Constitutions of Arab Countries in Transition: Constitutional Review and Separation of Powers

Abstract

Prior to the Arab Spring uprisings of 2011, Arab liberals and international donors interested in promoting democratization encouraged authoritarian states in the MENA region to adopt and strengthen the institution of judicial review. After the Arab Spring, they doubled down on their efforts. If democracy advocates hoped constitutional courts would encourage the region’s halting transitions to democracy, they were to be disappointed. After the initial enthusiasm of the Arab Spring, democratization had by 2014 stalled in the Arab Mediterranean. The region’s constitutional courts were doing little to restart it; and indeed, in at least one country some accused courts of hindering a messy but real move towards democracy. Liberals and donor states may have been disappointed, but they should perhaps not have been surprised. The assumption that constitutional review is synergistic with democracy is a relatively new development, dating largely from the second half of the twentieth century. The assumption has not gone unchallenged. Over the past decade, legal scholars and social scientists have voiced skepticism about the assumption that politically insulated constitutional courts are likely to embrace and protect quick transitions from authoritarian government to liberal democracy. Recent behavior by constitutional courts in the Arab Mediterranean provides these skeptics with ammunition. Some have proved ineffective at policing government action in a time of political passion, because they lack of popular legitimacy. Other, more powerful courts seem to have worried that rapid democratization will lead to the replacement of a flawed but predictable authoritarian by a tyrannical and unpredictable majority government. Whatever the reason, constitutional courts in the MENA region have not supported rapid democratization in the wake of the Arab Spring. It remains to be seen whether over the longer term they will come to play a productive role as agents of more gradual democratization.

Keywords: Constitutional Law, Judicial Review, Constitutional Review, Authoritarian Constitutions, Democratization, Rule of Law, Arab Spring, MENA, Middle East, Egypt, Tunisia, Syria