Constitutional Courts: Constraint or Legitimation? Lessons from the Arab Spring

Tamara El Khoury

the Executive Director of the Arab Association of Constitutional Law, Editor of the Journal of Constitutional Law in the Middle East and North Africa (JCL-MENA) and an Adjunct Professor at IE University in Madrid

One of the central insights of Francesco Biagi’s Constitution-Building After the Arab Spring: A Comparative Perspective (CUP 2025) is that constitutional texts and institutions cannot be understood independently of the political processes through which they are created. By examining constitution-building across the diverse trajectories of the Arab uprisings, Biagi shows how differences in constitution-making processes –including the role of ruling regimes, political parties, civil society, and the degree of openness and participation– help explain differences in the resulting constitutional texts and their subsequent implementation. These differences in turn shape how recurring questions of executive power, constituent authority, religion, constitutional justice, and democratic legitimacy are addressed, and how they play out within emerging constitutional orders. Such questions are therefore best understood not in isolation, but as interconnected elements of constitutional transformation –or, perhaps more prevalently, constitutional preservation.

Against this broader backdrop, one institutional trend warrants particular attention. Across the region, constitutional reform repeatedly featured the creation or renovation of constitutional courts. As such, Tunisia’s 2014 Constitution replaced the former Constitutional Council with a Constitutional Court endowed with significantly broader powers (although the court was ultimately never established). In turn, Jordan’s 2011 constitutional amendments established a specialised Constitutional Court alongside other institutional reforms. Morocco’s 2011 Constitution replaced its Constitutional Council with a Constitutional Court, while Algeria followed a similar path in 2020. Despite the differing political trajectories leading to their establishment, constitutional courts became one of the defining institutional features of post-Arab Spring constitutional reform. Indeed, constitutional courts were repeatedly presented across the region as an important element of democratic renewal, even as their creation came about in response to different political imperatives, whether explicit or implicit –from Tunisia’s attempt at democratic refoundation to Jordan’s, Algeria’s, or Morocco’s largely pre-emptive constitutional reforms.

A comparative overview across the region nevertheless reveals that constitutional reform did not necessarily produce greater democratisation and, in some cases, instead consolidated or reinforced executive dominance. More than a decade after the Arab Spring, how, then, should we understand the constitutional significance of constitutional courts within the broader framework of these distinct processes of reform?

Building on Biagi’s distinction between ‘bottom-up’ and ‘top-down’ constitution-building, this essay argues that constitutional courts are best understood not as autonomous engines of democratisation, but as institutions whose capacity to constrain political power is conditioned by the broader constitutional architecture in which they are embedded. This is not to say that no attention should be paid to differences in their institutional design, particularly in relation to appointment mechanisms. To a large extent, such differences may themselves be indicative of the intended institutional position of these courts . The Jordanian case is illustrative: although the constitution formally characterises the court as independent, all its members, including its President, are appointed by the King, offering limited institutional separation from executive authority.. Algeria, by contrast, adopts a more dispersed appointment model, involving the President, the judiciary, and professors of constitutional law. As Biagi also argues (pp. 158-159), while this may appear to promote greater institutional pluralism, its significance is limited where the appointing authorities themselves are not fully independent of executive power. Thus, institutional pluralism in the formal allocation of appointment power may therefore coexist with, and even obscure, a broader concentration of political authority.

The broader point, therefore, is that what matters is not simply whether a constitutional order establishes a court, or even the formal powers that it confers upon it, but whether the constitution-building process itself is oriented towards distributing political power through effective checks and balances, independent institutions, and meaningful constraints on executive authority. Where constitutional courts are embedded within settlements that preserve concentrated political power, their formal powers are unlikely, on their own, to generate effective constitutional constraint.

The examples examined below are intended to be illustrative rather than exhaustive; they are selected to invite reflection on different trajectories of constitution-building and their implications for the role of constitutional courts.

Constitutional Courts as Products of Constitution-Building

Biagi’s discussion of constitutional courts is particularly valuable because it situates them within the broader constitution-building processes in which they emerged, from Tunisia’s transformative process to the “surviving constitutionalism” (p. 60)  –to use the author’s expression– of Jordan and Algeria.

Pre-emptive Constitutional Reform and the Limits of Constitutional Courts

In Jordan, the establishment of the Constitutional Court in 2012 formed part of the constitutional reform agenda that emerged in response to the Arab Spring. Alongside demands for electoral reform and greater political accountability, reform demands focused on strengthening constitutional checks and balances and creating institutions capable of overseeing the exercise of public power.

The monarchy responded with constitutional amendments adopted in 2011 that provided for the establishment of both a Constitutional Court and an Independent Election Commission. These institutions represented significant innovations within Jordan’s constitutional framework and were presented by the government as important components of the broader political reform process. At the same time, critics argued that the reforms did not go far enough in addressing the monarchy’s entrenched powers.

Indeed, the constitutional amendment process remained fundamentally pre-emptive in character. Rather than reconstructing the constitutional order, it can be argued that the amendments sought to preserve it by accommodating demands for reform while maintaining the existing distribution of political authority. Executive predominance remained largely intact, if not further reinforced, and the broader constitutional architecture continued to concentrate meaningful political power in the hands of the ruling establishment.

In this respect, the Jordanian Constitutional Court’s 2025 decision declaring the Teachers’ Syndicate Law unconstitutional illustrates how formal legal reasoning cannot be divorced from the constitutional settlement within which it operates. The court relied on a technical allocation-of-powers argument, concluding that Parliament had legislated in an area constitutionally reserved to the Executive. The case demonstrates that institutional dependence does not eliminate the possibility of judicial constraint; rather, it raises questions about the scope, direction, and political significance of that constraint. The judgment must in this sense be understood against the backdrop of the existing constitutional settlement. The court’s reliance on a formal legal argument should not obscure the broader effect of its ruling: by invalidating the statutory basis for the Teachers’ Syndicate, it dealt a significant blow to the freedom to establish and organise syndicates and, consequently, to the institutional capacity for collective mobilisation outside executive control. At a time when the Teachers’ Syndicate remained one of the few organised institutions capable of mobilising opposition to executive authority, the case illustrates the limits of expecting constitutional courts to perform counter-majoritarian functions where the broader constitutional order continues to privilege executive power.

Algeria presents a more complex case. The 2020 constitutional reform was presented as a significant strengthening of constitutional review, most notably through the creation of a new Constitutional Court and changes to the framework governing constitutional review. Yet the subsequent operation of the court suggests that this formal expansion has not necessarily translated into a correspondingly greater capacity to constrain political power or uphold fundamental rights.

The experience surrounding the Djabelkhir affair is instructive in this regard. Criminal proceedings against Islamic scholar Saïd Djabelkhir under Article 144 bis 2 of the Penal Code, for allegedly offending Islam and denigrating its precepts, were initiated in January 2020, before the adoption of the new constitution later that year. However, the constitutional challenge to Article 144 bis arose only during the subsequent appeal against his conviction before the Algiers Court of Appeal, after the 2020 constitutional revision had entered into force and amid the institutional transition from the Constitutional Council to the newly established Constitutional Court was still underway. Djabelkhir’s lawyers succeeded in securing the referral of a constitutional question concerning the article, arguing that its prohibition on denigrating Islamic doctrine and precepts was incompatible with constitutional guarantees of freedom of thought and expression, as well as freedom of scientific research. Although the matter was referred to the Constitutional Council, the constitutional question was ultimately not adjudicated on the merits. Djabelkhir was acquitted by the Algiers Court of Appeal, and it remains unclear whether the newly established Constitutional Court took up the question;  no published ruling addressing the constitutional challenge has been identified. The case thus illustrates a degree of institutional continuity beneath the formal restructuring introduced by the 2020 constitutional reform.

The significance of the episode, however, extends beyond this institutional continuity. The 2020 Constitution had not merely restructured the architecture of constitutional review; it had also altered the substantive framework of rights protection, most notably by removing the express constitutional guarantee of freedom of conscience contained in the previous constitution. The Djabelkhir challenge arose precisely at the intersection of this institutional and substantive reconfiguration. The episode therefore illustrates the risk of examining the establishment or restructuring of constitutional courts in isolation from the broader constitutional framework within which they operate: institutional reform may appear to strengthen constitutional adjudication while the substantive constitutional standards within which that adjudication takes place are themselves being recalibrated.

At least on the basis of the Constitutional Court’s published constitutional-exception jurisprudence to date (including cases raising fundamental-rights concerns, such as fair-trial guarantees and other constitutional rights), there is likewise little evidence that the institutional restructuring introduced by the constitutional reform has translated into a greater willingness to invalidate legislation. The court has largely upheld the constitutionality of the provisions challenged before it. The Algerian experience thus underscores the distinction between constitutional restructuring and the institutional and political conditions necessary for constitutional review to operate as a meaningful constraint on political power.

The Lebanese experience offers a useful counterpoint. Unlike the courts examined above, Lebanon’s Constitutional Council predates the post-Arab Spring constitutional reform processes considered here. Yet its restricted rules of access illustrate how formal institutional design does not necessarily determine the practical space available for constitutional challenge. Under the constitution, referrals to the council are limited to specified political and religious authorities, excluding individual access. In practice, however, this formal restriction has not entirely excluded civil society from constitutional litigation. Particularly following the 2022 elections, which brought a small number of independent MPs into Parliament, civil society organisations have increasingly mobilised these MPs as channels through which to challenge legislation before the council, developing and supporting the constitutional arguments underlying such referrals. Lebanon therefore illustrates that the practical capacity for constitutional constraint cannot be inferred from formal rules of access alone: even where formal access is narrowly circumscribed, constitutional courts may become sites of meaningful constitutional contestation where sufficient civic space exists for political and civil-society actors to mobilise around them.

Democratic Constitution-Building Without Institutional Consolidation

If Jordan and Algeria illustrate the limits of constitutional courts within pre-emptive reform, Tunisia demonstrates a different problem: even ambitious democratic constitution-building may fail where the institutions it creates cannot be consolidated.

The 2014 Constitution represented the Arab world’s most ambitious attempt to construct a democratic constitutional order after the uprisings, distributing executive authority both horizontally and vertically, strengthening Parliament and rights protection, and placing the Constitutional Court at the centre of a broader effort to prevent the re-emergence of authoritarian presidentialism.

Yet the court was never constituted. Political disagreement over judicial appointments produced persistent deadlock, with the qualified-majority requirement intended to safeguard the court’s independence contributing to the difficulty of reaching agreement. Consequently, when President Kais Saied invoked Article 80 in July 2021 and subsequently dismantled much of the constitutional order established by the 2014 Constitution, the very institution entrusted with safeguarding constitutional legality did not exist. The political settlement embodied in the 2014 Constitution –painstakingly negotiated during the transition– ultimately proved too fragile to sustain the order it created.

Comparative Perspectives Beyond the Arab Spring

The Arab experience reflects a broader comparative pattern. Constitutional courts may acquire greater capacity to constrain political power where they emerge as components of wider projects of constitutional transformation, rather than as isolated institutional reforms. Three African examples illustrate this point.

In Benin, the Constitutional Court emerged from the democratic refounding initiated by the 1990 National Conference, forming part of a broader reconstruction of the constitutional order following authoritarian rule. Its subsequent jurisprudence illustrates how the court became a consequential institution within that settlement, exercising significant authority over the political branches. South Africa similarly illustrates how constitutional adjudication can be embedded within a negotiated transformation of the political order. The Constitutional Court was established as part of the transition from apartheid and became a central institution within a new constitutional settlement designed to constrain state power and protect fundamental rights. In Kenya, the 2010 Constitution likewise situated judicial reform within a broader effort to disperse political authority, including through devolution and stronger institutional checks on the executive. In each case, the constitutional court formed part of a wider restructuring of political power rather than serving as a principal, or isolated, reform mechanism.

These examples do not establish a simple causal relationship between democratic constitution-building and effective constitutional justice. All three countries have in recent years experienced significant political contestation and varying degrees of democratic backsliding. They nevertheless suggest a more modest proposition: constitutional courts may be better positioned to constrain political power where they form part of broader constitutional projects aimed at preventing the concentration of executive power and strengthening institutional checks, rather than being introduced as isolated institutional reforms.

Constitutional Courts and the Space for Constitutional Contestation

The preceding discussion has examined constitutional courts as products of constitution-building. Yet constitution-building processes throughout the Arab region revealed a deeper and more persistent problem: the very nature of the state remains contested. Across the Arab Spring experiences, questions concerning the distribution of political authority, the relationship between state and religion, the meaning of citizenship, and the limits of executive power remained only partially resolved. The constitutional texts produced through these processes therefore reflected not only new institutional arrangements, but also continuing disagreement over the political and constitutional identity of the state.

If constitutional courts are understood not merely as mechanisms for striking down legislation, but as institutions through which constitutional meaning is produced and contested, their significance extends beyond formal judicial review. Indeed, where the nature and constitutional identity of the state remain contested, constitutional courts themselves become implicated in these broader struggles over the meaning and foundations of the constitutional order.

The proliferation of the concept of the dawla madaniyya (civil state) is particularly revealing in this respect. As Reem Turkmani and I have argued elsewhere, the dawla madaniyya has emerged as a distinctly Arab constitutional idiom through which competing political actors seek to reconcile constitutional government, democratic participation, civilian authority, and the place of religion within the state. Its significance lies less in prescribing a settled constitutional model than in providing a vocabulary through which these competing visions can continue to be articulated and contested.

This unresolved character of constitutional development bears directly on the role of constitutional courts. Where constitutional courts are established within democratic constitution-building processes, they may provide an institutional forum through which contested questions concerning the nature of the state, the distribution of political authority, and the place of religion can continue to be interpreted and contested. Where, however, courts are established within constitutional orders that preserve concentrated political authority, they may instead contribute to closing off that space of contestation by giving constitutional form to political settlements that remain deeply contested. In this sense, the establishment of constitutional courts may represent not only a missed opportunity for constitutional constraint, but also a missed opportunity to sustain the constitutional contestation through which competing understandings of the state might otherwise continue to be articulated and negotiated.

Constitutional Courts as Instruments of Legitimation

The cases examined above point to a further possibility. Where courts operate within political settlements that leave the underlying distribution of power largely intact, they may contribute to the legal and institutional legitimation of that order. This is particularly significant where constitutional reform has been presented as a process of democratic renewal. The creation of a constitutional court, the expansion of constitutional review, or the diversification of judicial appointments may signal a commitment to constitutional constraint without necessarily altering the political structures within which those institutions operate. In such circumstances, constitutional reform may change the appearance of institutional constraint more than the underlying distribution of power.

Legitimation, in this sense, does not require courts simply to endorse executive power. It may arise from the broader constitutional authority that courts confer on an institutional settlement by operating within it, interpreting its rules, and giving legal form to its distribution of political power. A court may therefore effectively exercise constitutional constraint in individual cases while simultaneously reinforcing the legitimacy of the broader constitutional order within which that constraint takes place.

The cases discussed above are necessarily selective. What they nonetheless suggest is that constitutional reform cannot be reduced to a formal institutional dimension, including the establishment or restructuring of constitutional courts. More than a decade after the Arab Spring, this understanding of the significance of constitutional courts warrants more systematic comparative examination across the region.

Tamara El Khoury is the Executive Director of the Arab Association of Constitutional Law, Editor of the Journal of Constitutional Law in the Middle East and North Africa (JCL-MENA) and an Adjunct Professor at IE University in Madrid

Suggested Citation: Tamara El Khoury, ‘Constitutional Courts: Constraint or Legitimation? Lessons from the Arab Spring’ IACL-AIDC Blog (29 September 2026) Constitutional Courts: Constraint or Legitimation? Lessons from the Arab Spring