The enactment of constituent power in the Arab World : the Palestinian case

Abstract

Constituent power is the authority to frame or to amend a particular text, superior to other laws, called the constitution. What distinguishes framing power from amending power is that the latter changes the constitution in ways provided therein, while the former amends it outside any precedent constitutional framework. Most modern states have adopted written and rigid constitutions. According to Sieyès1 -the first to present a sophisticated theory of constituent power- ‘une constitution suppose avant tout un pouvoir constituant’, as distinguished from other constituted powers created by the constitution itself. Since a constitution is the highest Law in the state, constituent power must invest those entitled to sovereignty. To close the vicious cycle, most constitutions provide that those entitled to sovereignty are the people, and consequently, entitled to constituent power. Constituent power presupposes the ability of a society to develop its capacity to act as a collective, in order to gain (or regain) an active role in the organization of individuals’ lives and their social relationships with each other. Here, several approaches are possible, depending on the concept of nation, and thus on culture. For Arab nationalists, the (Arab) nation exists as a human group with its own characteristics, such as language, history and traditions. Attempts to unite ended in failure, and Arab nationalism began to exist within Arab territorial states. The ethnic concept of nation initially helped to justify a revolution against other Muslims, but it was unable to distinguish individual Arab peoples or justify territorial Arab states. What makes a Jordanian different from a Palestinian, a Lebanese from a Syrian? Adopting the concept of nation as demos was indispensable, since the nation embraces all citizens living under the same laws, within state borders. Most of those states adopted written constitutions in which they declared that sovereignty belongs to the people. Recently, the Arab world witnessed a development in relation to constitutionalism, and the constitutional movement which began then, has continued to the present day. Nevertheless, one should not be deceived into thinking that the norms contained in the constitution correspond to constitutional law. There is a need, in fact, to study the constitutional text in light of the enforced and applied legislation in every Arab state. The relation between Arab ‘nation’ and a single Arab ‘people’ may not be clearly understood by using concepts such as ‘nation’ and ‘people’. In fact, these two concepts have to be understood in the light of the wider concept of umma2 , originally used to indicate the Islamic community, or the community of believers. There is no Islamic or Arab state that embraces all Islamic or Arab umma; those populations need to deal with territorially defined states. In contemporary Arab states, there is a partial return to shari’a and an increasing reference to Islam as a justification for the state’s authority or its rejection, made respectively by the state apparatus and by fundamentalist groups. In contemporary Arab states, the relation between these three concepts (the Islamic nation, the Arab nation and the Arab people as a single whole) is becoming increasingly problematic. According to Islamic law, sovereignty belongs to God: no state has the right to exercise authority except in subordination and in accordance with the Law revealed by God and his prophet. The Pakistani, Sayyid Abul A'la MAUDUDI (the founder of the Jamaat-e-Islami in Pakistan)3 invented a new concept: ‘al-hakemmeyya’ meaning sovereignty in reference to God, while ‘seyyada’ (also translated as sovereignty) referring to the people’s power