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Summary of the first Arab Report on JusticeThe situation of Justice and the Independence of the Judiciary and the Legal Profession in 1998 Arab Center for the Independence of the Judiciary and the Legal Profession
On 25 July 1999, the first Arab report on Justice was issued on the situation of justice and the independence of the judiciary and the legal profession Arab countries. The report covers Jordan, Bahrain, Tunisia, Sudan, Palestine, Yemen, and Egypt. The report is divided into three parts 1. A background on the legal and constitutional situation regarding the independence of the judiciary and the legal profession, and main legislative developments regarding the rule of law took place in the countries it covers. 2. Country reports, which details the main developments related to justice in these countries, whether in terms of the legislation issued, or the violations of the rights of judges and lawyers. It must be noted here that these violations do not represent the actual size, they are only the violations which the center was able to verify and document. 3. The recommendations of the Arab Center for the Independence of the Judiciary and the Legal Profession Within the framework of international human rights standards in general, and those on the independence of the judiciary and the legal profession in particular, the first part of the report reviews Arab constitutions, with a view to finding out to what extent they provide the safeguards and guarantees for the independence of the judiciary, and for the protection of human rights in general. The report points out that although most of Arab constitutions assert the independence of the judiciary, they make it the responsibility of the legislature to organize the distribution of judicial jurisdiction and the order of courts and etc. Also, although Arab constitutions guarantee the right to a defense, they do not include any details for this right. Many of them do not even provide safeguards against detention. The Jordanian constitution for example does not include any article to the effect that the accused is innocent until proven otherwise. The report reviews the right to a defense in more details in the Egyptian, Yemeni, Jordanian, and Moroccan constitutions. A major development on justice and the rule of law in 1998 was the adoption of the Arab Convention Against Terrorism, which was issued on 22 April 1998. It must however be noted that the provisions of this convention is so general, and, to a great extent, threaten the rights and freedoms of citizens and violate the principle that people are innocent until proven guilty. Moreover, it can be said that the provisions of this convention provide more protection for Arab governments, and that they have been made to pursue political opposition and not only the perpetrators of terrorist crimes. This fact is manifested in paragraphs 2 and 3 of article 1, paragraph B of article 2, and article 25 of the convention. In the part on country reports, the report presents violations of the right of judges and lawyers took place in 1998. Major among these was the enforced retirement of Justice Farouk Al-Kilany, Head of Supreme Judicial Council and President of the Jordanian Court of Cassation. 1998 also witnessed a number of interventions in the formation of courts, appointment of judges, the creation of special courts, pressurizing judicial councils, and impeding the reformation movement. Major among the violations were those reported on Bahrain where the Bar Association Board was dissolved, and lawyers were prevented to contact their clients accused in political cases. Some of the lawyers were even detained for long periods merely for taking such cases. Lawyers were also prevented to offer legal assistance to detainees. Moreover, there was no independent and neutral judicial body which could be sought to consider the detention orders against lawyers. In Tunisia, many attacks took place on justice, major among them were the referral of lawyers to court for acts related to their professional duty, the prevention of lawyers from traveling, harassing lawyers and preventing them to perform their professional duty. Among these attacks were the trial of lawyer Radya Nasrawy, and the constant harassment of the independent candidate for the Bar board, Basheer Al-Eid. In Sudan, the main violations were the intervention in the affairs of the Sudanese Bar Association, the creation of exceptional courts which disregard safeguards of the defense, and the detention of lawyers and exposing them to security harassment. Examples of these violations were the biased elections held for the board of the Bar Association, and in the many violations committed against Ghazi Soliman, the candidate of the Democratic Alliance for the Restoration of Democracy. In addition to the formation of many exceptional courts such as military courts (the Court of the Military Square), many judges were exposed to a number of security practices which restrict their legitimate right to express their opinion. In Palestine, the main attack on justice was manifested in the continuation of the detention of 3400 Palestinian citizens in the Israeli prisons, without charges or trials. Even in the cases when they were referred to courts, all safeguards provided for interrogations were disregarded, particularly the safeguards against obtaining confessions through torture, a practice which the Israeli Supreme Court of Justice made legitimate. Regrettably, the violations of the rights of judges and lawyers were not committed by the Israeli authorities only. The Palestinian National Authority also showed a disregard of judicial rulings, and intervened in the affairs of the judiciary and prosecution offices. These interventions led to the resignation of Fayiz Abu Rahma, the Public Prosecutor, following the intervention of the executive authority in his work when it objected to his decision releasing a number of detainees arrested on no legal ground. Attacks on justice took place in Egypt also through passing new laws which eroded the independence of the judiciary, and disregarded the rule of law. Examples of these laws were law no. 6 of 1998 against thuggery, which was a flagrant violation on the freedoms of citizens and their rights to expression of opinion and to peaceful assembly. Similarly, law 168 of 1998 was issued curtailing the role of the Supreme Constitutional Court. This law was also a blatant intervention in some lawsuits the court was hearing on paying-back taxes. In addition, this year witnessed the amendment of the Code of Criminal Procedure. This amendment, though an attempt towards developing the Code, was limited. It added more restrictions on the rights of citizens such as restricting the right to appeal, and expanded the powers given to the Public Prosecutor. This was in addition to the continuation of the Bar Association crisis in Egypt. On another level, although the Minister of the Interior issued a circular firmly putting an end to ill-treatment of citizens in police stations, attacking lawyers in police stations continued to be practiced on wide scale. Lawyers were subjected to detention, torture, cruel treatment, and insults in police stations. These practices also included destruction of their Bar membership cards, preventing lawyers to see their detained clients, raiding their offices and destroying their files, neglecting queries made by lawyers about their illegally detained clients. The report includes a number of cases of the violation of lawyers rights, major among these was forcing a lawyer to shut down his office after destroying it by a policeman. The report concludes with a number of recommendations, mainly among them are 1. That Arab constitutions must include the safeguards of the independence of the judiciary stipulated in international treaties, particularly the United Nations Principles on the Independence of the Judiciary, which stresses the importance of the abolition of all forms of exceptional judiciary. 2. That Arab constitutions must include provisions restricting the power given to the legislature (Arab parliaments) in distributing judicial jurisdiction and deciding the order of courts 3. That Arab constitutions must clearly penalize detention without charge or trial.
This document is published online by Derechos Human Rights