Constitutional Courts or Cross-Jurisdiction Courts: The Debate on the Expansiveness of Jurisdiction in Arab Constitutional

Abstract

This study examined the phenomenon of expanding courts' jurisdictions compared to the classical Kelsenian model, and the impact of such expansion on the efficiency of constitutional courts in constitutional review. It also analyzed the evolution of these courts' roles within the constitutional system, noting their transformation into political actors that interact with the three branches of government and resemble "cross-jurisdiction" courts. Employing the case study method, the research compared the experiences of four Arab countries: Jordan, Palestine, Egypt, and Morocco. Based on the criterion of judicial "purity" in relation to jurisdictional expansion, the Jordanian constitutional court was found to be the purest, maintaining the most limited jurisdiction and aligning closely with the foundational Kelsenian model. While it was initially hypothesized that the Moroccan court would be the least pure due to its diverse jurisdictions, the Palestinian court ultimately demonstrated the greatest multiplicity and expansiveness of jurisdiction. The study's findings reinforced the researchers' hypothesis that authoritarian regimes are not adversely affected by the establishment of constitutional courts, since they control these courts' independence through the mechanisms of their composition, and assign them secondary competencies that distract them from fulfilling their original functions. This helps explain the continued tendency of such regimes to establish constitutional courts and to confer upon them diverse and newly introduced powers.