Three years after Arab Spring revolutions swept through Tunisia, Egypt, Yemen and Libya, one of the main goals of those who took to the streets – judicial reform – remains largely unrealized.
Nathan Brown, an expert on Arab legal reform at George Washington University, says perhaps no case illustrates that failure better than Amr Hamzawy, the Egyptian political scientist who spoke out against a court ruling against three American pro-democracy NGO’s last year.
"Amr Hamzawy, an academic and former liberal parliamentarian, tweeted a quick criticism of the verdict of an Egyptian court,” said Brown. “He discovered that he was being investigated for a criminal offense and was barred from leaving the country.”
Brown says that even after drafting a new constitution, Egypt maintained the so called “the crime of insulting the judiciary,” a longstanding element of Egyptian law that he says inherently violates Western norms of free expression.
Elsewhere in the post-Arab Spring world things are much the same.
In Yemen, a 2013 Freedom House report states that laws circumscribing press freedoms and special courts designed to prosecute journalists remained in place under the new president, Abdu Rabu Mansur Hadi.
”While the 33-year rule of President Ali Abdullah Saleh ended in February 2012, many of the repressive actions against journalists that were perpetrated under his regime continued throughout the year,” said Freedom House, adding that “Journalists and media workers faced attacks, intimidation, and harassment by government security forces, tribal groups, and loyalists of the outgoing president,” according to the report.
Libya a special case
No country was as convulsed as Libya where legal authority largely emanated from the country’s dictator, Moammar Gadhafi. Even before the collapse of his regime, the country’s legal system suffered from the intrusive appointment of non-judges serving in the court system. With a nearly total collapse in security and rampant lawlessness, Nathan Brown says it’s not surprising that judicial reform in Libya has not progressed much.
“What would make Libya the most difficult case to reform is the fact that it has a very weak if not almost collapsed central authority, it is extremely difficult to reform a judicial system when the state as a whole is not functioning,” said Brown.
A report from Human Rights Watch also noted a lack of progress in reforming abusive Gaddafi-era laws. But Sarah Leah Whitson of HRW says Libyan authorities could do more.
“Even if the Libyan authorities feel hand-tied in disarming abusive militias, they can make progress in reforming the justice system, strengthening the army and police, and ending impunity for murderous militias,” she said.
In Tunisia, the birthplace of the Arab Spring, Human Rights Watch singled out police abuse as a top priority for reform. Noting that three years after Tunisia’s revolution police officers can still detain people for up to six days without releasing them or transferring them to prison, HRW noted that “detainees are vulnerable to mistreatment because they have no access to lawyers or family.” And HRW says the early hours of detention are “crucial for the rest of the judicial process, and can hamper detainees’ rights to a fair trial.”
New constitutions lack political authority
The Arab Spring ushered in new constitutions in Egypt and Tunisia that defined the judiciary as free and independent. However Nathan Brown notes that judicial reform is unlikely to work unless it is accompanied by political reform.
"Judicial independence has to be a part of a larger project of political reform that encourages pluralism in Arab political life,” he said. “What is needed is a political environment that helps the various political forces to deal constructively with each other rather than through unilateral moves, violence and threats.”
Sahar Aziz, a professor of law at Texas A&M University says political disputes have largely stalled judicial reform efforts in the post-Arab Spring world.
“Unfortunately there hasn’t been a lot of progress in general on rule of law issues, primarily because the focus has been on much bigger political disputes. Often times, partisanship got in the way.”
In Egypt she says advances in securing the independence of the Supreme Constitutional Court and the judicial budgeting process, have been largely offset by political polarization which pushed judges into the political fray.
“They crossed the line of being neutral and became active political actors taking sides in many of the political disputes in Egypt,” said Aziz.
She says that could lead to future attempts by executive authorities to use judges to legitimize their authority, something that happened with impunity in the past despite constitutions that stipulated judicial independence.
“Mubarak was able to interfere by appointing the heads of the Supreme Constitutional Court, the Court of Cassation, the State Council and making sure that they were politically loyal and obedient to his polices,” Aziz said.
Keys to reform
Legal experts say structural reforms in Arab judicial systems will require years to accomplish. Such reforms involve extensive training, the rewriting of legal codes and new institutions that will change habits and culture.
Nathan Brown says the most important reform is independence. “The trick for reform would be to make the judiciary somehow responsive to the society as a whole without being the tool of any particular ruler or party.”