Arab Law Quarterly最新文献

In mid-2013, Egypt’s Supreme Constitutional Court found a statutory provision in force at the time of the decision to be in violation of the constitutional provision declaring the principles of Islamic sharia the chief source of legislation (Article 2). It was the second time since the provision was originally introduced in the Constitution in 1971 and later amended in 1980. It had only happened once before, in 2006. In the ruling considered here, the Court confirmed its conventional construction of Article 2, and declared that in the case at hand the legislator had simply overstepped its boundaries by restricting the exercise of the grandparents’ visitation rights to the case of the absence of parents. In the eyes of the Court, the legislator was entitled to regulate grandparents’ visitation rights, but in doing so it did not properly align its intervention with the overall objectives of sharia (maqāṣid). The ruling was issued in a relatively peaceful phase that followed a fierce and prolonged confrontation between the Court and Islamists the previous year.

This article questions the lumpy character of understanding Islamic constitutionalism through all-pervasive models operating across time and space and reliance on classical texts as the ultimate reference for jurisprudence. It focuses on conflict and compromise among stakeholders in individual Muslim countries. Pakistan represents a ‘differentiated social formation’ underscored by dichotomy between modernity and tradition. The former is defined by a secular legal-institutional mechanism of authority inherited from British India, which seeks to accommodate the latter’s Islamic agenda through ideological symbolism, legal formalism and — under Gen. Zia’s martial law — cultivation of a divine source of legitimacy to counter the constitutional source of legitimacy in the form of mass mandate. In the face of outcry from modernists, the ulema fell back on a defensive strategy to safeguard their gains.

The theory of acts of sovereignty is a serious limitation on the scope of judicial review. This paper examines the recent applications of the theory by the Egyptian State Council and the Supreme Constitutional Court which aim to widen the scope of judicial review by limiting the applications of the theory of acts of sovereignty. The two cases studied were decided amid political tensions. These cases cannot be understood separately from the political environment in which they were decided and the status of guarantees made for the impartiality of judges within this context. This paper argues that although both cases are important steps forward, they fail to establish a lasting limitation on the theory.

This research focuses on an increasingly important question associated with the state of military occupation as part of International Humanitarian Law, namely, to what extent the rights and duties of an occupying power are to be broadened or otherwise minimized when an occupation of a foreign territory lasts for a long period of time? This question is necessitated by the practices of some occupying powers that claim their ‘original’ authority over occupied areas should exceed the original rights embodied in the legal corpus on military occupation due to the prolonged nature of their military presence. This research focuses on the state of the Israeli military occupation over the Occupied Palestinian Territories (OPTs.) and found that the Israeli practices are calculated in this direction, i.e., the expansionist policy, which ultimately conflict with the corpus of rules of international law on military occupation.