Landmark Decisions for Comparative Research

In many countries of the Middle East and North Africa, the institutions charged with constitutional review have undergone substantial reform in recent decades, indicating a rising awareness of the constitutional review as a potent instrument. New courts have been created (e.g. Iraq 2004), and existing courts have been attributed new competences and procedures (e.g. Tunisia 2014, Morocco 2017). Most courts have expanded their role and relevance (e.g. Egypt and Kuwait), shaping political and societal change.

Like in most countries across the world, these constitutional courts and councils are facing the challenge of keeping the balance between the rights instituted in the text of constitutions and constantly developing realities of society. To take but one example, equality rights and individual freedoms as conceived in most modern constitutions often do not coincide with the values and realities of a conservative society with its traditional family values. This has been a matter of fact across the world. It was until 1958, for example, that in Germany women had to ask permission of their husbands to get a driver’s license, until 1962 to open a bank account and until 1977 for permission to work. Only in 1969 were married women considered to have full legal capacity. In many countries of the Middle East and North Africa this social reality is often conceived in religious terms, traditional values being seen as enshrined in the God-given Shari’a. To highlight the importance of this set of laws in society and to add legitimacy to the constitutional state, many countries have opted to place references to these religious laws into the text of their constitutions, without implementing a clear mechanism how these laws are to be interpreted, however, or which of the traditional interpretations is to be given preference. It is then mostly the highest courts, the courts charged with constitutional review in particular, that are tasked with the challenge of balancing controversial interpretations of constitutional rights enshrined in the constitution and based on culturally and historically rooted religious and secular norms. As a result, the courts are continuously defining the substance and limits of individual rights and freedoms in view of - and sometimes pushing for – a developing societal consensus.

Largely unrecognized by the international community, constitutional courts and councils of the MENA region have met this challenge in innovative and constructive ways. The three papers published here on Egypt, Kuwait and Tunisia address these developments, highlighting specific cases and rulings from across the region. The intention is to demonstrate the diversity of solutions found by the courts and the rationale behind in order to support their decisions. Of particular interest is, for example, how the Constitutional Court of Kuwait has resolved the question of women having or not the right to carry their own passport. It has attributed this right by referred to individual rights of women, bypassing entirely questions of gender equality.

These papers and case studies of jurisprudence may raise awareness among researchers and judges beyond the region for the many remarkable developments in constitutional law, particularly as courts outside the region face challenges in adjudicating in questions that concern the right to exercise religious belief, frequently concerning Muslims. In this regard, the editors are particularly grateful for the interest and support of Angelika Nussberger, who has been spending much time and reflection on such cases in her role as judge to the European Court of Human Rights from 2011 to 2019 and as vice-president, and who has always actively participated in international exchange and comparative analysis. A special thanks goes to all those who have followed with great interest and continuous encouragement the projects in comparative carried out by the Rule of Law Programme Middle East & North Africa during the past years.

Dr. Anja Schoeller-Schletter