishing a new order on alternative and more democratically and normatively justifiable principles. Revolutions do not protest against a particular unjust legal instrument or policy. Rather, they express a rejection of the overall legitimacy of the constitutional and political order. They highlight the inability of the legal order to rectify their injustices, in particular the systemic illegitimacy of the extant order. In this sense, revolutionary legitimacy seeks to undermine constitutional legitimacy and change the balance of socio-political forces that make it possible.”
Did the forces of change within the Arab Spring countries all follow similar trajectories, or were there marked differences between each one?
“One can distinguish between “reformist constitution-making” (Morocco, Algeria, Oman, Jordan) and “revolutionary constitution-making” (Egypt, Libya, Tunisia). The former maintained a greater degree of continuity with the pre-existing legal order and reproduced the legitimacy of the existing regime. The revolutionary form, however, entailed ousting of rulers and the establishment of new constitutions. Nevertheless, both cases faced similar and profound legitimation deficits.”
Eight years on from the Arab Spring, which countries in the region have seen a return to law and constitutionalism?
“The success of a revolution is often measured by the fact that it ousted the dictator and led to the enactment of a new constitution that expresses the new political order that replaces the old regime. However, any revolution is beset by a hybrid legal system that is reflected primarily in the existence of a large body of pre-revolutionary law that continues to be valid, and by the existence of a judiciary that outlived the old regime and continues to interpret and apply laws and constitutional norms, old and new, even if the old constitution is formally suspended.
“Whereas the Egyptian case faced a military coup that clearly reflected a setback to the revolutionary aspirations and is now increasingly authoritarian, the Tunisian case does not exemplify a radical departure from the pre-revolutionary extant order either. In many ways, the Tunisian post-revolutionary constitution is a compromise between the new and old forces. The current political system is based on a shaky coalition between former regime officials (Nidaa Tunis) and the moderate Islamists (al-Nahda). It is based on a prioritisation of stability rather than the achievement of a radical departure from the old regime.
“In this, sense both Tunisia and Egypt exemplify a combination of continuities with, and ruptures from, the old regimes. In both cases, judicial reform or purification failed. In both cases, political accountability of former leaders was not successful. In both cases, lustration laws (that would have disqualified former regime officials from participating in elections) were either not allowed (Egypt) or were short-lived (Tunisia). In both cases, processes have been established to “reconcile” with the crony capitalist business class. Both cases have witnessed a widespread use of military courts and emergency declarations (especially in Egypt). Both cases have witnessed discontent given the lack of significant change in socio-economic conditions.”
Is it possible to identify fundamental tenets of constitutionalism across such diverse countries?
“The Arab Spring provided a laboratory for examining all the major political and constitutional concepts in a real-world setting. Of course, the trajectory diverges in different countries and it depends on the specific context and the national history. For example, the history of state formation, colonialism, social structures, and external intervention explain some of the differences between what transpired in Libya, on the one hand, and in Tunisia and Egypt, on the other hand.
“It is important here to note that during periods of change the abstractions and generalities of the “rule of law” and “constitutionalism” are not helpful. They are vague, indeterminate, and do not provide normative guidance. In other words, they do not determine which course of action the political actors or social agents should follow. For instance, in both Egypt and Tunisia there was a fierce struggle over what judicial independence means and how the corruptions of the existing judicial system can be rectified. The “rule of law” and “constitutionalism” cannot determine choices amongst alternative institutional arrangements for these actors and agents. Unfortunately, some actors concealed or avoided the making of political choices by reference to legalese at the very time these choices were necessary. This is because one needs to determine what kind of political community one aspires to and then accordingly design institutions and the “rule of law” to serve this vision.
It is futile to pretend that there is an apolitical and universally accepted “rule of law” because the rule of law is divided between rival visions of the social-political order.
“Similarly, some international actors treated the “rule of law”, “judicial reform”, “transitional justice” and the like as if they were a one-size-fits-all blueprint. This, however, misses the specificity of each one of these diverse countries.”
In what other ways were the divisions over the meaning of the rule of law and constitutional forms manifested?
“A review of legal and constitutional discourses after the revolutions in Egypt and Tunisia illustrates that there were competing visions for the legal and political order. One vision exemplified a liberal and procedural vision that is based on a “formal rule of law”, an electoral competition, and a neo-liberal economy. Another is a republican vision that is based on civic energy, popular mobilisation, social justice, and a “substantive rule of law”. These competing visions make the law contradictory and open to different outcomes.
“Unfortunately, what we have witnessed in the past few years is that the procedural and neo-liberal vision has triumphed and has been consolidated. This means that there has been a consistent trend in the political and legal system to domesticate the very popular energy that the revolutions unleashed. The discourses of “stability”, “rule of law”, “consensus”, “counter-terrorism” and the like have been used to crack down on popular mobilisation and ban and judicially dissolve associations and political opposition. These legal processes, however, neither reflect acceptable standards of rule of law or legality nor do they lead to stability.”
Do you feel optimistic for the region?
“Despite the pessimism of the mind one should maintain the optimism of the will. If you review the history of the region in the past century you will find that it has witnessed repeated revolutions and other forms of popular protest against recurrent conditions of injustice and lack of self-determination.
In this context, the label the Arab Winter is not useful.
“In the rush to label the Arab Spring an Arab Winter it is often forgotten that a long “winter” had preceded the Arab Spring. The Arab Spring has been an attempt to overcome long-standing undemocratic and unjust conditions. When citizens revolt, in an attempt to achieve their aspirations for self-government, freedom, and dignified existence, they do not know whether they will succeed or not. The fact that some of these revolutions failed or are facing a setback does not mean that they were not justified or should not have happened or that they could not have succeeded. The current suffering should not obscure the prolonged suffering that led the people to revolt in the first place. Nor should it obscure the creativity of the collective energy and forms of social solidarity brought forward during the Arab Spring. These are valuable in themselves.”
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