Surviving the constitutionalism paradox; judicial self-restraint approach rather than judicial activism
As discussed earlier, the purpose of establishing the CCs in Morocco and Jordan was to present them as newly established institutes that would elevate the independent judiciary, and that judges would engage in judicial activist activities by promoting human rights through an independent judiciary’s professional implementation.
As King Abdullah of Jordan declared, the CC would be one of the ‘new democratic institutions concerned with bolstering the rule of law and ensuring that justice [was] served to all’; also for the regime, ‘the rule of law is the umbrella that protects the march towards democracy and reform in Jordan’.101 King Abdullah website, ‘The Rule of Law and Citizenship’.
Therefore, the assumption was that the Jordanian CC would be the guardian of democratic reform and protector of the rule of law.[533] Furthermore, it would defend the people’s liberties and rights through offering constitutional interpretation and supervision.1 [534] The magnitudes of the CC as activist courts should logically raise the bar while dealing with time-sensitive cases in order to echo the people’s demands. Nonetheless, up to this point, the CCs in Morocco and Jordan, based on their decisions, were inclined to favour adopting a judicial self-restraint approach rather than judicial activism. It has become clear that for economic, political, security and cultural reasons, most of the CCs’ establishment, including judges, value order stability above almost all else. More broadly, it has the impression that the CCs are willing to endure an alarming degree of human rights violations and dismiss the demands of the public if deemed necessary for national security and to restore order on the streets. Hence, the self-restraint approach adopted might be reflected in the concrete case enrolled in the Jordanian CC - ‘gas deal’ judgment[535] (we will discuss this in more detail bellow) - which could be an illustration of the resemblance of the CC judges with other judges in the system.
They are unified in guarding the authority’s interests, while viewing judiciary accountability as an enforcement arm of the state rather than engaging with the activism judiciary role of promoting the public good and supporting the public demand.Understanding the self-restraint in the CC might be an indication on the proposed constitutional reforms that included the establishment of the CC by the monarchy in Morocco and Jordan by arguing that it is a proposal for ‘surviving constitutionalism’;[536] instead of those reforms democratising the country, they propose to guarantee the regimes, and that might explain the judicial self-restraint that CC judges embrace. The challenge of the young CCs in Morocco and Jordan is to develop a revolutionary judicial review that aims to limit arbitrary power and human rights violations. Hence the CC in Morocco and Jordan should propose active judicial review to reflect demand and appease discontent. On the contrary, the approach of judicial self-restraint (that so far dominates) includes upholding regime stability and continuity. It is essential to understand the power of the sovereign in these monarchies despite the proposed reforms, which could explain the self-restraint approaches of the CC. For instance (as mentioned earlier), in Morocco the appointment of half of the CC judges is made by the sovereign.[537] The situation is more critical in Jordan, as all the judges are appointed by the king.[538] That might create a
The role of CCs in Morocco and Jordan 163 slippery slope, a risk of creating a CC with regime-friendly judges, And, therefore, they might tend to adopt the self-restraint approach, as the king continues to hold the essential powers and continues to be ‘the master of the political game’. 8 Furthermore, it preserves regime control and hegemony of those reluctant to sacrifice any real power that would allow the CC to play an activist role. In turn, the CC would be used as an instrument to increase the legitimacy of the regime without decreasing the executive monarchy power over each kingdom.
Accordingly, in the ‘gas deal’ case,109 for example - in a nutshell, the deliberation background of the decision associated with a contract between a Jordanian energy company and an Israeli company - the Jordanian CC interpretation dealt with the following central questions: firstly, dealing with the deal’s lack of parliamentary approval; and secondly, if the ‘gas deal’ is a substantial matter of Jordanian public interest.110 The Jordanian CC decided that the contract does not require parliament approval, as a contract was signed between two private com- panies.1 Hence, the Jordanian CC deliberately avoided the debate and decided to favour the validity of the ‘gas deal’. Furthermore, The Jordanian CC decided that as the ‘gas deal’ was conducted between companies, not states, it was no longer a matter of public purview. The Jordanian CC adopted a self-restraint approach and wavered to clarify the blurred line between law and politics, and review the case nature as merely political rather than legal, and confirmed the Jordanian CC part of the apparatus. It is essential to emphasise that the Jordanian CC adopted a self-restraint approach, despite the ongoing public protest held in Jordan against the ‘gas deal’. Instead of taking a progressive judicial activism step against corruption, the Jordanian CC decision dealt mostly on legal technicalities that generate little public interest; and therefore the country avoided intervening in two of the most public and politically delicate issues in a Jordanian context - Israel11 and the economy. Furthermore, the Jordanian CC decision had immediate political consequences: the Jordanian CC role ensured that the politics of the executives - king and government - are respected, and it built the
108 A. Tourabi, ‘Constitutional Reform Morocco: Reform in Times of Revolution’ (2011).
109 Constitutional Court Decision 2019-2 case 2 (2019). According to Article 19, the CC Law and the Jordanian CC deliberation are confidential; hence there is no public hearing.
The CC publishes its decisions with dissenting opinions in the official gazette as well as on its website (unlike the Moroccan CC). Article 33-2 of the Jordanian Constitution states that: ‘Treaties and agreements which entail any expenditure to treasury of the State or affect the public or private rights of the Jordanians shall not be valid unless approved by Parliament’.110 Constitutional Court 2019-2 case 2 (2019). Article 33-2 of the Jordanian Constitution states that: ‘Treaties and agreements which entail any expenditure to treasury of the State or affect the public or private rights of the Jordanians shall not be valid unless approved by Parliament’.
111 Constitutional Court 2019-2 case 2 (2019), 7-9.
112 Despite the 1994 peace treaty between the Israeli government and Jordan, public opinion disapproves of the normalisation of the relationship, and anti-normalisation campaigns against that are active. Israel as a political issue unites Jordanians, in particular the opposition.
impression that the CC publicly fulfilled the role as a self-restraint court. Consequently, the decision signalled that the Jordanian CC would participate in the government’s decision to run its course. Therefore, this case perhaps indicates how the Jordanian CC deals with its power; instead of entrenching a reformed activist role to appeal to the ideas of democracy and develop an independent institutional personality by this decision, it preserved the existing structure of power. Examining the background of the case and its final decision reveals how the Jordanian CC remained relatively quiet in the Jordanian public discourse, implementing self-restraint methodology without purported significant judicial revolutionary decisions.1
6.1 Prospective towards more judicial activism
Despite the above-mentioned, and the conservative, narrow interpretation of the CC, there is a glimmer of hope that the CC still can play revolutionary role to contribute in revolutionising the system.
Here are several recommendations. First, Article 133 of the Moroccan CC Law1 proposes ex-ante review that permits a concrete constitutional review; the article stipulated ‘the CC shall have the competence to look into an exception of unconstitutionality raised in the course of the trial when one of the parties argues that the law on which the outcome of a trial depends undermines the rights and freedoms guaranteed by the Constitution’.[539] [540] [541] The addition of ex-post review is significant as it authorised the Moroccan CC to strengthen its status as a counter-majoritarian body. Therefore, the Moroccan CC may contribute effectively to the democratisation progression in the future in comparison with previous reforms. Second, the supremacy of the international convention over domestic law that the new Moroccan constitution proposes is an accessible tool for proposing judicial activism and revolutionising the system by opposing any law that contradicts the international protocols in cases of anti-domestic laws conflicting with international law. In other words, the Moroccan constitution respects the supremacy of international conventions; accordingly, national legislation must be brought into line with international standards of protection of human rights, and civil and economic rights. If put in use by the Moroccan CC judges (adopting a broad interpretation approach), the supremacy of international conventions could be an inspirational resource for developing the activism.[542]Third, there is a proposal for the significant revolutionarily influence of the CC, which is possible by opting for systematic interpretations of the constitution rather than a literal interpretation.[543] Suppose the CC reviews the illegitimacy of laws that restrict the freedoms or political competition and reviews critical legislative
The role of CCs in Morocco and Jordan 165 acts carefully wherever it considers being in contract with the rights of freedoms provided in the constitution.
In that case, that can indicate that the CC might fill the role of guardian of the constitution and play judicial revolution by providing equal protection under the law, freedom of association and political rights. The CC can play a crucial role in ensuring that the reform is meaningful and reflects the people’s demands, and it can be a human rights protector and safeguard economic and political rights. Suppose the CC wants to fill the gap by granting the people political, civil and economic rights, and is willing to confront the executive directly when the latter opposes the political liberation. The fourth recommendation is to start relying on international human rights conventions and offer to guarantee adequate protection of fundamental rights and freedoms, such as freedom of expression, freedom of the press, freedom of association and more. However, careful observation of the ‘gas deal’118 judgment as an example might indicate that the high expectations from the CC are not in the right place, and the CC is envisaged as a supporter of the executive instead of constraining its power.Finally, the undeclared purpose of establishing the CC in Morocco and Jordan and their constitutional reforms proposed was to calm the streets in the short run and strengthen and increase the monarchy’s legitimacy and preserve it in the long run. Hopefully the CC will end up producing revolutionarily judicial decisions. It remains to be seen how CC judges will interpret the provisions and new constitution, and intervene in promoting human rights and democratisation and echo the people’s demands in the future; their path is full of challenges. Nonetheless, the initial purpose behind establishing the CC in Morocco and Jordan was to contribute to the regimes’ solidity and continuity, to address the public frustration and avoid revolution in the short term. In the long term, the CC judges can still demonstrate judicial activism that strives for policy-making and engages in judicial politics. It may boomerang and produce a democratic outcome by reinforcing judicial independence through leading concrete constitutional review in the CC decisions.119 Thus, the CC might one day turn into an effective revolutionarily tool and restrain the powers of the monarchy and executives, and contribute to the establishment of a more democratic form of government. The CC should be revolutionary, useful, reliable and reformist in order to promote progressive politics while balancing court intervention without violating the separation of powers and finding the balance between the high expectation of judicial activism and the disillusionment of narrow self-restraint typified by a non-interfering approach.
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