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Part 6 Constitutional Courts: New Guardians of the Constitutions?, 6.1 Constitutional Review in Arab CountriesDawn of a New Era?

Rainer Grote

From: Constitutionalism, Human Rights, and Islam after the Arab Spring

Rainer Grote, Tilmann J. Röder

Content type:
Book content
Product:
Oxford Constitutions of the World [OCW]
Published in print:
22 August 2016
ISBN:
9780190627645

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved. Subscriber: null; date: 28 March 2023

(p. 677) 6.1  Constitutional Review in Arab CountriesDawn of a New Era?

I.  Introduction: Constitutional Review Prior to the Arab Spring

Constitutional review is a relatively late arrival to the Arab world. Although some early experiments with constitutional review were undertaken in Arab states early in the 20th century,1 it is only during the last three decades that the idea of constitutional review seems to have taken root more generally in the Arab world. A turning point came in 1979 with the establishment of Egypt’s Supreme Constitutional Court, which blends central elements of both the US and European styles of constitutional review in a unique way.2 Unlike most European constitutional courts, it is not competent for reviewing the constitutionality in abstracto, in the sense that neither the statutes of the court nor any constitutional or legal text entitles any person or entity to directly file an application for abstract review of a given legislative rule, whatever its origin may be. The only way to bring a claim before the Egyptian Supreme Constitutional Court is within the context of a pending court case, in which either the court before which the matter is pending or one of the parties to the proceedings raises the issue of the nonconstitutionality of a given statutory provision, indicating the grounds (p. 678) of the alleged violation.3 It should also be noted that the Egyptian system differs from the US model of constitutional review in that it confers the exclusive power to check the constitutionality of statutes to the Supreme Constitutional Court, whereas the ordinary courts are not entitled to disapply statutes they deem to be contrary to the constitution.4 In the first two decades following its establishment, the court made effective use of its powers and contributed significantly to the protection of basic civil and political rights and to the maintenance of the rule of law.5 However, toward the end of Mubārak’s rule, the regime tried to reassert its grip on the judiciary by, among other measures, introducing constitutional amendments which removed the electoral process from judicial oversight and limited judicial supervision of measures taken to combat terrorism.6

Experiments with differing forms of constitutional review had also taken place prior to 2011 in the countries of the Maghreb, with the exception of Libya.7 The constitutional councils established in this region over time were largely modeled on the French Constitutional Council, with an emphasis on the abstract review of statutes and legislation before their promulgation. The effectiveness of this form of constitutional jurisdiction depends on the membership structure of the councils—as the term “council” implies, their membership was not limited to people with legal training or those with careers in the legal professions or at law faculties—and the rules regulating referrals of laws to the councils. In the Maghreb countries, prior to the Arab Spring, such power to refer laws was typically limited to the highest representatives of the states (king, president, presidents of the assemblies, prime ministers), with few, if any, possibilities for members of the political opposition or other minority groups to submit petitions to the region’s councils. In Mauritania, one-third of the deputies in the National Assembly or one-third of the senators may request a constitutional review, whereas in Morocco the same power was conferred upon representatives making up one-quarter of the members of each house of parliament.8 These multiple restrictions imposed on the composition and the powers of the constitutional councils have meant that constitutional review in the Maghreb has been of very limited importance. Even in those Maghreb countries where the opposition does have access to the council, like Morocco, the Constitutional Council has seldom been called upon to exercise its facultative constitutional review powers9 and has therefore not been in a position to develop any substantial case law relating to fundamental rights and the rights of the parliamentary minority. The lack of trust in the Moroccan Constitutional Council displayed by the opposition (p. 679) is understandable in view of the Council’s evident bias in favor of the government. The Constitutional Council has been firm in the defense of government prerogatives. In its decisions concerning the constitutionality of the internal regulations of parliament, the Council has declared many provisions restraining the powers of the government to be inconsistent with the constitution.10

The French model of constitutional jurisdiction was also influential in Lebanon, where the main power of the Constitutional Council consists of the abstract review of legislation, to be requested within a period of fifteen days of the publication of the statute in the Official Journal. The rules on referring legislation to the court reflect the sectarian divisions which exist within the country: In addition to the president, the prime minister, the Speaker of parliament—each one representing one of the major confessional groups—at least ten deputies of the National Assembly and the heads of the religious communities may exercise this right, although in the latter case only on matters of religious law. While these powers should, in principle, allow the Council to play a substantial role in regulating the functioning of the other constitutional organs, the work of the Lebanese Constitutional Council has, in practice, been hampered considerably by the discontinuation in judicial appointments. For much of its existence, the Council has been paralyzed by judges staying on beyond their legally mandated terms and the incapacity of the political organs to replace them.11

In contrast to this, the American style of decentralized judicial review is practiced in some of the countries in the Arab Peninsula, namely in the United Arab Emirates and Yemen.12 In Yemen, cases concerning the alleged unconstitutionality of laws, bylaws, regulations, and resolutions are heard by the Constitutional Division of the Yemeni Supreme Court, consisting of the president of the Supreme Court, two deputy presidents, and four judges drawn from the court’s other divisions.13 The Supreme Court of the United Arab Emirates (UAE) is the only one in the region which has been given the power, in Art. 99 of the Provisional Constitution, to settle disputes between the Emirates or between any one Emirate and the Union government. This is not surprising given that the country is the only one in the Arab world with a federal system. Indeed, controversies concerning the relationship between federal and local law have occasionally come before the UAE Supreme Court in the past and seem to have been settled in a manner which averted any open conflicts between the two levels of government.14

II.  Reforms of Constitutional Review in the Wake of the Arab Spring

Constitutional review has played a major role in the constitutional debates in Arab countries following the “Arab Spring”. This has widely been seen as an integral element of the (p. 680) “civil state” (dawlah madanīyah), which revolutionaries wanted to put in place following the demise of the old authoritarian regimes. However, depending on the place which had been accorded to constitutional review in the previous regime, the discussion quickly veered off in different, if not opposite directions in different countries. In Egypt, the only country in which a functioning system of constitutional adjudication had existed prior to the revolutionary events in 2011, the Supreme Constitutional Court soon got caught up in the controversies between the remnants of the old regime (the military, the civil service, the courts) and the new Islamist majority, which viewed the court and its case law as an obstacle to their agenda of a stronger Islamization of the state and of society. These developments are analyzed in Section A, below. In Tunisia, on the other hand, there seems to have been a broad consensus that the independence and powers of the Conseil Constitutionnel, which had been dominated by the all-powerful executive during the Ben ʿAlī regime, would have to be strengthened in order to turn it into a genuine instrument for the protection of fundamental rights and the rule of law under the country’s new democratic constitution (described in Section B). Finally, the regimes which responded to the public protests triggered by events in Tunisia and Egypt, through implementing constitutional reform agendas from above, also used the creation of a new or the strengthening of an already existing institution of constitutional review as a tool to bolster their credentials in relation to issues of democratic government and rule of law (Section C).

A.  An Embattled Institution: The Egypt Constitutional Court from 2011 to 2014

1.  The Court’s Role in the Immediate Aftermath of the Fall of the Mubārak Regime

In Egypt, the Supreme Constitutional Court (SCC) played an important and highly visible role in the transition process following the demise of the Mubārak regime. Judges of the SCC served on the committee which drew up amendments to the constitution in order to pave the way for free parliamentary and presidential elections. The Constitutional Declaration was published on March 30, 2011, and served as an interim constitution until the promulgation of a new constitution which replaced the 1971 document. The Constitutional Declaration confirmed the position of the court as an “independent and autonomous judicial body exclusively responsible for the oversight of the constitutionality of laws and regulations”.15 The Declaration specifically provided that draft legislation on presidential elections had to be submitted to SCC for a review of its constitutionality. Such legislation could only become effective once its conformity with the Constitutional Declaration had been confirmed by the court; if the legislation was declared wholly or partially unconstitutional, it had to be rewritten in accordance with the ruling.

2.  Growing Confrontation with the Islamists

The presidential elections finally took place in May and June 2012. Shortly before the second round of voting was held, the court intervened decisively in the electoral process. It declared unconstitutional a law adopted by the Egyptian parliament in April that barred persons who had served in senior positions under the previous regime from holding office for ten years on the grounds that the law deprived citizens of vital political rights without due process.16 The ruling allowed Aḥmad Shafīq, who had served as Mubārak’s last prime (p. 681) minister before he resigned in early March 2011, to compete in the second round of the presidential elections against the candidate of the Freedom and Justice Party, Muḥammad Mursī, after he had come second in the first round of voting on May 23 and 24, 2012, obtaining 23.7% of the votes cast in comparison to Mursī’s 24.8% (in the runoff election on June 15–16, Mursī prevailed, although by a narrow margin—52% to 48%—and thus became the first freely elected president in the history of Egypt).

Even more important, the Supreme Constitutional Court declared unconstitutional the law on which the election of the People’s Assembly in December 2011/January 2012 had been based.17 The court argued that the elections law had infringed Arts. 37 and 39 of the Constitutional Declaration of March 30, 2011, by allowing political parties to compete for the one-third of the seats reserved for independent candidates while not allowing independents to compete for the two-thirds of seats reserved for party-based candidates.18 This was a ruling with far-reaching implications because the Constitutional Declaration of March 30, 2011, not only conferred legislative powers on the People’s Assembly but also assigned it, together with the Shūrā Council, the function of electing the members of the assembly responsible for drafting the new constitution. A first Constituent Assembly chosen by parliament was dissolved in April 2012 by a Supreme Administrative Court ruling on the grounds that it included members of parliament. In view of the Supreme Administrative Court, only individuals from outside parliament were eligible for membership in the Constituent Assembly in accordance with Art. 60 of the Constitutional Declaration.19 After difficult negotiations, the different political factions arrived at a tentative agreement on the composition of a new Constituent Assembly just a week prior to the second round of the presidential elections. However, when the members of the People’s Assembly and the Shūrā Council met again on June 12 to vote for the members of the Constitutional Assembly, dozens of secular members of parliament walked out in protest at what they perceived as the attempt of the Islamist parties to pack the new Assembly with their supporters. Not surprisingly, the constitutionality of the new Constituent Assembly was again challenged in the courts, notwithstanding the fact that along with the election of the Assembly, parliament had adopted a law (Law No. 79/2012) which granted the Assembly immunity from dissolution.

The High Administrative Court repeatedly postponed its decision on the constitutionality of the second Constituent Assembly elected by parliament in June. At the same time it upheld the Supreme Constitutional Court’s ruling on the unconstitutionality of the People’s Assembly’s election and its dissolution. On October 23, the High Administrative Court suspended the hearing of the lawsuits that sought the dissolution of the Constituent Assembly and referred the law which granted the assembly immunity from judicial dissolution to the SCC for a ruling on its constitutionality.

Faced with the threat of dissolution by the Supreme Constitutional Court and racing against time, the Constituent Assembly began voting on the draft constitution on Wednesday, November 28. The draft document was finally approved on November 29 and drew seething criticism from non-Islamist parties, human rights groups, and international experts. Two days later President Mursī announced that a popular referendum on the draft constitution would be held on December 15. Faced with massive protests by supporters of the Muslim Brotherhood, who prevented judges from meeting in Cairo, Egypt’s (p. 682) SCC postponed its much awaited rulings on the constitutionality of the election of the Constituent Assembly and the dissolution of the Shūrā Council, citing the psychological pressure from the protesters as the reason for its being forced to halt its work indefinitely. On the following day, the Supreme Council of the Judiciary announced that judges and supervisors would monitor the constitutional referendum, thus allowing the government to go ahead with the referendum. On December 15 the new constitution was duly approved by 69% of voters, albeit with a disappointingly low turnout of merely one-third of the electorate.

The Egyptian Constitution of 2012 reduced the membership of the SCC 19 to 11,20 but left its functions largely unaffected. The court retained the “exclusive” competence of ruling on the constitutionality of laws and regulations.21 However, the Constituent Assembly, dominated by the Muslim Brotherhood and its allies, no longer wanted to leave oversight of the conformity of legislation enacted by Congress with Sharīʿah exclusively in the hands of the Supreme Constitutional Court, as had been the case under Art. 2 of the 1971 Constitution. In the eyes of the drafters of the new constitution, the court had proved itself to be rather too creative in finding ways to dismiss challenges to the consistency of statutes and regulations with Islamic law by distinguishing between undisputed universal principles of Sharīʿah and flexible applications of those principles.22 The drafters of the constitution thus included a definition of the principles of the Sharīʿah in the constitutional text so as to limit the scope of interpretation by judicial bodies when determining whether a provision complies with these principles. Using technical terms from Islamic legal tradition, Art. 219 defined what was actually meant by the reference to the principles of Islamic Sharīʿah in Art. 2. These principles were to be understood as entailing “general evidence, foundational rules, rules of jurisprudence, and credible sources accepted in Sunni doctrines and by the larger community.”

Perhaps even more important, the drafters of the 2012 Constitution attempted to involve the country’s most important Islamic institution, Al-Azhar, in the implementation of Art. 2 of the constitution. According to Art. 4 of the 2012 Constitution, Al-Azhar scholars were to be consulted in all matters pertaining to Islamic law. The provision did not specify whether the views on the requirements of Islamic law issued by Al-Azhar in the consultation process would bind the legislature when considering the adoption of a bill or the SCC if it was asked to rule on the conformity of the legislation with Art. 2 of the constitution.23 There can be no doubt, however, that the main purpose of these reforms was to allow for a more effective implementation of Islamic law through the legislation and to curb the powers of the courts accordingly.

However, all attempts by the governing Islamists to diminish the position of the Supreme Constitutional Court proved to be futile. In another important ruling on June (p. 683) 2, 2013, the Supreme Constitutional Court declared the legal basis on which the Shūrā Council had been elected to be unconstitutional. As in the case of the People’s Assembly, the court argued that the law had infringed the Constitutional Declaration of March 30, 2011, by allowing political parties to compete for the third of seats which were meant to be reserved for independent candidates. The ruling also declared the Constituent Assembly to be unconstitutional as its members had been picked by the illegally elected People’s Assembly and Shūrā Council. However, the court stopped short of dissolving the Shūrā Council, allowing it to continue its work until fresh parliamentary elections were held.24 The governing Freedom and Justice Party responded to the ruling by stating that it had no effect on the new constitution’s legal effectiveness as it had been adopted by popular referendum.25

3.  The Denouement: Restoration of the Court’s Role after the Fall of the Brotherhood

Following mass demonstrations against the Islamist government in June, Mursī was removed from power by the leadership of the armed forces on July 3, 2013. The head of the army and defense minister, ʿAbd al-Fatāḥ al-Sīsī, announced the appointment of ʿAdlī Manṣūr, a judge from the Supreme Constitutional Court who had been appointed president of that body by Mursī only weeks earlier as Interim President of Egypt. On July 8, Manṣūr issued a Constitutional Declaration which laid down the basic institutional framework for the transition period. A committee of experts was to be established by presidential decree within fifteen days, consisting of two members of the Supreme Constitutional Court, two judges from the State Council, two ordinary judges, and four professors of constitutional law from Cairo University. The proposals for the constitutional amendments would then be submitted to a fifty-member committee which would represent the various sectors of civil society and would have the task of drawing up the final text for amendments to the 2012 Constitution within a period of sixty days. Voting on alterations and the additions to the 2012 Constitution started on November 30. On December 3, 2013, the final version of the amended constitution was presented to Interim President ʿAdlī Manṣūr. It was put to a national referendum on January 15–16, 2014, and approved by 98% of voters on a turnout of 38.6% of Egypt’s 52 million eligible voters.

Like its predecessors, the 2014 Constitution assigns the exclusive competence of assessing the constitutionality of laws and regulations to the Supreme Constitutional Court (Art. 192). The provisions of the 2012 Constitution, which were intended to clip the wings of the court, have been removed from the constitutional text. The requirement to consult Al-Azhar in all matters pertaining to Islamic law no longer figures in the new Art. 7, which defines Al-Azhar’s role in Egyptian society as that of an “independent scientific Islamic institution” which is responsible for preaching Islam in Egypt and the world. Art. 219 was dropped altogether. Instead, the preamble of the 2014 Constitution affirms unambiguously that the relevant decisions of the SCC published in its collected rulings are to be the (only) reference for the interpretation of the Sharīʿah clause in Art. 2.

The authority of the SCC has thus been fully restored. Following the overthrow of the Mubārak regime, the court needed some time to redefine its role in the changed environment. However, when it intervened with two important rulings in June 2012, its decisions (p. 684) had a major impact on the course of events. By striking down the law banning leading officials from Mubārak’s National Democratic Party from public office for a period of ten years, the court paved the way for Aḥmad Shafīq, Mubārak’s last prime minister, to stand against Muḥammad Mursī in the runoff presidential election of June 2012. On the same day, it struck down the law which had governed the election of the People’s Assembly, thus prompting the Supreme Council of the Armed Forces to dissolve the Assembly and throwing the Constituent Assembly, which was charged with the drafting of the new Egyptian Constitution, into disarray. Mursī’s controversial constitutional declaration of November 22, 2012, in which he expressly granted the Constituent Assembly and the Shūrā Council immunity from judicial dissolution and precluded any appeal to the courts against his acts and declarations, was intended to forestall any negative effects of the court’s expected rulings on the unconstitutionality of the election of the Constituent Assembly and the Shūrā Council on the work of these two bodies, and especially on the drafting of the new constitution. The court obliged with its ruling on the unconstitutionality of the Shūrā Council in June 2013, a further blow to the Islamist government which was already fighting for its survival, and to the legitimacy of the constitution it had promoted.

To critics arguing that its rulings on the unconstitutionality of the elections of the People’s Assembly and the Shūrā Council impeded the implementation of the popular will expressed at the polls, the court could respond that it had simply applied its case law which dates back to the Mubārak era. At the end of the 1980s the court had repeatedly voided the law on parliamentary elections on the grounds that it failed to provide independent candidates with an adequate opportunity to run for office.26 By drawing on its long established case law, the court was able to present itself as an impartial guardian against the abuse of electoral politics by the dominant political forces of the day, be they secular (as in the case of Mubārak’s National Democratic Party [NDP]) or religious (as in the case of the Muslim Brotherhood’s Freedom and Justice Party). The difference, of course, is that the NDP had been the vehicle of an authoritarian regime which had deliberately manipulated the electoral rules to undermine the performance of opposition groups at the polls, whereas the Muslim Brotherhood owed its dominant position in the People’s Assembly and the Shūrā Council to its broad support among the population expressed in genuinely democratic elections. But even if, for the reasons just indicated, drawing a direct parallel between Mubārak’s NDP in the 1980s and the Islamists who emerged victorious at the polls in 2011/2012 seems somewhat questionable, the position adopted by the Supreme Constitutional Court appeared credible in the eyes of large swathes of the public that had grown increasingly suspicious of the Brotherhood. This growing suspicion owed partly to the fact that following the demise of Mubārak, the Muslim Brotherhood had promised that they would compete for only half of the seats in the parliamentary elections, that they would not field a candidate in the presidential elections, and that they would work toward inclusion of all political and social groups in the democratic process, only to renege on each of these promises when the swift and full implementation of their political agenda seemed to be within reach.27

B.  Taking Constitutional Review Seriously: The Case of Tunisia

Whereas in Egypt the struggle has been for the maintenance of a functioning constitutional review process in the new political environment created by the overthrow of the Mubārak regime, the challenge in the other Arab countries has been to establish the constitutional (p. 685) foundations for a truly autonomous and independent system of constitutional adjudication. In Tunisia, a Constitutional Council had been created in 1987 by a decree which assigned it the task of giving its opinion on the constitutionality of bills submitted to it by the President of the Republic as well as all issues affecting the organization and the functioning of the institutions referred to it by the head of state. The functions of the Council were gradually extended and in 1995 were incorporated into Chapter 9 of the Tunisian Constitution. According to the constitutional regulation introduced, the main function of the Council was the review, upon referral by the President of the Republic, of the consistency of legislation with the constitution prior to its promulgation. Neither the political opposition nor individual citizens had the right to petition the Council to protect their constitutional rights.28

The Tunisian Constitution enacted in January 2014 replaces the Constitutional Council with a Constitutional Court that exercises broad review powers. Unlike other issues, namely the role of religion and the place of women in state and society,29 the section on the Constitutional Court (Section 2 of Chapter 5) does not seem to have generated much controversy. The court is composed of twelve members, nine of whom have to be legal experts with at least twenty years of experience. The remaining three members may be drawn from other sectors of society, including from among retired members of the political class. The President of the Republic, the Assembly of the Representatives of the People, and the Supreme Council of the Judiciary are each to appoint four members of the court, the idea being that each of the three branches of government is thus responsible for the selection of one-third of the total membership of the court. The judges are appointed for a nonrenewable term of nine years (Art. 118).

The court has exclusive jurisdiction over all matters concerning the constitutionality of draft statutes, draft constitutional amendments, and draft treaties. Draft statutes may be referred to the court by the President of the Republic, the head of government, or thirty members of the Assembly of the Representatives of the People after they have been adopted by the Assembly in the final reading. By contrast, proposals for the amendment of the constitution, which may be introduced by the President of the Republic or one-third of the members on the Assembly, have to be forwarded to the Constitutional Court by the Speaker of the Assembly before they can be debated in parliament. The court is to examine whether the draft amendment would entail a change to a provision in the constitution that cannot be amended (Art. 144). This concerns mainly Art. 1 (recognition of Islam as the religion of Tunisia and of Arabic as its language) and Art. 2 (the principle of the “civil state”) and the rights and freedoms guaranteed in the constitution which may not be “undermined” (Art. 49). Draft amendments may also be referred to the court by the Speaker following their adoption in order to check whether the constitutional procedures for such amendments have been respected. International treaties may be referred to the Constitutional Court by the President of the Republic before he signs the law for their ratification. Finally, the rules of procedure of the Assembly are referred to the Constitutional Court by its Speaker (Art. 120).

Even more important, the new Tunisian Constitution allows for the review of constitutionality of laws which have already entered into force upon the initiative of one of the parties to a court case whose outcome depends on the contested provision. While it is the court or tribunal hearing the case which formally submits the matter to the Constitutional (p. 686) Court, it is the party challenging the constitutionality of legislation which initiates the procedure and determines its scope. In its ruling, which has to be issued within a period of three months, renewable only once, the Constitutional Court must limit itself to examining those issues which the party challenging the constitutionality of the contested legislation has raised in their application. If the Constitutional Court concludes that a statutory provision is unconstitutional, the provision ceases to be applicable, subject to the instructions given by the court (Art. 123). In theory at least, these powers seems to allow the new court to turn itself into an effective guardian of the rights guaranteed to individuals by the constitution.

C.  Reforms from Above: Morocco and Jordan

Other Arab countries reacted to the wave of public protests running through most of the Arab world in early 2011 by implementing a constitutional reform agenda from above. This is true particularly in the case of the constitutional monarchies of Morocco and Jordan. Whereas Morocco already had some limited form of constitutional review prior to the “Arab Spring”, such an institution had to be created from scratch in Jordan.

1.  Morocco

The constitutional changes approved by the Moroccan electorate in the referendum of July 2011 represent a major reorientation of the Moroccan constitutional system. The reforms strengthen the democratic and rule of law components of the constitutional system in several important respects. One such important new development is the express constitutional recognition of the special status of the parliamentary opposition. According to Art. 10 of the new constitution, this status enables the opposition to fulfill its special role in parliament and in the political life of the country. The parliamentary opposition has, among other things, the right to present its views in the official media, to have access to public funding, to participate in an effective manner in the law-making procedure and the oversight of the government, and to be represented adequately in the internal activities of parliament. It is particularly notable that the presidency of the important committee on legislation is to be reserved for a member of the parliamentary opposition.

In another potentially significant departure from previous constitutional practice, the 2011 Constitution contains a fully developed bill of rights. The 1996 Constitution had limited itself to a number of guarantees of fundamental rights which were included in Title 1 on the basic principles of the Moroccan Constitution. By contrast, the 2011 Constitution contains a separate and detailed chapter on freedoms and fundamental rights (Arts. 19 to 40). According to Art. 19, Moroccans shall enjoy, in addition to the rights and freedoms set forth in the new constitution, the human rights guaranteed in the international conventions and covenants to which the Kingdom of Morocco is a party. The enjoyment of these rights is qualified, however, by the reminder that they shall be exercised “in accordance with the provisions of the constitution, the lasting traditions and the laws of the Kingdom”.

The provisions in Title 2 guarantee the most important civil and political rights, including the right to life (Art. 20), security (Art. 21), physical and moral integrity (Art. 22), freedom from arbitrary detention or arrest (Art. 23), the right to protection of one’s private life (Art. 24), freedom of expression, information, and the press (Arts. 25, 27), freedom of assembly, peaceful manifestation, and assembly (Art. 29), the right to vote (Art. 30), and the right to property and freedom of enterprise (Art. 35). The latter right is balanced, however, by the obligation of the legislature to take measures to prevent conflicts of interest, insider trading, and all offences of a financial character, as well as practices which are contrary to the principles of free and fair competition (Art. 36).

(p. 687) In line with these changes, the new constitution has strengthened the role of constitutional review. The Constitutional Council (Conseil constitutionnel), established in 1992, has been elevated to the rank of Constitutional Court (Cour constitutionnelle). Like its forerunner, the new Constitutional Court is composed of twelve members appointed for a term of nine years, with a renewal of one-third of the membership taking place every three years. Six of its members are appointed by the King and the other six members are elected by parliament, one-half by the House of Representatives and one-half by the House of Counsellors. Of the six members to be appointed by the King, one shall be proposed by the Secretary General of the High Council of Religious Scholars. Unlike the 1996 Constitution, the new constitutional text leaves no doubt that the members of the new court have to be drawn from the legal establishment. They are to be chosen from among individuals who have a good legal education, have demonstrated their competence by practicing a profession in the judicial, academic, or administrative field for more than fifteen years, and who are known for their impartiality and integrity (Art. 130).

The court continues to carry out the functions which were previously performed by the Constitutional Council. In this regard, the court is responsible for monitoring the proper conduct of parliamentary elections and referendums and for reviewing the constitutionality of parliamentary legislation and the parliamentary rules of procedure. The power to review ordinary statutes and so-called Institutional Acts (i.e., statutes which are referred to in the constitution by this name; in substantive terms, these are statutes which spell out the details with regard to the organization, powers and functioning of the main state institutions established by the constitution) can only be exercised before the statute in question is promulgated. This power has been extended by the reform to laws relating to international agreements before their ratification. The review of Institutional Acts and new parliamentary rules of procedure is compulsory, i.e., a prior application to this end by a state body or an individual is not required. In contrast to this, ordinary statutes and laws relating to international agreements will only be reviewed if they are referred to the Constitutional Court by one of the applicants mentioned in the third paragraph of Art. 132 before their promulgation or ratification, i.e., by the King, the head of government, the president of either of the houses of parliament, one-fifth of the members of the House of Representatives, or one-quarter of the House of Counsellors.

In the past the Constitutional Council has made only very limited use of these review powers, especially with regard to the protection of fundamental rights and freedoms.30 The Council was unable to develop any coherent case law relating to fundamental rights as, under the optional review procedure, the members of the political opposition in parliament rarely used their right to refer ordinary statutes to the Council. This is perhaps not surprising as the Council was originally created with the primary purpose of upholding the dominant position of the monarchy enshrined in the constitution. It was allowed to venture into other fields, and in particular into the field of fundamental rights, as long as this was not seen as incompatible with its primary role.31 This original narrow view of constitutional review was reflected in the early jurisprudence of the Council which firmly upheld the prerogatives of the government in its relationship with parliament. By contrast, a number of statutes which raised concerns about fundamental rights went largely unchecked.32

(p. 688) The constitutional reforms of July 2011 have, at least, given the legal instruments to the new Constitutional Court to act more vigorously in the defense of civil rights and liberties. Under the new Art. 133, the court will have jurisdiction to rule on the claim of unconstitutionality brought by one of the parties to a pending court case against a statute allegedly violating the rights and freedoms protected by the constitution, provided that the outcome of the court case depends on the constitutionality and applicability of the statute. While it will still not be possible to apply directly to the court in the case of human rights violations, the court will for the first time have the power to rule on the constitutionality of legislation which is already in force, and will be competent to do so outside a political context in the narrower sense, i.e., upon an application which is brought not by a political body, but rather by a court or by a private person or entity which is a party to judicial proceedings.

Much will depend on the implementation of this provision, and in particular on the question of whether the power to refer cases to the Constitutional Court for the review of a statute’s constitutionality is restricted to the highest courts or whether it is extended to all courts, tribunals, and bodies of a judicial character before which the question of unconstitutionality of a statute may arise in the context of concrete litigation. Another vital question is whether the parties involved in such judicial proceedings are given specific rights with regard to the initiation of such a procedure, as is the case in Egypt.33 A reform along Egyptian lines could open the way for a substantial role of the Constitutional Court in the defense of fundamental rights and the rule of law, assuming the Egyptian experience is a reliable indicator.

The profile of the Moroccan Constitutional Court has also been raised in other respects. The president of the Constitutional Court is now one of the individuals who have to be consulted by the King and the highest political authorities on the most important matters of state. These decisions include the declaration of a state of emergency by the King (Art. 59), the dissolution of parliament by the King (Art. 96) or of the House of Representatives by the prime minister (Art. 104), and the introduction of a bill amending the constitution by the King (Art. 174). The president of the Constitutional Court also heads the Regency Council, which exercises the powers and constitutional rights of the monarch before the heir to the throne reaches the required age (18) to assume his royal functions (Art. 44).

2.  Jordan

Prior to the constitutional reform of September 2011, Jordan had neither a French-style Constitutional Council nor an Egyptian-style Constitutional Court. The only provision relating to the enforcement of the constitution was to be found in Art. 122 of the Jordanian Constitution of 1952. This provision assigned to the High Tribunal the right to interpret the provisions of the constitution. The High Tribunal was the body set up under Art. 57 for the trial of ministers for offences which they committed in the performance of their duties. It consisted of nine members, four of whom were drawn from the ranks of the Senate, while the other five members were selected from the ranks of the highest civil court. Its mixed political/judicial character raised doubts whether the Tribunal’s constitutional interpretations under Art. 122 could be considered legally binding. But even if their binding character was admitted, the fact remained that the Tribunal could only exercise its powers at the request of the Council of Ministers or of one of the two houses of parliament. It did not (p. 689) have the power to adjudicate concrete disputes. It is therefore not surprising that its relevance to the development of constitutional law in Jordan remained very limited in practice.

The reforms of September 2011 have brought fundamental change in this area by establishing, for the first time since the country was founded in 1922, a separate constitutional jurisdiction in Jordan. The new Constitutional Court is to be composed of nine members. Like the Moroccan Constitution, the amended Constitution of Jordan stresses the need for the Constitutional Court judges to be professionally competent. They must have served either as a judge in the Court of Cassation or the High Court of Justice; or as professor of law (with a full professorship) at a university, or as lawyer with no less than fifteen years of professional practice. However, unlike the Moroccan Constitution the revised Jordanian Constitution still leaves the door open to the membership of former politicians by stipulating that “specialists” who fulfill the conditions for membership in the Senate may also join the new review institution (Art. 61). According to Art. 64, the group of people eligible for membership in the Senate comprises present and past prime ministers and ministers, persons who previously held the office of ambassador, Speaker of the Chamber of Deputies, president and judges of the Court of Cassation and of the Civil and Sharīʿah Courts of Appeal, retired military officers of the rank of Lt. General and above, former deputies who were elected at least twice, and “other similar personalities who enjoy the confidence and trust of the people in view of the services they have rendered to the nation and country”. It is not clear whether or not the term “expert” is to be understood as an additional qualification which would allow this rather large group of dignitaries to be whittled down to those who either come from the legal profession or at least hold a law degree when it comes to determining their eligibility for membership in the Constitutional Court. The judges are to be appointed by the King for a term of six years. Whereas draft versions of the new Art. 58 had provided that the term of membership would be subject to renewal, this clause, which constituted a potential threat to the independence of the judges, has disappeared from the final version of the article.

The Constitutional Court rules on the constitutionality of laws and regulations and interprets the constitution upon the request of the Council of Ministers or either of the houses of parliament (Art. 59). While citizens do not have the right to approach the court directly, the right to request the review of a statute or regulation for its constitutionality is limited to the highest bodies of the executive and the legislature, i.e., the Council of Ministers and both houses of parliament. However, the parties to a case pending before the ordinary courts have the right to plead the unconstitutionality of law and regulation. If the court of litigation is convinced that the challenged provision is applicable to the case at hand and that the claim of unconstitutionality is serious, it shall suspend the proceedings and refer the matter to the Court of Cassation, the highest civil court in Jordan, for a final decision on whether the petition will be submitted to the Constitutional Court. If the court of litigation refuses to refer the matter to the Court of Cassation, its decision can be appealed. By contrast, any decision by the Court of Cassation not to refer the matter to the Constitutional Court is not subject to appeal by the party whose petition has been rejected. It is therefore this court which determines whether the avenue to the Constitutional Court for private parties is a broad or a narrow one. Since the new Constitutional Court was established in 2012, it has already had the opportunity to decide on the conformity of laws with the constitutional bill of rights in this procedure in a number of cases. The court has already made use of this power to strike down laws for their inconsistency with the constitutional bill of rights on several occasions.34

(p. 690) III.  Conclusions

Four years after the beginning of the “Arab Spring” the future of constitutional adjudication remains uncertain. While the stronger emphasis on the rule of law after the demise of the authoritarian regimes which dominated the Arab world for the last half century should, in principle, favor the idea of independent and strong constitutional courts as an important safeguard against the abuse of power, a powerful constitutional court may also easily come to be seen considered as an obstacle to the full implementation of the program of the new political majority. As events elsewhere have shown, acceptance of constitutional courts as an integral part of a system of checks and balances presupposes a certain level of a political culture which views checks and balances on the exercise of political power as a desirable and necessary elements of a system based on democracy, rule of law, and fundamental rights. Such culture does not emerge overnight but needs time to develop and to take root.

The reforms implemented in Tunisia, Morocco, and Jordan look promising so far. The professionalization and thus the independence of these bodies have been strengthened through the requirement that only persons known for their legal and professional competence may serve in such bodies. Additionally, the courts have, for the first time, been given powers which will allow them to adjudicate on the constitutionality of statutes and other legal rules in the context of concrete litigation, thus creating a potential opening for individuals and civil society organizations to submit claims relating to their rights to these courts.

However, it remains to be seen whether the institutional and political environment in which the new courts will operate will allow them to thrive. At the time of writing, only the Jordanian Court has started to use its new powers. Certain ambiguities continue to exist in the new constitutional regulations which might hamper the effective exercise of the courts’ prerogatives. Where the right to submit questions of unconstitutionality in the context of concrete litigation to the Constitutional Court can only be exercised through the judicial hierarchy, as in Jordan, the superior courts may use their filtering function not only to shield the Constitutional Court from frivolous or ill-founded claims, but also to prevent these issues from reaching the court altogether. Much will therefore depend not only on the wording of the legislation implementing the new review procedures, but also on the spirit in which the judges make use of their new competencies.

Footnotes:

1  In 1948 Egypt’s Conseil d’Etat ruled that nothing in Egyptian law prevented the Egyptian courts from addressing the constitutionality of legislation. This was a bold ruling which might have established a tradition of judicial review in Egypt early on had it not been impeded by the revolutionary events of 1952. For this and other early experiences of judicial review in Arab countries, see C. Mallat, Introduction to Middle Eastern Law (Oxford University Press, Oxford 2007) 182–185.

2  On the establishment of the Egyptian court and the motives behind it, see T. Moustafa, The Struggle for Constitutional Power—Law, Politics, and Economic Development in Egypt (Cambridge University Press, Cambridge 2007) 57– 89.

3  Art. 29 of Law No. 48/1979 on the Supreme Constitutional Court.

4  See Art. 25 no. 1 of Law No. 48/1979: The Supreme Constitutional Court alone is competent in matters concerning the review of the constitutionality of laws and regulations.

5  This period of judicial activism is often associated with the tenure of ʿAwaḍ al-Murr as Chief Justice of the Court from 1991 to 1997, see T. Moustafa (n 2) 118.

6  N. Bernard-Maugiron, “Consolidation of State Authoritarianism under Mubarak” in S. Arjomand and N. Brown (eds), The Rule of Law, Islam, and Constitutional Politics in Egypt and Iran (State University of New York Press, Albany 2013) 187.

7  All member countries of the Arab Maghreb Union other than Libya—Mauritania, Morocco, Algeria, and Tunisia – had established special bodies to ensure observance of their constitutions already prior to the Arab spring, see I. Gallala-Arndt, “Constitutional Jurisdiction and Its Limits in the Maghreb,” in R. Grote and T. Roeder (eds), Constitutionalism in Islamic Countries—Between Continuity and Upheaval (Oxford University Press, New York 2012) 239–248.

8  See I. Gallala-Arndt (n 7) 251.

9  As in France, certain Acts of Parliament, the so-called organic acts (lois organiques), and the parliamentary rules of procedure are subject to compulsory review by the Council, see id. 250.

10  I. Gallala-Arndt (n 7) 255.

11  See R. Grote, “Models of Institutional Control in Islamic Countries” in R. Grote and T. Röder (eds), Constitutionalism in Islamic Countries—Between Continuity and Upheaval (Oxford University Press, New York 2012) 227.

12  See C. Mallat, “Three recent decisions from the Yemeni Supreme Court” (1995) 2 Islamic Law and Society 76.

13  See I. Glosemeyer, N. A. Shamiri ,and A. Würth, “Yemen: A Burgeoning Democracy on the Arab Peninsula?” in R. Grote and T. Röder (eds), Constitutionalism in Islamic Countries: Between Upheaval and Continuity (Oxford University Press, New York 2012) 417.

14  See C. Mallat (n 1) 195.

15  Art. 49 of the Constitutional Declaration of March 30, 2011.

16  B. K. Rutherford, Egypt after Mubarak—Liberalism, Islam and Democracy in the Arab World (Princeton University Press, Princeton 2013) XXIII.

17  Egypt court orders dissolving of parliament, http://www.aljazeera.com/news/middleeast/2012/06/ 2012614124538532758, accessed September 14, 2015.

18  B. K. Rutherford (n 16) XXIII.

19  B. K. Rutherford (n 16) XXIII.

20  See Art. 176 of the 2012 Constitution. The 2014 Constitution leaves the determination of the number of Constitutional Court judges to the legislation for its implementation. It only requires that their number must be “sufficient,” see Art. 193.

21  Art. 175 of the 2012 Constitution.

22  On this jurisprudence, see A. O. Sherif, “The Relationship between the Constitution and the Shari’ah in Egypt” in R. Grote and T. Röder (eds), Constitutionalism in Islamic Countries: Between Upheaval and Continuity (Oxford University Press, New York 2012) 128–132; R. Hirschl, “Constitutional Courts as Bulwarks of Secularism” in D. Kapiszewski, G. Silverstein, and R. Kagan (eds), Consequential Courts—Judicial Roles in Global Perspective (Cambridge University Press, New York 2013) 316.

24  J. Neriah, Towards a Constitutional Crisis in Egypt?, http://jcpa.org/towards-a-constitutional-crisis-in-egypt/, accessed September 14, 2015.

25  “Egypt’s constitution legitimate despite court rulings: FJP statement,” Ahram Online (June 2, 2013), http://english.ahram.org.eg/NewsContentPrint/1/0/72968/Egypt/0/Egypts-constitution-legitimate-despite court-rulin.aspx, accessed September 14, 2015.

26  SCC decisions of May 16, 1987, and of May 19, 1990.

27  B. K. Rutherford (n 16) XVIII.

28  I. Gallala-Arndt (n 7) 250.

29  On these issues, see Z. Al-Ali and D. Ben Romdhane, “Tunisia’s new constitution: progress and challenges to come,” available at: http://www.opendemocracy.net/print/79368, accessed September 14, 2015.

30  For an assessment of the jurisprudence of the Moroccan Constitutional Council, see I. Gallala-Arndt (n 7) 223.

31  O. Bendourou, “Conseils constitutionnels et État de Droit au Maghreb” in A. Mahiou (ed), L’Etat de droit dans le monde arabe (CNRS-Editions, Paris 1997) 240.

32  Decisions of January 3, 1995, Bulletin officiel (January 25, 1995) 196 and Bulletin officiel (July 4, 1995) 2144.

33  See Art. 29 of Law No. 48/1979 on the Supreme Constitutional Court of Egypt. According to section 2 of this provision, if one of the parties to a case before a tribunal or an organ with judicial authority disputes the unconstitutionality of a law or a regulation and the tribunal or organ considers the challenge to be plausible, it is to postpone its decision and grant the party which has raised the challenge a maximum respite of three months in order to petition the Supreme Constitutional Court.

34  For example, Judgment No. 2 of 2013 (Unconstitutionality of Art. 51 of the Arbitration Law No. 31 of 2001); No. 4 of 2013 (Unconstitutionality of Art. 5 of the Law on Landlords and Tenants with dissenting opinions by Justices Nṣūr, Ghazwī, Saʿīd, and Ḥamūd).