Pub Date : 2023-12-20DOI: 10.1163/15730255-bja10151
Kilian Bälz
In a decision of 14 January 2023, the Egyptian Supreme Constitutional Court confirmed the constitutionality of Decree-Law 32/2014 abolishing public interest litigation. Public interest litigation in the past was an important political means permitting NGOs to submit the privatization of public enterprises and the allocation of state land to judicial scrutiny. The long-awaited decision conforms to a tendency of limiting judicial control in the interest of economic stability, hereby giving state-lead economic development the priority over citizens’ rights and participation.
{"title":"The Egyptian Supreme Constitutional Court on the Abolition of Public Interest Litigation, Decision of 14 January 2023 in the Constitutional Challenge 120/36","authors":"Kilian Bälz","doi":"10.1163/15730255-bja10151","DOIUrl":"https://doi.org/10.1163/15730255-bja10151","url":null,"abstract":"<p>In a decision of 14 January 2023, the Egyptian Supreme Constitutional Court confirmed the constitutionality of Decree-Law 32/2014 abolishing public interest litigation. Public interest litigation in the past was an important political means permitting <span style=\"font-variant: small-caps;\">NGO</span>s to submit the privatization of public enterprises and the allocation of state land to judicial scrutiny. The long-awaited decision conforms to a tendency of limiting judicial control in the interest of economic stability, hereby giving state-lead economic development the priority over citizens’ rights and participation.</p>","PeriodicalId":43925,"journal":{"name":"Arab Law Quarterly","volume":"35 1","pages":""},"PeriodicalIF":0.3,"publicationDate":"2023-12-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138818092","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 : 2023-11-21DOI: 10.1163/15730255-bja10127
Brian Wright
This article traces the development of the role of the victim’s family (awliyāʾ al-damm) in Middle Eastern legal systems. In the pre-modern period, most Muslim jurists saw the right of the victim’s family to determine the punishment for homicide as central to retaliation (qiṣāṣ) and gave political authorities a limited ability to punish offenders. As the modern state expanded in the nineteenth century, new codes provided room for governments to enact punishment and eventually removed the role of the family altogether, a move challenged by Islamists in the twentieth century. This article argues that although growing state power is an important backdrop against which legal development took place, it must also be recognized that the solutions created did not sideline the šarīʿa. Instead, reformers engaged with existing Islamic debates on balancing individual and societal rights to justify change, choosing interpretations that fit into evolving circumstances.
{"title":"Qiṣāṣ in the Modern State: Searching for the Victim’s Family in Middle Eastern Criminal Law","authors":"Brian Wright","doi":"10.1163/15730255-bja10127","DOIUrl":"https://doi.org/10.1163/15730255-bja10127","url":null,"abstract":"This article traces the development of the role of the victim’s family (<jats:italic>awliyāʾ al-damm</jats:italic>) in Middle Eastern legal systems. In the pre-modern period, most Muslim jurists saw the right of the victim’s family to determine the punishment for homicide as central to retaliation (<jats:italic>qiṣāṣ</jats:italic>) and gave political authorities a limited ability to punish offenders. As the modern state expanded in the nineteenth century, new codes provided room for governments to enact punishment and eventually removed the role of the family altogether, a move challenged by Islamists in the twentieth century. This article argues that although growing state power is an important backdrop against which legal development took place, it must also be recognized that the solutions created did not sideline the <jats:italic>šarīʿa</jats:italic>. Instead, reformers engaged with existing Islamic debates on balancing individual and societal rights to justify change, choosing interpretations that fit into evolving circumstances.","PeriodicalId":43925,"journal":{"name":"Arab Law Quarterly","volume":"202 1","pages":""},"PeriodicalIF":0.3,"publicationDate":"2023-11-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138524766","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 : 2023-11-21DOI: 10.1163/15730255-bja10150
Amal Abuanzeh, Elna Søndergaard
The right to personal liberty is fundamental for individuals and societies based on the rule of law. The United Nations Universal Declaration on Human Rights and United Nations International Covenant on Civil and Political Rights broadly define rules limiting possible pre-trial detention and protecting against arbitrary detention. Since 1961 the Code of Criminal Procedure has regulated detention in Jordan and in 2017, there were comprehensive revisions of the Code on these matters. To better understand factors that shaped the scope of the Code revisions in 2017 and to question whether the Code of Criminal Procedure fully adheres to ICCPR international human rights norms, this paper will draw upon political and legal debates prior to 2017 and upon legislative amendments, legislative text and subsequent jurisprudence. In so doing, this paper will critically examine whether the Jordanian legislation respects the right of personal liberty.
{"title":"International Perspectives on Jordan’s Legislation on Deprivation of Liberty Prior to Trial","authors":"Amal Abuanzeh, Elna Søndergaard","doi":"10.1163/15730255-bja10150","DOIUrl":"https://doi.org/10.1163/15730255-bja10150","url":null,"abstract":"The right to personal liberty is fundamental for individuals and societies based on the rule of law. The United Nations Universal Declaration on Human Rights and United Nations International Covenant on Civil and Political Rights broadly define rules limiting possible pre-trial detention and protecting against arbitrary detention. Since 1961 the Code of Criminal Procedure has regulated detention in Jordan and in 2017, there were comprehensive revisions of the Code on these matters. To better understand factors that shaped the scope of the Code revisions in 2017 and to question whether the Code of Criminal Procedure fully adheres to <jats:sc>ICCPR</jats:sc> international human rights norms, this paper will draw upon political and legal debates prior to 2017 and upon legislative amendments, legislative text and subsequent jurisprudence. In so doing, this paper will critically examine whether the Jordanian legislation respects the right of personal liberty.","PeriodicalId":43925,"journal":{"name":"Arab Law Quarterly","volume":"270 1","pages":""},"PeriodicalIF":0.3,"publicationDate":"2023-11-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138524760","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 : 2023-11-13DOI: 10.1163/15730255-bja10148
Russell Powell
Abstract Nearly half of all countries have official religions or give preference to specific religious traditions. Most countries with an official religion are majority Muslim; however, most of those with a preference for particular religious traditions are majority Christian. This paper considers empirical data related to constitutional references to specific religions as a framework for a discussion of the comparative constitutional histories of Turkey and the Republic of Ireland. Both moved from systems that preferred their majority religions to ostensive neutrality. This analysis reinforces the importance of religion in law and policy regardless of cultural context and constitutional choices. Constitutional drafters have established a number of approaches to the treatment of religion, including freedom of religion, establishment of religion, separation of religion and state, neutrality, official religion, conformity, repugnancy, and sources of law/legislation. Although these linguistic choices are significant, they may not result in consistent practices across jurisdictions.
{"title":"Religious Approaches to Constitutionalism: Empirical Scholarship and Exceptionalism","authors":"Russell Powell","doi":"10.1163/15730255-bja10148","DOIUrl":"https://doi.org/10.1163/15730255-bja10148","url":null,"abstract":"Abstract Nearly half of all countries have official religions or give preference to specific religious traditions. Most countries with an official religion are majority Muslim; however, most of those with a preference for particular religious traditions are majority Christian. This paper considers empirical data related to constitutional references to specific religions as a framework for a discussion of the comparative constitutional histories of Turkey and the Republic of Ireland. Both moved from systems that preferred their majority religions to ostensive neutrality. This analysis reinforces the importance of religion in law and policy regardless of cultural context and constitutional choices. Constitutional drafters have established a number of approaches to the treatment of religion, including freedom of religion, establishment of religion, separation of religion and state, neutrality, official religion, conformity, repugnancy, and sources of law/legislation. Although these linguistic choices are significant, they may not result in consistent practices across jurisdictions.","PeriodicalId":43925,"journal":{"name":"Arab Law Quarterly","volume":"136 43","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-11-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"136351950","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 : 2023-11-08DOI: 10.1163/15730255-bja10126
Makeen F Makeen
Abstract This article focuses on the protection of moral rights in Egypt, Israel, Lebanon, and the UAE . While moral rights are recognised in the four jurisdictions subject to this study, the level of protection is unsatisfactory. This article analyses the many defects surrounding the subsistence and exercise of moral rights and makes a host of suggestions to enhance the level of protection granted under national laws.
{"title":"Defects in the Moral Rights Regimes of the Countries of the Middle East","authors":"Makeen F Makeen","doi":"10.1163/15730255-bja10126","DOIUrl":"https://doi.org/10.1163/15730255-bja10126","url":null,"abstract":"Abstract This article focuses on the protection of moral rights in Egypt, Israel, Lebanon, and the UAE . While moral rights are recognised in the four jurisdictions subject to this study, the level of protection is unsatisfactory. This article analyses the many defects surrounding the subsistence and exercise of moral rights and makes a host of suggestions to enhance the level of protection granted under national laws.","PeriodicalId":43925,"journal":{"name":"Arab Law Quarterly","volume":" 112","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-11-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135341239","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 : 2023-10-12DOI: 10.1163/15730255-bja10147
Shaya Abdullah Alshahrani
Abstract The Saudi legislator requires the creditor to meet the requirements of the Good Faith Principle in commercial lien contracts to obtain legal protection against the debtor. Since this principle was originally a moral obligation, there are questions about applying it in the legal context. To identify potential obstacles and address them, this paper critically evaluates current applications of the Good Faith Principle in the context of the 2018 Commercial Lien Law (2018 CLL ). The assessment is made by considering the impact of such a principle on the interests of both contracting parties. Thus, this paper proposes practical solutions to improve the current regulatory framework of good faith within the 2018 CLL to achieve adequate protection for the creditor in a manner that does not harm the debtor’s interests.
{"title":"The Application of the Good Faith Principle in the 2018 Commercial Lien Law: Toward a Better Performance","authors":"Shaya Abdullah Alshahrani","doi":"10.1163/15730255-bja10147","DOIUrl":"https://doi.org/10.1163/15730255-bja10147","url":null,"abstract":"Abstract The Saudi legislator requires the creditor to meet the requirements of the Good Faith Principle in commercial lien contracts to obtain legal protection against the debtor. Since this principle was originally a moral obligation, there are questions about applying it in the legal context. To identify potential obstacles and address them, this paper critically evaluates current applications of the Good Faith Principle in the context of the 2018 Commercial Lien Law (2018 CLL ). The assessment is made by considering the impact of such a principle on the interests of both contracting parties. Thus, this paper proposes practical solutions to improve the current regulatory framework of good faith within the 2018 CLL to achieve adequate protection for the creditor in a manner that does not harm the debtor’s interests.","PeriodicalId":43925,"journal":{"name":"Arab Law Quarterly","volume":"56 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"136015713","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 : 2023-08-15DOI: 10.1163/15730255-bja10146
F. Al-Shibli, Mohamad Alkhalaileh, N. Brown
Judicial review of the constitutionality of legislation has moved in recent decades from being the exception to the rule among Arab states. Not only has it spread, but contests about adjudication of constitutional disputes have become much more prominent and political reform efforts have sometimes included a great emphasis on establishing or strengthening constitutional courts. In Jordan, longstanding calls for a constitutional court were finally met in 2011 and the Jordanian Constitutional Court began operating the following year. This article traces the background to establishing the court and analyzes its structure. It then assesses the Jordanian Constitutional Court in operation, first by examining its short history and then by analyzing why its emergence as a judicial actor has been slow and uneven and how this might be changed.
{"title":"Judicial Review and the Jordanian Constitutional Court: False Start or Slow Start?","authors":"F. Al-Shibli, Mohamad Alkhalaileh, N. Brown","doi":"10.1163/15730255-bja10146","DOIUrl":"https://doi.org/10.1163/15730255-bja10146","url":null,"abstract":"\u0000Judicial review of the constitutionality of legislation has moved in recent decades from being the exception to the rule among Arab states. Not only has it spread, but contests about adjudication of constitutional disputes have become much more prominent and political reform efforts have sometimes included a great emphasis on establishing or strengthening constitutional courts. In Jordan, longstanding calls for a constitutional court were finally met in 2011 and the Jordanian Constitutional Court began operating the following year. This article traces the background to establishing the court and analyzes its structure. It then assesses the Jordanian Constitutional Court in operation, first by examining its short history and then by analyzing why its emergence as a judicial actor has been slow and uneven and how this might be changed.","PeriodicalId":43925,"journal":{"name":"Arab Law Quarterly","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2023-08-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49463150","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 : 2023-08-04DOI: 10.1163/15730255-bja10144
M. Magout
{"title":"Secularization of Islam in Post-Revolutionary Iran, written by Mahmoud Pargoo","authors":"M. Magout","doi":"10.1163/15730255-bja10144","DOIUrl":"https://doi.org/10.1163/15730255-bja10144","url":null,"abstract":"","PeriodicalId":43925,"journal":{"name":"Arab Law Quarterly","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2023-08-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44282572","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 : 2023-07-28DOI: 10.1163/15730255-bja10145
N. Brown
{"title":"Debating the Law, Creating Gender: Shariʿa and Lawmaking in Palestine, 2012–2018, written by Irene Schneider","authors":"N. Brown","doi":"10.1163/15730255-bja10145","DOIUrl":"https://doi.org/10.1163/15730255-bja10145","url":null,"abstract":"","PeriodicalId":43925,"journal":{"name":"Arab Law Quarterly","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2023-07-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45516579","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 : 2023-06-29DOI: 10.1163/15730255-bja10141
G. Parolin
In early 2006, 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 law the chief source of legislation (Article 2). It was the first time since the provision was originally introduced in the Constitution in 1971 and later amended in 1980. Since this ruling, the Court found another two statutory provisions to be in violation of the sharia provision in the latter’s five decades of operation, in 2013 and in 2021. In the ruling considered here, the Court confirmed its conventional construction of Article 2, but took a position on a critical and contentious device of legal reform: Can legal change be produced through procedural expedients? Ultimately, the Court had to answer another and even more fundamental question: Can the legislator deny legal effects to a religiously valid act like unilateral divorce (ṭalāq)?
{"title":"A First Violation of the Sharia Provision: Egypt’s SCC’s Ruling of 15 January 2006, in the Case No. 113/xxvi (Annotated and Translated)","authors":"G. Parolin","doi":"10.1163/15730255-bja10141","DOIUrl":"https://doi.org/10.1163/15730255-bja10141","url":null,"abstract":"\u0000In early 2006, 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 law the chief source of legislation (Article 2). It was the first time since the provision was originally introduced in the Constitution in 1971 and later amended in 1980. Since this ruling, the Court found another two statutory provisions to be in violation of the sharia provision in the latter’s five decades of operation, in 2013 and in 2021. In the ruling considered here, the Court confirmed its conventional construction of Article 2, but took a position on a critical and contentious device of legal reform: Can legal change be produced through procedural expedients? Ultimately, the Court had to answer another and even more fundamental question: Can the legislator deny legal effects to a religiously valid act like unilateral divorce (ṭalāq)?","PeriodicalId":43925,"journal":{"name":"Arab Law Quarterly","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2023-06-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43619623","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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