Is a revolution in the rule of law spreading across the Middle East, or is history destined to repeat itself?
Amr Abdallah al-Bahari was arrested by the Egyptian military on 26 February for assaulting a soldier and breaking curfew in Tahrir Square. Three days later he was secretly convicted in a military court, and his family have accused soldiers of beating him and refusing him access to legal counsel. According to Human Rights Watch, his lawyer only discovered his conviction while inspecting records at a military courthouse the following day.
Al-Bahari is one of dozens of civilians to have been convicted by military courts in Egypt since the Supreme Council of the Armed Forces (SCAF) took control of the country on 11 February. Many have been arrested at demonstrations and accused of weapons offences and curfew transgressions. Yet military courts fail to meet global standards of fair trials and human rights groups are demanding they cease operating immediately.
The army’s use of military tribunals is just one reason why doubts remain over its true loyalties following the resignation of President Hosni Mubarak. Despite paying lip service to democratisation and due process, SCAF’s motives are clouded by ambiguity. For some, it is a stable force of change committed to the people, on whom it has never raised its guns; for others, its perceived empathy is little more than a cunning diplomatic game.
Friend or foe?
Mahmoud Cherif Bassiouni, professor of law at DePaul University College of Law in Chicago, is clear on the matter. ‘I don’t think we are going to see any significant reforms,’ he says. ‘I am not just suspicious of it, I am totally convinced of it. The changes under way in the Constitution are merely cosmetic, just a charade. There are no substantial changes in which one could say democracy would be ushered in.’
For Bassiouni, the main concern is the military industrial complex, which comprises ten to 20 per cent of the Egyptian economy. This sector is not only beyond civilian control, he says, but is ‘secret, not taxed, and its undisclosed profits are distributed by the military establishment as the senior leadership sees fit’.
‘The military derived enormous benefit from the political establishment, so it was in a sense a compromise,’ he adds. ‘The military told the politicians that they would run the military industries and use the profits as they saw fit, and they would let the politicians run the show.’
According to Bassiouni, outstanding loans of private banks to members of the corrupt former regime could amount to as much as US$1 trillion – something the military, as complicit players in the market, would be keen to cover up. ‘The Central Bank has not disclosed how many of these loans it has guaranteed,’ he says, but when that becomes known, ‘it could lead to the economic collapse of the country’.
Bassiouni is not alone in his scepticism. Maha Azzam, Associate Fellow at Chatham House, has voiced severe concerns about the role of the military since it assumed power. Speaking at the London School of Economics and Political Science (LSE) on 24 February, she said: ‘Much has changed, but much is still in place. The military is there and business interests are still entrenched. The military has tentacles throughout society, in business and in politics.’
George Joffe, research fellow at the Centre of International Studies, Cambridge University, agrees. ‘I don’t have faith in the military. It is made up of people from the old regime, the great and the good. They are people who [are] known to have had investment in the old regime.’
Yet Joffe admits the battle lines are not yet clear. ‘In Egypt, there is an enormous determination to make this work, among a very wide range of civil society,’ he adds. ‘They are not going to give in easily to the military – and the military know it.’
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On 13 February, the army suspended the 1971 Constitution and established a committee to amend the Articles deemed to be the biggest hurdles to democracy and the rule of law. These included the means to elect the president, the limiting of presidential term limits (to two terms of four years), judicial supervision of elections, the primacy of the courts over parliament to decide on members’ eligibility, the repeal of emergency laws, the president’s use of military justice, and the process by which parliament and the president can amend the Constitution.
Following a series of debates, the public voted through the changes in a referendum on 19 March, by 77.2 per cent to 22.8 per cent.
For some, amending rather than abolishing the Constitution, to allow for a swift transfer of power in six months, was the most pragmatic solution. Beginning the drafting process from scratch, they argued, would have taken at least another year, held up elections and been vastly more complicated.
‘The general attitude is that people want elections six months from now so we can have a new president for Egypt,’ says Dr Hani Sarie- Eldin, Managing Partner of Egyptian law firm Sarie-Eldin and Partners. ‘This is why everyone has accepted the necessary amendments rather than a full new Constitution.’
Speaking via web-link from Cairo at the Frontline Club in London, on 16 February, Egyptian political commentator and Booker Prize nominated novelist Ahdaf Soueif was less convinced. She described the committee, which came under criticism for having no women and being too close to the former regime, as ‘very much open to question’.
Soueif said: ‘There are several opinions about this. A lot of us believe constitutional reform should not be carried out now under the auspices of the army, a government that is a remnant of the old regime. It should be put on ice until we have an interim cabinet born of the revolution: a properly selected founding council of at least 40 people who can work on it.’ Yet Soueif stressed the military had refused twice to fire on protesters in 1977 and 1985, and was ‘the best option so far’. ‘There is no point saying we don’t trust them. They are there, and there is no reason immediately not to trust them.’
For Bassiouni, however, there is every reason. Quick elections, he argues, means limited time for opposition parties to organise themselves and a sure-fire win for the old regime – disguised, of course, in new, progressive clothing. The new government will be ‘non-corrupt and clean’, but not the democratic power the people are demanding.
‘When you look at Egypt you really have to put your Machiavellian hat on,’ he says. ‘In six months you will probably have six to ten new parties and five or six presidential candidates. They will split the opposition votes, and in the meantime the regime will put on a face-lift and win by default.’
Speaking at the LSE on 24 February, Fawaz Gerges, professor of Middle Eastern politics and international relations at the LSE, supported Bassiouni’s view. ‘In Egypt, the opposition is extremely weak,’ he said. ‘The label they have is “paper parties”. I don’t believe the country is ready for elections in six months. You need to prepare the country, you need to begin the process of forming a productive economic base, you need to institutionalise the base between the government and the military. This has taken Eastern Europe more than two decades.’
‘The legislative activity that is taking place is critical because Egypt... was the inspiration for most Arab laws.’
Nasser Ali Khasawneh
Khasawneh & Associates
Evidence of the military’s lack of desire for genuine democratic reform can already be seen, Bassiouni says, in the actions of Prosecutor- General Abdel-Megid Mahmoud, who was originally appointed by the regime and remains in place now. Mahmoud has ordered the arrest of the Minister of the Interior on corruption charges – but, Bassiouni points out, has avoided mention of torture, and failed to indict major figures such as former Speaker of the House Fathi Sorour, President of the Senate Safwat el Sherif or the former president’s chief of staff, Zakaria Azmi.
Whatever the true nature of the military’s intent, it is generally agreed that the consequences of its actions will be profound; not confined to the country, but reverberating across the Arab peninsula. Despite huge pressures on the independence of the judiciary by the Ministry of Justice, which controlled appointments and evaluated judicial practice, the country has long been seen as a role model in the region for legislative justice.
‘The legislative activity that is taking place is critical because Egypt, as a legal system and body of substantive laws, was the inspiration for most Arab laws stretching back to the early part of the 20th century,’ says Nasser Ali Khasawneh, Managing Partner at Khasawneh & Associates, in Dubai. ‘Egyptian jurists were critical to the development of Arab laws and Egyptian experts were used in many countries to work on their constitutions.’
For Reema Ali, Managing Partner at Ali & Partners, in Libya, Egypt is the 'beacon in the Middle East' in terms of legislation. 'I think it will set the tone for the rest of the region,’ she says. ‘I see its influence everywhere.’
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Yet, of all the Arab states, it is perhaps Tunisia – the country that first inspired the waves of revolt still surging through the peninsula now – that acts as the most powerful beacon when it comes to legal reform. Here, where the first constitution of the Arab world was drafted in 1860, ‘the fight for the rule of law is the most significant thing,’ according to Fathi Kemicha, Managing Director of Kemicha Legal Consulting, in Tunisia.
‘The people are fighting to recover the independence of the rule of law,’ he adds. ‘We have a Bar of more than a century old and the rule of law is a known thing here. We wanted the transition to be legalistic.’
Joffe agrees: ‘The idea of constitutionalism has been a constant theme of Tunisian life, so there was a sense of respect for the law, even during the rule of Ben Ali. And the judiciary was relatively independent, though subject to the same pressures as Egypt and great abuse of the legal system through decrees passed by the National Assembly or the president.’
‘It's the 1989 for the region. In 1989 it was a dramatic change to the world, not just to Europe.’
In Tunisia, hopes are high that significant legal and political reform can be achieved. Here, lawyers are leading the charge, having fought valiantly against the autocratic rule of Zine al-Abidine Ben Ali for the past 23 years. ‘Lawyers were the only opposition in the country,’ says Kemicha. ‘They were repressed and went to jail, but the only place you could have free elections was in the Bar. We don’t have very big law firms, so lawyers were disconnected from the business people and it was harder to put pressure on them. For decades it was a big fight.’
Tunisia’s interim authority, headed by Prime Minister Beji Caid Sebsi, have now named a new government and disbanded the feared state security apparatus, notorious for human rights abuses. The cabinet, none of whom served in previous governments under Ben Ali, will remain in place until 24 July, when a national constituent assembly is to be elected.
In addition to rewriting the 1959 Constitution, the assembly will be tasked with drafting a fresh electoral law and press legislation, and selecting a viable political system for the country, whether parliamentary or presidential.
Adly Bellagha, Managing Director at Adly Bellagha & Associates, has faith in the process. ‘There has been a big debate over whether we should amend the Constitution now or leave it to a future government, and there is a fear that if we stick to it we will get another president with too much power,’ he says. ‘But we have to hope we elect the right person and we have to listen to the experts. If we amend it now we might make mistakes. It’s not an easy thing to do.’
Tunisia, Bellagha stresses, is very different from Egypt. ‘Here, we want to change everything – the whole regime, the Constitution, everything. In Egypt, Mubarak went, but everything else stayed the same.’
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Yet Bellagha is less convinced by the three commissions established to oversee legal and political reform: one to investigate violence during the riots, headed by Tawfik Bouderbala, former president of the Tunisian Human Rights League; one to investigate corruption, headed by Abdelfattah Amor, a special rapporteur for the former UN Human Rights Committee; and one to investigate political reform, headed by Iyadh Ben Achour, a prominent scholar of constitutional law.
‘We want free commissions, really independent ones, but these were the promise of the former president and a continuation of the last system,’ says Bellagha. ‘Why do we need them? This should be a matter for the courts. You need a judge, not a commission.’
Kemicha agrees: ‘The three commissions are very much questioned, and there are people who are saying they are not representative of the people and they are working with the government on imposing pre-conceived answers. So there is a lack of trust in the system.
‘The mistrust is worst for the corruption issue as this was announced the day before Ben Ali left, as one of his concessions. The commission president has already received around 3,000 claims of corruption, but there is a concern these cases might hide the bigger ones. We want judges to investigate, not politicians. Otherwise they will protect their friends and perpetuate the same kinds of problems.’
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Yet despite reservations about the legal and political processes under way in the two North African nations, overall optimism for the future remains high. Democracy may yet be a distant hope, but there is a spirit and momentum to the reform movement across the region that is unprecedented.
‘Egypt has changed dramatically,’ says Sarie-Eldin. ‘Most people are very happy and expecting more. The whole face of the country has changed and it will not go back. ‘I think every country in the Middle East will be affected by this, including Iran, including Saudi Arabia. The entire region will have a different attitude and appetite for democracy and more transparent laws. Everything is changing.’
Samer Sultan, Managing Partner at Sultans Law in Syria, where the regime is yet to weaken its firm grip on power, is equally buoyant. ‘It’s the 1989 for the region,’ he says. ‘In 1989 it was a dramatic change to the world, not just to Europe. Now the Arab world has been left behind to reform their countries into democracies, so it is a new era for the world – and maybe a very good one.’
As stock markets fall amidst popular uprisings, what price democracy?
Long-term confidence in the Middle East and North Africa remains high despite unrest and tumbling share prices, say local lawyers. But, opinions are divided over the true economic impact of democratic reform. For some, free elections and a strong rule of law equate to long-term economic growth and investment opportunity. For others, stability is the key to steady transaction flow – and calls for democracy a potential distraction.
‘In the long term, I don’t think it’s a good idea to buy stability at the expense of the rule of law, which I think is what may have been happening in some of these jurisdictions,’ says Jay Fortin, head of Al Tamimi & Company’s Qatar office. ‘Any time you create artificial stability by supporting a regime that doesn’t respect individual rights and fundamental property rights, in the long run that is not a good idea.’
Reema Ali, Managing Partner at Ali & Partners, based in Libya, agrees. ‘None of the countries had governmental institutions that functioned properly, which impacts all business transactions. This is a turning point, where people are determined to have transparent government agencies that will actually streamline things.’
Doing business in Libya under Muammar Gaddafi, Ali adds, has always been particularly difficult. ‘The uncertainty is very high – though the rewards are high too, which is why people went there. There has been too much government and no governing, and those who matter do not hold proper portfolios or positions, so you end up tackling one layer of bureaucracy after another, and are never sure what is going to happen.’
The long-term foreign currency credit ratings of countries throughout the region have suffered since unrest spread across the region. Fitch downgraded Tunisia’s rating to BBB- from BBB in March due to continued concerns about political uncertainty. On 10 March, however, Standard & Poor’s removed Egypt from review for a downgrade of its BB rating, citing improved prospects for political transition.
Campbell Steedman, Norton Rose Senior Partner in the Middle East, admits that ‘change brings opportunity, because there is always someone looking to invest in that process of change’, but believes stability takes priority.
‘In a market like this, I think rule of law, from an investment perspective, has been historically overlooked if there is stability,’ he says. ‘Of the two, stability gives investors greater confidence than change. Though frequent change may improve the law slightly, it may be a destabilising factor for investors because they base their investment on predictability.’
He draws comparisons with Eastern Europe after the fall of Communism. ‘I saw the whole change there and the way in which investors’ confidence went into Ukraine and Bulgaria and everywhere else,’ says Steedman, who worked in the region from 1990 to 2005. ‘And people would say the legal system is still not perfect, the judiciary is not independent, but it didn’t stop investors coming in. They factored it into their risk profile, but they would still invest.’
Rebecca Lowe is senior reporter at the IBA and can be contacted at firstname.lastname@example.org.
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