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56.2

Cornell International Law Journal Online

The Current Reality of Post-Arab Spring Constitutional Reforms in Morocco and Tunisia, Vol. 56.2

Olivia Rosenzweig

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29 Dec 2023

  1. Introduction

During the 2010-2011 political uprisings in countries across the Middle East and North Africa (“MENA”), dubbed the “Arab Spring,” protestors championed constitutional reforms as a way of transforming their autocratic regimes into more democratic systems. In reality, though, there was a large gulf between the aspirations of these reforms and what they were actually able to accomplish. I argue that this discrepancy is a large part of the underlying reason why, today, the Arab Spring is largely seen as a failure, despite the movement’s optimistic beginnings and subsequent constitutional reforms over the past few years.

In making this argument, I focus my analysis on the constitutional reforms of two countries in North Africa: Morocco and Tunisia. The 2011 Moroccan constitution is a particularly pertinent example of how the intentions and impact of the democratic reforms of this period diverged. On its face, this constitution appeared to create a more democratic government that established a form of “separation of powers.” However, in reality, even under a new constitutional model, the king retained far-reaching powers over the weaker legislative and judicial branches. Various human rights provisions, including ones related to indigenous rights, were also added to the constitution as a means of addressing the specific concerns of the Arab Spring protestors. However, although recently there have been some concrete steps taken by the Moroccan legislature to realize parts of these provisions, in truth these reforms have been slow to implement, if implemented at all.

The divergence between the Tunisian constitution’s democratic reform aspirations and its current status is even more pronounced than in Morocco. At the time of its ratification in 2014, the Tunisian constitution was considered by some to be the most progressive in the MENA. Among a cascade of human rights and democratic reforms, the Constitution established independent executive, legislative, and judicial branches and allowed for a process of presidential removal. However, in 2021, the country appeared to slip back into authoritarian rule once more as the constitution was revised in a way that strengthened the president’s powers and eroded many of the newly established human rights provisions.

Both examples illustrate the limits of democratic constitutional reform movements, in general, and as an outgrowth of the Arab Spring in particular, of actually making changes to governance on the ground. In making this argument, I first provide some background on the Arab Spring uprisings and the constitutional reforms that followed in Morocco and Tunisia. Then, I conduct a comparative analysis of the separation of powers and human rights provisions in these new constitutions, before concluding my argument.

  1. Overview of the Arab Spring and constitutional reforms in Morocco and Tunisia

The “Arab Spring” was a wave of uprisings that spread across the MENA beginning in December 2010, after a Tunisian street vendor set himself on fire in protest of government authorities, lasting approximately through Spring 2011. Following Tunisia’s example, in February 2011, hundreds of thousands of Moroccan activists across the country began to take to the streets to protest the monarchy and advocate for social change and a more democratic constitution based on popular sovereignty and the separation of powers.

In spite of its hopeful beginnings, today, the Arab Spring is generally regarded as a failure. Instead of helping bring about democracy, some scholars argue that the large-scale social movement actually further entrenched the power of corrupt leadership in the Arab world. While many of the constitutional structures implemented by these revolutionaries still remain in many countries, many reforms just exist on paper and have failed to be implemented in reality. Morocco and Tunisia are interesting exemplars of the aspirations and pitfalls that categorized this wave of constitutional reform in the MENA. In this paper, I focus my analysis on the new provisions in the 2011 Moroccan and 2014 Tunisian constitutions that pertain to the separation of powers and human rights in particular, as these were two of the dominating concerns surrounding the protests in these countries.

The 2011 Moroccan constitutional reforms are generally regarded as having less legitimacy than the 2014 Tunisian reforms. The King of Morocco himself was the one who created a commission to redraft the Moroccan constitution in response to the protests against his regime. Although the royal commission tasked with codifying the constitutional reforms met with representatives from various political and civil society groups, most of the political parties in Morocco did not contribute significantly to key aspects of the text and the king’s own agenda drove the entire constitutional reform process.

In contrast, Tunisia had often been considered one of the few democratic success stories of the Arab Spring, and the resulting constitutional reforms were initially imbued with a higher degree of legitimacy. After Tunisia’s authoritarian ruler was overthrown, the Tunisian National Constituent Assembly was created to devise a new constitution. The final product of the drafting process was the result of a compromise between the main political forces in the legislature and featured strong civil participation and government transparency. However, after struggling with implementing these new provisions, in 2021 the Tunisian government changed their constitution once more in a way that appears to roll back many hard-sought democratic reforms.

  1. Separation of Powers Provisions in Moroccan and Tunisian Constitutions

Morocco created its first constitution as an independent state in 1962, establishing a constitutional monarchy in which the king reigned supreme. On its face, the 2011 Moroccan constitution democratized the government somewhat, setting up “a constitutional, democratic, parliamentary and social Monarchy…. founded on the separation, the balance and the collaboration of the powers, as well as on participative democracy of [the] citizen….” The reference to a “social Monarchy” refers to the social rights of the Moroccan people and the monarchy’s role as a protector of these rights. Article 6 declares the law “the supreme expression of the will of the Nation” and one that all people, including public officials, are bound equally by, which implies the creation of a more democratic system that holds everyone to account under the law regardless of their status.

The new Moroccan constitution also appears to provide stronger separation of powers protections by giving increased powers and independence to the legislative and judicial branches of government. Specifically, it enlarged the legal and legislative domains of the Parliament and expanded mechanisms for government oversight. Article 108 also ensures greater independence of the judicial branch by requiring presiding judges to be irremovable save for the implementation of legal procedures.

However, despite some of these changes, the new constitution continues to provide that political power within the government remains extremely lopsided in favor of the executive. The king remains the supreme ruler and chief executive who governs without accountability to the other two branches or legal constraints. His powers are not merely symbolic but actually maintain his predominance over the parliament. The king is the one who appoints the Head of the Government, which is not explicitly subject to a vote by the parliament, as well as the other cabinet members, per the Head of Government’s proposals. Article 52 further specifies that the king’s messages cannot be debated and under Article 96, the king has the power to dissolve one or both of the chambers of Parliament. The king also has the power to sign and ratify any treaty, but parliament is more limited in its treaty powers, as it cannot approve treaties that have political or military aspects or treaties that significantly change a law. Even the provision detailing the separate powers of the judiciary featured in Article 107 of the 2011 constitution is misleading as the king is the one who presides over and oversees Morocco’s Higher Judicial Council. Furthermore, the constitution provides that the various ambiguities contained in the new text are not left to the interpretation of an independent judiciary or legislature, but to the king himself.

In contrast, the 2014 Tunisian constitution enacted stronger separation of powers provisions. The preamble establishes Tunisia as “a republican, democratic and participatory system” based on the “sovereignty of the people, exercised through the peaceful alternation of power through free elections, and on the principle of the separation and balance of powers….” The constitution establishes that executive authority is exercised by the president, who is the head of state, and elected for five-year terms. Constituted under this branch are also the Head of Government and government ministers, who are in charge of the more administrative and logistical tasks of governing, such as creating, changing, and dissolving ministries, secretaries of state, and public institutions.

The Tunisian Assembly is the legislative authority in the country and is financially independent from the financial and administrative constraints of the state budget. The constitution provides that representatives of the Assembly are chosen by the people via free and fair democratic elections, to serve for five-year terms each. There are checks imposed by the executive branch on the legislature, such as the provision that only the Head of Government is “entitled to present draft laws related to the ratification of treaties and draft budget laws” and the president provides a check on the Assembly by approving or vetoing legislations.

Title Five of the Constitution creates an independent judiciary, which includes the Supreme Judicial Council and the Constitutional Court. The Constitutional Court in particular oversees the drafting of laws by the executive and legislative branches, reviews treaties before the President signs them, and approves changes to the procedural laws that govern the legislature, among other duties.

However, the 2021 revisions to the constitution threaten to roll back many of the substantive reforms that allowed for increased separation of powers in the country. While the 2014 version created a parliamentary-presidential system, the 2021 version reverts Tunisia to just a presidential system (sometimes referred to as a “hyper-presidential” system). In the new governmental system created by the constitution, the executive branch is empowered while the judicial and legislative branches are weakened, centralizing power in the president. Proponents of these changes rationalize that they are necessary to create a stronger presidency that will be able to guide Tunisia through its recent economic crisis. The president is now the one who

unilaterally appoints the prime minister and the cabinet. Additionally, the new document does away with Article 88, which allows for the president’s impeachment, and it now requires a two-thirds vote to force the prime minister to resign under Article 115 (and only once a term), whereas before only a simple majority was required. The revisions also halve the legislative branch in an attempt to weaken its power. The new text also removes the ability of the constitutional court to interpret and adjudicate regarding the presidential powers, thus subsuming the judicial branch under executive control as well. In practice, these changes eliminate the processes by which Tunisia’s president can be held accountable and does not allow for another branch of government to provide a counterbalance to the executive.

  1. Human rights provisions in Moroccan and Tunisian constitutions

Some of the big additions to the 2011 Moroccan and 2014 Tunisian constitutions included added human rights provisions that enumerated the equal rights of men and women under the law, including the freedom of expression and protection from bodily harm.

Significantly, the preamble of the 2011 Moroccan constitution reflects these more equalizing principles in describing a more pluralistic country, with Arab-Islamist, Amazigh, and Saharan-Hassanic components and African, Andalusian, Hebraic, and Mediterranean influences. It also establishes parity between men and women and prohibits all forms of discrimination or unfair treatment. However, many of these aspirational human rights additions have been very slow to live up to their full potential and be implemented legislatively.

Article 5 of the new Moroccan constitution has been the subject of particular scrutiny recently. This article recognizes Tamazight, the language of the indigenous Amazigh ethnic group, as an official language, a long-standing demand by indigenous human rights activists in the country. While strongly advocated for by many Arab Spring protestors, many activists still insist that this enumeration of Amazigh rights did not go far enough. In particular, although the indigenous language was given status, Arabic remains “the” official language of the state with Islam as the official religion. In fact, soon after this new constitution was enacted, a prominent Amazigh entertainer and activist posed a question to a government minister in Tamazigh, which was the first time that this language was spoken within the Moroccan parliament. While the members of parliament in the opposition praised this action and encouraged the government to include Amazigh as a working language in the building, the majority rejected this initiative. As such, despite the promises of the 2011 constitution, the official usage of Amazigh was not operationalized immediately.

However, government sentiments towards the official usage of Tamazigh have begun to change over the years following persistent activism to implement the promises of the revised constitution. In June 2019, Moroccan lawmakers unanimously approved a bill that confirmed Tamazigh’s official status and cemented its use, alongside Arabic, by government authorities and schools, and in cultural initiatives. In January 2022 the Moroccan Ministry of Justice made a rather bolder step in signing a cooperation agreement with a Moroccan academic institution to begin integrating the language into Moroccan courtrooms and for use in litigation. This change in official policies and attitudes towards indigenous rights indicates the slow ways in which some aspects of aspirational human rights reforms within the Moroccan constitution are beginning to become practiced in reality.

In contrast, the 2014 Tunisian constitution explicitly set forth more sweeping human rights provisions in their text than the Moroccan constitution and took bigger steps to implement these rights from the outset. Like the Moroccan constitution, the 2014 Tunisian constitution maintains the equal rights of men and women before the law and outlaws discrimination. However, the Tunisian text also enumerates and expands upon specific rights that the Moroccan constitution does not. For example: Article 26 guarantees the right of political asylum of stateless persons; Article 27 provides individuals protection from ex post facto laws; Article 38 states that health care is a right for every human being; Article 39 creates a right to free education and requires schooling for those up to 16-years-old; Article 40 enumerates the right of a safe work environment and fair wages; and Article 48 protects disabled people from discrimination.

However, the 2021 constitutional reforms threaten the continued implementation of these human rights ideals. For example, while the 2014 Tunisian constitution emphasized the secular nature of the state, the new constitution places greater emphasis on the country’s Islamic character, a provision that human rights groups fear could be used to justify the curbing of certain rights, such as gender equality, based on extreme religious principles. In addition, while the 2014 constitution stated in Article 49 that the rights and freedoms of citizens can only be limited “for reasons necessary to a civil and democratic state,” the 2022 version has deleted this wording. In addition, although there were few changes to the main section of the constitution that lists rights and freedoms, some human rights groups claim that this new constitution merely lists these rights without actually creating and maintaining the necessary institutions and mechanisms that protect these freedoms from being infringed.

  1. Conclusion

While initially promising in their potential for implementing democratic reform, the post-Arab Spring 2011 Moroccan and 2014 Tunisian constitutions failed to live up to their stated ideals in many respects. This is particularly true regarding the separation of powers and human rights provisions enumerated in these texts. While the Moroccan constitution declared the country a democracy, this proved to only be in name as the monarch continues to retain strong executive powers that completely overpower those of the other two branches. Although Tunisia’s 2014 revisions created much stronger government branches that held the executive to account, the 2021 constitutional revisions effectively did away with all these checks, paving the way for presidential supremacy once more. Furthermore, while both Morocco and Tunisia promoted important human rights provisions in their new constitutions as a response to the reforms called for by Arab Spring protestors, in reality, these reforms have either been slow to operationalize, in the case of Morocco, or undermined by subsequent provisions, as in the case of Tunisia. The conditions of the constitutions in both these countries are part of the reason why many consider the Arab Spring unsuccessful—while new legal doctrines often look promising on paper, the real challenge is their continued real-life implementation.

Olivia Rosenzweig is a graduate of The University of Pennsylvania Carey Law School and an attorney in Washington, D.C.