Friday, March 04, 2011

Zine al-Abedine Ben Ali and Hosni Mubarak are gone. Caretaker governments are in place. The television cameras may have moved on to Libya, Yemen and Bahrain, but events in Tunisia and Egypt are entering a very critical phase. What happens behind the scenes in the coming weeks and months will determine whether recent changes in the Arab world will lead to meaningful reforms that can last.

Tunisia and Egypt have set up committees to begin such a process of reform. The first step is to put in place an electoral system that treats all voters equally and allows for genuinely effective political parties. To move from dictatorship to democracy requires basic institutional and structural amendments to the constitutions of both countries. Fair-voting rules and freedom of expression and association must be guaranteed. In addition, the powers of the legislative, executive, and judicial branches of government need to be recalibrated.

Electing governments that represented the will of Tunisians and Egyptians is only the first step. To make democracy permanent, however, more needs to be done. Constitutional reform must be adopted to ensure that the will of the people can never again be ignored. The challenge is to build into the framework of government a fail-safe system preventing the military or religious fundamentalists from taking control and establishing a new dictatorship, or a theocracy. It would be a pyrrhic victory if the first democratically elected governments in Tunisia and Egypt were also the last.

To ensure that the new leaders cannot place themselves above the law as Mubarak and Ben Ali did, or as Ayatollah Ali Khamenei has done in Iran, Tunisians and Egyptians will need help from their judges. Only the third branch of government, the judiciary, can guarantee that the rule of law is respected by the other two branches.

Over the course of the last 50 years judges all over the world have become front-line defenders of legitimacy and integrity in government. When their independence has been respected and they have performed at their best, they have done a lot of good. For example, jurists were essential to the success of all the revolutions against the communist dictatorships in Eastern Europe. Human rights were guaranteed in new constitutions and judges were asked to enforce them. Today, Poland, Hungary, Slovakia and the Czech Republic are all, more or less, pluralistic rule-of-law states.

The place of judges in modern democracies is not a topic about which the general public is sufficiently informed. Judicial review has only recently become a fixture of democratic government. Until the middle of the 20th century only the United States had a bill of rights, giving judges the power to define when politicians had overstepped the mark. For a long time, assigning judges the task of overseeing the activities of the other branches of government was controversial. Many said that granting judges such power was undemocratic.

After the atrocities of World War II attitudes began to change. To ensure that horrors like the Holocaust never recurred, the victorious allies insisted that the defeated powers – Germany, Japan and Italy – entrench bills of rights in their constitutions. Countries with mixed religious and linguistic communities, like India, Spain and Canada, followed. After the fall of the Berlin Wall, the idea of using judges to watch over politicians and officials spread all over the world.

During the last 25 years, jurists globally have been sitting in judgment of politicians and officials to ensure that they generally play by the rules. Their record has not been perfect, but most of the time they have met the challenge. Remarkably, even though they have come from very different legal traditions, judges have embraced a common set of principles to prevent political leaders from abusing their powers. A catalogue of their landmark rulings is impressive
Thanks to the powers of judicial review, judges have made criminal justice systems more transparent and accountable. In many countries torture has been declared illegal and capital punishment outlawed. Jurists have also done well fighting discrimination. In numerous cases, judges have stood up for women when they have come to court. Governments have been ordered to protect women from domestic violence and guarantee that their rights of inheritance, maintenance and citizenship are the same as those enjoyed by the men they marry.

Courts have also stepped in when they have judged governments to be doing too little for people who are destitute and desperate, or showing intolerance for religious minorities. Especially pertinent to the politics of the Arab world, when rulers have sought to stay in office longer than the constitution allows, judges have frequently said no.

For a quarter of a century, judicial review has been protecting democracy and promoting justice in Europe, Africa, Asia, and North and South America. Making judges guardians of constitutions has been an antidote to corrupt, repressive regimes. Now Arabs have a chance to substitute the force of law for the tyranny and brutality of armed force. It will mark a watershed in their history if they do.

The earliest records of law are come from the Middle East. Hammurabi’s code in Babylon is 4,000 years old and Beirut was home to one of the most prestigious schools of Roman law. Giving jurists in the Middle East and North Africa the power of judicial review would help bring the rule of law back to the place of its birth.

David M. Beatty is a jurist living in Beirut. He wrote this commentary for THE DAILY STAR.