Epilogue: On the future of constitutional courts
This chapter looked at the CC reforms undertaken in Morocco and Jordan and examined their revolutionary aspects. A close examination of the cases shows that the
challenging the undemocratic illiberal military government, and not becoming a regime’s ally.
Sentencia Rol. No. 33, D.O., 3 October 1985.118 Constitutional Court 2019-2 case 2 (2019).
119 For example, in Moroccan case subsequently declaring the supremacy of international conventions over domestic legislation, pledge a greater protection of fundamental rights.
motivation behind the establishment of the CC was strengthening the representation of freedoms and human dignity in a democratic parliamentary monarchy in which people lived under a totalitarian regime with a parliamentary facade. The CC failed to undertake an activist judiciary approach in order to represent the popular will and make decisions that served the people’s interests.1 Even more critically, the CC turned into an additional arm of the executive authority, similar to the other courts in the judiciary system, which constrained its agenda by embracing self-restraint rather than judicial activism. This included, for instance, the empowerment of the security agencies at the expense of civil institutions. Thus, instead of expanding freedoms and protecting human rights, it restricted them. Human rights continue to be violated, and civil society organisations continue to deteriorate. Such practices strengthen the regime while weakening the people. Nonetheless, the establishment of the CC was expected to lead to judicial activism, realistic reform and a revolutionary role in promoting human rights and freedoms. The process is still new and includes reviewing the CCs upcoming judgments. The establishment of the CC has therefore been more a result of urgent reform due to tense conditions linked partially to the Arab Spring protests and other local protest than a natural evolution towards democracy and independent judicial review.
However, some positive aspects of the CC include improvement to judicial review and strengthening the rule of law throughout interpretation of the CC and review of laws and regulations. The results of these improvements, as well as the establishment of the CC, remain incomplete, and they have never fully eliminated the dominance of the executive authority over other authorities, particularly the legislative authority, potentially raising questions concerning independence. However, they do add a democratic aspect to those regimes. Thus, in principle and in aspiration, their adoption has contributed to a civil, democratic and pluralistic regime based on the people’s desire for political reforms and substantial amendments due to the Arab Spring uprising. The CC is one example that the regime could use to increase its legitimacy and ensure its effectiveness by presenting itself as a model for promoting human rights in the region. This must be evaluated gradually by following the CC’s judgments and influence.Despite the establishment of the CC in those countries, however, the appointments of the judges limited the efficacy of the court as a judicial institution. For instance, appointments made by the king of Jordan lacked intrinsic judicial independence because of the judges’ reputations and close relationships with the regime. They perpetuate links with the regime, political structure or monarchy and remain temporary constellations of powerful individuals. Thus, instead of fulfilling revolutionary steps towards real reform sought by protesters in the streets, the CC can be described as the de facto embodiment of a conservative establishment. Hence, the conservative decisions of the CC are far from its enthusiastic revolutionary ideals.
120 In 2019 the Jordanian Constitutional Court discussed the Jordanian energy company and Israeli gas company case: Constitutional Court Decision 2019-2; in that decision the Constitutional Court embraced the role that was carved out for it by political forces - it signalled the Constitutional Court’s active participation in enabling the government’s decision to run its course.
The Constitutional Court decided in favour of the government political interest.The role of CCs in Morocco and Jordan 167
Finally, it is beyond the scope of this chapter to determine the exact degree of the CC’s success, as it is still in the early stages of its development, and the extent to which politics are involved in its judgments and decisions remains unclear. It is essential to note that the CC is still young, and its terminology and mechanisms will develop with more experience and cases. However, the overall spirit of its establishment suggests that the CC and its judges intended to promote human rights, judiciary review and activism, and constitutional changes. The CC promotes the separation of powers, ensures individual rights and thereby facilitates the rule of law. Against this backdrop, some might imply that the foundation of the CC is a concrete political change by the regime in response to the protesters’ requests, but it appears to be something different. A comparison of the instrumentalist view on the political utility of the CC vis-a-vis the Arab Spring uprising shows the protests created an urgent demand that forced the regime to propose unprecedented amendments. This is the framework of which the CC is considered a part. Thus, the establishment of the CC became a significant symbol of the regime’s supposedly good-faith efforts to reform. In light of this, the question is whether the establishment of the CC was merely a symbolic act or a reflection of the regime’s intent to capture the positive momentum of the Arab Spring while considering the CC as a political symbol. After the fact, establishing a new institution and touting it as a milestone of democratic reform helped to increase the regime’s credibility in the eyes of the protesters and the international community, as the CC represented a main pillar of democratic governance.[544]
In conclusion, the difference between the practice and rule of law can frequently be ambiguous.[545] Future CC judgments and observations will clarify whether the CCs of Morocco and Jordan will take steps to intervene with a revo- lutionarily steady voice.
This will depend on the depth of the law interpretation of the CC judges and whether they are keen on taking concrete, steady steps and playing a fundamental role in transitional justice towards a democratic state that promotes human rights and freedoms. The examples of the role of older CCs in the MENA region is a source of worry because the CC is where the political establishment fights democratic change instead of promoting it.[546] However, I will argue that the CC, in the long run, may become a significant restraint on the regime and propose a revolutionary role that involves more judicial independence and strength in the future. Therefore, the CC in Morocco and Jordan mayrebound in the long run and could become effective in restraining the authorities’ power in the future, and the CC judgments will contain some essential democratic innovations and broaden judicial activism in order to satisfy the public and fulfil their demands.