Policy Research Paper

Evaluating Judicial Reform Projects Funded by the International Donors in Egypt and Turkey

Majid Mohammadi

IPF fellow, 2006-2007

1. What is judicial reform?

Judicial reform (also termed legal sector reform, legal technical assistance, administration of justice program, rule of law[1] program) refers to efforts to improve the functioning of a country’s judicial system in terms of fairness and efficiency. Poor accessibility, lack of responsiveness and capability (delays and backlogs), judicial dependence, shortage of resources and/or inefficient and ineffective use of the resources available, and lack of legitimacy are the main problems that judicial reform efforts have been trying to address and overcome. These problems are usually projected in lack of knowledge about rights, remedies and possibilities for action, physical distance from legal institutions, unaffordable court fees, bureaucratic procedures, strict criteria regarding standing, long backlogs and delays, costly/scarce legal assistance, poor court performance, irrelevance and perceived complicity.  Efforts have been made through various types of interventions to wrestle with these problems, referred to as law reform, court reform, judicial administration reform, legal community support, reform of legal education and training, and access to justice programs[2].

2. Why Judicial Reform

Judicial reform is a set of policies that are supposed to be implemented to make links between several goals and objectives. Looking at proposals and reports of judicial reform projects in different areas and from different donors, international, regional and local, bilateral and multilateral, five overall motivations can be identified;

1) To facilitate economic development. In this argument, judicial reform is not considered as an objective per se, but a process that leads to a well-functioning judicial system that is a precondition for economic development. Judicial reform, in this perspective, is to decrease corruption, increase predictability and stability, secure contracts, and facilitate and increase foreign and local investment. This perspective is usually considered in financing judicial reform by banks and other financial institutions[3].

2) To protect constitutional, civil and human rights. This is one of the main concerns of civil society institutions and NGOs who sponsor judicial reform projects in repressive and authoritarian states;

3) To provide access to justice for all members of society. This normative force interconnects international and internal egalitarian concerns in the judicial and legal domains. Egalitarian concerns are more visible in civil society and private donors’ agenda for reform in other countries. Civil society institutions have more concern about this issue;

(4) To secure law and order. This is the main concern of the states and superpowers when they push for judicial reform. Authoritarian and semi-democratic states which confront legitimacy crisis and are afraid of political instability pursue judicial reform to strengthen one of the critical institutions of the government for overcoming these problems. Aid to judicial reform can be seen not only as a response to domestic problems in the recipient society but also in the donor country that is influenced by the effects of drug trafficking, money laundering, organized crime and international terrorism;

(5) To facilitate political development and secure democratic accountability, good governance and the integrity of the political process. This is the main concern of international NGOs and civil society institutions who work for democracy, transparency, accountability and social justice. In their point of view, an independent and effective judiciary is necessary for vertical and horizontal accountability, control over allocation of resources, and providing a framework for public and private sectors.

   Recipient countries may have common or different reasons to push for judicial reform and apply for international grants and loans for this purpose. Turkey and Egypt are engaged in a judicial reform effort with different reasons: Turkey’s effort is aimed at advancing its European Union candidacy, while Egypt’s effort is mostly aimed at absorbing international aids, strengthening administrative arms of the autocratic state and window dressing. The Turkish Parliament adopted a wide range of human rights-related reform legislation in the early 2000’s. Implementation of the reforms has, however, been slow in some areas, including the judicial field. The reform agenda in Turkey is focused on reducing the caseload of Turkish prosecutors through designing and implementing a strategy for trial alternatives[4].

3. Dimensions of Judicial reform

The rule of law prevails where (1) the government itself is bound by the law; (2) all individuals and groups in society are treated equally under the law; (3) the government authorities, including the judiciary, protect the human dignity and rights of its citizens; and (4) justice is accessible for its citizens. The rule of law requires transparent legislation, fair laws, consistent and predictable enforcement, and law abiding coercive forces; it also requires an accountable and transparent government to maintain order, promote private sector growth, fight poverty and have legitimacy. Legal and judicial reform is a means to promote the rule of law.[5]

    There are six essential dimensions for the process of judicial reform and reorganization: 1) institution building, 2) law and order enforcement, 3) oversight and monitoring by independent legal and judicial associations, 4) case management and judicial administration, 5) participatory policy-making procedures, and 6) long term vision and commitment.

   The best criteria for measuring and evaluating the results of judicial reform projects, other than comparing them with their defined goals and objectives, are measuring the following features before and after running the judicial projects: 1) the improvement of level of access to justice particularly by the most vulnerable and minorities, 2) the quality of legal and judicial training, 3) the level of judicial independence, i.e. limitation of governmental power and protection of individuals’ rights, 4) the level of enforcement of due process provisions, and  5) the efficiency of judiciary’s services.     

   Judicial reform projects in any society could focus on norms, institutions, procedures and values. Evaluation of these projects may focus on assessing the effectiveness of these projects in one or some aspects of the mentioned features. Judicial reform cannot be accomplished through implementation of a single project and need not be based on the Western models of rule of law and judicial reform. Although no internationally sponsored judicial reform program is fully successful in assisting client countries, this does not mean the donors and implementing partners not to be taken responsible for what they are doing.   

4. Why Egypt and Turkey?

Although judicial reform projects are designed and implemented in broader Middle East and North Africa, Egypt and Turkey deserve special attention. Egypt has long been the leader of the Arab world; the legal systems of most of the Arab countries have been directly derived from or significantly influenced by the Egyptian system; Egypt plays a significant role in legal education and assistance throughout the region. Turkey as a Muslim nation in West Asia and Europe with a long history of interaction with Europe is a very specific case because of neighborhood and accession process. Turkey could also be a model of interaction with the Western world and transition for Muslim countries in the Middle East.  

5.  Short Chronology of Judicial Reforms in Egypt and Turkey

Egypt. Modern judicial reform began in Egypt much earlier than other countries[6]. The Department of Justice was created after Mohammad Ali’s death in 1872 (Hunter, 1984: 46). After attaining independence from Ottoman Empire in matters of legal and judicial administration in 1874, Egypt implemented its first judicial reform in 1875, leading to establishment of mukhtalatat (mixed) and ahli (national) courts in 1876 (Brinton, 1968; Cannon, 1970: 1; Hunter, 1964: 171)[7]. Mixed courts were supposed to replace the consular jurisdiction that was based on capitulation and abuse of privilege (Hunter, 1984: 175-6). These courts were closed in 1970. The nearly abortive native court reform of 1880-83 resulted from the temporary meeting of Egyptian and British political interests in opposition to an imperfect mixed court regime (Cannon, 1970: 3). The native judicial system, both civil and criminal, was superseded in 1884 by tribunals administering a jurisprudence modeled on that of the French code[8].

   Modern judicial system of Egypt is based on English common law, Islamic law, and Napoleonic codes. Judicial review in this system is carried out by the Supreme Court and Council of State that oversees validity of administrative decisions. The Court of Cassation, the only one in its category, was established in 1931 and based in Cairo. The Court of Cassation, the exclusive body atop the judicial hierarchy in Egypt, was designated with the purpose of creating a central tool to provide exclusive and uniform interpretation and application of law[9]. Established in 1946, the Egyptian administrative courts are among the most developed in the region. They have jurisdiction over any case in which the state is a party.[10]

   According to 1956 Constitution, the judicial system was supposed to be freer of executive power. However, all courts were under a Minister of Justice who must be acceptable to the regime (Stevens, 1963: 121) The Emergency Law of 1958 enabled authorities to circumvent the increasingly independent regular court system in cases where people were charged with endangering state security. The law applied primarily to Islamic radicals but also covered leftists suspected of political violence, drug smugglers, and illegal currency dealers. It also allowed detention of striking workers, pro-Palestinian student demonstrators, and relatives of fugitives. This law authorized the judicial system to detain people without charging them or guaranteeing them due process while an investigation was under way. The Supreme Court of Egypt was established in 1969 and entrusted to censoring the laws' constitutionality. The Supreme Court was existent till its replacement with the Supreme Constitutional Court in 1979.[11]

   Egypt’s 1971 constitution that was passed during socialist period considered some provisions for popular participation in justice and for a “Socialist Public Prosecutor.”[12] This constitution provides for a “Supreme Council of Judicial Organizations” that carries out executive branch appointments and seems to remove some of the Egyptian judiciary’s hard-won autonomy. Accordingly, in 1984, most of the appointment and assignment of judges was returned to the “Supreme Judicial Council” which consists entirely of judges (most of whom serve by virtue of their office) or judicial personnel.[13]

   In 1980, the government created a separate judicial institution, the Court of Ethics, together with its investigating arm, the Office of the Socialist Prosecutor, to investigate complaints of widespread corruption in government.[14] By creating the State Council (Majlis ad-Dawla) in 1988, Egypt adopted a dual system of judiciary, i.e. the ordinary and administrative judiciary. The Family Court was established in 2004, motivated by the need to differentiate between family litigations and other disputes[15].

   Religious courts once operated, with separate systems for Muslims, Christians, and Jews, but they were abolished in 1956. A constitutional amendment adopted in 1980 recognizes the Shari`a as a principal source of Egypt’s laws, but the legal system remains secular in character[16].

      The Egyptian judiciary has shown some strength and potentials to reform the political system by itself; between 1984 and 1986, several measures restricting political participation were offset by the courageous rulings of the judiciary (El-Mikawy, 1999: 44). In 1983, a court ruling returned Wafd Party to the political scene (El-Mikawy, 1999: 53). In 1987, the court accepted the opposition's claim for more seats than those announced by the minister of interior (ElMikawy, 1999: 79).

    In 2005, the Egyptian Judges Club decided to boycott the constitutionally mandated role of supervising upcoming elections. This was to secure judicial reform and support electoral reform. Arab constitutionalism expert Nathan Brown and Egyptian Judge Hesham Nasr believed that the likely outcome of this standoff will be a series of regime concessions that, while limited, may nonetheless have significant long-term effects on opening a closed political system.[17]

Turkey. Since the introduction of constitutionalism in 1876, there has been eight constitutional documents, two of the Ottoman monarchy (Abdulhamid II, 1876; Young Turks, 1908) (Nuri,1963: 39-40), and six of the republic (1924; 1961, 1971, 1982, 1995, 2001). Every one of these documents has added to, changed some or annulled some processes and institutions of the Turkish judiciary. 

   Since legal reforms instituted in 1926, Turkey's judicial system has been based on the Swiss Civil Code, the Italian Penal Code, and the Neuchâtel (Swiss) Code of Civil Procedure. The constitution of 1924 adopted by the Grand National Assembly did not provide for an impartial judiciary to rule on the constitutionality of laws enacted by the assembly, but rather empowered the elected legislature to alter or defer judicial decisions[18]. In 1926, new civil, commercial, and penal codes based on European models adopted. New civil code ended Islamic polygamy and divorce by renunciation and introduced civil marriage.[19]

   The Constitutional Court established in 1961. The principal function of this court is to review the constitutionality of laws, decrees with the force of law and the standing orders of the two legislative bodies, and annul all such rules if necessary (Dodd, 1979: 31). The 1961 Constitution declared that no act of administration could be excluded from the control of the judicial authorities. The independence of the Council of State itself was also enhanced (Dodd, 1979: 30).

   The 1961 constitution is very adamant and specific on the independence, the tenure of office[20] and the professional integrity of the judges (Nuri,1963: 51). This constitution introduced a "Supreme Council of Judges" empowering it with the authority of decision on all personnel matters concerned with the judiciary (Nuri,1963: 52).

   The Constitution of 1971 strengthened the hand of the government by stating that "judicial power cannot be exercised in such a manner as to restrain the fulfillment of the executive function carried out in conformity with the forms and principles prescribed by the law" (Dodd, 1979:32).

   The 1982 constitution instituted State Security Courts to handle offenses against the integrity of the state, the democratic order, and the internal and external security of the country (Harris, 1985: 97). This constitution guarantees judicial independence and prohibits any government agency or individual from interfering with the operations of the courts and judges[21]. The 1982 constitution added special state security courts to handle cases involving terrorism and state security[22].

   Turks in recent decades have always been under the pressure of European Union to take necessary steps on judicial reform during its EU membership bid stressing. The EU commission's 2005 report stated that Turkey had met the EU's critical criteria[23]. Turkey has pressed ahead with democratic reforms to meet European Union membership conditions. Turkey uncovered evidence of torture and ill-treatment of minorities and this was taken as a sign of progress for the EU commission[24].
   As far as the Republic of Turkey is concerned, the parliament has passed the necessary articles on three different legal packages; one on the intermediary courts, second on the legal procedures code, and thirdly on the penal code. There are two more codes that followed them to fulfill the judicial reform in Turkey. The first is the criminal legal procedures and the second one is the execution code[25]. As a result of these bills, the death penalty was abolished in peacetime in 2002.

   Based on constitutional and legal reform of October 2001, the maximum period of detention without trial for all suspects was reduced from fifteen to four days; the judicial authority has to reconsider measures affecting privacy; and death sentence was limited to times of war, threat of war and to terrorist acts. A number of laws were amended later to bring them in line with constitutional changes (Dodd, 2002: 246).

6. North Amrican and European Developmental Policies and International Aid to Egypt and Turkey

Judicial aid has been a major component of international aid programs since the beginning of the 1990s (Faundez 1997). In fact, judicial reform is said to be ‘at the cutting edge of international efforts to promote development of a democracy abroad’ and has, for all practical purposes, become ‘big business.’ In this section, I want to map out the broad lines of the history of international support for judicial reform in the Middle East and give a snapshot of judicial reform efforts in Egypt and Turkey. The main point is to provide a backdrop to the discussion of Western aid to judicial reform to see how this fits into a larger context, and to identify lessons from international assistance that may be relevant to international support in this area. 

   The large-scale involvement of international donors in promoting judicial reform, especially in the Middle East, Central Asia and Eastern Europe is a relatively recent phenomenon. International assistance to judicial reform can be divided into two main periods: from the 1960s to the 1970s, and from the 1990s to the present. In between, little aid for judicial reform was allocated. USAID, together with the Ford Foundation and other smaller, non-governmental American donors were among the first aid agencies that entered the judicial reform scene. They did so in the 1960s as part of the ‘law and development movement’, whose ambition was to reform laws and legal systems of countries in Asia, Africa and Latin America[26]. At the turn of the 1980s, the movement focused specifically on protecting human rights in Latin America. Attention to the Middle Eastern countries in this respect is completely recent.

   The renewed interest in building and fortifying state institutions in the 1990’s coincided with the parallel processes of political democratization and economic liberalization in Eastern Europe, Africa and Asia in the 1990s[27]. The Middle Eastern societies in this decade were not even in the process of political democratization to take into account the necessity of judicial reform. When democratization of these societies was addressed by Western countries, judicial reform became of the main areas of attention for the donors who were working in this region.  A key challenge faced by the international donors after long periods of authoritarianism and war was to re-establish the rule of law, and secure democratic stability in the region. Since the judiciary often has been the weakest of the three branches of government in many developing countries, this institution has been given particular attention. In this second wave of aid to judicial reform, a greater number of donors have been involved compared to the first.

   Legal and judicial reform plays an important role within the framework of international development assistance due to their role in establishing stable and just legal systems that could support the promotion of security, equity, and prosperity in the Middle East.

   Judicial reform has been on the agenda for the international community and various Western governmental and non-governmental institutions with respect to their policies toward the Middle East[28]. Judicial reform has been viewed as a prominent focus of the greater project of Middle East reform that pursues democracy and development assistance[29]. Although there are some differences between the European Union and the American reform projects for the Middle East reform, they both share judicial reform as one of their foci.[30] USAID (U.S. Agency for International Development) and MEPI (Middle East Partnership Initiative) have chosen to work in areas such as civil society, local government, judicial reform, and women’s rights that seemed the easiest and least sensitive to authoritarian regimes in the region as Western allies.[31]

   The U.S., the EU, the UN, and the World Bank have undertaken numerous initiatives to promote legal and judicial reform; most of the projects are defined at the national level in areas such as judicial training, judicial administration, and legal code reform. A G-8 initiative tried to complement these efforts by focusing at the grassroots community level to establish and fund centers at which individuals can access legal advice on civil, criminal and Shari`a law, and contact defense attorneys which are very uncommon in the region.[32]

   There has been some effort to launch judicial reform in the region, from different research and reform implementation projects to high-ranking U.S judiciary official’s visit to the region[33] to launch a regional judicial reform effort. The big chunk of the Middle Eastern democracy assistance goes to programs in Egypt and the Palestinian Authority (before 2006 when Hamas won the parliamentary election). Some of the democracy programs in Egypt supported judicial reform[34]. Aid for the West Bank and Gaza included initiatives such as assistance for the 1996 legislative council elections, for the council and judicial system, and for the spread of democratic ideas and values among the Palestinian public[35]. Elsewhere in the region, numerous smaller-scale programs focused on judicial reform in Yemen[36], Morocco, Jordan[37] and Oman.[38] Other than special countries, there have been projects that address the whole Middle East and North Africa region.[39]

   The main areas of focus for the international donors have been the realm of court administration and automated case management, to make courts more competent, efficient and accountable. More emphasis on formal and technical issues is to avoid challenging the undemocratic procedures in public affairs in the region. Although the initiatives under discussion mostly emphasize on greater independence and transparency, and supporting development of judicial codes of conduct, they strengthen the state infrastructure in enforcing law and order. Ensuring respect for due process and improving pretrial and trial procedures are mostly civil society donors’ priorities. Torture, arbitrary arrest, prolonged incommunicado detention, excessive use of force and reliance on restrictive emergency laws remain problems in most of the countries in the Middle East and are not addressed in governmentally sponsored judicial reform projects. Other priorities, like training for security forces with specific human rights components, greater accountability and drafting new penal codes for Middle Eastern countries lie somewhere between governmental and civil society agendas. Other than international effort, domestic projects and efforts have directed to judicial reform initiatives to address the public administration problems and promote democracy and rule of law. 

   The difference between American and European approaches to aid could be seen clearly in the rule of law assistance for Turkey and Egypt. As it could be seen in the judicial reform programs listed in my report of the projects, posted in my website (policy.hu/mohammadi), most of these programs for Egypt is sponsored by the U.S. while judicial reform projects in Turkey are mainly sponsored by European donors. The motivation behind the projects for Turkey is accession process and joining to EU while the motivation behind U.S. sponsored projects is regime maintenance.

   The changing conditions in US foreign policy after the Sep. 11 attacks required that the American aid to Egypt be re-allocated to reflect the priorities established by the Bush administration. According to the 33-page report entitled USAID/ Egypt Strategic Plan Update for Fiscal Years 2000/2009, "the events of 11 September led to more active US involvement in Egypt and the region, including the administration's new Middle East Partnership Initiative (MEPI)." "This sharpening of US foreign policy for the region," the report added, "led to the strategic revision of USAID program to Egypt in a way that will focus on such vital sectors as education, health as well as the areas of democracy and governance." Elaborating on the subject of democracy and governance, the report indicates that USAID will allocate part of its funding to secure three objectives: "creating an environment more favorable to political reform, promoting a more transparent and accountable government, and reforming the judicial system."[40] Due to the adjustments in its 2000/2009 program for Egypt, funding for democracy/governance sector will increase from $96 million to $152 million (almost 16 per cent of total USAID money) in the second half of the mentioned period.

7. Necessities, Goals, and Priorities of the Programs for Judicial Reforms

7.1 Necessities                                                                                                    

7.1.1 Improvement of legislative and regulatory framework for commercial transactions and global trade and resolution of financial disputes, drafting relevant amendments to existing legislation and regulations related to trade and transactions, as well as a modern commercial arbitration code, to streamline processes and procedures because of the direct correlation between the rule of law and economic development. The primitiveness of legal and judicial systems in many part of the Middle Eastern countries stunt economic development;

7.1.2 Fighting judicial corruption that is mostly due to slow, underpaid, overworked and uninformed judiciary staff, antiquated legal processes, outdated state institutions, and promote good governance;

7.1.3 Strengthening of the judicial system's capacity to adjudicate business-related cases, through the introduction of modern techniques, and automated tools, in all commercial courts, for appropriate management of all cases during the litigation process;

7.1.4 Strengthening the capacity of local registries of commerce within the commercial courts, to provide information and ready access to the public;

7.1.5 Provision of training to judges and court administrative staff, upgrading the law school curriculum, and introducing relevant courses and information research tools for better management systems; and

7.1.6 Strengthening the ministries of justice capacity in managing judicial and regulatory information to ensure project implementation. Poorly trained judges, overcrowded dockets, and antiquated facilities should be dealt with.

Judicial reform has been demanded by different international and internal forces in Egypt and Turkey[41].

7.2 Goals

Looking at the goals stated in the proposals of these projects, we can have a list of goals:

7.2.1 To expose the Middle Eastern governmental officials to new ways of doing things, helping them to keep beleaguered human rights and democracy organizations afloat, create new spaces for dialogue and debate, and inject discussion of political liberalization into the public discourse;

7.2.2 To link states, Western governments, and global private sector businesses, non-governmental organizations, civil society elements, and governments together to develop innovative policies and programs to achieve judicial reform;[42]

7.2.3 To create or recreate a legal and judicial system that protects and enforces civil, constitutional and human rights of the citizens in a fair, balanced and predictable manner

7.2.4 To develop an independent, competent, and professional judicial system within high ethic standards for effective dispute resolution, and to facilitate commercial transactions;[43]

7.2.5 To overshadow and override nepotism, tribalism and cronyism;

7.2.6To support rule of law and judicial reform efforts across the region, emphasizing greater independence and transparency and supporting development of judicial codes of conduct. Ensuring respect for due process and improving pretrial and trial procedures remained U.S. priorities. Torture, arbitrary arrest, prolonged incommunicado detention, excessive use of force and reliance on restrictive emergency laws remained problems in many countries. The United States supported improved training for security forces with specific human rights components, as well as greater accountability and drafting of new penal codes;[44] 

7.2.7 To assist legal aid workers and legal and judicial activists who are interested in designing or working on judicial reform projects; and

7.2.8 To contribute to academic reflection on the strengths and limitations of legal and judicial reform efforts.

7.3 Priorities

Among the mentioned goals, the following features have had priorities for the international donors: to tackle corruption, training judges, implementing due process, decreasing backlogs and delays, and strengthening legal NGOs. Looking at the goals, budgets and durations of these projects will not tell us which area is the most important one for the aid agencies.

8. The Impact of Foreign Aid Policy on Judicial Reform in Egypt and Turkey

The design and implementation of judicial reform projects in Egypt have been professionally improved, reflecting lessons learned from earlier rule of law-promotion efforts elsewhere. Technical management has been better as well. Some programs in the area of judicial reform in Egypt have been labeled aid success stories. In general, many good governance projects have achieved positive results. They have exposed Egyptian government officials, judges and lawyers to new ways of doing things, helped to keep beleaguered human rights and democracy organizations afloat, created new spaces for dialogue and debate, and injected discussion of political liberalization into the public discourse[45].

   Despite these achievements, rule of law promotion efforts came up short partially due to shortcomings in the judicial reform aid programs and partially due to resistance to change among internal stakeholders. Many aid agencies had objectives that went far beyond what could realistically be expected from limited time frames and small amounts of technical assistance, especially considering many Arab nations' deeply entrenched resistance to reform[46]. In other cases, democracy and good governance aid targeted institutions that did not enjoy much local credibility. The U.S. administration's democracy strategy, especially after Sep. 11, 2001 involved counteracting the appeal of Islamist movements; therefore much of American funded projects were run far away from many grass-roots initiatives that were associated with the Islamic movements. Instead, the U.S. agencies focused on institutions that many Egyptians considered ineffective, such as ossified political parties or "non-governmental" organizations whose leaders had been co-opted by government officials[47]. Egyptian democrats by nature oppose the political status quo in their countries, which often means they oppose regimes with close ties to the U.S. or those that are subject to U.S. influence. The critiques from 1980’s have been demanding a judiciary free of all exceptional entities such as the socialist Prosecutor and the courts of ethics and emergency procedures/courts in the 1980's. (El-Mikawy, 1999: 50, 67)

   Turkish people do not trust the judiciary and they are not satisfied with the implementation process in the judicial system. According to the Turkish Businessmen and Industrialists Association (TUSIAD) report[48], there is a common view among the public that "there is no justice in the country." This report reflects a decrease in the trust felt towards the judiciary and a decrease of respect towards judicial organs that causes people to believe there is no use in applying to courts for the solution of judicial problems. The report revealed that the main reason behind this mistrust is the belief that Turkish judiciary lacks some vital elements of a state of law. People often criticized the judiciary system of the country for being too slow. The report includes other reasons for the public's lack of trust in the judiciary, including political influence and a perceived lack of independence and neutrality among jurists. The report said the country's judiciary was not consistent with the Copenhagen Criteria. The reform may have been successful in partially satisfying some members of EU but it has not been successful in satisfying Turkish people. 

9. Socio-political possibilities, challenges and obstacles of judicial reform

9.1 Possibilities

9.1.1 Public dissatisfaction and grievances with respect to the judiciary,

9.1. 2 Tensions in the existing judicial system,

9.1.3 Increased foreign investment, and

9.1.4 Calls for reform by civic and non-governmental organizations.

9.2 Challenges and Obstacles

9.2.1 Political. The primary obstacles to such reform are not technical or financial, but political and human[49].

9.2.1.1 Resistance against Competing Centers of Authority. Traditional forces do not usually want to cede their vested interests by working in a law abiding political system. Authoritarian regimes like Mubarak’s in Egypt are reluctant to any reform which is headed to create competing centers of authority beyond their control. 

9.2.1.2. Lack of Internal Will. Tens of millions of dollars poured in to judicial and legal reform in the Middle East by Western nations and private donors are necessary but not sufficient for an effective judicial reform in the region. Outside aid is not substitute for the will to reform which must come from within.[50]

9.2.1.3  Impunity of government officials continued

9.2.1.4 Paradox of mutual agreement. This is part of the culture of foreign aid that it should only be spent on mutually agreed development projects and programs designed and monitored by teams nominated by the sovereign recipients and donors. This will always let the authoritarian governments to hold their grip on the budget and the way it should be spent. If a project delegitimizes these governments they do not accept them or if launched they sooner or later stop them.

9.2.1.5 The gap between rhetoric and action of Western governments. In spite of everyday talking bout democratization and reform of the Middle Eastern societies, meaningful diplomatic efforts to encourage governments in the region to achieve reforms is absent.

9.2.2 Psychological/Historical

There are some internal suspicions about these projects with some roots in colonial experience of the countries in the region. At least some of the internal stakeholders question these projects not with looking at their probable or existing results but with referring to the intensions of donors. Some of the questions asked are the following: 

1. What are the intentions of Western governments and civil society institutions in sponsoring these kinds of projects?

2. Why the US has chosen judicial reform as a prominent theme in the Department of State’s Middle East Partnership Initiative (MEPI), a new, several-hundred-million dollar initiative to promote Arab reform?[51]

9.2.3 Cultural

The fundamental legal problems relate to the very understanding of law and its role in a well-ordered society. This implies the need for significant social and attitudinal shifts (Toope, 2003: 359); technical change in the area of judiciary and law is necessary but not enough. 

10. On Recommendations for Further Research

Any research on judicial reform projects and their results in the Middle East should focus on dilemmas, challenges, possibilities, capacities and obstacles of judicial reform in the region.

10.1 Main Questions

To begin thinking on the dilemmas and challenges, it is better to have a set of questions to trigger thinking process: Who are the main actors on the scene? Why and when did they get involved? Who have they been working with? What kind of assistance have they given? What have been the effects? Is there a common understanding of the objectives? Is there a conflict over roles and goals? What could be done to change the macro-level perspectives on judicial reform? Who has the mobilization power in the judiciary and in the cabinet to push for judicial reform? Is there any possibility to build an agenda for judicial reform on the basis of common sense? Which parties and groups have a policy-oriented mindset when looking at the problems in the judiciary? How can we measure or evaluate reforms in the judiciary? How human and material resources are assigned to the judicial reform projects? What kind of issues have been considered in implementing the existing judicial reform projects? Are the project plans livable, flexible and dynamic enough to encounter the challenges? Is there any resource over-allocation or under-allocation?

10.2 Dilemmas

10.2.1 Security vs. Rule of Law. Security in Middle Eastern societies is not usually defined to include the projection and enhancement of citizens’ life.  Security in these societies is to justify repression and authoritarianism[52].

10.2.2 In the Middle East, the US has to date operated largely in the “safe areas” of rule of law programming, investing scores of millions of dollars in improving court administration, automating case records, training judges in commercial law themes, and drafting modernized commercial codes in Egypt, the Palestinian Authority, Jordan and Morocco. These areas have not touched the flaws in the bigger picture of governance.

10.2.3 Ideas and actions. What has happened to previous recommendations for judicial reform in Egypt and Turkey? (e.g. to further activate the criminal writ practice, to expand the conciliation system and to spread out the Egyptian experience to other Arab countries, to work on putting the “written plea of guilt” system into application, to revive the “civil prosecution” project[53]).

10.2.4 More empirical research. Empirical studies on the effects of justice programs have been very few. 

10.3 Challenges

The following challenges deserve more deliberation in any research on evaluation of judicial reform projects:

10.3.1 Middle Eastern regimes read rule of law promotion as making their judicial system more efficient, and thus as an investment in the supporting infrastructure of their legitimacy;

10.3.2 Foreign aid picks side. Foreign aids usually and mainly go to the authoritarian allies of the West in the region. In judicial and legal aid, the West is not engaged with complex and confusing situations like aid for post-conflict situations; it is directly under the control of authoritarian allies. When one side is considered enemy by the U.S. government, e.g. Hezbollah in Lebanon, Muslim Brotherhood in Egypt or Hamas in Palestine, relief agencies are forced to make difficult choices about how to work, and with whom;[54] 

10.3.3 Recipients of judicial aid are bombarded with contradictory recommendations on judicial reform, especially with respect to multi-donor initiatives;

10.3.4 While rule-of-law aid in the areas of codification and institution building is getting along easier with authoritarian regimes of the region, this focus on more easily attained types underscores the importance of increasing government’s compliance with law;

10.3.5 Corruption of the governmental officials and authoritarian political culture are the most mitigating political and cultural dimensions of judicial reform in the region;

10.3.6 Key ministry officials are not usually accessible;

10.3.7 Contradictory expectations of stakeholders and beneficiaries;

10.3.8 Judicial reform relates to capacity building, good governance and democratic development which are more long term processes and qualitative; these factors are not easy to measure as opposed to features like health and nutrition that come with tangible results;

10.3.9 Cleavage between internal and international judicial reform agendas

10.3.10 Using suitable indicators for evaluating of the judicial reform projects

10.4 Impediments

The movement for judicial reform would be abandoned in the future if the reformists and activists do not pay enough attention to the obstacles and impediments of judicial reform in the targeted country. Some of the obstacles that were mentioned in interviews with stakeholders and should be studied are:

10.4.1. The lack of a consistent theory explaining the impact of law on development; this is important to get the domestic intellectuals and reference groups involved in the process;[55]

10.4.2. Causality problem. We have little concrete evidence on how judicial reform projects funded by the international donors contribute to the judicial reform in a country. Causal connection tests are hard to sustain. It is very hard to prove that an effect is directly related to one or another action or project.  

10.4.3. A lack of cultural and political sensitivity. The roots and reasons for cultural and political insensitivity deserve more attention and research.

10.4.4. An exclusive focus on the formal legal system to the exclusion of customary law and the other informal ways to settle disputes and maintain justice; and, finally

10.4.5. Too little participation by the lawyers, scholars and legal activists in the target country.

References

Brinton, Jasper

1968    The Mixed Court of Egypt, New Haven 

Cannon, Byron David

1970    The Politics of Judicial Reform: Egypt, 1676-1891, Doctoral Dissertation. 

Dodd, C.H. 

2002     “Democracy and the European Union,” in Beeley, Brian, ed. Turkish Transformation: New Century-New Challenges, Cambridgeshire: Eothen Press, 

1979     Democracy and Development in Turkey, Cambridgeshire: The Eothen Press

Faundez, Julio

1997    Good Government and Law: Legal and Institutional Reform in Developing Countries, London:  Macmillan Press, 1997

Harris George S. 

1985    Turkey: Coping with Crisis, CO: Westview Press

Hunter, F. Robert

1984   Egypt under the Khedives: from Household Government to Modern Bureaucracy, Pittsburgh: University of Pittsburgh Press.

El-Mikawy, Noha

1999    The Building of Consensus in Egypt's Transition Process, Cairo: The American University in Cairo Press

Nuri, Eren 

1963    Turkey Today -and Tomorrow: An Experiment in Westernization, NY: Frederick A. Praeger

Stevens, Georgiana G.

1963    Egypt: Yesterday and Today, NY: Holt, Rinehart and Winston, Inc.

Toope,  Stephen J.

2003    “Legal and Judicial Reform through Development Assistance: Some Lessons,” The McGill Law Journal, 48, 2003: 357-417

Weiker, Walter F. 

1963    The Turkish Revolution, 1960-1961: Aspects of Military Politics, CT: Greenwood Press

[20] . There was compulsory retirement of judges with over twenty-five years of service based on a law passed on 1953 {Weiker, 1963: 10, 32 and 40).

[42] . Sep 16, 2003- Gulf News: Meet focuses on Arab judicial reforms Manama |By Mohammed Almezel, Bureau Chief | 16-09-2003

[44] . State Department report 'Supporting Human Rights and Democracy: The U.S. Record 2004 – 2005