Abstract
In 2013, 3 years after the advent of the ‘Arab Spring’, there is still no single unifying political reform narrative in the Arab World. The unprecedented opportunity for reform and state building appears to have stalled with Islamist movements more concerned with questions of Islamic identity and religious ethics rather than constitutionalism. Incoming governments have lapsed back to the use of police power to curb dissent and protest thus raising the crucial questions: Have post-revolution events proven that the Middle East is incompatible with democracy? Is entrenching democracy in the Middle East failing?
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Notes
It is not as if the success of Islamists parties could not be foreseen. In 2012, Eli Shaked, the former Israeli Ambassador to Egypt stated: ‘It’s expected that the Muslim Brotherhood and other Islamist parties will dominate the government, and we are concerned that their success will encourage other Islamic radical parties in the Middle East to achieve their goals.’ Sherwood (2013).
Parsi and Marashi (2011, p. 106).
See for example, Bayat (2007), Ben-Meir (2013): http://www.huffingtonpost.com/alon-ben-meir/is-islam-compatible-with_b_3562579.html.
Bayat (2007, p. 4).
Ibid 6.
Ibid.
About El Fadl (2011, p 320). See the historical evidence presented by the author at pp. 319–321.
Ibid, 317.
Ibid, 321.
Baderin (2005, p. 185).
For example by Al-Mawardi in his work ‘Al-Ahkam al_Sultaniyyah’ who argued that a ruler owes a duty to protect the rights of individuals: Ibid, p. 172.
Some commentators in the West may ‘bristle’ at this suggestion, but such criticism fails to remember the battle between the Catholic Church and the Holy Roman Empire for power in Europe.
Bayat (2007, p. 5).
El Fadl (2011, p. 321).
Ibid.
See footnote 9.
Bayat (2007 p. 7).
God as the ultimate sovereign creates problems such as casting doubt upon the legitimacy of a legislature, where laws are passed. See footnote 9.
Khan (1995, p. 68).
Starke (1984, p. 11).
Haliaq (1984, p. 3).
In Arabic- insidad bab al-ijtihad; Ibid. 3. See also Lakhdar (2007, pp. 240–241).
Bayat (2007, p. 11).
Ibid.
Ibid. See also an article by the same author: Bayat (2013): http://openaccess.leidenuniv.nl/bitstream/handle/1887/17030/ISIM-16-What_is-post?sequence=1.
Bayat (2013). See footnote 30.
Ibid.
Although these are not necessarily unique to Western society, they are perceived to be Western diseases. This conclusion is evident from the excellent article by Emmanuel Sivan that examines Islamist philosophy by examining the audio tapes produced by famous and influential Muslim preachers. Audiotapes are by far the most common medium/recording available throughout the Muslim world: see Sivan (2007, p. 147). Also for an Asian perspective on these ‘Western diseases’ see for example Lee Kuan Yew’s comments: ‘As an East Asian looking at America, I find attractive and unattractive features.…But as a total system, I find parts of it totally unacceptable: guns, drugs, violent crime, vagrancy, unbecoming behaviour in public-in sum the breakdown of civil society. The expansion of the right of the individual to behave or misbehave as he pleases has come at the expense of orderly society. In the East the main object is to have a well-ordered society so that everybody can have maximum enjoyment of his freedoms. This freedom can only exist in an ordered state and not in a natural state of contention and anarchy.’ Halper (2010, p. 133).
Butko (2007, p. 37).
Ibid.
Ibid.
Puddington (2011, p. 13). See also the author’s analysis of the number of States considered to be ‘free’ and concludes that Israel was the only State considered to be ‘free’ in the region: at pp. 14–15.
This failure was one of many in a litany of broken promises by the Muslim Brotherhood. For example, there was no ‘Renaissance Project,’ an economic revival package, which was a central tenet of the electoral package promoted during their electoral campaign; the Brotherhood had promised to limit their candidates to no more than 30 % of parliament, but then ran for all seats; they promised not to run for president, and then fielded two candidates: Ibid.
Article 2 of the 2012 Constitution stated: ‘Islam is the state’s religion and Arabic is its official language. The principles of Islamic law (sharia) form the main source of legislation.’ And Article 219 stated: ‘The principles of Islamic law (sharia) include general evidence, the foundational principles of Islamic jurisprudence (usul al-fiqh), and the reliable sources from among the Sunni schools of thought (madhahib).’ The 2012 Constitution of Egypt, an unofficial English translation of the 2012 by Niven Saleh, Saleh (2012) http://niviensaleh.info/constitution-egypt-2012-translation/#part-1. For a discussion of the likely interpretation of these two articles see Lombardi and Brown (2012): http://ssrn.com/abstract=2258252.
The referendum was held on 15 and 22 December 2012. Only 1/3 of eligible voters participated in the referendum. There were also allegations of fraud and ‘vote rigging’. See ‘Egypt’s New Constitution Ratified’, The Carnegie Endowment for International Peace (2012) http://egyptelections.carnegieendowment.org/2012/12/19/unofficial-results-of-the-first-round-of-egypt%E2%80%99s-december-2012-constitutional-referendum.
Albrecht (2012): www.usip.org.
Sixth and ninth paragraphs of the Preamble, articles 6 and 74 of the 2012 Constitution, the latter refers to the independency of the judiciary as well as the supremacy of the rule of law.
See articles 82-200. Article 158 covers the impeachment of the President.
See Part Two, and articles 35–40. Civil and political rights are covered in articles 43–57. Article 55 specifically refers to the right of Egyptian citizens to participate in political life, and to vote in elections.
Article 198, although this does not apply if civilians ‘harm the armed forces’.
See http://niviensaleh.info/constitution-egypt-2012-translation/#part-1; Carnegie Endowment for International Peace (2012) http://egyptelections.carnegieendowment.org/2013/01/04/controversial-articles-in-the-2012-egyptian-constitution.
See ‘Carnegie Endowment for International Peace (2012). Article 4 states:
‘The noble Azhar is an independent Islamic institution of higher learning. It handles all its affairs without outside interference. It leads the call into Islam and assumes responsibility for religious studies and the Arabic language in Egypt and the world. The Azhar’s Body of Senior Scholars is to be consulted in matters pertaining to Islamic law (sharia).
The state guarantees the financial means needed to fulfill these tasks.
The Sheikh of the Azhar is independent and cannot be dismissed from his position. The law determines the process by which he is selected from among the members of the Body of Senior Scholars.
All this will proceed as stipulated by law.’
See http://niviensaleh.info/constitution-egypt-2012-translation/#part-1 accessed 11 November 2013. See Carnegie Endowment for International Peace (2012) in footnote 48.
Article 219 states that: ‘The principles of Islamic law (sharia) include general evidence, the foundational principles of Islamic jurisprudence (usul al-fiqh), the reliable sources from among the Sunni schools of thought (madhahib)’.
Albrecht (2012) www.usip.org.
Article 2 stated: ‘Islam is the religion of the state and Arabic its official language. Principles of Islamic law (Shari’a) are the principal source of legislation.’ See the official Egyptian government’s website: http://www.sis.gov.eg/En/Templates/Articles/tmpArticles.aspx?CatID=208.
Albrecht (2012).
The university’s mission includes the propagation of Islamic religion and culture. To this end, its Islamic scholars render edicts on disputes submitted to them from all over the Sunni Islamic world regarding proper conduct for Muslim individuals and societies.
Al Sharif (2012): www.arabnews.com/arab-spring-two-years-later.
Ray (2012).
Al-Dakheel (2012), www.arabnews.com/arab-spring-two-years-later.
Porter (1997, pp. 94–95).
Summers (2007, pp. 67–68).
Anderson (1983, pp. 5–6).
Industrialisation en ICJ Secretariat, Events in Pakistan, (International Commission of Jurists Secretariat Geneva 1972, p. 49). Available at http://icj.wpengine.netdna-cdn.com/wp-content/uploads/1972/06/Bangladesh-events-East-Pakistan-1971-thematic-report-1972-eng.pdf. accessed 3 December 2013 abled a greater cross-section of groups with different identities-rural peasants, urban working and middle class-to share a common identify since it introduced a greater perspective to the lives of people rather than an introspective ‘village perspective’. Porter (1997, p 100).
Ibid, 94–95.
See the report and recommendations submitted by the United Nations Special Committee on Palestine (UNSCOP): ‘Report to the General Assembly, Official Records of the Second Session of the General Assembly, United Nations Special Committee on Palestine’, Supplement 11, Volume 1, UN Doc A/364, (3rd September 1947) at [120–121], referring to the reaction to Zionism, and [166] for emerging Palestinian nationalism.
El Fadl (2011, p. 312).
Ibid, p. 313.
Falk made a similar comment, noting that planners in Washington, finally understood the wisdom of this message after the disappointment and disillusionment of attempting to impose democracy in Iraq and Afghanistan: Falk (2013, p. 96).
(emphasis added) And further: ‘In a situation of chaos, an organized Islamist body can seize control of a country. It happened in Iran. It happened in other instances.’ Editorial ‘Netanyahu Warns Against Radical Islam’ 8 Feb 2011, United Press International available at UPI.com’s website.
Sherwood (2013).
Falk (2013 p. 106).
Such as opposition leader Mohamed El Baradei, see Bowen (2013), www.bbc.co.uk/news/world-middle-east-23197801.
According to the US based Stratford Global Intelligence organisation: Gardner (2013) at: www.bloc.co.uk/news/world-middle-east-23184605. It must be remembered that millions voted for Morsi, and effectively the Muslim brotherhood and the values it espoused. Do the events of June 2013 reinforce their belief and trust in democracy? Arguably no.
Press Alarm over Egypt Overthrow’ (5 July 2013): www.bbc.co.uk/news/world-middle-east-23197015, Editorial (5 July 2013): www.bbc.co.uk/news/world-asia-china-23193188.
Indeed this is exactly what happened in Syria. Assad observing the Arab Spring immediately formed a committee to review these events. The Committee concluded that the cause of the regimes’ collapse was due to the central government-the autocracy- failing to act swiftly enough to crush the protests and demonstrations. Thus as Heydermann succinctly expresses it, when the protests first appeared in Syria, Assad’s security forces came out ‘‘shooting’. Heydermann (2013, pp. 62–72).
Gurr (1970, p. 165).
Gurr and Marshall (2003, p. 189).
‘[People]…are likely to hold norms about the extent to which and the conditions under which violence generally, and political violence specifically, is proper. They are also are likely to have expectations about the relative utility of violence as a means for value attainment.’ Gurr (1970, p. 156).
As cited in Gurr (1970, p. 155).
‘It is also plausible that if people anticipate substantial gains through violence but hold normative prohibitions against it, they are susceptible to conversion to new norms that justify violent action.’ Ibid, 159–160.
Ibid, 156.
Brown (1994, p. 240).
Ignatieff (1994, p. 8).
Falk (2013 p. 106).
Abouzeid (2012, p. 103).
See the excellent discussion on-line at the Apsen Ideas Festival (2012), ‘Arab Spring 18 Months Later’: www.aspenideas.org/session/arab-spring-18-months-later.
$2 Billion in 2005: Ibid.
Ibid.
Ibid (emphasis added).
‘During the Cold War, ideological affinity took clear precedence over the degree to which government enjoyed the consent of the governed or the leaders respected the human rights of its citizens. As a result, the United States supported many virulently oppressive and corrupt dictatorships so long as their anti-Communist credentials were strong. Likewise it undermined democratically elected and socially progressive governments if their ideological outlook could be described as ‘Marxist’ or ‘socialist’, or if they were tied to the Soviet Union’: Falk (2013, p. 96).
Martin Kramer of Israel’s Shelam Centre stated: ‘In Israel we are for the status quo, Not only do we believe the status quo is sustainable, we think it’s the job of the U.S. to sustain it.’ Parsi and Marashi (2011, p. 102), Massad (2013, p. 131), Bronner (2011), www.nytimes.com/2011/02/12/world/middleeast/12israel.html.
Parsi and Marashi (2011, pp 101–102).
Ibid 98–100.
In talks with US President Barak Obama the Saudi monarch King Abdullah bin Abdulaziz Al-Saud has vowed that Saudi Arabia will never tolerate Shi’a Bahrain: Parsi and Marashi (2011, p. 102).
Falk (2013, p. 107).
Parsi and Marashi (2011, pp. 104–106).
Tunisian dictator Zein al-Abidine Ben Ali fled to Saudi Arabia where he received political asylum: Lowe (2012): http://www.ibanet.org/Articles/Detail.aspx?ArticleUid=6932d5b0-58b1-47fe-b-43e-cc09ac490705.
Ibid.
Parsi and Marashi (2011, p. 104).
Ibid.
Ibid, p. 101.
Ibid, p. 104, and p.110.
Ibid, p. 101. ‘Vertex’ means interaction, or a point where objects collide and interact.
Iran may benefit in the short-term from the regional instability, but it is unclear how successful it would be to continue its manipulation of the ‘Arab Street’ in Cairo and elsewhere: Ibid, pp. 103–107.
Ibid, p. 106.
Lowe. See footnote 106.
This comment was made in response to the perceived attitude of Egyptian youth, despondent with the recent turn of events. It was part of a suggestion that they use social media as a means of political organisation: see the excellent discussion on-line at the Apsen Ideas Festival (2012) at approximately 20–30 min.
This is evidenced by the Israeli response to Western criticism of the Egyptian military ousting President Morsi. Israeli former ambassador to Egypt, Eli Shaked, said: ‘We have to choose here not between the good guys and the bad guys-we don’t have good guys. It is a situation where you have to choose who is less harmful.’ See Editorial (19 August 2013): http://articles.chicagotribune.com/2013-08-19/opinion/ct-edit-brotherhood-0820jm-20130820_1_muslim-brotherhood-president-mojammed-morsi-stable-egypt. Other reports include an editorial in the Wall Street Journal: Editorial (19 August 2013) http://live.wsj.com/video/israel-official-to-us-back-egypt-army-or-risk-peace-talks and Jpost.com staff (20 August 2013): http://www.jpost.com/Diplomacy-and-Politics/Israel-wrns-US-Alienating-Egyptian-army-might-risk-pece-talks-323642.
See the excellent discussion on-line at the Apsen Ideas Festival (2012).
Zeiger (2013).
Staff writer Al Arabiya News (2013): http://english.alarabiya.net/en/News/middle-east/2013/11/21/Egypt-s-Sisi-doesn-t-rule-out-presidential-bid.html.
Baya (2007 p. 13).
El Baradei (2011).
Ibid.
The story behind the headline can be found at: Editorial (17 February 2011) http://www.economist.com/node/18185813.
Ibid.
Ibid.
Ibid.
Yavuz (1997, p. 63).
Ibid.
A political army is one that views its involvement in –and even control of- domestic politics and government as a legitimate part of its responsibilities and function: Koonings and Kruijt (2002a, b) ‘Introduction’ p. 1, Koonings and Kruijt (2002a, b) ‘Military Politics and the Mission of Nation Building’ p. 15, and in Box 7.1 at p 165. In Turkey’s case arguably this right is permitted by its Constitution, see art 118 of the Constitution of Turkey (1982) available at http://global.tbmm.gov.tr/docs/constitution_en.pdf.
Guney (2002, pp. 164–166).
European Convention on Human Rights available at http://www.echr.coe.int/Documents/Convention_ENG.pdf accessed 9 February 2014.
Guney (2002, p. 166).
Their concerns were exacerbated by the tone of public speeches by members of the Refah Party, and the Prime Minister’s visits to States such as Iran, Libya, Egypt and Pakistan. Even speeches by the Prime Minister (a member of the party) with the use of the term ‘jihad’ and references to ‘Muslimness’, raised concerns amongst the Army’s generals. There was also a perceived security threat, with increasing numbers of armed Islamic militias with links to international terrorist groups emerging: Guney (2002, pp. 168–169).
Ibid, pp. 166–172.
The Constitution of the Republic of Turkey (1982) available at http://global.tbmm.gov.tr/docs/constitution_en.pdf. The process is through an application made by the Chief Public Prosecutor of the High Court of Appeals. It is interesting to note that the 1982 Turkish Constitution was drafted by the Turkish military: Boyle (2011, p. 2).
Boyle (2011, p. 2).
Ibid, pp. 9–10.
Case of Refah Partisi (The Welfare Party) and Others v Turkey available at www.iilj.org/courses/documents/refahpartisivturkey.pdf 8 February 2014. The ECHR has a strong tradition in applying the concept of militant democracy since the 1950’s where many of the decisions were in response to neo-fascism or communist parties, or those denied the Holocaust or promoted the idea of a pan-Germanic State: Harvey (2004, pp. 412–426).
Boyle (2011, p. 2).
Ibid, p. 2.
Giglio (2013).
Editorial (22 June 2013) ‘Erdogan Cracks Down’: www.economist.com/printedition/2013-06-22.
‘That Turkey’s current unrest has erupted over a tiny local park—one that, until recently, was very much anonymous—seems fitting too many of Erdogan’s critics. They call it emblematic of a key problem with his tenure, one that has helped to fuel all the recent talk of authoritarianism surrounding a man who has been so steadily successful at the polls.’ Giglio (2013).
Editorial (17 February 2011).
Giglio (2013).
Ibid.
Ibid.
Falk (2013, p. 104).
Article 11 Egypt Constitution 2013; Egypt’s Constitution 2013 vs 2012: (n 157).
Ibid.
This is how Marasinghe describes the theory: Marasinghe (1993 pp. 846).
Hans Kelsen, The Pure Theory of Law, as cited in Marasinghe (1993 p. 846).
As this paper was being reviewed for publication stories continued to appear in the media regarding Edorgan’s authoritarianism: Pamuk and Afanasieva (2014): http://www.chicagotribune.com/news/sns-rt-us-turkey-media-20140207,0,5088781.story.
Bayat (2007, p. 8).
Bush (2003).
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The authors acknowledge and wish to thank the anonymous referees whose illuminating comments on the earlier version of this Article helped in guiding changes making this revised version a better piece.
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Maogoto, J.N., Coleman, A. The ARAB Spring’s Constitutional Indigestion: Has Democracy Failed in the Middle East?. Liverpool Law Rev 35, 105–134 (2014). https://doi.org/10.1007/s10991-014-9150-7
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DOI: https://doi.org/10.1007/s10991-014-9150-7