Introduction

Accountability Through and Within Arab Judiciaries
Independence of the Judiciary
Authority of The Judiciary
Internal Mechanisms of Accountability
Specific Cases
- Egypt
- Kuwait
- Jordan
- Morocco
Future Steps

Arab Parliaments: Potentialities and Problems
The Historical Development of Parliaments in The Arab World
Constitutional Provisions
Constitutional Gaps
Legal Framework for Executive Accountability
Specific Cases
- Egypt
- Kuwait
- Jordan
- Morocco
Future Steps

Accountability Through and Within Arab Judiciaries:
Arab judiciaries seeking to hold the executive accountable have two constitutional requirements. First, they must enjoy autonomy from the executive. Second, they must have the clear authority to hold the executive accountable to clear legal standards. In other words, judges must be independent and be able to use their independence.

Arab constitutions generally do guarantee an independent judiciary but they often do so in vague language. Further, they deny it most of the tools necessary to hold executive authority fully accountable to the law. The first two sections examine each of these issues in turn.

However, executive accountability to the judiciary is not a panacea. To the extent that judges are able to hold other authorities accountable, however, their own accountability becomes an issue. That is, what mechanisms hold judges themselves to clear legal standards? Or, as the question is often phrased, who will guard the guardians? Khayr al-Din al-Tunisi, the nineteenth century statesmen, recognized this problem as soon as the Muslim world began experimenting with written constitutions:

[S]ome form of restraint is essential for the maintenance of the human species, but if the person exercising this restraint were left to do as he pleases and rule as he sees fit the fruits to be expected from this need to have a restrainer would not appear to the umma [community], and the original state of neglect would remain unheeded. It is essential that the restrainer should have his restrainer to check him… [1]

Independence of the Judiciary:
Almost all Arab countries have endorsed the principles of the independence of the judiciary and the separation of powers. In doing so, they have chosen not to emphasize two alternative approaches.

One alternative, based more on constitutional models from the Western Hemisphere (most notably, but not exclusively, the United States) focuses less on building walls of separation among the various branches of government and more on “checks and balances.” In such an approach the various branches do oversee the affairs of the others, but each has sufficient authority and resources to avoid subordination. The various authorities overlap in many areas. (For instance, American judges are nominated by the president and approved by the Senate.) A second alternative focuses attention much less on the judiciary as a whole and more on the individual judge. While there are some traces of such an approach in the Arab world (lifetime tenure for individual judges is common, though not universal), Arab constitutional systems have not fully pursued this option (for instance, by having judges elected independently or by mandating in the constitution that individual salaries cannot be decreased).

Instead of such approaches, Arab political systems seek to build judicial independence through insuring that the judiciary as a corporate body is independent from the other branches of government. The constitution and the legal framework (especially the law governing the organization of the judiciary) are the most important instruments in this regard.

Use of these tools is only imperfectly developed, however. All Arab constitutions proclaim fealty to the principles of the independence of the judiciary, but few provide the specific elements needed to ensure that such independence is realized in practice. True judicial independence would require that the judiciary is autonomous in its own affairs: judiciaries must have control over appointment, promotion, transfer, and other critical matters (such as judicial discipline and budgeting). Arab constitutions tend to be fairly vague about such issues. Many do insist on the establishment of a judicial council to oversee judicial affairs, but they often allow the executive to dominate such a body or simply leave all details to regular legislation.

Thus, to understand the true extent of the independence of the judiciary in the Arab world, it is almost always necessary to move beyond the constitution and examine the legislative basis given to judicial bodies. Arab constitutional texts remain too vague in most cases to provide the necessary protections. And Arab constitutional orders are so dominated by the executive authority in practice that existing constitutional gaps will be very difficult to fill.

To be sure, some constitutional reform would be welcome. However, those interested in constitutional reform would be best advised to consider emerging best practices in the Arab world rather than seeking to adopt constitutional provisions that have arisen elsewhere. In other political systems where the problem of executive domination is less acute, constitutional protections are likely to be insufficient. By focusing on some of the more detailed and carefully-designed constitutional provisions in the Arab world, more appropriate models for constitutional language will be found. The are few such appropriate models in the Arab world, but the constitutions of Egypt, Palestine (in draft form), Yemen, and the United Arab Emirates have a few detailed provisions on judicial structure that may be worthy of emulation elsewhere. In general, these constitutions go beyond vague promises of judicial independence to create specific structures or place specific limits on executive and emergency powers. [1]

Turning to legislation, the critical questions in most Arab countries concern the structures governing the judiciary. This focuses attention on the composition and the competencies of the judicial council, the dominant structure for overseeing the judiciary in almost every Arab state.

First, with regard to composition, the record of Arab legislation suggests several questions about the members of the judicial council. Is it predominantly or exclusively judicial? If the head of state presides, is this generally ceremonial or a device to bring the judiciary under executive domination? Do many other executive branch representatives serve? In all these matters, there are few positive models on which to draw. Some bodies have established some independence (for instance the Egyptian, the Kuwaiti, and the Palestinian), and significant reform has been accomplished or considered in some other cases (such as Jordan and Morocco). Even these more promising models show some blemishes, however: the Egyptian Supreme Judicial Council, while fully independent, still formally operates under the Supreme Council of Judicial Organizations, which remains under executive domination. The Palestinian Judicial Council was established by presidential decree and has yet to secure an approved legislative basis, much less a constitutional one.

Second, with regard to competencies, most Arab states allow the judicial council full or nearly full authority over appointment, promotion, and transfer of judicial personnel. While in some countries formal appointment authority remains with the head of state, the recommendations of the judicial council are always respected. In many Arab countries, therefore, the focus of attention has turned to more subtle issues. Who has the authority to inspect, investigate, and discipline judges? What is the budgetary authority of the council: is it allowed to propose, review, and administer the judicial budget, or are these tasks monopolized by the Ministry of Justice? Who oversees critical support personnel (such as clerks, process servers, and judicial police)? Such matters have been the center of debate in some of the more reform-minded Arab countries.

Authority of The Judiciary:
Even an independent judiciary must be given specific tools and authorizations if it is to play a role in holding the other branches and agencies of the state to clear and legal standards. In this regard, the past few decades have seen some noticeable progress in the constitutional arena. Most Arab constitutions recognize that the judiciary has a role to play in reviewing the constitutionality of legislation, for instance, though provisions vary greatly (and only in Egypt has a strong tradition of constitutional jurisprudence fully emerged). Constitutions also frequently insist that judicial orders are binding on officials, and those Arab constitutions that neglect to add such provisions would be well advised to reconsider the omission.

In addition, many Arab constitutions provide for a separate structure of administrative courts with jurisdiction over legal disputes involving an official body. A separate administrative court structure is not necessary to insure accountability, but it does have two beneficial effects. First, it encourages the emergence of a judicial cadre expert in administrative law. Second, it is generally accompanied by specific legal authorization for the administrative judiciary not simply to rule in individual disputes but also to cancel administrative regulations and decisions that contravene the law or the constitution. While judicial review of the constitutionality of legislation often draws far more attention from non-legal specialists, most instances of official transgression involve not constitutional but ordinary legal issues. In other words, allowing judges to review the legality of decisions and regulations issued by executive branch officials is probably more important on a daily basis than allowing them to review the constitutionality of laws.

For such judicial oversight to operate effectively, laws must be well crafted to make clear specifically what executive branch agencies are authorized to do. Overly vague and general laws will make it difficult for the judiciary to hold up executive actions to legal scrutiny.

Finally, a far more sensitive issue has arisen in virtually every Arab country regarding the ability of the judiciary to hold executive authorities accountable to clear legal standards. Throughout the Arab world, a difficult internal and external security environment has led to the construction of far-reaching security apparatuses. And most executive authorities fear that bringing such apparatuses under any form of judicial scrutiny will rob them of their effectiveness. In general, this has had two results.

First, some areas are walled off from judicial action, either explicitly or implicitly. In an earlier era, it was even more common than it is now for executive authorities to pursue formal, legal measures to move security issues completely outside of the regular legal system. To some extent, this pattern was firmly established in the colonial period, when ruling European powers did not want the local judiciary to review their actions. Security-minded independent Arab states sometimes followed the same path. In more recent years, many states have shied away from such explicit limitations on the rule of law. Nevertheless, few security services are friendly to judicial oversight, pursuing their mission in such a way as to avoid judicial supervision or make it impracticable. Outright defiance of judicial orders, however, has become quite rare (only in Palestine does this remain a persistent problem). Whether the security situation in various Arab states is sufficiently grave to justify such a set of tactics is outside the bounds of this report. However, for present purposes it is important to note that the situation can undermine the morale of the judiciary as well general respect for the rule of law, both within the executive and throughout the society.

Second, a parallel judicial structure—or set of structures—is sometimes erected to deal with sensitive security matters. Some constitutional documents elsewhere specifically forbid exceptional or special courts, but only Yemen has followed this path in the Arab world. However, the problem is broader than that of exceptional courts: sometimes permanent courts are constructed to deal with security issues, or security issues are assigned to other courts that would normally have more restricted jurisdiction (such as military courts). Practice varies widely within the Arab world, but very few Arab countries have completely avoided constructing special courts or granting permanent court special jurisdiction (the states of the Arabian peninsula are probably most notable for their ability to avoid resorting to such devices most of the time). Should states wish to pursue such a path, there are still steps that can be taken to minimize the damage to accountability. Such courts can be required to follow regular judicial procedures as much as possible, the right of appeal can be maintained, and they can be staffed by regular judges with full professional training and qualifications as much as possible.

Internal Mechanisms of Accountability:
Ironically, to the extent that Arab states fulfill their promises of guaranteeing judicial independence, they raise another, quite different issue of accountability: the accountability of the judiciary itself. Systems that are based on “checks and balances” rather than “separation of powers” hold the various branches of government accountable to each other. A “separation of powers” approach eschews such an approach in favor of stricter boundaries among the branches. Almost all Arab states follow a “separation of powers” approach. Thus, in the Arab world, the head of state does not depend on the confidence of the legislature, and the legislature is generally independently elected. Each is therefore theoretically accountable to the people through electoral mechanisms (or, in a few cases, monarchy is preferred). However, popular election of judges is generally considered an affront to the professionalism of the judiciary. Discussion of popular participation in the judicial process is generally firmly rejected by Arab judiciaries. Election of judges, appointment of non-professional judges, and the jury system are all anathemas to Arab judiciaries.

Then how are judges to be held accountable, if not to other branches or directly to the people? The most promising avenue in the Arab context would seem to be to hold them accountable to each other by building strong corporate institutions for the judiciary and by developing a strong sense of professionalism and ethics to which judges can hold themselves and each other. (Of course, a critical element of accountability is also provided by the legislative process, in that judges—especially in the civil law tradition dominant in most Arab states—must rely primarily on texts developed by the other branches of the state.) Such a corporate identity and sense of professionalism has certainly begun to take shape in several Arab countries. Several strategies can be used to develop it further:

• Judicial training: Basic judicial education throughout the Arab world consists of two phases. First, judges are expected to complete basic law training in a law faculty. Second, advanced training is offered in judicial institutes and training academies throughout the region. Both these phases could be further developed with an eye toward enhancing the professionalism and corporate identity of judges. At the university level, a law degree still serves as a general education for a variety of legal and bureaucratic careers. And in many countries the student body has grown quite large while admissions standards have not been as competitive as in other faculties. Those interested in judicial careers are therefore educated with a large number of other students, many of them less interested in the specific material being taught. Special attention to outstanding students, both at the undergraduate and graduate level, would help produced a cadre of dedicated legal professionals from with the judiciary could draw.

  At the level of judicial training academies, existing bodies often complain that they are forced to complete the basic legal education that law schools should have covered. As a result, many do not have the luxury of developing innovative curricula to deal with emerging subjects such as judicial ethics, information technology or recent developments in international law. It is during this period that initial professional relationships are constructed, and the opportunity must be well used.

• Continuing education: Opportunities for continuing education for judges do exist in the Arab world, but most judicial training academies have been forced to concentrate their efforts instead on educating new judges. Obviously greater attention to continuing education is necessary to ensure that judges remain current in legal developments, but a secondary benefit of such efforts would be to increase a sense of responsibility and corporate identity among those trained. There is currently some international support for such efforts (with advanced judicial training sometimes contributed by donor states) but greater attention needs to be given not simply to short international training efforts but to sustained domestic ones.
• Judicial discipline: One salutary effect of maintaining maximum judicial control over judicial evaluation and discipline is that it helps develop a strong sense of professional ethics and corporate responsibility. In most Arab countries judges have some role in the task of evaluating judges and investigating misconduct, but it is also generally the case that the executive branch retains a role as well. This is not only an issue for judicial independence from the executive, however. It is also an issue for judicial professionalism: judges are likely to develop a stronger sense of professional ethics if they are to be judged primarily by their own colleagues.
• Judges clubs: In some Arab countries, judges have been allowed to form social associations or “judges clubs.” The purpose of such organizations is partly social, but it also to allow judges an opportunity to develop their own voice in issues of professional interest. Some clubs have sponsored conferences and published journals.

It should be noted that pursuit of corporate independence for the judiciary does have its costs. To the extent it is successful in constructing internal mechanisms of accountability, the judiciary will have emerged as an autonomous force—autonomous not only from the executive but perhaps from the broader society as well. Judges may therefore distance themselves from the understanding of the problems and perspectives of their fellow citizens. It is partly fear of this that has led some countries to prefer a “checks and balances” to a “separation of powers” approach. Yet in the Arab world, the task at present is to build up the autonomy of the judiciary. Excessive attention to breaking down barriers between the judiciary and the society as a whole may only undermine the independence of the judiciary. Indeed, something of the sort happened in some Arab countries during the socialist era.

Specific Cases:
Arab countries are generally moving fitfully in the direction of allowing their judiciaries greater independence and professionalism, though progress is both slow and uneven. Indeed, if a long-range historical perspective is adopted, progress has been slow indeed. The current judicial structure in most Arab countries can be dated back to the period of Ottoman rule, or sometimes to pre-imperial or imperial governments. Thus, in the late nineteenth and early twentieth century, civil courts were constructed and the judiciary emerged as a body separate from the group of specialists trained in Islamic knowledge and law. During this era, the judiciary was founded as a modern profession, but it generally lacked critical features, whether under independent or imperial rule: the executive retained a strong hand over judicial affairs, and the judiciary had few mechanisms to hold executive authorities to the law.

The post-imperial era did not necessarily improve the position of Arab judiciaries. The struggle to build powerful states to pursue national independence, national security, and economic development concentrated further authority in the hands of the executive. Some countries removed the few tools the judiciary possessed to maintain autonomy. Yet at the same time, most Arab states undertook a verbal commitment to the principle of the independence of the judiciary. Constitutional provisions for judicial independence, though vague, were written in virtually all Arab countries.

In recent years, external and internal interest in accountability has grown greatly. And Arab states have taken some definite steps to increasing judicial autonomy and granting some of the tools necessary to ensure that other political authorities are accountable to clear legal standards. But much of the work has only begun.

Egypt:
The Egyptian judiciary has one of the longest traditions in the Arab world of professionalism and perhaps the strongest corporate identity. The country’s current constitution, promulgated in 1971, promises the judiciary independence, and protects the right of citizens to resort to their “natural judge.” But it fails to allow for full independence and includes some provisions that would seem to limit the authority of the judiciary. For instance, the constitution enshrined the office of “Socialist Public Prosecutor,” an institution which many worried might supplant the regular public prosecution (staffed as it is by members of the judicial corps). The constitution also calls for popular participation in the judicial process, which many judges regard as a possible threat to their professional standing.

The ambivalence of the 1971 constitution can be explained partly by its timing. Egypt saw a strong attack on the idea of the separation of powers in the 1960s and the judiciary was brought under executive domination in 1969. Large numbers of sitting judges were dismissed and the judiciary was brought under an executive-controlled “Supreme Council of Judicial Organizations.” The 1971 constitution—written just two years after the 1969 measures were taken—reflects some of these measures but also limits others. During the 1970s and 1980s, most aspects of judicial independence were restored and some were even strengthened. Judges in Egypt now have unquestioned dominance over their own affairs, and the various segments of the judiciary (the civil courts, administrative courts, and Supreme Constitutional Courts) have a large degree of autonomy in their internal affairs. An active Judges Club allows judges to cement their professional identity and present their needs to political authorities. The Egyptian government has devoted some attention in recent years to improving the position of judges. Such measures may not have been sufficient, however, as senior judges complain that they are no longer able to attract the best law-school graduates to judicial careers.

Significant obstacles still remain. The most egregious aspects of executive domination of the judiciary have been removed, but some judges would like a greater measure of autonomy in some financial and administrative matters (for instance, judicial inspection and discipline, while carried out by judges, is still a function of the Ministry of Justice rather than the judiciary itself). Perhaps most controversially, emergency sections of state security courts and military courts continue to handle sensitive political cases, and some courts have clashed with the security services over allegations of torture. The upsurge in political violence in the early 1990s in Egypt led the leadership to resort to some harsh measures that bypassed normal legal and judicial channels; the calmer political atmosphere of the late 1990s, however, did not lead to an abandonment of such stern tools.

In sum, Egypt is an imperfect model for other Arab countries. Its judiciary is the largest and oldest in the region, and it continues to boast a strong tradition of dedication to the rule of law. The Egyptian court system still lacks all the resources necessary to play its role efficiently, however, and the security situation in the country has undermined some of the regime’s commitment to allow regular judicial organs full sway.

Kuwait:
Kuwait’s judicial system was constructed in the era before and after independence in 1961, generally along lines similar to the Egyptian (indeed, Egyptian legal experts assisted in establishing the Kuwaiti legal, judicial, and constitutional systems). In 1962, a constituent assembly drafted a constitution that was then issued by the country’s amir. The 1962 constitution, like the Egyptian constitution of 1971, promises judicial independence but is fairly vague on details. It does have some stronger provisions—for instance, the constitution restricts military courts to trying military personnel, allows a special administrative chamber or court, and provides for judicial review of constitutional disputes.

Kuwait built upon this general constitutional framework slowly. Judicial independence has been a frequent object of dispute between the country’s government and the parliament. The parliament has generally insisted on firm legislative guarantees for judicial independence from the executive branch. The executive, for its part, has come to accept greater independence and has sometimes charged parliamentary deputies with hypocrisy by insisting on prosecution in specific cases (thus inserting themselves in a judicial matter). While the debate over judicial independence has sometimes been noisy, the result is a fairly solid legislative basis by regional standards. A 1996 reform grants the Supreme Judicial Council greater independence from the executive. State security courts and martial law courts have been used in Kuwait but they have been abolished. Thus, the instruments exist for a judiciary that is independent from the executive branch.

Yet it is unclear if the Kuwaiti judiciary is likely to emerge soon as a force holding the executive accountable to clear legal and constitutional standards. In most sensitive political cases, Kuwaiti courts tend to shy from issuing clear judgments. The Kuwaiti Constitutional Court, for instance, has been faced by some of the most vexatious constitutional disputes over issues including press freedom, women’s suffrage, and emergency rule but avoided ruling on them, often through a legal technicality. Other Kuwaiti courts have been similarly reluctant to rule in sensitive cases.

The professionalization of the Kuwaiti judiciary and the building of corporate identity are also slowly building. A judicial training academy was established in the mid-1990s, and some Kuwaiti judges have discussed founding a judges club. But the practice of hiring foreign judges on term contracts sharply limits the degree to which such efforts can provide a real measure of corporate identity. Kuwait has not been able to train enough Kuwaitis to fill all judicial positions, leaving the country dependent on other Arab countries. Some judges are seconded from their own home countries and others are hired independently by the Ministry of Justice in Kuwait. In either case, the foreign origins of the judges, their identification with their home country, and their direct relationship with the Ministry of Justice undermine efforts to enhance corporate judicial identity in Kuwait.

Jordan:
Jordan’s constitution, like others in the Arab world, provides for judicial independence but lacks specificity. In addition, the Jordanian constitution specifically allows special courts to be constructed. The legislative basis for judicial independence is stronger than the constitution. A council oversees some judicial affairs and is largely judicial in composition. The Ministry of Justice is still highly involved in judicial matters, however, though a new judiciary law has been under discussion that would transfer some responsibility over to the judicial council.

The Jordanian judiciary lacks some of the tools that have been devised in some Arab countries for holding executive authorities accountable to the law. Judicial review is only weakly established, and the government has balked at the construction of a constitutional court. A past assertion of judicial activism earned the Jordanian judiciary a public rebuke from the king in 1998. (The Jordanian High Court had struck down a press law on the grounds that it had been issued by a decree that did not meet the constitutionally-mandated standard of a defense-related emergency.)

Yet the Jordanian judiciary has been able to establish a measure of corporate identity. Jordan has operated its own judicial training academy since 1988. The body has had to concentrate its attentions on training new judges, but it has offered some programming for senior members of the judicial corps and has even hosted non-Jordanian judges for training.

Morocco:
As with the other states, Morocco has taken some steps to translate vague constitutional promises of judicial independence into reality. In some ways, Morocco provides the weakest constitutional basis for judicial independence, since its judicial council is headed by the king, with the minister of justice as vice-chair of the body. A constitutional council is mandated but is not independent of the head of state.

The legal basis for judicial independence also shows some significant weaknesses. The cabinet can refer individual cases to military courts to keep them out of the jurisdiction of the regular courts. The Ministry of Justice remains fairly involved in administrative affairs of the judiciary. And the public prosecution (a part of the judiciary in most Arab states) remains directly under the executive.

Yet Morocco has also shown a greater determination to pursue reform in recent years than virtually any other Arab country. Indeed, a reform-minded justice minister has worked to increase resources devoted to the judiciary, combat corruption, and increase independence. And Morocco’s judicial training institute is one of the most prominent in the region, showing a special interest in human rights law. The Moroccan and Egyptian academies have the strongest record in conducting judicial training for judges coming from other countries.

Future Steps:
This review of the Arab world shows that much work remains to ensure that the judiciary can be independent and exercise the tools it needs to hold the executive accountable. Similarly, the level of professionalization of Arab judiciaries can be improved despite past accomplishments. But there is also some record of efforts, especially over the past couple decades, in these areas. While no Arab state shows an unqualified commitment to enhancing the role of the judiciary in ensuring accountability, most have shown some willingness to entertain reform proposals. In this regard, two sets of reforms deserve the most serious consideration.

Judicial independence: In much of the Arab world, the struggle for judicial independence has come to focus on the composition and authority of the judicial council, the body overseeing judicial affairs. With regard to composition, some countries have taken steps to ensure that the council is largely judicial. With the judiciary in several Arab countries subject to a form of executive oversight through the council, such steps are important in allowing the judiciary greater independence. But even in countries where the council is effectively independent of the executive, its authority might be enhanced. Budgetary matters are especially important in this regard. Some Arab states maintain administrative matters affecting the judiciary under the control of the ministry of justice; others allow their judicial councils far more direct oversight over the internal affairs of the judiciary. Some go so far as to allow the judicial council to refer its recommendations over budgetary matters directly to the cabinet and the parliament, a mark of confidence in their own judiciaries.

Internal accountability and professionalization: While some affirmative steps have been taken to increase judicial independence, measures to increase the professionalization of the judiciary are just as urgent; indeed, in some countries, they are probably of more pressing importance. All Arab states have succeeded in building a competent and professional judicial corps, but further professionalization would be a welcome step everywhere. Attention must often be focused first and foremost on judicial training. All three levels of education must receive attention (study in law schools; initial period of judicial training; and continuing education for judges). There may be no area where regional cooperation could be as fruitful, given the similar needs of most Arab states and the strong resemblance among most Arab legal systems. At the level of the law schools themselves, greater consciousness might be shown that they are training students not merely for government service or the legal profession but for the judicial corps as well. Special programs to attract the most promising students to judicial careers would help the judiciary maintain and even improve its human capital. At the level of judicial training academies, the complaint is commonly heard that they are compelled to repeat the training of law schools; more effective legal education at the universities would allow the academies to move beyond basic education to incorporating more material on specific areas of law, judicial ethics, and aspects of court administration under judicial control. Finally, at the level of continuing education, regional academies might pool their resources to ensure that advanced training and peer learning could be more fully developed.

Beyond education, several fairly easy steps could be taken to help foster further professionalization of Arab judiciaries. Responsibility for judicial inspection and discipline might be transferred from the Ministry of Justice (where it is located in most countries currently) to the judicial council. Judges clubs—an important if informal mechanism for developing a strong sense of corporate identity—might be founded in countries that lack them; an effort to constructing regional rather than national organization might also be worth exploring. Finally, judges have occasionally sponsored publication of books and journals; a more sustained (and perhaps regional) effort in this regard would enhance the prestige of the judiciary besides encouraging research on topics relevant to judicial needs.