The Limits and Legitimacy of the Maghrebi Constitutional Judge’s Authority to Expand the Bloc of Constitutionality

Abstract

This comparative study examines how the Maghrebi constitutional judge in Algeria, Morocco, and Tunisia has expanded the sources underpinning constitutional decisions and identifies the nature and components of the “bloc of constitutionality” applied in the constitutional review of legislation. It explains how constitutional adjudication in these countries has moved beyond the traditionally narrow conception of direct conformity with express constitutional provisions to recognise the constitutional preamble and general principles of constitutional value as binding standards for protecting rights and freedoms. The study also examines the incorporation of international human rights treaties and conventions into constitutional review and the inclusion of organic laws as texts supplementing constitutional provisions. It highlights the distinctive Algerian experience, in which ordinary legislation has been invoked based on the theory of the “constitutional link” and the principle of “non-regression” (the ratchet effect), in contrast to the restraint exercised by the Moroccan and Tunisian constitutional judiciaries to avoid an excessive expansion of the bloc of constitutionality. The study concludes that previous constitutional decisions, by virtue of their absolute binding force, have become binding judicial precedents recognised as a component of the bloc of constitutionality, thereby affirming the principle of legal certainty.