Middle Eastern countries face a constitutional crisis. In this context, constitutional documents are primarily concerned with sovereignty and neo-liberal policies than with securing the rights of their citizens. In recent years, however, the Rojava confederation seems to have immensely broken up with this historical background. Briefly discussing this context, my intention is to highlight the significant role that the Rojava Constitution plays not only for regional, but also for global experiences.
Most constitutions in the Middle East, including the Iranian one, simply ignore the elements of citizen’s rights. Rather, they provide a ground for the social, legal, and political reproduction of power relations and all sorts of discriminations. This is despite the fact that many Middle Eastern countries experienced revolutions and popular social movements demanding the rule of law and constitutionalism. However, post-revolutionary legal processes systematically suppress and misrepresent peoples’ demands.
Authoritarianism and constitutionalism
As an instance, the universal ideals of justice and equality enshrined in the Iranian Revolution of 1979 were gradually eroded by the Constituent Assembly, particularly with the imposition of the Guardianship of the Jurist, who is not held accountable and whose decisions are beyond the law.
Interestingly, however, even the very Constitution, under which Iranians held rights, was ignored for the most part, being replaced eventually by the Islamic Penal Code. This document has, since 2009 and the eruption of the Green Movement, gradually and secretly replaced the Constitution and is as such implemented de facto by Iran’s civil and criminal courts. This supersession of the rule of the Constitution violates rights of the citizens and, certainly, constitutional law. As an instance, whereas the Iranian Constitution recognizes women as legally equal to men, the Islamic Penal Code reduced them to secondary citizens, who are dependent on men.
Significantly, the authoritarian trend is by no means exclusive to Iran. More recently, Egypt experienced similar issues. There, the new Constitution was quickly drafted by the Constituent Assembly following the January Revolution of 2011. Despite massive opposition to Egypt’s state of emergency that lasted for almost half a century (1967-1980 and 1981-2011), article 148 of the 2012 Constitution, re-legitimized the state of emergency by according unfettered power to the president, who can suspend the law to his discretion.
Interestingly, in Turkey, the secular Constitution paved the way for the AKP to take power through the democratic machinery legitimated by the Constitution itself. However, in this case, the parliamentary system was recently replaced by the presidential system through a constitutional referendum, which intensely increases the power of the president and his control over governmental institutions.
All these cases illustrate the link between constitutionalism and the rule of law, and the rise of authoritarian governments with no inclination to recognize the rights of the citizens. In traditional analyses, authoritarianism has been attributed to the religious constellation of Islam (Shi’ism in the case of Iran).
In this narrative, it followed, therefore, that in order to have a more democratic and inclusive polity, constitutional law needed to be secularized. However, as the Turkish and Egypt cases, as well as the conundrum of states of exception and extrajudicial measures in the U.S. and France, demonstrate, secularization alone is unable to prevent dictatorship or at least authoritarian leanings.
Arguably, constitutional dictatorship is also deeply rooted in secular modernity as demonstrated by Clinton Rossiter[1] in his classical study. Indeed, constitutional dictatorship, which is becoming a global trend, seems to stand in deep contrast to subaltern constitutionalism, which conceptualizes the constitution not as a fixed text of law securing the rights of the power possessors over the subalterns, but first and foremost as a bottom up democratic multi-logical process with great potential for equality and inclusion[2]; a manifesto for redemption.
Constitutionalism from below
The most recent example of subaltern constitutionalism is perhaps the Constitution of the Rojava federation in Northern Syria, where the Kurdish people attempted to constitute a democratic confederalism beyond sexism, neoliberalism, discrimination and authoritarianism. In this Constitution[3], “Men and women are equal in the eyes of the law. The Charter guarantees the effective realization of equality of women and mandates public institutions to work towards the elimination of gender discrimination.” Furthermore, free and compulsory primary and secondary education, work, social security, health, and adequate housing are constitutionally recognized for all citizens. The Constitution also recognized the rights and special needs of the disabled.
Negating hierarchy, the Rojava Constitution secures the participation of various sections of the society, particularly women. As a decentralized local government socialism, it established autonomous cantons (regions), each with their own legislative, executive and judiciary bodies that are run democratically. It also predicted regional supreme constitutional courts which strengthens decentralization and direct access of people to justice.
The economic system guarantees basic welfare of all people regardless of their faith. Labor rights and sustainable developments are also recognized by the Constitution. Furthermore, unlike many other Middle Eastern Constitutions it recognizes the multi-religious and multiethnic characteristics of the region including Arabs, Kurds, Turkmens, Assyrians, Yezidis, etc.
The Rojava Constitution effectively breaks the historical link between law and violence as the main syndrome of constitutionalism. Nevertheless, its success and persistence are shaky, particularly in regard to internal and external threats that this juvenile direct democracy is facing. The Rojava values are at odds with the anti-feminism and capitalism of the current U.S. administration. This could be partly the reason why the U.S. president has decided to withdraw from Northern Syria. If this happens, Rojava should overcome not only the Jihadist militants, but also Turkey’s military intervention in northern Iraq and Syria. [4]
The grassroots democracy of the Rojava Constitution needs adequate consideration, and has the potential to serve as a model or a blueprint of grassroots constitutionalism, especially at a time when authoritarianism, states of emergency, and neoliberalism are on the rise across the globe.
About the author
Fatemeh Sadeghi is an Iranian political scientist and gender studies scholar. She is currently an O’Brien fellow at the Faculty of Law at McGill University.
She has published several books and academic articles in both English and Persian including her recent book The Sin of the Woman: The Interrelations of Religious Judgments in Zoroastrianism and Islam.
[1] Clinton Rossiter, Constitutional Dictatorship: Crisis Government in the Modern Democracies, Princeton University Press, 1948.
[2] Vrinda Narain, ‘Postcolonial constitutionalism in India’ Journal of Southern California Interdisciplinary Law, (2016) 25:1, 107.
[3] https://civiroglu.net/the-constitution-of-the-rojava-cantons/
[4] See Edward Hunt, “A Revolution at Risk”, at Jacobin: https://jacobinmag.com/2018/10/rojava-isis-syrian-kurds-united-states-mi...