In the first place the balance of the constitutional political power which had permitted and legitimated its centralisation in the hands of a few persons in various countries, already weakened by the end of the Cold War, seems to be disintegrating. Those of Ben Ali, Mubarak, Gaddafi, perhaps Assad and Saleh, are the most recent episodes; over recent years rulers of the calibre of the Pakistani Musharraf or Saddam Hussein have nonetheless disappeared in various ways from the political scene. The very personalism of Arafat in the PNA replicated a number of aspects of these political phenomena. All replaced or to be replaced, at least in many cases, by more democratic and participatory forms of state and government.
Herein probably lies the greatest uncertainty under a legal profile. And it is not only the threat of Islamic fundamentalism that animates the picture: for that matter, as Malika Zeghal pointed out in this newsletter, civil society in countries like Tunisia cannot all have Islamist positions. A broader question derives from the lack of a political and constitutional language having some reference to the future, with regard both to the distribution of power and the rights to freedom to be guaranteed.
A look backwards might contribute to clarifying the overall picture. Tunisia, Egypt, Syria, Iraq and for the most part Algeria (which has also followed a particular path) and to some extent the Yemen represent just as many experiments of ‘constitutional transplant’. They attempted to end the colonial period by mixing Western rights to freedom with a centralised if not personalist form of government, putting it together with a Socialist type economic policy. All this made sense at a time needing the modernisation of rights, a guide for the transition and restitution of the resources grabbed by the colonisers to the population, which were then nationalised. An element of strong legitimation was rediscovered in the ethnic-linguistic element, capable of gathering together the different religious components of the national societies in the ideal of Arabism, the true flag of those countries.
Ineffective economic policies, owing to external and internal causes, a rooting of the elites to power which did not permit the exchange and assumption of responsibilities of the institutions, a complicated panorama of international relations not only generated widespread malcontent towards those power structures, but even put the ideal of Arabism at stake. The national events have dragged the political idea coming from the West through mud, which had formally legitimated them . Now the renewed import of models from Europe and North America would appear to be like the reintroduction of a currency that is no longer legal tender. Difficult to give it credit.
If the constitution-manifesto hypotheses are excluded, good for cultivating international relations and giving a clear image of oneself, but inoperative at a first glance, there seem to be two alternatives for North Africa and the Middle East. First of all, political Islamism. Iran, after all, has developed a non-personalist power system, capable of surviving its own leaders. It is understandably appealing. In second place, a network on a territorial basis: a very old experiment tailored on the tribal structure or the heterogeneous distribution of the religious communities over the territory. This path resisted for forty years in Libya to then decline together with Gaddafi, who had monopolised it – but which until now holds out in Saudi Arabia and seems to be the pragmatically pursued prospect to pacify the Iraqi and Afghani areas, all too familiar with the breaking-up of Palestine into two parts, referring respectively to Fatah and Hamas. Naturally neither of the two hypotheses seems to be particularly consoling, under the theoretical profile and from the point of view of historical events. This is why it is worth reconsidering the reasons for the failure of Arabism.
Parties like the Ba’ath party have copied the constitutional freedoms of the West as well as its institutional forms of government, but they have not grasped the meaning of them. They have in actual fact made freedoms a consequence of political power and not its condition. Basically, spells of freedom and restriction have alternated on the basis of the political situation. According to the circumstances, religious minorities, freedom of expression and association have been favoured or oppressed, without repercussions for those in power. Furthermore, the regimes have concentrated the power in a limited number of plenipotentiaries: in this way, they condemned the institutional system to a duration equal to that of the leader.
It must be asked where an idea is to be met with that is capable of making a population converge on a perspective that goes beyond the political life of whoever has governed until now: not only a system of institutional weights and counterweights, but a pole of political attraction. A constitutional system without a project would work like Lebanon does, where the most important political power is that of the veto, with the consequent immobility. On the contrary, it is no accident that states like Morocco or Jordan have stood up to popular unrest: traditional countries, where it is possible to distinguish, at least at a formal level, the responsibilities of the state administration from the element of political unification, the king. To change the government in these cases makes sense, while in countries where the executive power is also formally in the hands of the head of state such a measure would be meaningless.
The alternatives of political Islam and territorial fragmentation risk being the most attractive, since a political and constitutional language is lacking that can measure up to the challenge. Rather than importing models, it perhaps needs to be asked what has not been understood about the already adopted models.