From Procedural Democracy to Substantive Democracy: The Role of Constitutional Adjudication in Contemporary Arab Experiences

Abstract

This study aims to analyze the role of judicial review of the constitutionality of laws in supporting democratic transition processes in the Arab region, through a comparative analytical approach that combines both theoretical and empirical dimensions. The study is based on the premise that the effectiveness of constitutional adjudication is not merely contingent upon the existence of legal texts regulating it, but rather on the extent of its institutional independence and its ability to operate within a stable political and security environment.

The research examines the origins and global development of constitutional review, highlighting the transformations experienced by Arab legal systems, particularly after 2011, when significant efforts were made to restructure constitutional courts and enhance their role in upholding the supremacy of the constitution. It further analyzes selected Arab models (Tunisia, Egypt, Morocco, Jordan, and Libya) to reveal the divergence in their experiences between successful institutionalization and challenges caused by political interference or institutional fragility.

The study concludes that constitutional courts in the Arab region face structural challenges, including executive dominance over judicial appointments, limited financial and administrative independence, restricted access to constitutional justice, as well as the impact of political instability and prolonged transitional periods. It also finds that the success of constitutional review in fostering democratic transition depends on three key pillars: judicial independence, the rule of law, and the consolidation of constitutional culture.

The study recommends reforming judicial appointment mechanisms through pluralistic models, strengthening the institutional independence of constitutional courts, expanding access to constitutional litigation, ensuring a supportive political and security environment, and accelerating the adoption of permanent constitutions. These measures would enable constitutional courts to effectively safeguard rights and freedoms and serve as a genuine mechanism for maintaining the balance of powers.