Introduction
Establishing the constitutional court (hereafter the CC) is a critical function of the state and is understood as a key element of demonstrating a state’s democratic identity. Furthermore, CCs are essential monitoring bodies in democratic countries.
The establishment of the CC is a catalyst in a society in transition or reforming towards democracy, as the court plays many significant roles in the application and understanding of constitutions, as well as in the protection of human rights and the rule of law. This is not a new mechanism; various countries such as France, Germany and Egypt use CCs to enforce and promote the rule of law, establish legitimacy, impose the separation and balance of powers, and protect the fundamental rights of citizens. The court protects individuals’ rights by offering a forum for resolving disputes and holding distinctive political participants accountable to their constitutional obligations. Additionally, such courts can offer political protection for the opposition.1Major political concerns following the Arab Spring uprising in the Middle East and North Africa (hereafter MENA) region lead to compromises between political powers. Judicial independence is viewed as a cornerstone of the rule of law, and as such a crucial component of democratic transitions. But in the context of democratic monarchies and their democratisation, the definition of judicial independence may require modification to take into account the unique challenges of moving to a system of rule by the people. Particularly, an independent judiciary and judicial review may slow down legislative and constitutional reform by engaging in a form of constitutional review designed to shield the preferences of the
1 After authoritarian rule, establishing a constitutional court can be a symbol of the end of the authoritarian period and the start of a new democratic era on one hand; on the other, constitutional justice is often a delicate position in states that are ‘legally’ emerging between reserve and weakness, ‘so as not to unnecessarily aggravate spaces under democratic construction’, or in the extreme, between development and consolidation or legitimisation of a process that is quite authoritarian.
Rainer Grote and Tilmann J. Roder, Constitutionalism, Human Rights, and Islam after the Arab Spring, Oxford University Press (2016), Part 6 Constitutional Courts: New Guardians of the Constitutions? 6.2. Morocco’s Constitutional Court after the 2011 Reforms, Oxford Constitutional Law. Nadia Bernoussi.DOI: 10.4324/9781003200666-11 elite from democratic reversal. This chapter examines this problem through a detailed exploration of the CC’s role and cases in Morocco and Jordan to illustrate the future risk of a narrow definition of judicial review and judicial independence. Also, it explores the appropriate balance between autonomy and accountability in the CCs during periods of transition from monarchy to democracy or of democratic strengthening and suggests how there is a space for future developments of a judicial activism approach instead of one of self-restraint.
The wave of Arab Spring protests in the MENA region led to a wide range of results, and each country in the region, and subsequently their judicial systems, was affected to varying extents, causing a number of constitutional transitions and reforms. The exceptional circumstances of the upsurge-built momentum within those countries initiated improvements to their legal systems, such as constitutional judicial review. Countries have done this by adopting or considering amendments to reflect the governments’ commitments to the rule of law.
The Kingdom of Morocco took the lead by rapidly drafting and adopting a new constitution on 29 July 2011.[434] The new constitution of the Kingdom of Morocco replaces the previous one and offers a careful framework for transitional arrange- ments.[435] The Hashemite Kingdom of Jordan also reformed its existing constitution in September 2011. Palestinian authorities followed in April 2016 and established a new Supreme CC of Palestine. The Court was created by presidential decree, based on Articles 103 and 104 of the Basic Law of Palestine 2003 (amended 2005)[436] and the Supreme Constitutional Court 2006 (amended 2012).[437] [438] [439] The Supreme Constitutional Court of Palestine holds supremacy over all lower courts.
The purpose of establishing the Supreme Constitutional Court of Palestine was to maintain clarity and legitimacy, ensure appropriate separation of powers and independence of judges, and to embed the democratic system and the Court into Palestinian national norms.6,7Consequently, many countries saw the emergence of the CC as essential to strengthening the role of the courts in protecting and implementing the constitution. Others, such as Tunisia, improved their existing constitutional system by amending the appointment process or expanding the CCs’ functions to guarantee the rule of law. Some other countries, such as Lebanon, did not undertake any constitutional reforms.
To summarise, this chapter presents an assessment of the revolutionary role of CCs in the MENA region and a detailed examination of the establishment of CCs in Morocco and Jordan, which are engaged in constitutional reforms to varying degrees. We will study the CCs’ activities and judgments related to constitutional reform in the two monarchies and the extent to which the CCs established and carried out decisions autonomously or were more subject to political decisions in the reform process. Did it really challenge the notion of the supreme authoritarian regime? While the monarchies could impose legislative change, the CCs were, at best, partially able to enforce these laws or to impose legislative change, limiting the impact of the CCs in reality.
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