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English and Arabic, and Will Be Used As Engagement Tools in Support of Constitution-Building Activities in the Region (E.G Constitutional Courts after the Arab Spring Constitutional Courts after the Arab Spring: Appointment mechanisms and relative judicial independence Center for Constitutional Transitions at NYU Law International Institute for Democracy and Electoral Assistance Sujit Choudhry Cecelia Goetz Professor of Law, NYU School of Law Faculty Director, Center for Constitutional Transitions at NYU Law Katherine Glenn Bass Adjunct Professor, NYU School of Law Director of Clinical Programming, Center for Constitutional Transitions at NYU Law with Bieta Andemariam, Sandra Azima, Kuntal Cholera, Lauren Katz, Cenobar Parker, Johanna Peet and Katharina Rall Copyright 2014 Center for Constitutional Transitions and International IDEA The electronic version of this publication (excluding the cover photos) is available under a Creative Commons License (CCI) – Creative Commons Attribute-Non Commercial- Share Alike 3.0 Licence. International IDEA publications are independent of specific national or political interests. Views expressed in this publication do not necessarily represent the views of International IDEA, its Board or its Council members. ISBN: 978-91-87729-40-9 1 The International Institute for Democracy and Electoral Assistance (International IDEA) is an intergovernmental organization with 28 member states that supports sustainable democracy worldwide. International IDEA’s mission is to support sustainable democratic change by providing comparative knowledge, assisting in democratic reform, and influencing policies and politics. International IDEA produces comparative knowledge in its key areas of expertise: electoral processes, constitution building, political participation and representation, and democracy and development, as well as on democracy as it relates to gender, diversity, and conflict and security. IDEA’s work is non-prescriptive; it takes an impartial and collaborative approach to democracy cooperation, emphasizing diversity in democracy, equal political participation, representation of women and men in politics and decision making, and helping to enhance the political will required for change. IDEA brings together a wide range of political entities and opinion leaders. By convening seminars, conferences and capacity-building workshops, IDEA facilitates the exchange of knowledge and experience at global, regional and national levels. International IDEA is a Permanent Observer to the United Nations. For more information, please visit www.idea.int. 2 Constitutional Courts after the Arab Spring The Center for Constitutional Transitions at NYU Law (Constitutional Transitions) generates and mobilizes knowledge in support of constitution building. Agenda-Setting Research: Constitutional Transitions generates knowledge by identifying issues of critical importance to the success of constitutional transitions, where a lack of adequate, up-to-date research impedes the effectiveness of technical assistance for constitution building. Constitutional Transitions assembles and leads international networks of experts to complete thematic research projects that offer evidence-based policy options to practitioners. Constitutional Transitions Clinic: Constitutional Transitions mobilizes knowledge through an innovative clinical programme that provides ‘back office’ research support to constitutional advisers in the field and deploys faculty experts and field researchers for support on the ground. The Clinic meets existing field missions’ needs for comprehensive research, dramatically enhancing their effectiveness and efficiency in their role as policy advisers and actors. The Constitutional Transitions Clinic’s client for 2012–14 is the West Asia and North Africa Office of International IDEA, which it has supported with over 40 student researchers from 11 countries based at NYU and stationed in Beirut, Cairo and Tunis. For more information, please visit www.constitutionaltransitions.org. 3 About this report The Constitutional Transitions Clinic ‘back office’ is preparing a series of thematic, comparative research reports on issues in constitutional design that have arisen in the Middle East and North Africa. Zaid Al-Ali, Senior Adviser on Constitution Building at International IDEA, has acted as an adviser on these reports and has overseen International IDEA’s participation in the report-drafting process. These reports will be jointly published by Constitutional Transitions and International IDEA in English and Arabic, and will be used as engagement tools in support of constitution-building activities in the region (e.g. in Libya, Tunisia and Yemen). The forthcoming reports are: Constitutional Courts after the Arab Spring: Appointment Mechanisms and Relative Judicial Independence (Spring 2014) Semi-Presidentialism as Power Sharing: Constitutional reform after the Arab Spring (Spring 2014) Political Party Finance Regulation: Constitutional reform after the Arab Spring (Spring 2014) Anti-Corruption: Constitutional Frameworks for the Middle East and North Africa (Fall 2014) Decentralization in Unitary States: Constitutional Frameworks for the Middle East and North Africa (Fall 2014) Oil and Natural Gas: Constitutional Frameworks for the Middle East and North Africa (Fall 2014) The reports will be available at www.constitutionaltransitions.org and www.idea.int. An Arabic translation of the reports is forthcoming. For more information, please visit www.constitutionaltransitions.org. 4 Constitutional Courts after the Arab Spring Acknowledgements The authors of this report wish to thank Anis Abidi (International IDEA), Aslı Bâli (UCLA School of Law), Nathan Brown (George Washington University), Jennifer Canose (NYU School of Law), Haider Hamoudi (University of Pittsburgh School of Law), Mattias Kumm (NYU School of Law), Ahmed Ouerfelli (Office of the President of Tunisia), Pasquale Pasquino (NYU), Intisar Rabb (NYU School of Law), Chafik Sarsar (University of Tunis–El Manar), Christoph Schoenberger (University of Konstanz) and Richard Stacey (NYU School of Law). The views expressed in this report, and any errors it contains, are the responsibility of the authors alone. Many of the ideas that are set out in this report were tested in a conference that took place on 8 April 2013 at the University of Tunis–El Manar, which was attended by Tunisian academics, postgraduate law students, members of the Tunisian Constituent Assembly and legal advisers to the Tunisian state. We are grateful for the helpful suggestions offered by the conference participants. This report has been prepared by the Center for Constitutional Transitions at NYU Law, affiliated with the New York University School of Law, but does not purport to present the school’s institutional views, if any. All English-language translations of documents referred to in this report are unofficial, unless otherwise noted. 5 Contents About this report ...................................................................................................... 4 Acknowledgements ................................................................................................... 5 Contents .................................................................................................................. 6 Executive summary ................................................................................................... 9 The legislative supermajority model .................................................................... 10 The judicial council model .................................................................................. 11 The judiciary-executive model ............................................................................ 11 The multi-constituency model ............................................................................ 12 Qualifications .................................................................................................... 13 Removal ............................................................................................................. 13 1 Introduction ........................................................................................................ 15 1.1 Constitutional review in the Middle East-North Africa region ....................... 16 1.1.1 New courts in new democracies .................................................................. 16 1.1.2 Existing constitutional courts in transition ................................................. 17 1.1.3 New constitutional courts under existing governments .............................. 17 1.2 Functions of a constitutional court ................................................................ 19 1.2.1 Upholding the rule of law ........................................................................... 21 1.2.2 Protecting individual rights ......................................................................... 21 1.2.3 Providing a forum for the arbitration of disputes among political parties, branches of government and government officials ............................................... 21 1.2.4 Separation of powers ................................................................................... 22 1.2.5 Enforcing the constitutional pact ................................................................ 22 1.2.6 Political insurance ....................................................................................... 22 1.2.7 Symbolic value ............................................................................................. 22 1.3 Constitutional courts and politically contested cases
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