Donors tend to focus on non-controversial technical issues when promoting the rule of law abroad. In sharp contrast, judicial reformers in the Arab world have plunged into the political aspects of judicial reform far more enthusiastically. Their zeal, however, has not yet translated into success.
Advocates of judicial reform within the Arab world are found in three places. The first is bar associations, which in many countries have become highly politicized bodies whose members advocate nationalist, liberal and Islamist agendas and often focus on legal and judicial reform. A second source is the judiciary itself, where judges often press for greater judicial autonomy and professionalization. Judges have not always been able to articulate an independent political vision, due to domination by the executive and to a professional aversion to political involvement. But sometimes they have been able to speak collectively in support of reform. Third, opposition parties and human rights and democracy organizations increasingly direct their attention to strengthening the rule of law.
These advocates of judicial reform became outspoken in the 1980s and 1990s, sometimes trying to effect change through court decisions. In 1987, a Tunisian court asserted the right of the judiciary to strike down as unconstitutional actions of other branches of government, and Egyptian, Jordanian, Syrian, and even Iraqi courts asserted some right to review decisions taken under emergency rule. In most cases, these rulings had little effect. The Iraqi, Jordanian, and Tunisian court decisions were met with forceful executive action robbing them of impact. Perhaps the only country in which judicial decisions had sustained impact was Egypt, where the administrative courts and the Supreme Constitutional Court made use of the autonomy granted them to strike out boldly against the executive branch.
More frequently, therefore, reformist hopes focused on legislative change rather than on court decisions. Reformers gave particular attention to revising the legislative framework for establishing and organizing courts. Egypt in 1984 and Kuwait in 1996 adopted new laws that offered reformers significant concessions. Other countries, such as Morocco and Jordan, also have seen progress toward creating more autonomous judiciaries through legislation, though reformers there have felt stymied in the past few years.
Even as the salience of judicial reform increased, reformers' efforts remained focused at the country level until quite recently. Efforts to place judicial reform on the regional agenda began in earnest only in the past five years. In 1999, the "First Arab Conference on Justice" was convened in Beirut and issued recommendations that echoed general international standards on judicial independence while recasting them in a regional context. In February 2003, the "Second Arab Conference on Justice," held in Cairo, worked to give some specificity to the earlier Beirut declaration. And in September 2003, Bahrain hosted an "Arab Judicial Forum" with the cooperation of the United States. Other regional reform conclaves, such as the March 2004 conference at Egypt's Alexandria Library, have raised matters related to the judiciary and the rule of law.
A well-formed agenda has begun to emerge out of such discussions. Reading the various declarations, manifestos, and pronouncements reveals several common reform demands:
• Judicial councils (which oversee judicial appointments and promotions) need far more autonomy to reduce the powerful influence exerted by heads of state and ministers of justice.
• Judicial councils need more authority. Budgeting, oversight of support personnel, and investigation and disciplining of judges should all be transferred from the Ministry of Justice to judicial councils.
• Special courts, exceptional courts, and emergency rule must be abolished. Civilians should not be tried in military courts.
These recommendations are deeply political and go to the core issues of judicial independence in the Arab world. The issues on which donors tend to focus, such as caseload management and alternative dispute resolution, receive far less attention. Thus the internal calls for reform are characterized by political boldness, and they resonate deeply within their societies and build on existing models, rather than importing less familiar concepts and techniques as donors often seek to do.
Despite the consensus on the end-goal of judicial reform, there is often discord between many reform-minded judges and civil society-based activists over the means to achieve it. The former tend to be more cautious and to value past accomplishments; the latter tend to take a far more confrontational and uncompromising approach. Some reformist judges are concerned that their independence will be compromised if they are linked too closely to non-governmental organizations (NGOs), especially those with an opposition coloration. Indeed, the stridency of NGOs' language sometimes provokes concern among sitting judges that the issues are becoming too politicized and oversimplified.
Thus, for all their daring, the internal reformers can cite only incremental achievements in a few cases, and even this progress seems glacial and reversible. While reformers are easily able to articulate a vision of the proper role for the judiciary, they have not yet been able to develop realistic strategies for change.
Nathan J. Brown is Professor of Political Science and International Affairs at The George Washington University. He is author of two books on Arab legal systems: The Rule of Law in the Arab World (Cambridge, MA: Cambridge University Press, 1997) and Constitutions in a Nonconstitutional World (Albany, NY: SUNY Press, 2001).