This article contrasts the jurisprudence of Egypt’s Supreme Constitutional Court (SCC) construing the meaning of “shari’a” with the practice of ordinary Egyptian courts construing Egypt’s civil code. The article argues that a shift from the lower courts’ positivist outlook on law to the common-law style of legal reasoning deployed by the SCC would increase the Islamic legitimacy of Egypt’s overall legal system, facilitate Egyptian courts’ reconciliation with the constitutional commitments to Islamic authenticity, modernization and human rights, and assist in Egypt’s democratic transition. Part of the I•CON Symposium: Constitutional Transitions in the Middle East.
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In recent years, a growing number of countries have adopted constitutional provisions requiring that state law be consistent with Islamic law (sharia). This article explores the trends that gave rise to “sharia guarantee clauses” (SGCs) and provides a history of their incorporation into national constitutions. It then surveys a number of the remarkably varied schemes that countries have developed to interpret and enforce their SGCs, and it considers the impact that different schemes have had on society. Finally, building on this background, the article considers what types of SGC enforcement scheme, if any, are consistent with democracy. Part of the I•CON Symposium: Constitutional Transitions in the Middle East.
Debates over constitutional design are at the very heart of political life as the Middle East and North Africa (MENA) witnesses the greatest degree of political transformation and regime change in a generation—the Arab Awakening. New constitutional beginnings are demanded not only as a necessary means to break from a discredited past; indeed, equating constitutional reform with progress has become commonplace Conversely, it is feared that erring in constitutional design will condemn the region to repeat the mistakes of the past. Part of the I•CON Symposium: Constitutional Transitions in the Middle East.
This Working Paper highlights the essential functions of an independent judiciary in a constitutional democracy. Drawing on a combination of both hard and soft sources of international law, it reveals a definition of judicial independence that can be met in various legal and constitutional contexts, while allowing courts to protect human rights, secure the rule of law, and ensure the principles of a constitutional democracy. Part of the Constitutional Transitions/Democracy Reporting International Working Paper Series.
This Working Paper asks key questions about designing a constitutional court. Using examples from constitutional courts around the world, it identifies the core issues that policymakers will need to address when creating a new court. It emphasizes the role of constitutional review in legitimizing new democracies, especially on the constitutionality of legislation and government action. Part of the Constitutional Transitions/Democracy Reporting International Working Paper Series.
Egypt’s political architecture under Hosni Mubarak’s authoritarian leadership and the 1971 Constitution was characterized by weak legislatures and a strong executive. This Working Paper considers the constitutional arrangement for the form, powers and functions of Egypt’s legislature in the broader context of the framework of government established by the 2012 Constitution, and assesses whether these arrangements are likely to establish a strong legislature capable of restraining executive power. Part of the Consolidating the Arab Spring Working Paper Series.
Security sector reform is an important issue in post-authoritarian constitutional transitions, and it is an issue on the agenda in Tunisia’s constitutional transition. This Working Paper considers how constitutional rules and institutional design should govern the security sector in Tunisia, proposing a number of principles and constitutional mechanisms that should be adopted as part of Tunisia’s new constitutional framework. Part of the Consolidating the Arab Spring Working Paper Series.
This Working Paper approaches the pervasive problem of political corruption from the perspective of constitutional design, and considers how a constitution can set out principles, rights, institutions and mechanisms that prevent and combat corruption. The Working Paper uses the April 2013 draft of the Tunisian Constitution as the main reference for analysis, and takes into consideration the particularities of the Tunisian context and constitutional tradition. Part of the Consolidating the Arab Spring Working Paper Series.
The goal of judicial system design in democratic societies is to have a judiciary that is independent, accountable and competent. This Working Paper brings to bear recent comparative research on judicial independence, the design of the judicial system, and constitutional reform, and notes that while Tunisia’s 22 April 2013 Draft Constitution begins the process of building a new democratic judiciary, further detail is required. Part of the Consolidating the Arab Spring Working Paper Series.
This Working Paper presents an analysis of the fundamental rights set out in the three drafts of the Constitution of the Republic of Tunisia, as made public in August 2012, December 2012, and April 2013. Part of the Consolidating the Arab Spring Working Paper Series.
This Working Paper is a commentary on the system of decentralized government set out in the draft Tunisian Constitution of 22 April 2013. The Working Paper investigates the fundamental objectives of Tunisian constitutional reform and assesses whether the system of decentralisation set out in the April 2013 draft Constitution is consistent with these objectives. Part of the Consolidating the Arab Spring Working Paper Series.
This Working Paper conducts an extensive comparative analysis of the constitutional design options available within the semi-presidential form of government, offering comments on the April 2013 draft Constitution of the Republic of Tunisia in light of this analysis. Part of the Consolidating the Arab Spring Working Paper Series.
This Working Paper addresses the question of how a constitutional text can contribute to a commitment to prevent and eliminate corruption, investigating in particular the strengths and weaknesses of the 2012 Constitution, as compared to both the 1971 Constitution and Egypt’s experience under it and international constitutional trends in the fight against corruption. Part of the Consolidating the Arab Spring Working Paper Series.
In July 2013, Constitutional Transitions and the International Institute for Democracy and Electoral Assistance prepared an opinion outlining strengths and weaknesses of the 2012 Egyptian Constitution.
In March 2012, Constitutional Transitions held a symposium on the constitutional reformation of the Middle East and North Africa region in the wake of the Arab Spring. The papers presented at the symposium are collected in this special edition of the International Journal of Constitutional Law, with an introduction by Constitutional Transitions Faculty Director Sujit Choudhry, and address: Islamic constitutionalism; judicial interpretation under Islamic law; the Turkish Constitutional Court; Turkey’s tradition of authoritarian constitutionalism; and civil-military relations in Turkey.
The Consolidating the Arab Spring Working Paper series was published in June 2013 by International IDEA, together with Constitutional Transitions, as a response to the imperative for targeted expertise in support of constitution building in the wake of the Arab Spring:
