around the bar
February 5, 2013

Judicial Independence in Egypt and MENA Region Topic of Dallas Symposium

The growing unrest in Egypt has led to a considerable decline of support from the United States and other nations. While a forthcoming symposium was initially designed to encourage business in the Middle East and North African nations — as Southern Methodist University’s Dedman School of Law Dean John Attanasio explained it, “Lawyers are cheerleaders of commerce” — it will now serve in part to call attention to the grave threat to the rule of law. In the absence of such, the legal profession, government and business will “vote with their feet,” emphasized constitutional expert Attanasio. Investments are not secure; and when there’s no viable court system, it’s hard to enforce laws and agreements such as arbitration.

Current events in the MENA nations and what they mean globally will be the focus of the day-long conference “The Arab Spring: Doing Business and the Rule of Law.” The Feb. 7 session, to be held at SMU Dedman School of Law in Dallas, features judges from MENA, as well as lawyers conducting business in the area, constitutional experts and governmental officials. The program is co-sponsored by the _ Section of International Law and SMU’s Dedman School of Law.

While the popular uprisings of the “Arab Spring” offered so much initial promise, the MENA region continues to face incredible turmoil and uncertainty. One of the earliest Arab Spring nations and the largest country in the region, Egypt is at a critical juncture not only for its own future but also for the future of the region.

Attanasio will moderate the opening session, “Judicial Independence and the Rule of Law,” which will feature Deputy Chief Justice of the Supreme Constitutional Court of Egypt Adel Omar Sherif and Chairwoman of the Tunisian Magistrates Raoudha Labidi.

The challenges to an independent judiciary in Egypt are many, with recent developments vis-à-vis the Supreme Constitutional Court one of the biggest threats, Attanasio said. The main resistance to the newly adopted Egyptian Constitution and President Mohamed Morsi is the Constitutional Court, and it remains a point of attack for the new regime. The court, as Attanasio said, is “the final bulwark of the protection of the rule of law” in that nation.

Several members of the judiciary have already been “released,” with Morsi purportedly considering removing additional ones by lowering the retirement age. Additionally, Morsi has, as Attanasio explained, “very close to absolute authority to select the justices” under the new constitution. And therein lies the need to eliminate the current judges.

The Muslim Brotherhood, which controls the Parliament, has significant powers over ethical rules of judges, and can — if the Parliament sees fits – manipulate those rules to get rid of judges under whatever guise it chooses. Further, Al-Azhar University, center of Islamic learning in Cairo, was bestowed new powers under the constitution, giving the university protections nearly akin to judicial immunity. As Attanasio said, “One wonders whether final legal authority is moving away from the Constitutional Court to Al-Azhar.”

There is a lack of public support for the new constitution. According to Attanasio, less than 33 percent of the electorate voted in the constitutional referendum, with less than 64 percent of those voting in support of it. And opposition parties are not well organized, paving the way for the Muslim Brotherhood to continue to implement its policies.

Other MENA nations are faring far better than Egypt. For example, Tunisia’s tourism, while certainly not at full steam, is starting to rebound. Its constitutional development has been much more secular than that of Egypt, Attanasio added.

Additional conference programs are: “Energy and the Middle East/North Africa,” “Doing Business in MENA and the Rules of Law” and “Dispute Resolution and the Rule of Law.” Former U.S. Sen. Kay Bailey Hutchison (Texas) will offer a luncheon keynote address.