The Rule of Law in the Middle East and the Islamic World: Human Rights and the Judicial Process (review)

This very loosely edited collection was organized before the momentous events of 2003, events which may mean a dramatically different environment for the development of the rule of law and human rights in the Middle East. Nonetheless, many of the issues covered in the book will remain relevant as part of the background against which new questions will be arising.

The book is comprised of a collection of public lectures that were presented at the School of Oriental and African Studies in London, some of which have been developed into scholarly chapters with footnotes and others of which remain at the stage of lecture notes, some apparently casually assembled, and lacking in any documentation. The chapters have little in common aside from their relationship to the venue in which the lectures were delivered. Varying considerably in the degree to which they actually address rule of law issues or touch on questions of human rights, they range in character from critical analysis, to succinct descriptions and catalogues of facts, to expressions of personal opinions. Despite the title, only a few countries are examined, and the emphasis is on Israel and Palestine and Egypt. No index has been afforded.

The most elaborately documented chapters are the two on Egypt by Adel Omar Sherif and Kilian Bälz and the one on the Fourth Geneva Convention and the Middle East peace process by Lynn Welchman. ¹ In the longest chapter in the book and one that should be of great interest to students of comparative constitutionalism, Sherif elegantly dissects the significance of numerous major constitutional decisions made by Egypt's Supreme Constitutional Court over nineteen years. ² Unlike some of the other contributors, Sherif does focus on issues of high relevance for human rights and the rule of law, affording the reader a chance to learn how Egypt's Constitutional Court exercises judicial review and how it has resolved rights controversies in areas such as freedom of association, equal protection, criminal procedure, freedom of speech, and the rights to privacy, private property, and education. ³ Bälz thoughtfully discusses judicial decisions wrestling with whether banning the practice that is sometimes called "female circumcision" violates the Egyptian Constitution or Islamic law. ⁴ Welchman offers a critical appraisal of European Union policy with regard to the Middle East peace process and argues that respect for the Fourth Geneva Convention ⁵ was subordinated to political imperatives during the peace process, meaning setbacks for the rule of law. ⁶

Martin Lau's scholarly chapter on how Islamization has affected the rule of law in Pakistan includes perceptive evaluations of developments since the era of Zia-ul-Haq and a critical appraisal of the ominous politicization of Pakistan's higher courts. ⁷ Curiously, Lau has chosen to ignore the shocking ruling by the Pakistani Supreme Court in Zaheeruddin v. State, ⁸ in which the court referred to what it called "the Injunctions of Islam" to approve laws that treated the Ahmadi religious minority as criminals. This omission could explain his claim that the Pakistani courts' "creative interpretation of Islamic law" has expanded "the scope of fundamental rights." ⁹ In reality, in Zaheeruddin, the reference to Islam led to a negation of freedom of religion.

June Ray offers tough-minded, critical comparisons of how politicized military justice and recourse to torture have undermined the rule of law in Israel and Egypt and have distanced both from the principles set forth in the Convention Against Torture. ¹⁰ In contrast, certain chapters seem to prefer the route of steering around awkward points and controversial issues. Thus, Mahmoud Samy Gamal El-Din's chapter, ostensibly on Kuwaiti democracy, avoids discussion of the salient fact that only about 140,000 men out...