Doneer aan de Mr. Hans van Mierlo Stichting

The rule of law

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The uprisings in the Middle East are most fundamentally about establishing a new rule of law. Independent lawyers and judges are crucial in this respect. Mauritius Wijffels analyses what the role of lawyers was, and will be, in bringing about changes. His suggestion: focus on informal circuits and contacts between lawyers and ordinary people. It is there that the magic happens.

By Mauritius Wijffels

Whilst most of the planet was taken by surprise as the 2010 and 2011 popular uprisings against authoritarian rule in the Middle East unfolded, the strong desire for respect of the rule of law as well as a degree of social justice had been brewing for a while. Certain dynasties fell, like in Egypt, as they stubbornly continued to reject basic legal and social demands whereas others managed to stay in place by quickly giving in sufficiently to avoid being toppled, as was the case in Morocco. Either way, countless members of the legal com­munity and civil society in Egypt and Morocco had been striving during many years for a more positive and constructive role for legal minds in their societies. A comparison of notes on the status of the legal community in both countries shows certain differences but especially strong similarities in the way lawyers and judges en­deavour to achieve a level playing field.

First things first

Before lawyers and judges in Egypt, Morocco and other countries can live up to their profession­al and social calling of helping to empower the people of their nations in exercising their rights and maintaining their freedoms, two obstacles must first be removed. On the one hand, the basic rights and freedoms that lawyers and judges are held to protect must be laid down unambiguously in solidly written instruments applying equally to all. On the other hand, those same lawyers and judges must be given the right tools and space to implement this protection. What is the situation in this respect in Egypt and Morocco?

Both Egypt and Morocco have recognised the need for legislative reform, starting with the Mother of All Laws: the national Constitution. Constitutions are universally considered the ultimate normative touchstone for all ensuing forms of legislation and their implementation. As early as 1 July 2011, after only three months of drafting and following a national referendum without bloodshed, Morocco promulgated a new Constitution containing some very encouraging provisions. These include: the supremacy of international law over national law, the explicit recognition and listing of a large number of basic human rights and fundamental freedoms and the separation of the three classical powers. Thus, the Moroccan Constitution features an independent judiciary, thereby fulfilling a long-awaited disen­tanglement from the executive: the ultimate su­pervision by the minister of justice has been replaced by a special judicial council vice-chaired by the highest judge in the country, the president of the Court of Cassation.

Although Egypt was the second Arab country to remove its autocratic regime early in 2011, the process surrounding the creation of a new Constitution is still ongoing and has at times been acrimonious. The current Egyptian draft Constitution does not credit international law or human rights quite the way its Moroccan coun­terpart does but it enumerates a larger number of basic social and economic rights. And in Egypt too, it is currently being proposed that judges should enjoy more independence by replacing the head of state with a special judicial council in charge of appointing the members of the Supreme Constitutional Court, the country’s highest judicial institution. At the expense of the prosecution, judges will also get a much bigger role to play in decisions on any measure involving detention and duress.

Good news and bad news

The question arises then if these and other consti­tutional reforms suffice to address the aforemen­tioned two obstacles: lack of quality legislation and insufficient empowerment of the legal pro­fessions. As so often in legal practice, there is good news and there is bad news. The good news is that whilst both Constitutions have come un­der severe criticism for not going far enough in meeting the demands of the ‘street’, it would be difficult to deny that they represent a major leap forward in comparison with their predecessors. Especially the Moroccan Constitution has been hailed by many as a massive move forward and an example for the region. The bad news touches on various aspects of the new situation.

Firstly, not all rights are equally well protected in the two Constitutions at hand with e.g. wom­en’s and girls’ rights getting a much better cut in Morocco than in Egypt. Secondly, it is not at all clear how both countries will deal with the implementation of the lofty norms and principles they have just adopted. In Egypt, for in­stance, ministerial decrees were largely abused to settle matters in breach of the law or good governance. This malpractice has led to a constitutional proposal that any sanction must be rooted in law. In practice, however, it will prove impossible to swiftly replace the countless exist­ing decrees by laws and to constantly update those laws. Instead of empowering the legal com­munity, this proposal is likely to obstruct lawyers and judges in establishing legal certainty because it will be unclear what rule applies.

Thirdly, the past does not just go away. In a coun­try like Morocco, the arbitrariness with which judges have been appointed and dismissed over the past decades and the lack of transparency which has frequently characterised court proce­dures, have seriously exacerbated the already seri­ous public apprehensiveness about the reliability of the judiciary – making almost everybody look bad, even the well-intended. Fourthly but by no means lastly, despite at least formally promoting the independence of the judiciary, the new Constitutions do not appear to provide judges or lawyers with clearly defined protection or min­imum quality standards in line with international law or custom.

Time will tell whether these flaws in institu­tions and implementation will be solved. The post-revolution and post-reform political land­scapes will need time to develop and balance out. The call for dignity, rule of law and social justice has not faded and governments remain under pressure to realize these objectives by gradually democratizing state and other leading institutions.

Empowering judges and lawyers: formal associations

This failure to fully empower the legal commu­nity through the respective Constitutions seems a lost opportunity. In other parts of the world, stable, efficient and independent associations for lawyers and judges have proven helpful in fostering knowledgeable, well-trained and fair legal professionals for the good of the people at large. Judges syndicates and bar associations in the MENA countries can become more effective in enhancing their profession as well as gaining greater popularity with society at large if they are empowered with political, administrative and financial independence. As has been the case elsewhere, it will allow them to elevate their gov­ernance, management, economic means and pro­fessional capacity to international standards such as the UN Basic Principles on the Independence of the Judiciary, the UN Guidelines on the Role of Prosecutors and the International Principles for the Legal Profession as published by the International Bar Association. These instruments are based on extensive international research and consultation with numerous legal experts and contain solidly phrased standards that enjoy worldwide recogni­tion with regard to key issues such as: independ­ence, integrity, fairness, professional secrecy, conflicts of interest, financial security as well as the relationship with suspects, litigants or cli­ents. In addition, full independence allows these syndicates and associations to provide their members with effective, ongoing education. Apart from improving knowledge and skills, it will armor the institutions and their members with more effective protection vis-à-vis the State, public opinion and, if need be, each other.

It would seem desirable, therefore, that the for­mal institutions representing judges or lawyers in Morocco, Egypt and other MENA countries be given the practical support – both domestically and internationally – to meet those relevant inter­national standards. Such formal empowerment of judges and lawyers will, in fact, only represent a logical next step in the realization of the dignity, the government accountability and the social jus­tice that the Arab uprisings have claimed: not only for legal professionals themselves but also for the people whose rights and freedoms they are expected to defend.

As recently as October 2012, some 2.300 Moroccan judges gathered before the Court of Cassation in Rabat demanding the actual implementation of their independence guaranteed by the new Constitution including job security, reasonable working conditions, proper remuneration and a pension scheme – without these items being used to pressurize them while performing their tasks. An unusual scene highlighting once more that Constitutional reforms are not enough by them­selves and require proper implementation.

Clearly, the post-Arab Spring political land­scapes will need time to develop and balance out. As the protests of Moroccan judges shows, the call for dignity, rule of law and social justice has not faded and governments remain under pres­sure to realize these objectives by gradually de­mocratizing State and other leading institutions.

The case for the informal associations

These formal associations are only part of the sto­ry, however. The Middle East is not the West. One of the major cultural differences between these two worlds is the way formal circuits, as dis­cussed above, relate with informal circuits within Arab society. Even though informal contacts rep­resent a much bigger key factor for success in the West than many people there are prepared to ad­mit, life in the Middle East is simply unthinkable without its numerous informal circles, in which often the most important contacts and decisions are made. In fact, the weight of the autocratic re­gimes has helped spreading these informal circles rapidly in recent decades – not in the least due to stifling legislation in the field of civil society. As state institutions grew weaker content-wise and slower action-wise, the already traditional informal circles kept growing until they almost outpaced the state and provoked the famous Arab Spring (see the article by Iris Kolman).

Lawyers have played an important, empowering role in this context. Many initiatives have branched out from the Egyptian Organization for Human Rights, an NGO pre-dating the January 2011 revolution. The so-called Front for the Defense of the Protestors of Egypt is an informal alliance of organisations and individuals, including top-range Egyptian lawyers who volunteer next to their private practice, providing assistance to protestors, especially in case of arrest and deten­tion. Next to helping with the legal paperwork, members of the Front constantly liaise to arrange for food, money and moral support.

There are also older examples of lawyer involve­ment with the empowerment of civil society. Apart from being renowned for its campaigning and monitoring activities, El Nadim Centre is a Cairo based NGO which has built up an excellent reputation in providing psychological manage­ment and rehabilitation to victims of torture. In cooperation with other NGOs and individuals it also engages in social support and makes sure the target group gets access to legal aid resources: if not available in-house, lawyers are identified in the informal circles of which El Nadim forms a part. Another famous legal actor established before the revolution is the Hisham Mubarak Law Center, a law firm rather than an NGO, which has built up a reputation for defending human rights activists such as in 2010 the leader of the Arab Network for Human Rights Information, which promotes freedom of expression in the Middle East and which has recently been successful in obtaining judgment against an Egyptian official who had suggested that protesters be burned in ‘Hitler’s incinerators’. The verdict clearly reflects a boost for the protection civilians’ right to free speech.

It is important at this point to stress that this support is by no means a ‘male’ affair. Western perception of the status of Arab women is often that they have no status at all and this perception is to an extent confirmed in the un Arab Human Development reports, which have therefore stirred serious emotions. The MENA is full, how­ever, of very independent women, many of whom have played a pivotal role in the uprisings. Female activists and lawyers in the MENA are at least as articulate and highly visible as their male coun­ter-parts, as is the case with renowned activist Ragia Omran, an Egyptian corporate lawyer, who uses much of her spare-time supporting the Front and the Egyptian New Woman Foundation. This foundation – striving for the eradication of all forms of discrimination against women which it considers part of a larger, global struggle for freedom and social justice – started as a feminist study group and spent twenty years developing its activities in different informal and formal ways before it obtained NGO status in 2004. Female lawyers play a leading role in the Foundations’ efforts to raise awareness about gender issues, mainstreaming women’s and girls’ rights issues and achieving women empower­

ment and self-determination through campaign­ing and training courses as well as monitoring and defending women’s and girls’ rights. In line with the above, Egyptian lawyer Dr. Nariman Abdel Kader overcame social prejudice in her direct surroundings, became an activist lawyer and more recently founded the Egyptian Women’s Law and Culture of Peace Organization, aiming to reduce the amount of violence directed toward women and to train young female lawyers to spe­cialize in cases of domestic violence. Her sword is double-edged as her approach both empowers women in civil society and relative newcomers in the legal profession.

Finally, high-profile Moroccan-American lawyer Leila Hanafi, involved with many international initiatives, is another example of how legal pro­fessionals help empowering people at an informal level: she was involved in a program tapping into the strong Moroccan tradition of mediation by empowering members of civil society, both as mediators and as beneficiaries. The first group was trained to apply sound techniques and mech­anisms when involved in informal mediation whereas the second group was encouraged to ef­fectively seek redress through mediation to solve disputes in a rapid and effective way – as opposed to lengthy court procedures. Hence, lawyers en­hanced informal civil dispute mediation by trans­ferring skills and know-how to directly affected groups in civil society.

The way forward

If the West – and in particular a rule of law mind­ed party like D66 – wants to contribute meaning­fully to the democratic developments in the Middle East, it will have to respect and work with local dynamics where formal and informal legal circles will continue to coexist and complement each other for a long time to come – perhaps for­ever. While maintaining its human rights agenda at all times, the West should also take a hard look at itself and admit that the many millions in de­velopment money invested in democratisation processes before the uprisings have more often than not reached others than the lawyers and activists who in the end brought and continue to bring about legal and social change. Instead of conferences about the Arab Spring in glam-orous locations and frequent formal visits by its highest representatives, the eu, its members-states, politicians, lawyers and civil activists would do well determining who are the true ac­tors for change within the formal and informal legal circles and whether they really need vast amounts of money or perhaps completely differ­ent forms of empowerment. Only then can the West expect to help bringing about dignity, rule of law and social justice.

 

Mauritius Wijffels is a Dutch lawyer with a Middle East related private practice. He is also the founder and chairman of Amsterdam based MELBA Foundation, which promotes the rule of law in the Middle East and Latin America.

 

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Dit artikel verscheen in idee nr. 6 2012: Trust in people’s own power, en is te vinden bij de onderwerpen democratie en rechtsstaat.

Laatst gewijzigd op 22 november 2018