Understanding Judicial Review in the Arab region: Centripetal and Centrifugal Dynamics

Dr. Sara Razai, program director,

Jurisdiction over cases in Western democracies is generally described as either concentrated into a unitary system of courts or fragmented into a plurality of different courts with their own separate hierarchical structures.1 In contrast with a unitary system of courts with a wide dispersal of jurisdictional powers, fragmented systems tend to have exceptional courts that run parallel alongside regular courts.2 The actual organisation of the judicial system may also influence judicial participation in the political process. Two models are used to describe the organisation of courts: co-ordinate systems where lower and intermediate courts make the majority of decisions, and hierarchical systems where a substantial portion of lower court decisions are re-examined by a final appellate court. Continental European systems usually have clear divisions between ordinary, administrative and specialised courts with the purpose of containing the potential reach for judicial-decision making. In the French model, the judiciary is not intended to limit the power of the popular majority. Popular sovereignty and parliamentary supremacy, instituted in the wake of the French Revolution, were intended to act as powerful checks over external controls over legislation, particularly for judiciaries:

“continental systems have often presumed that the judiciary itself is a power to be checked. The memory of the abuses committed by the courts of the ancient régime and the general fear of ‘government by judiciary’ have helped to shape constitutional frameworks based on a rigid separation of powers, rather than on checks and balances”. 3

In addition, a limited court jurisdiction may also be the result of the executive branch seeking to reduce the potential impact of judicial decisions. The more fragmented the judicial system, the more likely courts are to be “politically neutralised”.4 Solomon calls this type of executive control the “Spanish Solution”; during the later decades of the Franco regime, ordinary courts were independent because they lacked power and the government created a special set of tribunals staffed with politically appointed judges.5

Regardless of any formally stated goals, the creation of a separate autonomous set of courts inevitably curtails the scope of “ordinary” courts, especially over politically sensitive issues.6 Although this type of jurisdictional fragmentation is typically attributed to continental European judiciaries, similar patterns are found in the Arab context. Considering the historical influence of the French civil law model on the region (particularly during the late 18th to 19th century), this is not surprising and to varying degrees the following civil continental characteristics are visible in many Arab judicial systems:

• A three-tiered hierarchy of ordinary courts hearing both criminal and civil cases;

• A set of separate administrative courts, dividing the judicial community; and

• Specialised courts for issues that are considered to be exceptional (religious, military or national security).

However, reviewing how these characteristics are manifested in the Arab context reveals important differences, particularly with regards to the role of apex courts tasked with reviewing the legislation.

 

Judicial Review in context

The co-ordinate and hierarchical models highlight the role of supreme (or apex) courts: a strong decision-making court at the top that is characterised as centripetal is assumed to be better equipped to ensure that judicial decisions are consistent, and therefore the final court is more likely to be more powerful in the political sphere. By contrast, a court of final appeal with a centrifugal dynamic tends to reduce internal consistency by promoting the autonomy of lower and intermediate courts – which lowers the political significance for the apex court itself.

Moreover, the difference between the two judicial models relates to the system’s internal dynamics and the role supreme courts play in ensuring consistency in judicial decisions. A centrifugal dynamic is often described as a feature of continental judicial systems. This particular dynamic tends to promote the autonomy of lower and intermediate courts and thereby reduces the internal consistency of the judiciary as a whole. While the centrifugal may undermine the certainty of law and the coherence of the system, the facilitation of “pluralist jurisprudence” may also strengthen the perception that individual and lower-ranking judges are impartial and less influenced by supreme court rulings.7 In contrast with a centrifugal dynamic are judicial systems that have a strong decision-making court at the top have a centripetal dynamic often represented by the English and American judicial systems. One way in which the centripetal dynamic of a judicial system is manifested relates to judicial review of legislation. Generally, the most visible difference between European continental and Anglo-American court systems relates to judicial review, “which in continental Europe is entrusted to separate constitutional courts” and tends to be limited”.8 In order to assess whether the institutional position of organs entrusted for judicial review have scope for politicisation at least three elements need to be taken into account:

• Whether constitutional adjudication is “centralised” or “diffused”;

• The actors allowed to initiate constitutional litigation and the instruments available to them and;

• The point at which constitutional adjudication can be initiated, i.e. whether the review is a priori or a posteriori.

In Western legal systems, the differences between centralised and diffuse review often relate to the divisions between the common and civil law legal traditions. In several civil law jurisdictions, centralised review is entrusted to a single and separate court “in order to remove inherently political issues from ordinary courts”.9 By contrast, “diffuse review” is spread across the entire judicial system and all courts can declare a law unconstitutional. This type of review is represented by the U.S court system where any court can review legislation on the basis of constitutionality. However, only the U.S Supreme Court has the power to null and declare a law void.

The second element relates to accessibility and what actors are allowed to present challenges directly before the constitutional courts. At least three forms of access are important for the political significance of courts. The first relates to incidental proceedings where litigants may challenge the constitutionality of the law applied in their case. In these circumstances, the court in which the dispute is being hears must assess whether there are sufficient grounds to refer the challenge to the constitutional court. This approach allows the ordinary judiciary to become an unavoidable part of the process of constitutional review, even if the initial purpose was to confine constitutional issues to a separate specialised court:

“[O]rdinary courts may raise constitutional issues on their own volition in the course of a particular case, and such proceedings can then become a vehicle for ‘judicial polities’. By asking for a constitutional court ruling, such actions can be a means of promoting the personal values of individual judges and even those of their reference groups.”10

The third element which indicates the degree to which judges may intervene in the political process relates to the point in time where review may be initiated. Courts that have a priori review can only review legislation in a short time span between the law’s passage by parliament and its promulgation whereas a posteriori review allows for the constitutional court’s intervention to review and validly enacted laws on the basis of constitutionality. For instance, the French Conseil Constitutionnel can only engage in a priori review (e.g. review the law’s passage by parliament but before it is promulgated by the President of the Republic). By contrast, a posteriori review allows for a greater scope of political intervention because the constitutional court can protect constitutional rights against their alleged violation by a validly enacted law.

 

Constitutional and judicial review in Egypt, Jordan, Lebanon and Saudi Arabia

The judicial systems in Egypt, Jordan, Lebanon and Saudi Arabia demonstrate differences in relation to constitutional and/or judicial review. The most visible differences relate to the three elements of constitutional review discussed above. With the exception of Saudi Arabia, all countries assessed here have constitutional courts in the legal system. These are presented in Table 1 below.

 

Table 1. Characteristics of Constitutional courts/councils in Egypt, Jordan, Lebanon and Saudi Arabia

 

	Egypt	Jordan	Lebanon	Saudi Arabia
	Supreme Constitutional Court	Jordanian Constitutional Court	The Constitutional Council	N/A
Created	1979	2012	1993	N/A
Number of members	Ten, all of which are judges	Ten sitting members (Cassation judges, professors of law, and senior lawyers)11	Ten-member committee (judges, academics and lawyers)	N/A
Appointment	Since 2017, SCC selected its own chief justice and other justices, and even decides how many justices will serve on the court.12	Directly appointed by the King	Five members appointed by Parliament and five members by the Cabinet	N/A
Type of judicial review	A posteriori	A posteriori	A priori	Decentralised judicial review
Direct appeal by individuals	Partly	No	No	Yes
Indirect appeal through judiciary	Yes, cases transferred from courts of merit	Courts can only refer through Court of Cassation	No	Yes
Institutions able to initiate review	Courts of merit	The Court of Cassation, the Senate, the House of Representatives and the Council of Ministers	The President of the Republic, the Chief of Parliament, the Prime Minister, at least 10 MPs and the heads of religious communities	All courts

 

In Egypt, the Supreme Constitutional Court can engage in a posteriori review, which allows the constitutional court to review validly enacted law. One notable example relates to the recent legal and political controversy with regards to the executive’s decision to transfer the sovereignty of the strategically important Islands of Sanafir and Tiran to Saudi Arabia in 2016. The decision sparked a judicial controversy and involved the Ordinary and Administrative Courts and the SCC. Since the executive decision was made public, the various courts have adjudicated on the legality of the decision with court cases filed back and forth across the judicial branches. The recent judgment of the SCC put an end to the case, which has been described as a “tense, multi-layered political and legal battle that has been waged in both the [ordinary] and administrative court systems.”13 This power, absent in the French context, accords constitutional courts greater scope for political intervention. According to Sultany, this renders Egypt one of the “most developed instances of judicial review in the Arab world.”14

Although not as pervasive as in Egypt, the powers of the Jordanian Court of Cassation appear wide. Decisions rendered by the Jordanian State Security Court are subject to appeal before the Jordanian Court of Cassation,15 and the Court of Cassation has a gate-keeping role in relation to constitutional challenges. The Court of Cassation is the only judicial body empowered to assess whether there are grounds to refer a case to the Jordanian Constitutional Court. This suggests a possibility in which the Court itself may become a vehicle for judicial politics:“by asking for a constitutional court ruling, such actions can be a means of promoting the personal values of individual judges and even those of their reference groups”.16 By virtue of its direct access to the Constitutional Court, the Court of Cassation constitutes a direct channel into Jordanian politics.

In contrast, the Lebanese Constitutional Council, although described as judicial, is separated from the legal system and access to it is limited. According to Messarra (a member of the Lebanese Constitutional Council), despite efforts by the Council, the powers of the Council are constrained; which is contrary to the general trend in the world and even in the surrounding Arab countries. According to Nasri Messara:

“[L]es attributions limitées du Conseil constitutionnel du Liban, contrairement à la tendance générale dans le monde et même dans les pays arabes environnants, et malgré des efforts constants et confirmés du Conseil, ne favorisent pas la promotion et l’extension de l’Etat de droit.” 17

Constitutional adjudication in Lebanon is likened to the French Conseil Constitutionnel, in that its powers are narrow (abstract review only) and constitutional challenges cannot be initiated by citizens. Despite this, judicialisation of politics may still be fostered through the Constitutional Council. As Shapiro notes in the French context, abstract review has in the French context, enabled the transfer of political conflicts from the Parliament to the judiciary which has tended to act “as a true third chamber”.18 Concomitant with Guarnieri and Pederzoli, this has changed the relationship dynamic between parliamentary forces: “The mere possibility, if not the open threat, that a law will be referred to the Conseil Constitutionnel has forced the parliamentary majority to pay much more attention to legal implications when drafting bills in order to head off potential constitutional challenges”.19 In Lebanon, constitutional challenges raised by both the Parliament and the executive have changed the political landscape. The possibility that a law may be referred to the Council means more attention is paid to constitutional issues and political discourse increasingly adopts legal language.20

Unlike other Arab countries, Saudi Arabia does not have a formal written constitution. Instead, the Saudi government adopted basic laws in 1993 where the judicial, executive and regulatory authorities “cooperate in the performance of their functions and where the King is the “ultimate arbiter for these Authorities”.21 Unlike other Arab countries that have constitutional provisions that declare Islamic Sharī’ʿa as a source of legislation, governance in the Kingdom is based on Islamic Sharī’ʿa and Shura (consultation)”.22 Courts apply rules of the Islamic Sharī’ʿa in cases that are brought before them, according to the sources of Islamic law.23 At the top of the legal system is the King, who acts as the final court of appeal and as a source of pardon.

According to Al-Jarbou, constitutional review in Saudi Arabia does not follow a decentralised model in which all courts participate in constitutional review.24 Nor does it follow a centralised model, where review is exercised by a separate constitutional court.25 Statutes and laws cannot be directly challenged before the Sharī’ʿa Courts or the Administrative Courts. Despite this, a form of judicial review exists by virtue of the powers of Sharī’ʿa and the ability of the Administrative Courts to apply and review Sharī’ʿa law. According to Al-Jarbou, this is a form of judicial review exercised by courts “to maintain the supremacy of the Islamic Sharī’ʿa.” Saudi courts have no powers to nullify laws or regulations: “They may only notify the legislative authority vested jointly in the King, the Council of Ministers and the Shura Council, and recommend amending the regulations.”26

A centrifugal dynamic can be said to exist in Saudi Arabia by virtue of the unique nature of the law applied in the two court systems and the available judicial tools. For example, the nature of ijtihad which is used by Saudi judges tends to reduce the internal consistency of the judicial system as a whole. The recent judicial reforms have sought to change this by introducing separate courts that apply codified laws. For the Sharī’ʿa and Administrative courts, however, this may undermine the certainty of law and the coherence of the system as a whole by virtue of a “pluralist” jurisprudence. With regards to the political significance of judges, individual and lower-ranking judges are afforded more autonomy and are less influenced by the Saudi Supreme Court who in theory acts as an advisor.

 

Summary

Arab Middle East jurisdictions are often categorised by legal scholars as inherently similar in terms of legal and judicial culture. States within the region are said to reveal “strong trans-religious legal patterns”.27 To a certain degree, there is an inter-connected legal heritage that deserves attention. However, there are also important national differences across the Arab countries and these extend to their legal systems. The judicial systems of Lebanon, Egypt, Saudi Arabia and Jordan for example reveal a complex organisation of different, contrasting and unique institutional arrangements. They also illustrate spectrum of variations present in the Arab region. This article has sought to describe key jurisdictional features of four apex courts found in Arab judicial systems by drawing on two conventional models used to describe Western judicial systems.

 

Notes :