Legitimacy and hegemony: Drawing the balance for the future
This section describes the anticipated narrative supported by the general opinion to explain that the decision to establish constitutional courts in Morocco and Jordan[519] emerged as a result of the Arab Spring protests, rather than the regimes’ defence mechanisms and sense of security to provide creative solutions as a way of handling crises, particularly in monarchical regimes, to provide democratic reforms and introduce changes.
To do so, the current exploration details the history and background of the idea of the CC.5.1 Theoretical insight
We will discuss here to what extent the Arab Spring conforms to the historical experience of constructing a CC. In democratic states, constitutional courts are vital columns of the civil state and essential monitoring bodies. CCs oversee the immunity of the parliamentary and democratic systems and play many significant roles in applying and understanding constitutions. This is not a new mechanism; various countries use CCs to enforce and promote the rule of law and legitimacy, impose separation and balance of powers, protect fundamental rights of citizens and individuals, offer a forum for resolving disputes, and hold distinctive political participants accountable to their constitutional obligations. Additionally, such courts can provide political protection for the opposition.[520] In contrast with the first opinion, others claim that once a CC is established, it often enables the sovereign apparatus to reserve its hegemony and supremacy, advance its political goals and deflect threats.[521] In Egypt, for instance, the regime established and designed the Supreme CC[522] to support its economic
The role of CCs in Morocco and Jordan 159 need.[523] However, the regime in Egypt[524] granted the Supreme CC the freedom and autonomy to protect property rights and facilitate economic development.
Yet, the Supreme CC ultimately was able to exercise unanticipated amounts of political autonomy.[525]5.2 A glimpse into the continuity and rupture of the Arab Spring
It is important to highlight that because little has been written on the CCs, we cannot obscure the political implications of their establishment, particularly in monarchies such as Jordan and Morocco.
The 2011 protests in the MENA region brought political change that was as vital and powerful as it was rapid. In the following years, as a consequence, academic analyses emphasised the movement’s regional aspects, focused on the outcome of the Arab Spring movement and explored how monarchies[526] survived while other countries - the republics - were overthrown.[527] It is noteworthy that the subsequent scholarship, unlike the initial historiography, moved away from such analyses and concentrated more on reflecting on how the Arab Spring transformed existing political trends in a given country.[528] The outbreak of the Arab Spring renewed the regimes’ need to demonstrate that they were engaged in democratic reforms to satisfy both domestic protesters and the international community. The context of the Arab Spring also led Jordan and Morocco to become conceptually bound to the idea of the democratic reforms with the foundation of the CCs. Arab monarchies and regimes
sought to appease domestic protesters and address external concerns by establishing new CCs as evidence of improvements in the field of judicial review.[529]
The Arab Spring manifested, among other things, the people’s simple request for transformation within their own regimes in pursuit of freedom, including freedom of expression. In other words, they aimed to acquire basic human rights protections to achieve democratic reforms within their domestic regimes, as well as basic human rights, economic concerns,[530] equality and political rights. Hence, the 2011 protests initiated a continuity of transformation requests concerning existing political trends, including economic change, which drove the civil resistance that started after the protests.
Thus, the accumulation of economic criticism created a powerful supporting call for political change. In due course, these economic grievances morphed into political debates that were largely divorced from the broader regional dynamics.[531] Economic concerns were the direct cause of the protests in the MENA region, and they prompted a political debate that was energised and emboldened by those regional developments. As a result, the monarchy initiated rapid political change by reshuffling the cabinet and government and offering a package of constitutional amendments, thus introducing political reforms and amendments through the proposed establishment of the CC.An in-depth examination of the efforts of legislators in drafting the CC law reveals the deliberate complexity that led to the legislative amendments required to establish the court by tracing the relevant political processes.
In addition, one of the first major steps the regimes took to appease the pro- testers[532] to avoid the Arab Spring in their countries was to propose amendments to the system. The proposed changes included the foundation of the CC, but it can be argued that this was not the only motive behind the court’s establishment. As one crucial argument states, the regimes and monarchies established the CC to improve their image with the international community. In addition, the desire to improve their international standing would make such regimes appear to favour reforms. Thus, improving the regime’s image and international standing was of primary importance.
The CC can be a tool for promoting human rights and democracy, even though powerful regimes consistently resist this idea, as well as the idea that the CC’s functionality derives from the powerful threat it poses in the form of judicial review and democratic protections. The main question on which this section focuses is whether the CC’s initiatives were a de facto commitment to democracy on the part of those regimes.
An examination of their decisions reveals that the substantial reforms that were so enthusiastically anticipated did not de facto occur in Jordan and Morocco. The CC only preserved and reaffirmed the existing legislative strategy as a new but regular court that followed powerful mainstreamThe role of CCs in Morocco and Jordan 161 governmental and monarchical institutions. Because the CC compromises the existing power structure and its judicial review is the opposite of a revolution, the purpose of its establishment was far from sincere. The ineffectiveness of the CC in terms of its understanding of democratic governance matched what could be contemplated as the Western models ules of democracy. Ideally, argument would arise as a result of critiquing the imported Western institution while ignoring its local legal foundations. That can be expressed in terms of the tension that emerged between the lawmakers’ political visions and implementation in reality. The CC establishment law was intended to strengthen the court’s authority and introduce it as a relevant player in Jordan and Morocco’s political-judicial processes, while ensuring the CC’s decisions remained independent. In the case of Jordan, for instance, the CC would be more independent if its judicial review powers included the question of the constitutionality of draft laws before their promulgation, not simply afterwards. Also, for instance the CC judges should not sit in hearing of their dissent rulings. Furthermore, judges and lawyers could appeal directly to the CC. Solutions might include the power of constitutional interpretation itself. Debunking the CC’s decisions and limiting its functionality in terms of judicial review shifts the CC towards an analytical focus and from the people to the regime, causing its motivations to differ from popular demands for revolutionary reform. Hence, the CC can be considered a political institution.
Almost a decade after the inception of the CCs in Morocco and Jordan, the question of their role within the government’s political system remains. Does the CC fulfil its role? It was advertised as facilitating the separation of powers and thus promoting democracy in the region. Therefore, the involvement of politicians and legislators in the CC was deemed paramount to preserving regimes’ existing political order in which the monarchy has the final word. This tension creates a kind of CC that is diametrically opposed to people’s expectations. Choices made by the king, such as the appointment of a judge, are examples that reveal the regime’s raison d’etre vis-a-vis its post-Arab Spring reform efforts. Consequently, the CC is a wing to maintain the regime’s control over the popular political discourse and, thus, preserve its hegemony.
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