Justice in the Middle East
Mohamed Morsi, the Egyptian president who was elected with 52 percent of the popular vote, was toppled by a military coup and has now been sentenced to death by one court and to life imprisonment by another.
In April 2014, the number of pro-Morsi defendants who were sentenced to death reached 683; it is as if it is not a courthouse but a slaughterhouse.
Eyes have turned to the West as to what kind of a reaction it will show. Will the West, which has not reacted adequately to the military coup and the previous death sentences, react properly this time? I think, despite everything, that Egypt will not be able to undertake the horrible shame of carrying out the death sentences.
But while rightly criticizing the West, all Muslims, especially fiqh (Islamic Law) experts, should ask themselves these questions:
1) Why is the reaction expected from the West not expected from the Islamic world?
2) Is there an institutionalized culture in the Islamic world featuring the separation of powers and the independence of the judiciary?
The answer to the questions is that the cultures of the separation of powers and individual freedoms have not been developed in the Islamic world. For this reason, be it Islamic or secular, all regimes are authoritarian – the dominant culture is the “union of powers.” Justice is not a separate power; it is an organ of the political power. Which judge could have ever escaped the rage of Gamal Abdel Nasser or the al-Assads?
In the Middle East, blood is shed and lives are lost for ideologies, sects and clans, but a principle such as the “separation of powers” that could be the foundation of both justice and peace does not excite anyone.
Today in Egypt, we do not hear anything about the concept of the “separation of powers” from those who are rightly protesting the cruelty exerted against the Muslim Brotherhood. In 1977, when Islamist general Muhammad Zia ul-Haq toppled elected Prime Minister Zulfikar Ali Bhutto and executed him, none of the Islamists reacted; actually reaction was expected again from the West.
In Turkey, “the union of powers” has been among the main principles of the republic for many years and such a culture in justice has developed. Still, we do not have a settled mentality of the separation of powers. If there were, then would there be any of those “jigsaw puzzle” laws? Would justice bend this way and that way according to governments?
In the November 2012 constitution written by Morsi’s administration, the separation of powers was present but arrangements for the independence of the courts and the legal guarantee for judges were weak. The January 2014 constitution of the military regime is similar.
The fact that there is no legal culture about the independence of the judiciary is a much bigger problem than the articles in the constitution. Here are only a few sentences from the long article of Egyptian legal expert Karim el-Chazli, Ph.D. from Sorbonne University, in which he criticized the 2014 constitution.
“The most prominent example of this tendency is Article 193, which gives absolute power to the Supreme Constitutional Court in choosing its members… Absolute power for any authority is entirely corruptive. The constitution gives numerous powers to the judiciary without giving any guarantee of the good use of these powers. On the other hand, the constitution lacks clear standards for choosing judges, which leads, in reality, to nepotism… A quarter of those who were appointed judges in 2013 were sons of judges, and this high proportion does not include relatives of judges, such as nephews and relations by marriage.”
Moreover, sometimes political connections are more destructive than such nepotism.
Such a justice would evolve to serve whoever is in power. All the decisions that have been made about Morsi and friends have been ordered from above and dipped in the sauce of a court; they are actually political discharge decisions.
Turkey is more advanced than Egypt but in our country as well, the judiciary changes sides according to the political power, unfortunately bending this way or that way.
Unless the superiority of law over politics becomes an adopted culture, not only in national income listings, but also in human development scales, climbing upwards will be difficult.