CAIRN-INT.INFO : International Edition
Censored article of the Declaration: every Man has the right to a life of catching up [1].

1 The constitutionalists who have, for more than a century, theorized the phrase popularized by the Baron de Montesquieu, “separation of powers,” have much denounced its mythification. [2] In this regard, we could, however, speak not of myths but of mythologies in the plural, so numerous are the received (and sometimes false) ideas. Thus, some have estimated that criticism of the phrase was recent, though history shows, to the contrary, that the doctrine was quickly denounced as myth. [3] Similarly, some have argued for or highlighted the materially impracticable and historically unrealistic nature of the phrase. In fact, some consider that, going forward, it will no longer have any concrete utility and will have to be legally repudiated. [4] However, asserting this means denying several elements. First, believing in an ultra-positivist fashion that only the law currently in effect matters is an absurdity. Next, even if the separation of powers is just one of the reigning democratic liberalist[5] myths, and is only an ideal or an objective to aim for, [6] as such it does fill a role. In addition, when we observe that the vast majority of constitutionalists continue to conduct lengthy arguments on this theory and its repercussions as a source of the major classification of constitutional regimes, [7] it appears quite damaging to desire to wipe out the mythic phrase so quickly. Lastly, self-centered views of the world and political ideas cause us so often to forget the existences of other times and other societies. Now, comparative substantive law precisely allows us to question the renewed utility of the theory of separation of powers through the filter of the Arab Spring(s). Does not the myth once again serve, here, in its original sense? In order to convince ourselves, we will first note that all of the contemporary Arab revolutions have one point in common: the denunciation of the concentration of powers. Hence, we will ask how some countries have responded, looking at the Egyptian, Tunisian, and Moroccan examples.

The Arab Spring, Nahda, and Denunciation of the Non-Separation of Powers

2 The Nahda[8] evoked here, and which the Tunisian majority party assimilated eponymously by calling itself Ennahda (renaissance movement), suggests the idea of a risorgimento: a revival brought about by the Revolution. This is indeed the primary object of a revolution: to modify the established bases in order to found or re-establish a platform; to be reborn by denouncing what no longer holds or can no longer hold, following the example of a concentration of powers.

The First Sense of the Separation of Powers

3 There are almost as many interpretations of the meaning and the reality of the phrase “separation of powers” as there are publicists, but there is one common denominator upon which everyone can agree: the fact that the phrase originally had the sense of a denunciation of the concentration of powers retained within the hands of one sole body. Separation in order to protect fundamental rights and political liberties is a refusal, not an injunction for absolute separation. Some set it out elsewhere as “a condition sine qua non of liberty,” [9] as suggested by Benjamin Constant in his 1818 Cours de politique constitutionnelle. It was, moreover, because Montesquieu was convinced that the written norms would not formally suffice that he highlighted the importance of real mechanisms of counter-power, in such a way that “power checks power.” [10] It is in implementing this that the necessity for a division of power appears, through the two well-known rules of specialization and independence: “All would be lost if the same man or the same body of principal men, either of nobles, or of the people, exercised these three powers: that of making the laws, that of executing public resolutions, and that of judging the crimes or the disputes of individuals.” [11] In other words, it must be kept in mind that this first formulation is above all negative: it clarifies what must be avoided. [12] Now, today—in Europe in particular—this state of mind of fighting against the arbitrator seems happily far off, and we have forgotten that when Montesquieu and Rousseau [13] in France or Locke [14] in England advocated such a theory, there was talk of revolutions. Now, separation is imposed upon us naturally, although, indeed, it is not natural—it is the fruit of a voluntary social process. It is the result of struggles. We must also not neglect a separation that French secularism has made us forget: that of spiritual and temporal powers.

Mediterranean Parallels: Basta & Kifaya[15]

4 Could we not thus suppose a parallel between this European age of Enlightenment coming out of the concentration of powers of royal absolutism (political, legislative, judicial, executive, financial, religious, etc.) and the contemporary Arab Spring(s)? [16] In both cases, are we not faced with a people in revolt refusing the concentration of powers?

5 By Arab “Spring” and “Revolution,” we refer to the events of the southern side of the Mediterranean that set ablaze the following countries (at least) in chronological order: Tunisia, Algeria, Yemen, Jordan, Mauritania, Saudi Arabia, Egypt, Syria, Morocco, and Libya between December 17, 2010 (the date of the immolation of Mohamed Bouazizi in Sidi Bouzid), and the month of June 2012 (the date of the writing of the present article). [17] Depending on the country and the moment within this short period, the events were of a quite variable intensity, and we do not yet have the necessary ability to step back for a definitive analysis. Still, we can already distinguish in these different protest movements some points in common. Firstly, aside from the geographical argument, all hypotheses talk about a popular revolution and not, as in 1789 at the start of the French Revolution, a revolution of a single class or single group (in the case of 1789, the bourgeoisie, joined only later by the people). In addition, all these revolutions had two basic objectives: a refusal of poverty and disastrous social conditions and, behind them, a general climate of corruption, as well as an ardent desire for political change embodied on the banners bearing the imperative “Go Away!” addressed to the leaders in place in the name of freedoms too often denied. It is precisely this “Go Away!” (Erhal, in Arabic) which is a refusal of the concentration of powers as well as an appeal for the separation of them.

6 It is a cry, interpreted in the West as a “democratic-liberalist appeal,” that is above all a refusal and a denunciation of the monopolizing of wealth and powers whether by one group (like the army in Egypt or Algeria [18]) or by one family acting as leader. And in fact, Hosni Mubarak (in Egypt), Mouammar Kadhafi (in Libya, following circumstances that were certainly different and notably international), Ali Abdallah Saleh (in Yemen), or even Zine el-Abidine Ben Ali (in Tunisia), specifically, have quit their functions. Some thus claim that the Ben Ali “clan” could have accumulated €5–10 billion over twenty-three years. Remember, besides, that as early as 1861, the first Tunisian Constitution was established on this same demand for a dispersion of powers. [19]

The Egyptian and Tunisian Springs, a Voluntary but Weak Attempt at Separation of Powers

7 “How should we organize power?” This question is the essential question of constitutional law and the history of political thought, universally. It means, summarizes Michel Troper, maintaining “the distribution of responsibilities best able to guarantee liberty.” [20] The theory of the separation of powers thus appears to be the first key to responding to this question, as long as we are talking about an ideal democracy. If the people, and not simply one particular group, intends to govern, power must be arranged not only by means of representation but also through an a priori distribution of functions. In addition, with this ideal posited and the models of concentration of powers excluded, the doctrine envisioned different models of separation: the rather rigid “presidential” model, and the more flexible “parliamentary” model. We do not seek here to contest the relevance of these two models, neither of which, it is generally agreed today, operates via a truly strict separation, it being instead a matter of a collaboration, or even, in the parliamentary case, a near-fusion, as Walter Bagehot stated nearly one and a half centuries ago. We will instead be concerned with the emphasis of the separation of powers—in its primary sense of a refusal of concentration—through the prism of the most important Arab Spring demonstrations.

The Tunisian Spring

8 That which some (in the West) call the “Jasmine Revolution” (but which is called the “Revolution of Dignity” in the East) began in December 2010 in Sidi Bouzid. The revolts, of which a large part were non-violent, led to the desperate gesture of self-immolation which went on to galvanize the whole of the Arab world. It was in Tunisia that hope was born.

9 But does it not seem as if this active hope, and these cries, are already running out of steam? There was an impulse and an appeal to democracy: what has happened since? The dictator fled (January 14, 2011); his party, the Constitutional Democratic Rally (RDC) was dissolved (March 9, 2011); and a statutory order on March 23, 2011, called for the formation of a Constituent Assembly “given that the Tunisian people are sovereign and exercise their sovereignty by means of their representatives elected directly, freely, and fairly” and “given that the people expressed during the revolution of January 14, 2011, its will to exercise full sovereignty within the framework of a new Constitution.” Then, the new Chamber, the National Constituent Assembly (ANC, composed of 217 MPs) was elected on October 23, 2011, the material manifestation of the first free elections. These elections led more than ten groups to the heart of a new constituant (and legislative) power, of which the most important is Ennahda (89 elected). As is often the case in young or novice democracies, political life was reconstructed practically ex nihilo. The structures still do not exist in a stable manner and, in fact, the only point of reference citizens have is that of religion. Between the unknown and the existence of immemorial guides, it is natural that the citizen does not dare venture out. “It remains that the Islamic sphere” surely “reaped the fruits of a Revolution that it did not foresee. It especially profited from a disorganized political overfullness—in other words, a void. The actors in the uprising [were neither willing nor able] to take power,” explain Olivier Roy and Olivier Morin, and the Islamists appeared “as the only structured force.” [21] Adding to this a proportional representation system, the division and multiplication of groups is easily explained.

10 Be that as it may, how did the ANC, the agent of this hope and this refusal to concentrate powers, manage its mandate? After having elected its president, Mustapha Ben Jaafar, the Assembly did not directly vote on a Constitution but preferred to retain a primary constitutional and provisional law on the organization of public powers. This, which we sometimes call the “mini-Constitution,” was ratified on December 10, 2011, and announced on the 16th by the new President of the Republic, Moncef Marzouki, elected (by the ANC) on the 12th of the same month. For this election, ten candidates had made themselves known among the elected members of the Assembly, but the conditions—imposed by articles 9 and 10 of the provisional law—blocked access to suffrage. Indeed, aside from Ennahda, rare is the political group capable of accumulating more than fifteen members (even after the pageantry of February 1, 2012). And so, in order to be eligible for the highest republican function, Ennahda had the following cumulative conditions voted upon: being “a Tunisian Muslim, not holding any other nationality, of Tunisian parents”; “at least 35 years old” [22] and whose candidacy to the Assembly had been supported by at least fifteen elected officials. Out of the ten candidates officially presented last December…only one among them could claim compliance with these conditions. With this in mind, let us return to the text of the “mini-Constitution.” Formally, not a single article mentions the theory of the separation of powers nor solemnizes it. However, even the title of the Constituent Law no. 6-2011 dating to December 16, 2011, is the object of this theory, as it is said to be “relative to the provisional organization of public powers.” For the mention of an organization of public powers, when it is affirmed, as in Tunisia, refers a priori to a republican and democratic impulse not to concentrate them, but to divide them. Three points are of particular importance in this sense: a will to distinguish legislative and executive powers (Title III and IV); a manifest refusal of hyper-presidentialization, obviously in reaction to the preceding dictatorship; and an expression of the independence of “judicial power” (Title V). The classic elements of constitutional theory are found here: a will to distinguish the functions and the organs, as well as a particular attention to judicial authority expressly ascribed power. In this respect, note that “full independence” of the Court is one of those rare points that became the object of a unanimous constituent vote. This highlights the theories according to which the separation of powers is also (if not especially, today) that which will allow an opposition of political and jurisdictional powers. [23] The clear objective is thus that of a dispersion of powers (including financial; art. 26) and a diffusion of them through parliamentary means of checks and collaborations.

11 Still, two drawbacks must be expressed. Firstly, this text has no long-term vocation: it only regulates “the provisional organization of public powers” up to the adoption, by the ANC (preferably; art. 3), of a permanent Constitution. Consequently, nothing stable is posited here. Everything will depend on a definitive text. Furthermore, even if the objective of the “reborn” republicans is a priori the declared return to a separation of powers, note that in Article 2 of the Constitutional Law, it is clearly stated that the main goal of the Assembly is to draft the Basic Law, but that it will also (in the meantime) look into “legislative power,” elections of the president and his parliamentary chamber as in the Republic, as well as “monitoring government activity.” In addition, in the case of a breakdown of the executive (art. 13 in particular), it is the Assembly that is meant to provide for the day-to-day or a successor—everything emanates from the Assembly. [24] The Assembly is the source of all powers, except maybe that of the judiciary, but, as it is also that body that will proceed with the reorganization of the judiciary (art. 22), it can be said that everything proceeds either directly or indirectly from the ANC.

12 In other words, the will to separate powers and to not repeat the mistakes of the past is latent and popular hopes are high, guided by the last verses of poet Aboual Kacem Chabbi which close the Tunisian anthem: “When one day the people yearn for life, destiny must respond, thunder dissipate and the chains to break.” Still, as professor Ben Letaief [25] demonstrated particularly well, it is first a “fuzzy” if not impressionistic atmosphere that seems to characterize the contemporary Tunisian situation. It is as if everything were “paused” waiting for the page to be truly and decidedly turned. The hard work of the future Constitution bear witness to this too. Thus, for those interested in this country and its people, this state can only be disquieting. A popular will for democracy and the separation of powers exists, but its materialization seems less accessible than expected or hoped. The same is true, through other circumstances, in Egypt.

The Egyptian Spring

13 There was undeniably an Egyptian Spring, but can we yet speak also of revolution, since the established order was not completely overturned (the soldiers, at the time of writing, being still in power and the new president not having been elected)? Certainly, following multiple demonstrations (culminating on January 25, 2011, in the henceforth famous Tahrir Square at the center of Cairo), revolts took place and the people rose up, provoking, one month later, the departure of President Mubarak. Nonetheless, even if the words of the order are quite similar to those used in Tunisia—“No to corruption, to the concentration of power and wealth, and to the police state”; “Yes to individual and political freedom and to democracy”—the people have not yet seized the power conferred upon the army.

14 The army, of course, suspended the Constitution of September 11, 1971, and dissolved the Parliament elected in November 2010, but it also retained—in an a priori provisional manner—the legislative and executive powers. On March 19, 2011, a popular referendum it organized approved the principle of a new Constitution. At the beginning of 2012, the two Egyptian Parliamentary chambers (the People's Assembly and the Shura, the consulting Senate) were elected, and, as in Tunisia, placed at their head majority representatives from Islamist groups. And, still with this view on the separation of powers and a democratic future, the new president of the lower chamber, Mohamed al-Katatni, thus declared: “We wish to build a new Egypt, a constitutional, democratic, modern Egypt,” and “Democracy will be the source of power of our Parliament.” Hence, the newly elected are charged with drafting a new, much-anticipated text…. At least we hope for the announced departure of the army following the presidential election on June 16-17, 2012. On this date, the (first) provisional period must end. In the meantime, purges were made and the old dictator was even condemned to life imprisonment on June 2, 2012.

15 Nonetheless, as in Tunisia, and perhaps still elsewhere, reasons for disquiet emerge and could end up betraying or disappointing popular hopes. Firstly, the fact that the army (and not a popularly elected Assembly) has concentrated powers (though provisional), is necessarily worrying. In addition, the fact that, during this transition period, repressions, including of public demonstrations and expressions of freedom, took place and were far from encouraging. Furthermore, the fact that several other high-level officials close to Mubarak were acquitted, though they were in responsible positions while numerous exactions took place, was quite surprising. For the same reasons expressed above, we understand that the Egyptian people gave voice to Islamist candidates in the legislative elections and at least the first round of the presidential elections, but how can we not be troubled when we note that, standing against the Muslim Brotherhood candidate is none other than the former Prime Minister Hosni Mubarak? What are we to think about this suspension of the constitutional process? In April 2012, indeed, the commission which had been charged by the new Parliament with drafting the Basic Law was stopped in its mission by the Council of State. In June 2012, multiple witnesses demonstrated that it is still risky to criticize the power(s) in place, and that the sentencing of bloggers and notably of demonstrators is widespread. Singers, too, like Rami Issam, who evoke and demand through their songs a Revolution and Democracy in the name of the Egyptian Spring are particularly watched, and are not free as they may have expected to be. From the point of view of communication, there is really only one truly independent television station (TV 25—so named in homage to January 25, 2011) whose stated goal is to “save the Revolution” and to fight, even to denounce a consequently new or re-concentrated power…but will it be enough?

16 Finally, we have a feeling, in light of the Egyptian and Tunisian Spring in part, that a parallel could be established with the Parisian people (in particular) of 1840, 1848, and 1870. That people caused Revolution, fought for a change of regime, and for the Republic and its democratic values; but, in France, just as in contemporary Egypt and Tunisia, they suffered a capture of its efforts and its hopes by one or more groups. It is this feeling of a stolen popular Revolution which seems to be spreading. This malaise, if it becomes generalized, will necessarily be dangerous, since it will lead to other revolts that neither law nor even the Constitution could stop, since the separation of powers should not be but a stylistic effect on an instrumentum: it must be materialized by the implementation of real checks to power.

The Moroccan Spring, a Performative Affirmation of the “Separation of Powers” “Label”

17 In the Kingdom of Morocco, the question could appear quite different and for some is not even asked, since they deny the hypothesis of a Moroccan Spring. We will try nonetheless to maintain the inverse position and to see how the Sharifian regime succeeded, with the only truly complete Arabic constitutional text from this time (the Constitution of July 29, 2011), in formally maintaining a separation of powers.

A Moroccan Spring?

18 While it is true that there was no Moroccan revolution in the sense of an overthrowing of the political regime and in particular of its monarchy, there were still popular revolts which responded to the same watchwords as in most other countries of the Maghreb. Also, it is evident that the new Moroccan Constitution primarily owes its fortune, the haste with which it promulgated its referendum, to the corresponding existence of demonstrations in Morocco (particularly in Casablanca by the so-called February 20 movement [26]) as well as in other countries touched by the “Spring.” In other words, and even if the Alaouite dynasty still prefers to deny it, the constitutional change was indeed provoked, aided, or guided by the street. [27] We shall not, however, review here the set of new constitutional provisions (proclaimed freedoms, royal, parliamentary, or governmental prerogatives, the place for justice and in particular for the new Constitutional Court, etc.) or their implementation. Numerous articles (and even whole books) already exist that do so. [28] We will instead examine the manner in which the constituant sought to advance the theory of the separation of powers, since, unlike in preceding Springs (Tunisian and Egyptian), the phrase “separation of powers” is quite present in the new Basic Law and is explicitly demanded.

19 Already, in 1959, Mohamed V confirmed his willingness to construct a constitutional monarchy “based on the separation of powers.” [29] In 1963, the Constitutional Council (decision dating to December 31) also indicated that it was a question of “the founding of the Constitution.” Nonetheless in practice, particularly during the period called Hassanian, the powers were confused, and moreover assumed by the monarch. In doing so, upon his accession to the throne on July 30, 1999, His Majesty Mohammed VI reaffirmed a wish to reinforce “the public liberties and rights of man, the separation of powers, the balance between them, and the independence of everyone.” But this theory was only formally constitutionalized in 2011. Thus, the very text of the new Constitution employs the expression and implements specialization and independence. It then follows, according to Article 1: “The constitutional regime of the kingdom is founded on the separation, balance, and collaboration of powers.” Even if one knows that it is paradoxical to both separate and allow collaboration between powers, note the importance of this formulation. Title VI, entitled “Relationships between the powers,” attests to the importance of their distinct and not concentrated existence. Article 19 of the old Constitution rendered all separation impossible, “all the powers [issuing] in fact from the commandery of believers, and thus from the king.” [30] If we add to that the fact (art. 47) that henceforth the head of government, which is finally meant to be distinguished from the royal executive (at least formally), will be chosen as a function of a representative criteria—that is, according to the results of elections in the Lower Chamber—it is manifest that a de-concentration of royal powers is operating here. In this sense, outside of a state of emergency (art. 59), which we unfortunately know is sometimes more ordinary than exceptional, parliamentary power is particularly maintained on the legislative plane concurrently with the royal and governmental executive. This means that the government could dissolve the Lower Chamber (art. 104). To this, we must add a willingness to maintain the independence of the Court (Title VII, art. 107 to 128) which is not an authority but is clearly labelled an “independent power.” [31] Furthermore, Morocco is the only state in the Maghrebi Springs to have dared proclaim a vertical separation of powers. Indeed, we cannot omit that the separation of powers is conceived not only in a horizontal manner (between the holders of national political power) but also in a vertical manner (that is, between the administrations, the collectives, and the capital). On this point, Morocco appears as a militant and undeniably pioneering figure. The “advanced regionalization” it claims to implement, particularly for improving the question of the Western Sahara, by offering a priori more independence and solidarity of the different national regions, must be seen as exemplary (Title IX). Nonetheless, it is evident that “the Sharifian nature” of this power continues to create a “confusion of powers, spiritual and temporal, damaging to all attempts at re-equilibration.” [32] Clearly, the king remains the pivot-point of the regime: he is the head of the so-called independent councils, such as that of justice (art. 113 ff.); he presides over the Council of Ministers (art. 48); he names many authorities (Title III); he may dissolve or depose just as many, and without opposition since he is sacrosanct; by Article 65, he opens sessions of Parliament, and it is hard to imagine that he will act, in this instance, as a British-type monarch reading scrupulously and without any autonomy the discourses and propositions prepared by his government. De facto, it is a rationalization of Parliament that is expressed here, rather than a revalidation. [33] Even if Morocco follows up its “parliamentary transformation,” one still could not write of it that, in this respect, the king reigns there but does not govern. Its “separation of powers” was, to our mind, an additional “label” on a statement addressed, essentially, to the West. [34]

A Revision-Communication!

20 Hence, could we not suggest a parallel between the Moroccan Constitutional revision and the latest French revision (issued from the law dating to July 23, 2008)? Indeed, in the two cases, the reform was presented in the media as an implementation of “a profound democratic advance,” “a revolution for rights and liberties,” “a revalidation of parliament,” and even “a modernization of power.” [35] In France, as in Morocco, the overhaul would have led to a profound change (more than half of the articles were formally modified or amended); it was effected not by a popular commission (as in Tunisia and, a priori, in Egypt), but by consultant experts; and finally, it was realized over a relatively short time (one year). Certainly, there are some important differences, and we cannot deny them, since in Morocco the preliminary work of the Menouni commission are still not well known or circulated, which distinguishes them from the work of the Balladur commission. What is more, in Morocco, it was the sovereign—alone—who granted the constitutional text, approved by referendum by an overwhelming majority, whereas in France it was members of parliament, for the voice of the majority—alone—who had a say. On the other hand, as one important point in common, numerous media outlets and even, in part, academics have taken up in these two countries the following terms: “Whosoever says revision of a constitution means improvement of a constitution.” The parliament and the people, then, will be revalidated, in Morocco and in France (by a whole series of articles allowing them henceforth to take action). Freedoms will then be guarantees, and democracy will be modernized and secured. The only designated loser in these revisions: the head of state, who will see his power tempered, if not diminished.

21 Can we sincerely, unflinchingly write this—and worse, believe it? Of course, there are improvements in these two cases of revision, and, yes, revalidations or rather validations—but did they really change the balance of powers? [36] In both cases, despite the media hype and flashy superlatives, the head of state holds considerable power, even if he is installed in an environment clearly open to the conditions of a parliamentary regime. In France and in Morocco, despite the reworking of close to half of the articles, the national presidential and monarchic systems (outside of coexistence) remain concentrated. The imbalance still clearly profits the executive.

22 Certainly, the president and the monarch have accepted symbolic divisions, and even some reductions in their responsibilities; but these elements are cosmetic, and they are, in fact, communication screens placed between the people and their governments. If these formal parallels exist, the general situations nonetheless are not yet totally similar there. Thus, the French democratic process—through its mechanisms of equality, democratic and parliamentary representation, pluralism, freedom of expression, the state of law where all public actions can be controlled, and even sanctioned by the judge (including the quasi-integrality of decrees), etc.—is much more accomplished than in Morocco, since it has had several centuries to mature. At the heart of the Sharifian kingdom, indeed, as long as the supra-constitutionality of royal acts remains, as long as access to information and thus to power is so controlled, as long as certain individual liberties continue to be refused and local freedoms are not yet attained, democracy and the rule of law will not yet have fully blossomed. In other words, even if we underscore the commendable initiative towards democracy and the separation of powers, we have to keep in mind that there is still some way to go on this path. Moreover, the democratic process needs perfecting just as much in France where, for example, the themes of corruption, parity, and even the existence of government actions merits renewed efforts. In this regard, we perceive that certain, very optimistic authors interpreted the new Article 118 of the Moroccan Constitution [37] as henceforth allowing the control of (non-religious) royal decrees, dahirs. We hope that these authors will be right, even if we have a more pessimistic outlook on the situation. [38]

23 On this point, as in all others in law, everything will depend upon the force of interpreters and, in particular, judges. It will be for them to make sure the new standards are lived out. It will be for them, as for the Constitutional Council in 1971 in France, [39] to instigate other (r)evolutions. Because for now, we maintain, we are almost always given the impression that, in Morocco, everything was already better behind the democratic liberal myth of a separation of powers; as if the Parliament is exemplary and the head of state has definitively accepted a reduction of his prerogatives. Now, it does not suffice to write a theory for it to come true. The reality can be quite different, and the separation effectuated has only been effectuated formally, or from a mere performative viewpoint. It is a wish, not yet a tangible materiality. It is, in Paris as in Rabat, just a matter of “policy marketing,” to use the words of Professor Bendourou. [40]

24 In the guise of a conclusion, we can thus content ourselves with hoping that the separation of powers can soon be effective in the countries of the Arab Spring, and not simply as performative, fuzzy, or captured by others. Morocco can be praised fo having undeniably begun this work. The people of Tunisia and Egypt clearly have an ardent desire. But the situation is more complex than it appears, and deposing a dictator is never done without bumps or hiccups. Democracy and the separation of powers does not institutionalize itself ex nihilo. Only time and political will, with inevitable errors, will allow this ideal to come about, which law alone cannot decree.

25 To do this, and because Montesquieu [41] taught us that you can only have democracy when it is representative, the separation of powers implies, upon all the banks of the Mediterranean, a representation that is more effective and closer to the people. [42] In this sense, and at the hour of this formidable re-appropriation of public affairs by the people who had assisted in its clannish privatization, political structures (in particular, parties [43]) must be asserted or reasserted as cleaner, less corrupt, and much more equal, since there is an irremediable phallocratic element to this non-separation of powers. [44] After all, is not the first of these powers, as Maurice Hauriou explained, [45] that of suffrage?

Notes

  • [1]
    Abdellatif Laâbi, Œuvre poétique II (Paris: La Différence, 2010), 89. The present article is dedicated to Wafa and Samira.
  • [2]
    See René Capitant, “La Réforme du parlementarisme,” in René Capitant and Olivier Beaud, Écrits d’entre-deux-guerres (1928-1940) (Paris: Panthéon-Assas, 2004), 327; Michel Troper, La Séparation des pouvoirs et l’Histoire constitutionnelle française (Paris: LGDJ, 1973), and Pour une théorie juridique de l’État (Paris: Presses universitaires de France, 1994), 223 ff.; and Maurice Duverger, Les Partis politiques (Paris: Armand Colin, 1976) and Échec au roi (Paris: Albin Michel, 1977). The latter presented a very convincing theory of the opposition of majority and tribunal powers.
  • [3]
    We are thinking particularly of Dean Foucart; see Mathieu Touzeil-Divina, Un Père du droit administratif, le doyen Foucart (1799-1860) (Paris: LGDJ, 2012).
  • [4]
    Marie-Claire Ponthoreau, Droit(s) constitutionnel(s) comparé(s) (Paris: Economica, 2011), 181.
  • [5]
    This concept was conceived and theorized by professor Jean-Jacques Chevallier.
  • [6]
    Armel Le Divellec himself evokes a dogma, “a sort of aesthetic of constitutional theory,” in Le Gouvernement parlementaire en Allemagne (Paris: LGDJ, 2004).
  • [7]
    For an example of the most traditional: Thomas Goudou, L’État, la Politique et le Droit parlementaire en Afrique (Paris: Berger-Levrault, 1987), 113 ff.
  • [8]
    Anne-Laure Dupont, “Nahda, la renaissance arabe,” Manière de voir 106 (August 2009): 28 ff.
  • [9]
    Véronique Champeil-Desplats, “Effectivité et droits de l’homme: approche théorique,” in À la recherche de l’effectivité des droits de l’homme (Paris: Presses de Paris X, 2008), 19.
  • [10]
    Montesquieu, De l’esprit des lois (1748), book XI, chap. iv.
  • [11]
    Ibid., XI, vi.
  • [12]
    We explain it to students thus: “The theory of the separation of powers did not have as an object to necessarily separate the powers.” The phrasing may be surprising, but it allows at least to insist on the primary object of the theory: to refuse the confusion of powers and the arbitrary. It is only later that notions of functional and organic separations of power may enter into play.
  • [13]
    “It is not good for him who make the laws to execute them, or for the body of people to turn its attention away from a general standpoint and devote it to particular objects.” Jean-Jacques Rousseau, “Democracy,” in The Social Contract, trans. G. D. H. Cole (New York: Cosimo, Inc., 2008), 68.
  • [14]
    “The temptation to keep a hand on power would be too great if the same persons who had the power to make the laws also had the power in their hands to execute them, whereby they may exempt themselves from obedience to the laws they make,” wrote Locke in this sense in Chap. XII, sections 143 and 148 of his Second Treatise of Civil Government (1690).
  • [15]
    In the two cases, in Italian as in Arabic, the expression means: “That's it!”; “Stop!”; “Enough!”
  • [16]
    We must mention in regard to this the recent creation, on March 19, 2012 at the Institut de France, of a research group: the Laboratoire méditerranéen de droit public (LM-DP), which gives as its mission the comparison of European and Meghrebi laws, particularly from around the Mediterranean Basin (www.lm-dp.org).
  • [17]
    We have not forgotten the premises such as the “April Uprising” in Jordan (1989) which also sought “the development of liberties and the limitation of the powers of the king”: Jamal Al Shalabi, “Jordan: Revolutionaries without a Revolution,” in Révolutions arabes, premiers regards (Paris: L’Harmattan, 2011), 87 ff.
  • [18]
    On this point, see Tahar Ben Jelloun, L’Étincelle (Paris: Gallimard, 2011), 78, and Salim Chena, “L’Algérie dans le 'printemps arabe' entre espoirs, initiatives et blocages,” in Révolutions arabes, 101 ff.
  • [19]
    M’hamed Oualdi, “D’où viennent les Révolutions arabes?” L’Histoire (September 2011).
  • [20]
    Michel Troper, “Séparation des pouvoirs,” in Dictionnaire des droits de l’homme (Paris: Presses universitaires de France, 2008), 900.
  • [21]
    Olivier Morin, “Tunisie: le vertige démocratique,” Études (2012): vol. 416, p. 452, and Olivier Roy, “La galaxie islamiste,” Le Nouvel Observateur (December 8, 2011). See also the wonderful study by Dominique Avon and Youssef Aschi, “Ennahda 2012, 1re année de l’exercice partagé du pouvoir en Tunisie” at http://religion.info.
  • [22]
    The Constitution has not been officially translated into the French language. The LM-DP has however proposed a translation, thanks to the efforts of Meriem Ben Lamine. It was based on this text, available at www.lm-dp.org, that we worked.
  • [23]
    Alain Priente. ed., La Séparation des pouvoirs. Théorie contestée et pratique renouvelée (Paris: Dalloz, 2007).
  • [24]
    And it is that, provisionally, which concentrated all the powers, cf. Ali Mezghani, “Tunisie: une révolution, une élection et des malentendus,” Le Débat (2012): 172.
  • [25]
    Roundtable organized at the conference “Constitutions(s) & Printemps arabe(s)” by the Laboratoire méditerranéen de droit public on March 19, 2012, at the Institut de France convention hall.
  • [26]
    Mostapha Bouaziz, “Le Mouvement du 20 février, entre conservatismes et modernité,” Zamane (2012): 46.
  • [27]
    “It is to prevent revolt that the king objectively offered an initial sharing of powers; sharing in which the major winner is the head of government but sharing which does not imply yet or enough of a true separation and/or balance of powers; the monarch remains in large part the priority,” we recently wrote in this sense in an article cited infra.
  • [28]
    Beyond the references cited infra and supra, we should mention La Constitution marocaine de 2011. Lectures croisées (Rabat: Publications of the Revue marocaine d’administration locale et de développement (REMALD), 2012); as well as the special edition of the RDP (2012) dedicated to this question and containing, in particular, contributions from professors Bendourou, Bernoussi, and Touzeil-Divina.
  • [29]
    Cited by Abdellatif Menouni, “Constitution et séparation des pouvoirs,” in Trente Années de vie constitutionnelle au Maroc (Paris: LGDJ, 1993), 197.
  • [30]
    Pierre Vermeren, “Le Maroc, une royale exception?” Raison présente (2012): 107.
  • [31]
    Mickaël Vogel, “La démocratisation au Maroc,” Études & Essais (November 2011): 32.
  • [32]
    David Melloni, “Le nouvel ordre constitutionnel marocain,” in La Constitution marocaine de 2011. Analyses et commentaires (Paris: LGDJ, 2012), 18.
  • [33]
    Abderrahim El Maslouhi, “Séparation des pouvoirs et régime parlementaire dans la nouvelle Constitution marocaine,” Ibid., 102 ff.
  • [34]
    We developed this argument in our previously cited article in the RDP.
  • [35]
    These different expressions are used in a similar manner in the newspapers of two countries and even in the foreign press, as well as in the majority constitutionalist doctrine. In this sense, Remald 245, La Nouvelle Constitution du Royaume du Maroc 2011, coll. “Textes et documents,” (Rabat: 2011), 76 ff.
  • [36]
    Speaking for the French case, we can refer you to Mathieu Touzeil-Divina, “Une dévalorisation parlementaire continue!” Politéia (February 2012): 65 ff.
  • [37]
    “Any judicial action, of an individual or regulatory nature, taken in an administrative matter, may become the object of an appeal before the appropriate administrative jurisdiction.”
  • [38]
    We believe indeed that the dahirs should simply be considered as acts…non-administrative and with the king as an authority…non-administrative, which jurisprudence has retained up to today. A contrario, Melloni, “Le nouvel ordre,” 20 ff.
  • [39]
    Cf. decision No.71-44 DC dated July 16, 1971, Liberté d’association, Rec., 29.
  • [40]
    At the Roundtable organized in the previously cited inaugural conference of the LM-DP.
  • [41]
    Op. cit., book XI, chap. vi. A pari: Jean-Jacques Sueur, Pour un droit politique (Laval, Canada: Presses de l’Université Laval, 2011), 69.
  • [42]
    And thus calling for a refounding: Roland Guillon, La Méditerranée à l’épreuve de la globalisation (Paris: L’Harmattan, 2012), and “for a democratic pact”: Abdellatif Laâbi, Maroc, quel projet démocratique? (Casablanca: La Croisée des chemins, 2011).
  • [43]
    Speaking of the partisan organization in Arab countries and even if we do not share certain hypotheses and conclusions drawn by the authors, we refer to Abdelhak Azzouzi and André Cabanis, Le Néo-constitutionnalisme marocain à l’épreuve du printemps arabe (Paris: L’Harmattan, 2012), 48 ff. Regarding the Moroccan situation: Remald 247, Le Nouveau Cadre juridique relatif aux partis politiques, coll. “Textes et documents” (Rabat: 2011).
  • [44]
    It is equally the conclusion of recent work by the SDC and in part by the colloquim “Droits de femmes & Révolutions arabes” (Université du Maine, June 2012) from which the acts will appear, forthcoming 2013, in the Editions L'Epitoge.
  • [45]
    Maurice Hauriou, Précis de droit constitutionnel (Paris: Sirey, 1929), 352.
English

The theory of the separation of powers, taken in its original meaning of the dispersion of powers, appears to have acquired a new theoretical and practical usefulness with the unfolding of the Arab Springs. Yet, while a desire for a differentiated democratic organization of power has been palpable, notably in Egypt, Tunisia and Morocco, the will of the peoples has not been instantaneously translated into a judicial and constitutional system. Rather, one observes systems of blurred and performative separation together with a provisional concentration of powers.

Mathieu Touzeil-Divina
Mathieu Touzeil-Divina, professor of public law at the Université du Maine, co-director of the Themis-UM juridical laboratory. President of the "Collectif l’Unité du Droit" (www.unitedudroit.org), he is also the founder of the Mediterranean Public Law Laboratory (Laboratoire méditerranéen de droit public). (mtd@lm-dp.org)
Uploaded on Cairn-int.info on 20/05/2014
Cite
Distribution électronique Cairn.info pour Le Seuil © Le Seuil. Tous droits réservés pour tous pays. Il est interdit, sauf accord préalable et écrit de l’éditeur, de reproduire (notamment par photocopie) partiellement ou totalement le présent article, de le stocker dans une banque de données ou de le communiquer au public sous quelque forme et de quelque manière que ce soit.
keyboard_arrow_up
Chargement
Loading... Please wait