Pub Date : 2021-08-24DOI: 10.5771/9783748912019-11
A. Schoeller-Schletter
a priori Incidental/ concrete control Individual complaint Mauretania Constitutional Council Yes No No Lebanon Constitutional Council Yes No No Syria Constitutional Court Yes No No Egypt Constitutional Court Yes Yes No Tunisia Constitutional Court Yes Yes No Bahrain Constitutional Court Yes Yes No Morocco Constitutional Court Yes Since 2011 No Algeria Constitutional Council Yes Since 2016 No Saudi Arabia Supreme Court N/A Yes No UAE Supreme Court No Yes No Iraq Supreme Court No Yes No Jordan High Tribunal No Filtered (Cass. C) No Kuwait Constitutional Court Yes Yes Yes Libya Supreme Court Yes No Yes Sudan Constitutional Court No No Yes Yemen Supreme Court No Yes Since 1991
{"title":"Mapping Constitutional Review in the Middle East and North Africa: Historic Developments and Comparative Remarks","authors":"A. Schoeller-Schletter","doi":"10.5771/9783748912019-11","DOIUrl":"https://doi.org/10.5771/9783748912019-11","url":null,"abstract":"a priori Incidental/ concrete control Individual complaint Mauretania Constitutional Council Yes No No Lebanon Constitutional Council Yes No No Syria Constitutional Court Yes No No Egypt Constitutional Court Yes Yes No Tunisia Constitutional Court Yes Yes No Bahrain Constitutional Court Yes Yes No Morocco Constitutional Court Yes Since 2011 No Algeria Constitutional Council Yes Since 2016 No Saudi Arabia Supreme Court N/A Yes No UAE Supreme Court No Yes No Iraq Supreme Court No Yes No Jordan High Tribunal No Filtered (Cass. C) No Kuwait Constitutional Court Yes Yes Yes Libya Supreme Court Yes No Yes Sudan Constitutional Court No No Yes Yemen Supreme Court No Yes Since 1991","PeriodicalId":129851,"journal":{"name":"Constitutional Review in the Middle East and North Africa","volume":"98 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-08-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115798353","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1900-01-01DOI: 10.5771/9783748912019-259
Laith K. Nasrawin
This chapter aims to analyze the legal means available to challenge the validity of membership in the Jordanian House of Representatives, which is considered as one face of electoral disputes that arise after the completion of the voting process and the announcement of final results. The chapter focuses on the scrutiny that the Jordanian judiciary exercises in case of contesting the election procedures and consequently claiming that the membership of a certain candidate is void, from the legitimacy and constitutionality perspectives. The oversight of legitimacy revolves around the extent to which electoral procedures were violated, whereas the constitutional control relates to the extent the Law of Election is compatible with or contravenes the provisions of the Jordanian Constitution. Both methods were substantially revised in 2011, upon the comprehensive constitutional reform that Jordan conducted. Finally, the chapter deals with the legal implications of applying both the legitimacy and constitutional scrutiny with respect to the membership of those elected to the Jordanian House of Representatives.
{"title":"Challenging the Validity of Membership of the House of Representatives in Jordan","authors":"Laith K. Nasrawin","doi":"10.5771/9783748912019-259","DOIUrl":"https://doi.org/10.5771/9783748912019-259","url":null,"abstract":"This chapter aims to analyze the legal means available to challenge the validity of membership in the Jordanian House of Representatives, which is considered as one face of electoral disputes that arise after the completion of the voting process and the announcement of final results. The chapter focuses on the scrutiny that the Jordanian judiciary exercises in case of contesting the election procedures and consequently claiming that the membership of a certain candidate is void, from the legitimacy and constitutionality perspectives. The oversight of legitimacy revolves around the extent to which electoral procedures were violated, whereas the constitutional control relates to the extent the Law of Election is compatible with or contravenes the provisions of the Jordanian Constitution. Both methods were substantially revised in 2011, upon the comprehensive constitutional reform that Jordan conducted. Finally, the chapter deals with the legal implications of applying both the legitimacy and constitutional scrutiny with respect to the membership of those elected to the Jordanian House of Representatives.","PeriodicalId":129851,"journal":{"name":"Constitutional Review in the Middle East and North Africa","volume":"5 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130618888","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1900-01-01DOI: 10.5771/9783748912019-61
Salma Waheedi
{"title":"Guarantees and Challenges of Judicial Independence: The Constitutional Courts of Kuwait and Bahrain as Case Studies","authors":"Salma Waheedi","doi":"10.5771/9783748912019-61","DOIUrl":"https://doi.org/10.5771/9783748912019-61","url":null,"abstract":"","PeriodicalId":129851,"journal":{"name":"Constitutional Review in the Middle East and North Africa","volume":"26 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127689756","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1900-01-01DOI: 10.5771/9783748912019-47
Sufian Obeidat
{"title":"The Independence of Constitutional Judges: The Case of Jordan","authors":"Sufian Obeidat","doi":"10.5771/9783748912019-47","DOIUrl":"https://doi.org/10.5771/9783748912019-47","url":null,"abstract":"","PeriodicalId":129851,"journal":{"name":"Constitutional Review in the Middle East and North Africa","volume":"81 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126411918","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1900-01-01DOI: 10.5771/9783748912019-77
Rainer Grote
In countries with a specialized constitutional jurisdiction, the smooth functioning of the separation of powers between a constitutional court and the supreme courts in the administrative, criminal, civil and other jurisdictions cannot be taken for granted. The expanding reach of constitutional law and especially of the fundamental rights provisions of contemporary constitutions render close cooperation between the former and the latter both more necessary and more complex. A comparative survey shows that this central institutional relationship has evolved very differently in the four major constitutional democracies of Germany, Italy, Spain and France. While in Germany a hegemonic position of the Constitutional Court was swiftly established and has largely been accepted by the supreme courts of the other jurisdictions, in Spain the relationship between the Constitutional Court and the Supreme Court has taken a confrontational turn which has severely impaired the former’s authority. These widely diverging experiences show that constitutional and statutory regulation alone is not sufficient to produce a stable and productive relationship if it is not backed up by mutual respect and understanding which can only result from a permanent dialogue between the courts.
{"title":"Constitutional Courts and Supreme Courts: A Difficult Relationship","authors":"Rainer Grote","doi":"10.5771/9783748912019-77","DOIUrl":"https://doi.org/10.5771/9783748912019-77","url":null,"abstract":"In countries with a specialized constitutional jurisdiction, the smooth functioning of the separation of powers between a constitutional court and the supreme courts in the administrative, criminal, civil and other jurisdictions cannot be taken for granted. The expanding reach of constitutional law and especially of the fundamental rights provisions of contemporary constitutions render close cooperation between the former and the latter both more necessary and more complex. A comparative survey shows that this central institutional relationship has evolved very differently in the four major constitutional democracies of Germany, Italy, Spain and France. While in Germany a hegemonic position of the Constitutional Court was swiftly established and has largely been accepted by the supreme courts of the other jurisdictions, in Spain the relationship between the Constitutional Court and the Supreme Court has taken a confrontational turn which has severely impaired the former’s authority. These widely diverging experiences show that constitutional and statutory regulation alone is not sufficient to produce a stable and productive relationship if it is not backed up by mutual respect and understanding which can only result from a permanent dialogue between the courts.","PeriodicalId":129851,"journal":{"name":"Constitutional Review in the Middle East and North Africa","volume":"37 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129881062","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1900-01-01DOI: 10.5771/9783748912019-329
Rainer Grote
Although the Christian religion has lost its once-dominant place in European societies as they have taken on a more secular, religiously diverse character in the post-World War II era, the constitutional principles and rules governing the relationship between state and church have remained remarkably stable in most parts of non-Communist Europe. They can be grouped into three main categories, depending on the form and degree of cooperation or separation they provide for in the relationship between the established Church(es) and the state. By contrast, the task of accommodating the new religious groups including Muslims which are an important feature of the increasing religious diversity of European societies within the existing constitutional settlements on the relationship between the state and religion has largely been left to the legislature and the courts. This has allowed new meta-norms to penetrate the constitutional space of the European states, particularly the guarantees in the European Convention of Human Rights on religious liberty in its individual as well as collective dimensions and the principle of non-discrimination on religious grounds.
{"title":"The Changing Constitutional Framework of Church-State Relations in Europe","authors":"Rainer Grote","doi":"10.5771/9783748912019-329","DOIUrl":"https://doi.org/10.5771/9783748912019-329","url":null,"abstract":"Although the Christian religion has lost its once-dominant place in European societies as they have taken on a more secular, religiously diverse character in the post-World War II era, the constitutional principles and rules governing the relationship between state and church have remained remarkably stable in most parts of non-Communist Europe. They can be grouped into three main categories, depending on the form and degree of cooperation or separation they provide for in the relationship between the established Church(es) and the state. By contrast, the task of accommodating the new religious groups including Muslims which are an important feature of the increasing religious diversity of European societies within the existing constitutional settlements on the relationship between the state and religion has largely been left to the legislature and the courts. This has allowed new meta-norms to penetrate the constitutional space of the European states, particularly the guarantees in the European Convention of Human Rights on religious liberty in its individual as well as collective dimensions and the principle of non-discrimination on religious grounds.","PeriodicalId":129851,"journal":{"name":"Constitutional Review in the Middle East and North Africa","volume":"41 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131493167","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1900-01-01DOI: 10.5771/9783748912019-209
Yussef Auf
In line with adopting the Egyptian Constitution of 1923, which paved the way for the first-ever pluralistic elections in the history of modern Egypt, the judicial bodies have been a major player in deciding not only on the election’s results and validity, but also on the electoral laws in terms of its constitutionality and legitimacy. While in Egypt the administrative courts decide in queries about the election’s procedures, the Court of Cassation, Egypt’s highest court in the general judiciary, decides on the validity of the MP’s memberships itself. Over time, the Supreme Constitutional Court has frequently been interacting with the electoral issues by deciding on the legitimacy and constitutionality of the electoral laws and regulations. This has been done by judicial review prior to the issuance of the law, and by judicial review after the law’s promulgation. This chapter discusses and illustrates the role that has been played over decades by various courts concerned with electoral disputes in Egypt
{"title":"Judicial Review of Elections: The Egyptian Experience","authors":"Yussef Auf","doi":"10.5771/9783748912019-209","DOIUrl":"https://doi.org/10.5771/9783748912019-209","url":null,"abstract":"In line with adopting the Egyptian Constitution of 1923, which paved the way for the first-ever pluralistic elections in the history of modern Egypt, the judicial bodies have been a major player in deciding not only on the election’s results and validity, but also on the electoral laws in terms of its constitutionality and legitimacy. While in Egypt the administrative courts decide in queries about the election’s procedures, the Court of Cassation, Egypt’s highest court in the general judiciary, decides on the validity of the MP’s memberships itself. Over time, the Supreme Constitutional Court has frequently been interacting with the electoral issues by deciding on the legitimacy and constitutionality of the electoral laws and regulations. This has been done by judicial review prior to the issuance of the law, and by judicial review after the law’s promulgation. This chapter discusses and illustrates the role that has been played over decades by various courts concerned with electoral disputes in Egypt","PeriodicalId":129851,"journal":{"name":"Constitutional Review in the Middle East and North Africa","volume":"4 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127730055","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1900-01-01DOI: 10.5771/9783748912019-377
A. Schoeller-Schletter, R. Poll
{"title":"Constitutional Courts and Councils in the Middle East and North Africa: Basic Facts and Figures","authors":"A. Schoeller-Schletter, R. Poll","doi":"10.5771/9783748912019-377","DOIUrl":"https://doi.org/10.5771/9783748912019-377","url":null,"abstract":"","PeriodicalId":129851,"journal":{"name":"Constitutional Review in the Middle East and North Africa","volume":"67 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114213568","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1900-01-01DOI: 10.5771/9783748912019-229
Fawaz Almutairi
The Kuwaiti Constitutional Court annulled two elected parliaments in the same year. The court annulled the National Assembly that was elected in February 2012 after four months of its election 1 , and the National Assembly that was elected in December 2012 after six months of its election 2 . The two decisions had a major impact on the extent of the court’s authority to nullify elected parliaments due to wrong governmental measures which have nothing to do with any parliamentary actions. The legal access to the Constitutional Court to examine the legitimacy of an elected parliament was through the exceptional authority granted to it to examine the electoral appeals. This chapter first discusses the extent of the Court’s jurisdiction to examine electoral appeals and then its authority to annul an elected parliament. The Constitutional Court has a number of competences - its inherent competence being to examine the constitutionality of laws and decrees. The control of election laws and the electoral process also fall under its jurisdiction, as is the case in several other countries of the region, for example Egypt. Here it may be considered as a normal Court where the electoral cases are appealed; whether concerning the division of constitu-encies or the voting mechanism. In some instances, the same court hears electoral appeals in terms of election invalidity, whether in relation to invalid legal procedures that vitiated the electoral process, or in relation to the inspection of practices during the electoral process, or in relation to arithmetic errors and erroneous announcement of results. Thus, through this appeal function and “detour” in cases, wherein the Constitutional Court examined the former Royal Decrees regarding the electoral process,
{"title":"The Extent of the Authority of the Constitutional Court of Kuwait to Annul an Elected Parliament: The Cases of the 2012 Parliaments","authors":"Fawaz Almutairi","doi":"10.5771/9783748912019-229","DOIUrl":"https://doi.org/10.5771/9783748912019-229","url":null,"abstract":"The Kuwaiti Constitutional Court annulled two elected parliaments in the same year. The court annulled the National Assembly that was elected in February 2012 after four months of its election 1 , and the National Assembly that was elected in December 2012 after six months of its election 2 . The two decisions had a major impact on the extent of the court’s authority to nullify elected parliaments due to wrong governmental measures which have nothing to do with any parliamentary actions. The legal access to the Constitutional Court to examine the legitimacy of an elected parliament was through the exceptional authority granted to it to examine the electoral appeals. This chapter first discusses the extent of the Court’s jurisdiction to examine electoral appeals and then its authority to annul an elected parliament. The Constitutional Court has a number of competences - its inherent competence being to examine the constitutionality of laws and decrees. The control of election laws and the electoral process also fall under its jurisdiction, as is the case in several other countries of the region, for example Egypt. Here it may be considered as a normal Court where the electoral cases are appealed; whether concerning the division of constitu-encies or the voting mechanism. In some instances, the same court hears electoral appeals in terms of election invalidity, whether in relation to invalid legal procedures that vitiated the electoral process, or in relation to the inspection of practices during the electoral process, or in relation to arithmetic errors and erroneous announcement of results. Thus, through this appeal function and “detour” in cases, wherein the Constitutional Court examined the former Royal Decrees regarding the electoral process,","PeriodicalId":129851,"journal":{"name":"Constitutional Review in the Middle East and North Africa","volume":"61 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125028833","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1900-01-01DOI: 10.5771/9783748912019-189
Gertrude Lübbe-Wolff
For constitutional courts to be able to activate the integrative function of the constitution they have to interpret and apply, and to avoid the risk of fostering polarization, they must work in a collegial, consensus-oriented, deliberative way. Some courts do better on that score than others. Why is that so? The article draws attention to institutional frameworks explaining the differences in underlying cultures of deliberation. A fundamental difference between courts in common law countries with their historical roots in the tradition of seriatim decision-making, and courts outside the common law world with their less individualist decision-making traditions is that the former need a majority only for the outcome of a decision, whereas the latter need a majority for the reasons, as well. Many other institutional features, mentioned in the final section of the article, also matter. The differences with respect to majority requirements, however, provide a particularly telling example of how institutional frameworks shape judicial behavior in unnoticed ways.
{"title":"Integrating or Polarising? How to Promote Integrative Decision-Making in Constitutional Courts","authors":"Gertrude Lübbe-Wolff","doi":"10.5771/9783748912019-189","DOIUrl":"https://doi.org/10.5771/9783748912019-189","url":null,"abstract":"For constitutional courts to be able to activate the integrative function of the constitution they have to interpret and apply, and to avoid the risk of fostering polarization, they must work in a collegial, consensus-oriented, deliberative way. Some courts do better on that score than others. Why is that so? The article draws attention to institutional frameworks explaining the differences in underlying cultures of deliberation. A fundamental difference between courts in common law countries with their historical roots in the tradition of seriatim decision-making, and courts outside the common law world with their less individualist decision-making traditions is that the former need a majority only for the outcome of a decision, whereas the latter need a majority for the reasons, as well. Many other institutional features, mentioned in the final section of the article, also matter. The differences with respect to majority requirements, however, provide a particularly telling example of how institutional frameworks shape judicial behavior in unnoticed ways.","PeriodicalId":129851,"journal":{"name":"Constitutional Review in the Middle East and North Africa","volume":"18 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132061547","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}