By David M. Beatty
 

First it was Tunisia and Egypt. Then it was Yemen, Bahrain and Libya. Now it’s Syria. Where will it stop? How will it end? Will the story being written in the popular uprisings in the Middle East and North Africa have a heroic or a tragic ending?

In every case, hope for the success of this Arab Spring is tempered by a fear of what will follow. For many, the worst-case scenario is that Islamists wanting to establish a theocratic state will take control. The Iranian Revolution was hijacked by Ayatollah Ruhollah Khomeini and his band of religious scholars and the worry is it could happen again.

In Egypt, the Muslim Brotherhood is positioned to have a major influence in shaping the new government. Secular youths who started the protests have been pushed aside. There are also reports that eastern Libya, where the opposition to the regime of Moammar Gadhafi is based, is a breeding ground for Islamic fundamentalists.

The challenge that reformers face in all these countries is the same: designing a system of government that both secularists and Islamists can trust. To have the support of all their citizens, future governments must demonstrate they can treat all sides fairly, with proper respect.

There are reasons to be optimistic. The odds that the Arabs will succeed are better than they were for the Iranians. Since the promise of Iran’s revolution of 1979 turned sour, the world has experienced successful revolutions in Eastern Europe and has witnessed the spread of the rule of law around. The most important thing that the Europeans did differently than the Iranians was to insist that their rulers adhere to the rule of law. To ensure there would be no return to the arbitrary and abusive practices of the communist regimes, basic human rights were guaranteed in constitutions and judges were empowered to enforce them. In Iran, it was the other way around. The supreme leader, Khomeini, set the rules. His word was law.

It is striking that in all the successful transitions in the last 20 years, from governments of dictators and despots to constitutional democracies, judges have been at center stage. There is now widespread recognition that with a constitutional bill of rights and the scales of justice in their hands, independent, impartial judges can determine when governments have overstepped the mark.

Indeed, since 1989 the idea of judicial review has become the gold standard of good governance globally. It is now part of political life in over 100 countries. Whenever judges review the decisions of elected officials against a bill of rights, their task is one of balancing the will of a majority against the rights of a minority or disadvantaged group. They place the competing interests in a case on opposite sides of the balance and measure which weighs the most. As the image of Justicia blindfolded, with the scales of justice in her hand, is meant to suggest, it doesn’t matter who the parties are or what the issue is.

To ensure that they don’t let their own prejudices influence their assessment of the two sides of a case, judges have come to rely on a principle of proportionality. Proportionality sets a standard of moderation and toleration. The basic idea that underlies this principle is that every conflict should be resolved so that the burdens that are suffered by the person or group on the losing side of a particular case are kept to a minimum. Here is how it works.

On an issue like freedom of speech, for example, there are no absolutes. There are limits to what one can say: no hate speech; no child pornography. The small constraint that is imposed on a person’s freedom to express himself or herself in these ways is more than justified by the harm it inflicts on children and vulnerable minorities.

Similarly, the right of women to dress as they please is a question of balance. Governments can say no to female students who show up for class naked or with their entire body covered except for their eyes. In a classroom, both extremes are excessive and out of proportion to the social and educational interests of others.

Making judges responsible for protecting the democratic spirit of the revolutions would not be a radical break with the political history of the Middle East. Jurists and members of the legal profession have a long history of fighting for legitimacy and integrity in government in the region. For over a thousand years Muslim jurists played a role as the conscience of their communities and challenged rulers when they acted as despots and violated God’s law.

Even judicial review is not unknown in the Arab world. Egypt has had a relatively independent Constitutional Court since 1980 and it has written a promising jurisprudence that all sides have been able to accept, even if they didn’t agree with every decision. For example, its ruling on the freedom of Muslim students to wear the veil took account of the interests on both sides of the debate: the government could establish dress codes for students that prevented the wearing of the niqab, the full-face veil, but not of the hijab, the headscarf.

When judges maintain their impartiality and independence, they can ensure that all conflicts in a society can be settled in a way that’s fair to all sides. They can guarantee that the spirit of popular revolutions like those currently unfolding in the Arab world will not be betrayed.

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