Pub Date : 1900-01-01DOI: 10.5771/9783748912019-161
Francesco Biagi
One of the most significant trends following the Arab Spring has been the emergence and strengthening of constitutional review bodies. Jordan and Palestine established a constitutional court for the first time in their history, respectively in 2012 and 2016; the latest draft constitution of Libya provides for a constitutional court; Morocco, Tunisia, Algeria and Kuwait have reinforced the position and powers of their respective constitutional review bodies; in Egypt the Supreme Constitutional Court continues to be one of the most powerful and influential institutions in the country. The aim of this chapter is to discuss whether these new constitutional review bodies have acquired the potential to subject the executive branch to adequate checks and thus contribute to the processes of democratization more effectively compared to the past. In order to do so, I shall first briefly identify the reasons why constitutional courts and councils before the Arab Spring rarely acted as “counter-majoritarian” bodies. I shall then discuss the major novelties introduced by the recent constitutional reforms in the field of constitutional review. Finally, I shall examine some of the main challenges that constitutional courts and councils will have to face in order to fulfill their role of guardians of the constitution.
{"title":"Constitutional Review after the Arab Spring: Reforms, Challenges and Perspectives","authors":"Francesco Biagi","doi":"10.5771/9783748912019-161","DOIUrl":"https://doi.org/10.5771/9783748912019-161","url":null,"abstract":"One of the most significant trends following the Arab Spring has been the emergence and strengthening of constitutional review bodies. Jordan and Palestine established a constitutional court for the first time in their history, respectively in 2012 and 2016; the latest draft constitution of Libya provides for a constitutional court; Morocco, Tunisia, Algeria and Kuwait have reinforced the position and powers of their respective constitutional review bodies; in Egypt the Supreme Constitutional Court continues to be one of the most powerful and influential institutions in the country. The aim of this chapter is to discuss whether these new constitutional review bodies have acquired the potential to subject the executive branch to adequate checks and thus contribute to the processes of democratization more effectively compared to the past. In order to do so, I shall first briefly identify the reasons why constitutional courts and councils before the Arab Spring rarely acted as “counter-majoritarian” bodies. I shall then discuss the major novelties introduced by the recent constitutional reforms in the field of constitutional review. Finally, I shall examine some of the main challenges that constitutional courts and councils will have to face in order to fulfill their role of guardians of the constitution.","PeriodicalId":129851,"journal":{"name":"Constitutional Review in the Middle East and North Africa","volume":"110 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":"123061356","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}
{"title":"Titelei/Inhaltsverzeichnis","authors":"","doi":"10.5771/9783748912019-1","DOIUrl":"https://doi.org/10.5771/9783748912019-1","url":null,"abstract":"","PeriodicalId":129851,"journal":{"name":"Constitutional Review in the Middle East and North Africa","volume":"22 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":"126592669","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: 10.5771/9783748912019-93
Francesco Biagi
The constitutional reform adopted in Algeria in February 2016 has introduced – inter alia – major innovations in the field of constitutional review. The most important novelty concerns a procedural gateway to the Constitutional Council, namely the “exception of unconstitutionality”, which vests the ordinary courts (and in particular the Supreme Court and the Council of State) with the power to challenge the constitutionality of legislative acts before the Constitutional Council. This chapter aims to set out some preliminary remarks on this new procedural gateway, discussing its major characteristics, as well as its main strengths and weaknesses. It will also show that Algerian lawmakers have relied considerably on the system of concrete constitutional review introduced in France in 2008, namely the question prioritaire de constitutionnalité . In order to better understand the relevance and scope of the exception of unconstitutionality mechanism, this chapter also examines the origins, developments and weaknesses of constitutional review in Algeria, then going on to analyze the most important novelties introduced by the 2016 reform in the field of constitutional review.
{"title":"Constitutional Review in Algeria Following the 2016 Reform: With Particular Reference to the “Exception of Unconstitutionality”","authors":"Francesco Biagi","doi":"10.5771/9783748912019-93","DOIUrl":"https://doi.org/10.5771/9783748912019-93","url":null,"abstract":"The constitutional reform adopted in Algeria in February 2016 has introduced – inter alia – major innovations in the field of constitutional review. The most important novelty concerns a procedural gateway to the Constitutional Council, namely the “exception of unconstitutionality”, which vests the ordinary courts (and in particular the Supreme Court and the Council of State) with the power to challenge the constitutionality of legislative acts before the Constitutional Council. This chapter aims to set out some preliminary remarks on this new procedural gateway, discussing its major characteristics, as well as its main strengths and weaknesses. It will also show that Algerian lawmakers have relied considerably on the system of concrete constitutional review introduced in France in 2008, namely the question prioritaire de constitutionnalité . In order to better understand the relevance and scope of the exception of unconstitutionality mechanism, this chapter also examines the origins, developments and weaknesses of constitutional review in Algeria, then going on to analyze the most important novelties introduced by the 2016 reform in the field of constitutional review.","PeriodicalId":129851,"journal":{"name":"Constitutional Review in the Middle East and North Africa","volume":"6 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":"126652986","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: 10.5771/9783748912019-291
A. Sherif
The struggle over religious authority in organized societies, and hence the allocation of power between religious and secular authorities in the modern state, is at the heart of constitutional law. In Egypt, the Supreme Constitutional Court, one of the oldest institutions endowed with constitutional review powers in the region of the Middle East and North Africa, has developed over the past decades an interpretation of the pertinent Constitutional provisions. The chapter, referring to three landmark rulings of the Supreme Constitutional Court, is discussing who should have the final role on sharia and whether secular authorities have the legitimacy to be allocated such a power. The author illustrates the complexity of the interpretation of the constitutional articles, and highlights the Supreme Constitutional Court’s stance not to allocate supremacy of a particular constitutional provision over the other ones, but instead to consider all the provisions as an interrelated organic unit. As the institution exclusively endowed with power to interpret the Constitution, it is the Supreme Constitutional Court to have the final word.
{"title":"The Allocation of Power between Religious and Secular Authorities in Egypt","authors":"A. Sherif","doi":"10.5771/9783748912019-291","DOIUrl":"https://doi.org/10.5771/9783748912019-291","url":null,"abstract":"The struggle over religious authority in organized societies, and hence the allocation of power between religious and secular authorities in the modern state, is at the heart of constitutional law. In Egypt, the Supreme Constitutional Court, one of the oldest institutions endowed with constitutional review powers in the region of the Middle East and North Africa, has developed over the past decades an interpretation of the pertinent Constitutional provisions. The chapter, referring to three landmark rulings of the Supreme Constitutional Court, is discussing who should have the final role on sharia and whether secular authorities have the legitimacy to be allocated such a power. The author illustrates the complexity of the interpretation of the constitutional articles, and highlights the Supreme Constitutional Court’s stance not to allocate supremacy of a particular constitutional provision over the other ones, but instead to consider all the provisions as an interrelated organic unit. As the institution exclusively endowed with power to interpret the Constitution, it is the Supreme Constitutional Court to have the final word.","PeriodicalId":129851,"journal":{"name":"Constitutional Review in the Middle East and North Africa","volume":"24 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":"126781477","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: 10.5771/9783748912019-119
Nizar Saghieh
The Lebanese Constitutional Council is vested with the power of assessing the constitutionality of laws and annulling unconstitutional ones. All the other bodies of the State are obliged to apply the laws as long as they have not been declared unconstitutional. From the perspective of strategic litigation on questions of fundamental rights, in view of the limited competences of the Lebanese Constitutional Council to decide on constitution-ality of laws, this chapter discusses the historical background and reasons for the current situation of very limited control of the laws’ constitutionality. It sheds light on the prevailing political characteristics and perception of the Council’s role at his creation and shows the Council’ stance by examples of various political, legislative and its’ own Council’s decisions, arguing for the need not just to reform Lebanon’s Constitutional Council, but the perception and role it is driven into by the current political system of consensus.
{"title":"Lebanon’s Constitutional Council: Access Blocked to Protect the Consensus System?","authors":"Nizar Saghieh","doi":"10.5771/9783748912019-119","DOIUrl":"https://doi.org/10.5771/9783748912019-119","url":null,"abstract":"The Lebanese Constitutional Council is vested with the power of assessing the constitutionality of laws and annulling unconstitutional ones. All the other bodies of the State are obliged to apply the laws as long as they have not been declared unconstitutional. From the perspective of strategic litigation on questions of fundamental rights, in view of the limited competences of the Lebanese Constitutional Council to decide on constitution-ality of laws, this chapter discusses the historical background and reasons for the current situation of very limited control of the laws’ constitutionality. It sheds light on the prevailing political characteristics and perception of the Council’s role at his creation and shows the Council’ stance by examples of various political, legislative and its’ own Council’s decisions, arguing for the need not just to reform Lebanon’s Constitutional Council, but the perception and role it is driven into by the current political system of consensus.","PeriodicalId":129851,"journal":{"name":"Constitutional Review in the Middle East and North Africa","volume":"11 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":"115334157","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: 10.5771/9783748912019-137
Fawaz Almutairi
The chapter relates to the Kuwaiti constitutional judiciary and deals with the issue of how the cases reach the court, and the most important legisla-tions governing the court’s formation and works. The chapter also analyzes some cases that dealt with the issue of Islamic law and its impact, whether directly or indirectly, on women in the rulings of the Constitutional Court of Kuwait. We will address some cases that were brought before the court because they contained legislation that affect women’s rights in different aspects, whether their political right, or their right to be treated equally, or their right to free movement. The chapter finds how the constitutional court faced such challenges by providing pro-women interpretations through reconciling the Islamic law with the constitutional principles.
{"title":"The Kuwaiti Constitutional Court and its Role in Protecting the Fundamental Liberties","authors":"Fawaz Almutairi","doi":"10.5771/9783748912019-137","DOIUrl":"https://doi.org/10.5771/9783748912019-137","url":null,"abstract":"The chapter relates to the Kuwaiti constitutional judiciary and deals with the issue of how the cases reach the court, and the most important legisla-tions governing the court’s formation and works. The chapter also analyzes some cases that dealt with the issue of Islamic law and its impact, whether directly or indirectly, on women in the rulings of the Constitutional Court of Kuwait. We will address some cases that were brought before the court because they contained legislation that affect women’s rights in different aspects, whether their political right, or their right to be treated equally, or their right to free movement. The chapter finds how the constitutional court faced such challenges by providing pro-women interpretations through reconciling the Islamic law with the constitutional principles.","PeriodicalId":129851,"journal":{"name":"Constitutional Review in the Middle East and North Africa","volume":"31 11","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"120855900","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}
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