In January 2014, three years after the onset of the Arab Spring, Egypt and Tunisia each adopted a new constitution. During their constitution-making processes, Egypt and Tunisia struggled with a common issue: how to balance the interests of ascendant Islamist parties against the interests of secular and left-leaning parties that had historically controlled the government and its institutions. Despite that common challenge, the constitution-drafting processes unfolded quite differently in Egypt and Tunisia. In Egypt, the constitution-drafting process was conducted by successive, closed, nonpublic bodies who did not produce consensus texts, and whose processes polarized existing divisions in Egyptian society. The drafting process in Tunisia, while not without conflict, led to a consensus document that reflected public input. While both constitutions contain provisions that broadly incorporate international human rights law norms, Tunisia’s constitution includes more robust enforcement mechanisms for the rights enumerated in the constitution.
In this Article, I develop an analytical framework for assessing whether the constitutions of transitional states are legitimate, and I apply that framework to the constitution-making processes in Egypt and Tunisia. My analytical framework draws from comparative constitutional scholarship theory but offers a new way to analyze the validity of constitutions created in moments of transition and uncertainty. The framework contains three markers of constitutional legitimacy: (1) processual legitimacy through an inclusive drafting and ratification process, (2) substantive legitimacy through the incorporation of international human rights law norms, and (3) applicatory legitimacy through the inclusion of institutional mechanisms for the full and fair implementation of constitutional protections. Using this analytical framework, I compare and contrast the constitution-making processes in Egypt and Tunisia and assess the legitimacy of the Arab Spring constitutions that both nations adopted in January 2014.
