Constitution-Building After the Arab Spring: Global Comparative Perspectives Concluding Thoughts

Francesco Biagi

an Associate Professor of Comparative Public Law at the Department of Legal Studies, University of Bologna, and Secretary General of the International Association of Constitutional Law (IACL-AIDC).

The Symposium contributors brilliantly engaged with some of the key points that I discussed in my book Constitution-Building After the Arab Spring: A Comparative Perspective. I am extremely grateful for that. Interestingly, the contributors’ reflections touched all three components of constitution-building that I examined in my volume, that is, drafting, content and enforcement.

The Drafting

Feisal Amin al-Istrabadi explored the question of when to initiate a constitution-making process after the fall of an autocratic regime, and analyzed the risks of early constitution-drafting processes, especially when these are aimed at adopting a permanent constitutional text. Relying on the case of Iraq following the overthrow of Saddam Hussein, where a provisional constitution was in force from 2004 to 2006, Istrabadi suggests that greater consideration should be given to the adoption of interim constitutional arrangements when a state is experiencing a transition from authoritarian rule. It is certainly the case that most post-Arab Spring constitution-making processes, initiated soon after the uprisings began, were too rapid. Thus, for example, in Morocco (2011 Constitution), Jordan (2011 constitutional reform), Syria (2012 Constitution), and Egypt (2012 and 2014 constitutions) the processes only lasted between four and six months. Furthermore, these constitutional reforms were mainly aimed at imposing and consolidating the authority of those who were in power, or at appeasing the people’s discontent to ensure the regime’s stability and continuity (what I call in the book “surviving constitutionalism” (p. 60)).

From this perspective, one must acknowledge that one of the (few) merits of the March 2025 Syrian Constitution (adopted after the fall of Bashar al-Assad) is that of being a provisional text, which is planned to remain in force for five years, until the adoption of a permanent constitution and the holding of elections in accordance therewith (Article 52 of the Constitution). Having an interim constitutional arrangement, which should regulate the transition between a long-lasting autocratic regime and the new political order, without providing for definite solutions, is, in itself, welcome news. It is essential, however, that this provisional document lay from the outset the foundations of a democratic order, marking a clean break with the ancien régime. This is, for example, what the 1993 South African provisional Constitution sought to guarantee after the end of the apartheid regime. Unfortunately, this is not what the Syrian 2025 constitutional text does. Indeed, this Constitution was adopted following a top-down, hasty process driven and controlled by the new Syrian President Ahmed al-Sharaa. Furthermore, the Constitution continues to provide for a hyper-presidential regime with a very limited system of checks and balances. What is worse still is the almost complete lack of constitutional provisions recognizing the multiethnic and multifaith nature of the country, whose population includes significant Kurdish, Alawite, Christian and Druze communities. On the one hand, one may understand that it would have been extremely complicated for this provisional text to replace a unitary state with a federal or regional system, as had been requested by the Kurds. On the other hand, however, this interim document, by maintaining “Syrian Arab Republic” (emphasis added) as the official name of the country, has clearly excluded a part of the society (specifically the Kurds) from the constitutional project. One of the key functions of constitutions – including provisional constitutions – is that of integrating and uniting the people. The 2025 Syrian interim Constitution appears to run counter to this objective.

Johannes Socher’s contribution examined an understudied topic (although the literature in this field is rapidly growing), that is, the role of external actors in constitution-drafting processes, with a special focus on German institutions in the African continent. Socher is right when he argues that the role of external actors in these processes is no longer taken for granted and tends to be assessed in more critical terms compared to the past. Reflecting on the role of external actors and the best way to involve them in the drafting processes seems to be particularly relevant for those countries belonging to the Global South seeking to adopt a constitution based on dual legitimacy, both domestic and international. Domestically, the constitution is supposed to reflect and gain the acceptance of citizens and the national political community. At the same time, the constitutional text needs to be recognized and accepted by the international community. Thus, international standards and comparative constitutional practices serve, for some countries, as important sources of legitimacy. In these cases, constitution-making can therefore be understood as a bi-directional process. It operates internally, by seeking legitimacy among citizens and national political institutions, while simultaneously operating externally, by responding to international standards and comparative best practices. This is precisely what happened in Tunisia during the 2011-2014 constitution-making process, when the Speaker of the Constituent Assembly requested an opinion from the Venice Commission on the fourth and last draft of the Constitution.

The Content

As Roberto Gargarella has compellingly demonstrated in his analysis of Latin American constitutionalism, the institutional dimension of a constitution – namely, the organization of state powers and the relationships among them (“la sala de máquinas de la Constitución,” that is, “the engine room of the Constitution,” according to Gargarella’s definition) – has a significant impact on the effective recognition and protection of fundamental rights and freedoms. Dispersed political power generally creates more favorable conditions for the protection of rights, whereas concentrated authority, usually in the hands of the executive branch, tends to undermine their effective enjoyment.

A comparative analysis reveals a global trend. Contemporary constitutions increasingly provide extensive catalogues of rights and freedoms, considerably expanding the scope of constitutional protection. This formal improvement is an important step forward that should not by any means be underestimated. Nevertheless, the institutional frameworks of contemporary constitutions, particularly in the Global South, often remain problematic, especially because mechanisms of checks and balances are insufficient and executive power is excessively concentrated. This structural imbalance creates in many cases a tension between the formal recognition of rights and their practical implementation. Such a pattern has also characterized post-Arab Spring constitutions. Indeed, although significant progress has been made in recognizing fundamental rights and freedoms, most constitutional reforms have not introduced a comparable transformation of the institutional structure of government. With the notable exception of the 2014 Tunisian Constitution, presidents, kings and military leaders (depending on the case) continue to hold the reins of the country. Such concentration of authority has weakened tremendously the effective implementation of constitutional rights.

This dynamic is confirmed by the cases of Algeria and Sudan, discussed, respectively, by Nawel Lasledj and Sami Abdelhalim Saeed in their contributions. Lasledj examined (hyperlink to his contribution) the process leading to the constitutional recognition of Tamazight, the language spoken by the Berbers, as an official state language in Algeria alongside Arabic (a recognition that can also be found in the 2011 Moroccan Constitution). Lasledj, however, notes that there is a huge gap between the law in the books and the law in action. Indeed, a series of institutional and cultural reasons have significantly delayed the effective implementation of this constitutional provision. Saeed, in turn, analyzed the transition process in Sudan after the fall of Omar Al-Bashir, focusing on the 2019 Constitutional Charter, that is, the interim constitutional text aimed at guiding Sudan through a transitional period toward a civilian-led, democratic government. In actual fact, however, as Saeed underscores, this constitutional text is characterized by a series of democratic shortcomings, notably an overconcentration of power in the hands of the military (as was the case in the past).

As is well-known, the army has long occupied a central position within the state apparatus in a number of Arab countries. In some cases, its position and prerogatives have even been strengthened by recent constitutional reforms. In Algeria, for example, although until 2016 there were only a few references to its role in the 1996 Constitution, in actual fact, the military has always exerted a strong grip on all the country’s institutions. Both the 2016 and 2020 constitutional reforms gave more “constitutional visibility” to the armed forces. In Egypt, the 2019 amendments to the 2014 Constitution introduced a provision stipulating that the armed forces are responsible for protecting, inter alia, the Constitution, rights and freedoms and, more generally, the democratic system (Article 200). Breaking with this overconcentration of power in the hands of presidents, kings and military leaders must be a top priority for future constitution-making processes in the Arab region (and beyond).

The Enforcement

During the twentieth century, constitutional courts played a fundamental role in the transition processes after the collapse of the previous authoritarian regimes in Europe, contributing significantly to the creation and consolidation of democratic systems. One of their greatest merits was that of guaranteeing an effective full enforcement of constitutional provisions, thus ensuring the normativity and superiority of constitutional texts. In this way, European constitutional courts were crucial in preventing a situation of constitution without constitutionalism. The case of Italy is emblematic. Following the adoption of the 1948 Constitution, numerous laws enacted under the Fascist regime that were clearly in contrast with the Constitution remained in force, and it was therefore essential to eliminate, at least in part, this legislation. During its first 15 years of activity, i.e. from 1956 until the end of the 1960s, the Constitutional Court progressively dismantled the authoritarian legislation, thus ensuring a break from the Fascist past and guaranteeing a democratic transformation of the new constitutional order.

In the Arab world, by contrast, constitutional courts rarely, if ever, emerged as effective guarantors of constitutional principles, with one of the very few (partial) exceptions being the Egyptian Supreme Constitutional Court during the 1990s under the presidency of Chief Justice Awad Mohammed El-Morr. Although post-2011 constitutional reforms have reinforced, from a formal perspective, the position and functions of these bodies, the constitutional courts’ approach has continued to be (again, with a few exceptions) very deferential to the governing authorities, legitimizing – rather than constraining – their authority. In their contributions, Mohamed Arafa, who focused on the Egyptian Supreme Constitutional Court, and Tamara El Khoury, who adopted a comparative perspective, discussed precisely the current weaknesses of constitutional courts in the Arab region. By identifying potential future reforms of the Egyptian Supreme Constitutional Court (Arafa), and by calling for a more systematic comparative analysis of these bodies (El Khoury), these contributions confirm the importance of the study of Arab constitutional courts, also with a view to a better understanding of the power dynamics within these states.

Beyond the Arab Region

The reflections advanced in this Symposium extend beyond the Arab world, offering broader insights for other countries undergoing processes of transition. The three dimensions of constitution-building that I examined in my book and that were discussed in this Symposium – that is, drafting, content and enforcement – are inseparable and must always be considered when analyzing a constitutional transition. Constitution-drafting involves striking a delicate balance between present and future, between short-term ordinary politics and long-term constitutional politics. In terms of content, constitutions must be sufficiently aspirational to promise and enable meaningful social, political and institutional change, while remaining firmly grounded in the realities and contexts in which they operate. Finally, when it comes to constitutional enforcement, political forces must make a concerted effort to translate words into action. Failure to give full effect to the constitutional text risks generating anger and frustration within civil society, as has often been the case in post-Arab Spring transitions. Further research and reflection in this field remain essential, particularly in light of a rapidly changing world that continues to reshape the political, social, and institutional contexts in which constitutional orders evolve.

Francesco Biagi is an Associate Professor of Comparative Public Law at the Department of Legal Studies, University of Bologna, and Secretary General of the International Association of Constitutional Law (IACL-AIDC).

Suggested citation: Francesco Biagi, ‘Constitution-Building After the Arab Spring: Global Comparative Perspectives. Concluding Thoughts’, IACL-AIDC Blog (15 October 2026), Constitution-Building After the Arab Spring: Global Comparative Perspectives Concluding Thoughts