Publication

“Constitutional Courts after the Arab Spring: Appointment mechanisms and relative judicial independence”, The Center for Constitutional Transitions at NYU Law & International IDEA Reports: Constitutional Design in the Middle East and North Africa (with K. Glenn Bass) (2014) (also translated into Arabic).

Abstract

The Middle East-North Africa (MENA) region is experiencing an unprecedented moment of constitutional transition. Among other constitutional reforms, many countries in the region have adopted, are considering adopting or have strengthened systems of constitutional judicial review as a way of signalling the government’s commitment to the rule of law. While constitutional judicial review is not new to the region, many countries have established a constitutional court—a specialist judicial body with exclusive jurisdiction over constitutional judicial review—in an attempt to strengthen the role of the courts in interpreting and enforcing the constitution. A constitutional court plays many important roles, including promoting the rule of law, protecting individual rights, providing a forum for resolving disputes, enforcing the separation of powers, holding different political players accountable to their constitutional commitments, serving as ‘political insurance’ for opposition parties and symbolizing the end of a period of authoritarian rule. The success of constitutional courts is closely tied to the success of constitutional democracy in the region. Constitutional courts are often called upon to decide on a country’s most pressing political issues, including questions about electoral laws and results, regulating the activities of political parties, enforcing the separation of powers among the branches of government, reforming the legal system after a period of authoritarian rule and overseeing constitutional amendment procedures. The litigants in these disputes are often political parties. Even if the cases do not frame the issues in this way, constitutional interpretation is a site of partisan political conflict among political parties, which constitutional courts are called upon to resolve. The process of appointing judges is central to establishing or reforming a constitutional court. The judicial appointments process determines who will interpret the constitution. This report investigates how constitutional court appointment procedures can be designed to promote both judicial independence and judicial accountability to a democratically elected government.