Judicial Review Model

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POSITION PAPER on the judicial review student ID: 100167870 1 Backdrop Since 1989, Algeria has undertaken reforms towards democracy, starting with provisions for multi-party elections (Quandt 16), followed by de-militarisation efforts with Abdel Aziz Bouteflika’s coming to power in 1999. More recently, constitutional changes in 2016 ostensibly expanded Parliament’s power and restored the presidential two-term limit (BBC). Yet, democratisation gradually became a tool to perpetuate Bouteflika’s power against entrenched interests of le pouvoir (economic, political and military elite) (Arshad 254). In light of the lacklustre transition to democracy, the question of whether Algeria should implement the judicial review is of pertinence.
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An example is the United States. While there is no explicit judicial review in the US constitution, the power of the Supreme Court to overturn unconstitutional laws has become a well-established precedent since the case of Marbury v. Madison (1803). Notably, the judiciary takes on the role of both litigation and constitutional review.
i) decentralised and diffused system: the jurisdiction to engage in constitutional interpretation is provided to many courts: state and federal (“Why Europe rejected American judicial review” 2770).
A benefit is the direct confrontation of protecting citizens’ rights, even at a state level. For example, in Goodridge v. Department of Public Health (2003), the Supreme Judicial Court of Massachusetts ruled that the state's marriage licensing laws
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(3) Should Algeria adopt the judicial review?
Both the US and Germany have an established practice of judicial review. While completely different from the context of Algeria, they were chosen precisely to isolate the advantages and disadvantages of each model. This prevents a self-fulfilling prophecy of an abysmal failure of judicial review in Algeria had a country still experimenting with democracy been chosen, with a constitutional court struggling to find its voice and facing mounting pressures of politicisation.
Much has been discussed about the ‘undemocratic’ nature of judicial review, but this is a problem only when democratic institutions are of good working order (Waldron, 1360). With the large power vested in the president in Algeria, introducing a body that could check the currently asymmetric separation of powers would be a just compensation for a flawed democratic
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