Constitutional Review in the Middle East and North Africa

Dr. Anja Schoeller-Schletter

doi:10.5771/9783748912019

Summary

Ten years after the Arab Spring, many parts of the Middle East and North Africa are struggling with the consequences of armed conflict, a balance of power tilted in favour of the executive and challenges to the rule of law. However, institutions charged with conducting constitutional review have been reformed substantially in most of the countries in those regions.

A pioneer effort, this book offers first-hand insights by renowned practitioners and scholars into constitutional review in the Middle East and North Africa, discerning commonalities and differences from a comparative perspective.

Structured along selected topics of interdisciplinary relevance—judicial independence, protection of fundamental rights, control of electoral law, and religious law in the constitutional order—the publication highlights the current state of constitutional review in the region: reference models, major develop-ments, challenges and trends.

Anja Schoeller-Schletter is a lawyer and historian focusing on comparative constitutional law in North Africa and the Middle East. She designed the project behind this publication in her capacity as the Head of the Rule of Law Programme Middle East/North Africa in Beirut, Lebanon, a programme funded by the Konrad-Adenauer-Stiftung.

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Bibliographic data

Edition: 1/2021
Copyright Year: 2021
ISBN-Print: 978-3-8487-7151-6
ISBN-Online: 978-3-7489-1201-9
Publisher: Nomos, Baden-Baden
Series: Nahoststudien. Middle Eastern Studies
Volume: 4
Language: English
Pages: 405
Product Type: Edited Book

Titelei/InhaltsverzeichnisPages 1 - 10 Download chapter (PDF)
1. Authors:
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  1. 1. Introduction: Mapping constitutional review – the project
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    1. 2.1. Historic ties, legal traditions and the models for constitutional review
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    2. 2.2. The trend to concentrated a posteriori constitutional review
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    1. 3.1. The limits of abstract, a priori, non-judicial constitutional review: From constitutional councils to constitutional courts
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    2. 3.2. Strong courts building tradition
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    1. 4.1. New names, new procedures: Pending implementation
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    2. 4.2. More cases, more work: The challenge of filtering and accessibility
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    3. 4.3. Jurisdiction for comparative analysis
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  5. 5. Summary and outlook
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  1. 1. Introduction
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  2. 2. The procedure for the appointment of members of the Constitutional Council
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  3. 3. Eligibility criteria
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  4. 4. Profiles of members of the Constitutional Council
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  5. 5. Limited term of office
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  6. 6. The impact of the composition of the Constitutional Council on its decision-making process
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  7. 7. Controversies around members of the Constitutional Council
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  8. 8. The Constitutional Council in the middle of the Algerian political crisis
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  9. 9. Conclusion
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  1. 1. Introduction
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  2. Authors:
    1. 2.1. System of government and the executive
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    2. 2.2. The legislative
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    3. 2.3. The judiciary
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    4. 2.4. Recent amendments
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    1. 3.1. An unaccountable monarch
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    2. 3.2. Legislative and political parties undermined
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    3. 3.3. An undermined judiciary
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  4. Authors:
    1. 4.1. The High Tribunal
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    2. 4.2. Diffused constitutional review
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    3. 4.3. The Judicial Council
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  5. Authors:
    1. 5.1. Mode of nomination and appointment
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    2. 5.2. Term and removal
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  6. 6. Conclusion
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  1. 1. Introduction
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  2. Authors:
    1. 2.1. The constitutional and legal framework
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    2. 2.2. Legal and institutional challenges
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  3. Authors:
    1. 3.1. The constitutional and legal framework
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    2. 3.2. Legal and institutional challenges
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  4. 4. Conclusions
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  1. 1. Introduction
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  2. 2. The delimitation of the respective functions of constitutional and ordinary courts: the point of departure
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  3. 3. The growing overlap of functions between the constitutional court and the ordinary judiciary: contributing factors
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    1. 4.1. Germany
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    2. 4.2. Italy
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    3. 4.3. Spain
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    4. 4.4. France
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  5. 5. Conclusion
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  1. 1. Introduction
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  2. 2. Constitutional review of legislation in Algeria: Origins, developments and weaknesses
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  3. 3. The 2016 reform and the strengthening of the Constitutional Council’s position
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  4. Authors:
    1. 4.1. The introduction of a “double-filter” system
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    2. 4.2. Who is entitled to raise an exception of unconstitutionality?
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    3. 4.3. The parameter for constitutional review
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    4. 4.4. The conditions that must be met in order to raise an exception of unconstitutionality
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    5. 4.5. The effects of the Constitutional Council’s decisions
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  5. 5. Concluding remarks
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  1. 1. Introduction
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  2. Authors:
    1. 2.1. Constitutional taboos to immunize the comprehensive consensus system
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    2. 2.2. The Constitutional Council’s composition and the means of appointing its members
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    3. 2.3. The Constitutional Council’s powers
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    1. 3.1. The taboos before the Constitutional Council
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    2. 3.2. Consensus laws that obviously contravene the Constitution
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  4. 4. Conclusion
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  1. 1. Introduction
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  2. Authors:
    1. 2.1. The body concerned with hearing the appeal of unconstitutionality
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    2. 2.2. Referral by ordinary trial courts
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    3. 2.3. Appeal before the Appeals Review Committee
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    4. 2.4. Direct complaint before the Constitutional Court
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    5. 2.5. Direct appeal by government and National Assembly
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    6. 2.6. Binding force of the decision rendered by Constitutional Court
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      1. 3.1.1. The decision of the Constitutional Court regarding hijab of two members of the Kuwaiti National Assembly
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      2. 3.1.2. The ruling of the Constitutional Court regarding the right of a woman to travel and extract a passport without the consent of her husband
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    2. Authors:
      1. 3.2.1. The Court’s ruling regarding the equality of women in the housing allowance with men
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      2. 3.2.2. Ruling on depriving women of housing allowance because of the husband’s benefit by housing care
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  4. 4. Conclusion
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  1. 1. Introduction
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  2. 2. Constitutional review bodies before the Arab Spring: Weak defenders of constitutionalism
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  3. Authors:
    1. 3.1. A limited strengthening of the independence of constitutional review bodies
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    2. 3.2. The shift towards a “judicialization” of constitutional review bodies
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    3. 3.3. The broadening of access
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    4. 3.4. The expansion of jurisdiction
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  4. 4. Challenges and perspectives
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  1. 1. Integrative courts and polarising courts
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      1. 2.1.1. Two historical models: seriatim and per curiam decision-making
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      2. 2.1.2. Mutual approximation of seriatim and per curiam proceedings
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      3. 2.1.3. The overlooked remaining difference: Majority requirements
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      4. 2.1.4. Hybrid regimes
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      5. 2.1.5. Consequences of a majority requirement for reasons
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    2. 2.2. Other relevant factors
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  1. 1. Introduction
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  2. Authors:
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      1. 2.1.1. The constitutionality of laws on parliament
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      2. 2.1.2. Judicial administration for elections
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      3. 2.1.3. Dual nationality
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    2. 2.2. The Supreme Constitutional Court’s pre-enactment judicial review for electoral laws
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    1. 3.1. The administrative judiciary (State Council)
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    2. 3.2. The Court of Cassation
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  4. 4. National Elections Commission
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  5. 4. Concluding remarks
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  1. 1. Introduction
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  2. Authors:
    1. 2.1. The National Assembly’s competence to examine the electoral disputes
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    2. 2.2. The basis of Constitutional Court’s competence to examine the electoral appeals
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    1. 3.1. The method of selecting the Constitutional Court members:
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    2. 3.2. The government's power to influence the selection of the Constitutional Court’s members by decrees of appointment
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  4. 4. The methods of case proceeding in the electoral appeals:
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      1. The first case: The nullification of parliamentary election of February 2012.
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      2. The second case: The Constitutional Court’s decision rejecting the unconstitutionality of Law 42 of 2006
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      3. The third case: The nullification of parliamentary elections of December 2012
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    2. 5.2. The consequences of Constitutional Court’s decision declared unconstitutionality of decrees related to the electoral process
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  6. Authors:
    1. 6.1. The period before amending the Constitutional Court’s establishment law
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    2. 6.2. The period after amending the Constitutional Court’s Establishment Law
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  7. 7. Conclusion
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3. Authors:
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  1. 1. Introduction
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  2. 2. Challenging the legitimacy of membership of the Jordanian Parliament
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  3. 3. Challenging the constitutionality of membership of the Jordanian Parliament
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  4. 4. Conclusion
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  1. 1. Introduction
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  2. Authors:
    1. 2.1. References to Islam as the religion of the state
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    2. Authors:
      1. 2.2.1. The head of state
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      2. 2.2.2. Interference of religious bodies in the political field
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      3. 2.2.3. Effects of these provisions on the political organization of the State
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  3. Authors:
    1. 3.1. Constitutional references to the sharia
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    2. 3.2. Meanings of normativity of the sharia
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    3. 3.3. Sharia in the legal systems of the Arab states
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  4. 4. Conclusion
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  1. 1. Introduction: Religion v. state - A deep-rooted struggle
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  2. 2. Who decides the law in Muslim communities? An ongoing struggle
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  3. 3. Modern constitutional structures require participation of many actors in the lawmaking process
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  4. 4. The role of the religious authority in Egypt: From supremacy to declination
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  5. 5. Constitutional deference to Islamic sharia in Egypt responding to a 20th century’s regional call
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  6. 6. Egyptian society signifies high-level of religiosity
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  7. 7. Gradual declination of the applicability of the sharia
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  8. 8. Islamic states with secular practices
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  9. 9. Article 2 of the Constitution and the supremacy of the sharia
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  10. 10. Many actors are there, but are they influential?
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  11. 11. The final authority in deciding Islamic norms does not belong to the religious actors
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  12. 12. The rule of the Muslim Brotherhood: An unsuccessful attempt to raise the power of the clergies
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  13. 13. How the law is finally articulated? The supremacy of the constitutional jurisdiction as to defining Islamic law
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  14. 14. Three major foundations in deciding Islamic norms
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  15. 15. Conclusion: The role of the state, and that of the SCC, supersede the role of the religious actors in defining the law
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3. Authors:
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  1. 1. Introduction
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  2. Authors:
    1. 2.1. Sharia in the constitutional and legal framework
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    2. 2.2. Islamic sharia and the judiciary
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    3. 2.3. Religious freedoms
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  3. Authors:
    1. 3.1. Sharia in the constitutional and legal framework
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    2. 3.2. Islamic sharia and the Judiciary
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    3. 3.3. Religious freedoms
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4. Authors:
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  1. 1. Introduction: The centrality of the state-church relationship to the constitutional systems of European states
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  2. 2. Regulation of the state-church relationship in European constitutions
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  3. 3. Perseverance of constitutional regulations of the state-church relationship
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  4. 4. The shift from an institutional to a rights-based approach: The growing influence of human rights law
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  5. 5. The new challenge: Genuine religious equality in religiously heterogeneous societies
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  6. 6. Conclusion: The elusive goal of religious equality
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  1. 1. Introduction
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  2. Authors:
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      1. 2.1.1. Critical assessment of sharia in the political context
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      2. 2.1.2. Neutral assessment of sharia in inheritance and family law
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      3. 2.1.3. Cautious approach to sharia in freedom-of-religion cases
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      1. 2.2.1. Islam v. Islamism in freedom-of-speech-cases
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        2.2.2.1. The Court’s jurisprudence on hate speech against Muslims
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        Creative or artistic expression
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        Journalistic or scholarly religiously offensive speech
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      3. 2.2.3. Criticism and context
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    1. 3.1. Plurality of state-religion models in Europe
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    2. 3.2. Protection of democracy as priority
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  4. 4. Conclusion
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    1. 1.1. Organization
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    2. 1.2. Jurisdiction
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    3. 1.3. Procedures
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    4. 1.4. Decisions
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    1. 2.1. Organization
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    2. 2.2. Jurisdiction
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    3. 2.3. Procedures
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    4. 2.4. Decisions
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    1. 3.1. Organization
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    2. 3.2. Jurisdiction
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    3. 3.3. Procedures
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    4. 3.4. Decisions
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    1. 4.1. Organization
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    2. 4.2. Jurisdiction
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    3. 4.3. Procedures
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    4. 4.4. Decisions
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    1. 5.1. Organization
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    2. 5.2. Jurisdiction
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    3. 5.3. Procedures
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    4. 5.4. Decisions
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    1. 6.1. Organization
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    2. 6.2. Jurisdiction
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    3. 6.3. Procedures
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    4. 6.4. Decisions
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    1. 7.1. Organization
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    2. 7.2. Jurisdiction
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    3. 7.3. Procedures
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    4. 7.4. Decisions
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    1. 8.1. Organization
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    2. 8.2. Jurisdiction
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    3. 8.3. Procedures
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    4. 8.4. Decisions
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    1. 9.1. Organization
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    2. 9.2. Jurisdiction
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    3. 9.3. Procedures
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    4. 9.4. Decisions
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    1. 10.1. Organization
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    2. 10.2. Jurisdiction
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    3. 10.3. Procedures
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    4. 10.4. Decisions
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    1. 11.1. Organization
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    2. 11.2. Jurisdiction
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    3. 11.3. Procedures
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    4. 11.4. Decisions
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