RULE OF LAW IN THE MIDDLE EAST

After having briefly discussed the Middle Eastern perspective upon core principles of democracy, I will go more in depth by delineating one of the most important arenas of democracy: Rule of Law. According to Geoffrey Marshall, Rule of Law theoretically consists of the “sum of legal provisions (structural, procedural and substantive) that limit government power and whose scope may be, more or less, comprehensive. ” Thus, the groundwork premises of Rule of Law are those of equality before the law and the exclusion of arbitrary power, i.e. individual liberties are protected against any form of discretionary power.

Given these conspicuous features of Rule of Law, it follows that it can fulfill two antagonistic roles: it can either reinforce democracy or, on a contrary, it can slip into rule by law. The latter phenomenon emerges when transparency and accountability are dissolved by the strong-handed political control, therefore giving rise to “l’état de police” whose principal feature is that the administrative authority exerts limitless discretionary power.
Giovanni Sartori admirably delves into the mechanism by which law can be thus bent so as to lend legitimacy even to an autocratic regime: “the law can have any content, and an unfair law is still a law. Therefore, the legislation can be dictatorial, and nonetheless, it can be not only accepted as legal, but also respected as legitimate. ” This occurs in situations in which one branch concentrates all the strands of power that should normally check and balance each other (legislative, judiciary and executive), while preserving a pale outward show of lawful procedures.

Applied to the Arab political society, the observations above gain even more substance. In broad lines, Middle Eastern political systems evidently lack some of the essentials of democracy: political parties that represent organized constituencies, parliaments endowed with the constitutional authority to design laws on behalf of the electorate and constitutions that restrain the executive authority.
Instead, Middle Eastern parties fail by far to derive support from the society- they are merely instrumental organizations, whose leaders are closely connected to and dependant on the de facto rulers. Scholars emphasize that “with the possible exception of some Islamist parties, the Arab world lacks strong political parties that can mobilize and—most important—sustain a mass following. Parties may exist in name, but in practice their leaders are usually drawn from the elite who have close family, personal, or economic ties to the rulers, but little support in society itself. ”

Similarly, as Daniel Brumberg points out, “parliaments are more like debating societies than law-making institutions. ” Precisely because parliaments in the Middle East are not elected bodies, they only have the authority of puppet-institutions that pass laws as they are ordered by the president and his allies or the king and his princes. Therefore, the content of most legislation is pre-determined, according to the will of the rulers: “unelected leaders are not so much above the law as they are its creator and ultimate dispenser. ” The only task that the parliament can perform is to simply rubber-stamp these laws, while the judiciary enforces them further on.

What is more, the executive having such a formidable breadth action, it can easily manipulate laws so as to determine the composition of the parliament. This is what happened in Jordan when the electoral law was revised before the national elections in 1998, so as to radically decrease the representation of Islamists in the parliament; for decades now, Egypt has constituted a similar case. In extreme situations, in which parliaments fail to perform their due role- that of a hollow attachment to the executive – and attempt to criticize government policies, rulers invoke constitutional authority and promptly suspend them (this is current practice in the Gulf, for instance) .

What may account for such altered mechanisms? Again, pointing to the autocratic nature of Middle Eastern political systems as inherently dictated by Islam, is not only a fallacious reasoning, but it also leads to a dead end.
To begin with, Islamic precepts constitute a centerpiece in what regards Arab legislation. Evidence brought by Mednicoff reveals that “Islam has dominated the development and practice of law in the Arab world from the seventh century until the present. It remains at the rhetorical and actual center of discussions of law in contemporary Arab states. ” Most importantly, numerous Arab constitutions draw on traditional Islamic law as the primary source for legislation.

Once the weight that Islam carries within Arab legislation has been established, it is important to bring to surface the points where it overlaps with Rule of Law principles. As emphasized in the previous section, Islamic theory stresses accountability as an essential principle of governance: “rulers need to be judged on their record of enforcing Islamic law. ” Secondly, the same Islamic tenets demand that government be distrusted and therefore that legal ways need to be found so as to circumscribe its authority. It is therefore concluded that “because the very purpose of an Islamic political order is to execute law, the rule of law is an ideal integral to Muslim society; institutional practice is what has often fallen short.
Consequently, the penchant for authoritarianism across the region cannot be attributed to the tradition of Islamic law.

The question is therefore not answered by evoking the substance of Islam; yet we may derive a better understanding from the fact that “the impact of foreign great power rule on the rule of aw in the Middle East and North Africa was utmost significant at several levels. ” This remark is most useful in that it prompts a closer review of the legacy brought about by the foreign Great Power rule. Under colonial administration, law was subordinated to imperial political power. Indeed, colonial practice emphasized in a more or less subtle way control backed by force. This was apparent in the invention of political forms like mandates and protectorates whose main purpose was to conceal the exercise of raw power.

This sort of practice resulted, on the long term, in two alarming consequences: first of all, Arab political elites that subsequently gained power had a practical model of how law can be twisted and turned so as to fulfill the interest of the ruling class. Secondly, it had an impact on the political socialization of citizens who grew to deeply distrust Rule of Law as a tool for control rather than as a defense against the arbitrariness of government orders.

Therefore, the subordination of law by the political power did not cease once the colonial rule was brought to an end; on a contrary, it served as source of inspiration for postcolonial Arab leaders. They successfully continued the custom put into place by the Great Powers, centralizing all state authority at the executive level. This entitles Mednicoff to assert that “nationalists built on, instead of dismantling the legacies of colonial rule. “
Adding to this legacy was the influence of practical necessities: maintaining security and establishing control after the departure of the colonial power and promoting large economic development programs. All these factors combined to generate “a huge expansion in the power and pervasiveness of the state apparatus. ”

The bottom line of this section is that, due to the legacy of colonial practice that stressed centralization of power and, afterwards, the abuses perpetrated by Arab rulers themselves, the Arab population is skeptical as to the significance and impact of the Rule of Law. To them, Rule of Law holds an opposite significance than to Western citizens: it symbolizes an instrument meant to tighten political control. And, as Mednicoff also noted, “this is important because it implies that efforts by internal and external reformers to strengthen the rule of law will not necessarily be associated with political opening within Arab societies. ”