“We have entered a new era for human rights in Arabic legal systems”

Samia“Even though most of the Arab countries are characterised by their delayed ratification of human rights agreements, their main goal is to enable citizens to enjoy all their rights and freedoms. After the so called Arab-Spring we have entered a new era for human rights in the legal systems of the Arab countries.”

Ms Samia Bourouba, Associate Professor at the Higher School of Magistracy in Algeria, head author of the specialised study Jurisprudence in the Application of Human Rights in Arab Courts, interviewed by Rhodri Williams, ILAC Programme Manager. 

Dear Ms Bourouba, many thanks for agreeing to be interviewed! You are the primary author of a comprehensive study on the use of human rights rules by courts in five Arab countries. While the book arose out of cooperation between the judicial training institutes of these five countries, in a project supported by the Raoul Wallenberg Institute, it is clearly meant to have an impact beyond the project. What did you set out to achieve in writing this book?
– This book is an output of the cooperation project between the judicial institutes of five Arab countries supervised by the Raoul Wallenberg Institute, and responds to a basic goal which is the review of judicial practices with regard to using human rights rules as stipulated in the international agreements ratified by these countries, and is an attempt to shed light on the interaction between human rights criteria and the courts that seem to receive these rules positively. The direct impact is creating a tool that the courts can draw from when enforcing human rights rules that is in many cases not available for various reasons.

One of the assumptions behind the book is that it is possible to generalise about Arab courts and legal systems. If you had to explain to a lay-person, how would you characterise the main commonalities between the legal systems of the Arab countries of the Middle East and North Africa? What implications do these common features have in relation to human rights in these countries?
– The Arab countries are characterised by their delayed ratification of human rights agreements, with the exception of some. However, they have attempted to correct the situation through compliance, relatively recently. This trend was accompanied by reservations and interpretation announcements that are mostly related to the same provisions of the agreement. Additionally, although these countries apply the law, they mostly draw from the Islamic Sharia provisions when the matter relates to personal status laws. There may appear to be a contradiction between the two systems, however the courts tend to apply human rights criteria by adopting the compromising interpretation, because the main goal is to enable citizens to enjoy all their rights and freedoms. There are examples that clearly highlight this in many of the judicial precedents in the book.

In looking at the application of human rights rules by courts in Arab countries, do you see a significant difference since the “Arab Uprisings” that began in late 2010? Do you see further changes or trends in Arab jurisprudence on human rights that are likely in the future?
– The so-called Arab Spring which reflects the aspirations of the citizens and peoples in the region led to increasing demands for entrenching human rights principles and empowering individuals through means that guarantee the protection of these rights. This was reflected in the judicial practices that implement human rights principles in a more responsive way to these demands. The book has examples of decisions issued in this regard, and is the best evidence of the role of the courts in ensuring equality for citizens. I believe we have entered a new era where international human rights rules constitute a part of the legal system of the Arab countries without any doubt, with regard to the acceptance of these criteria by the precedents and the judiciary.

One of the key human rights and development issues in the MENA region is gender equality. What has role of courts been in helping to bring gender equality about? What would you say (in general) are the most important remaining obstacles to women’s equal participation in society and how can courts help to overcome them?
– The issue of gender is a main issue that continues to raise a host of problems in the region, in varying degrees of severity. Some countries have come a long way in adopting some laws that entrench equality, and there are others that are moving in this direction. The judiciary has given these provisions the impact aspired for them, by reaffirming the principles of equality and non-discrimination. The book included judicial precedents highlighting the effective role of the courts in ensuring the full impact of equality, even in sensitive areas such as personal status laws. Although the legal system entrenches equal participation by women, the mentality remains the main obstacle in enforcing these legal provisions. Here the judiciary, as an independent authority, will play a pivotal role in overcoming this obstacle through the positive interpretation of the provisions applied.

Many countries in the MENA region are currently re-working their constitutional frameworks. You devote the first section of your book to looking at how human rights have been incorporated into Arab Constitutions. Can you comment on what historical trends you see in terms of the way in which universal human rights rules are expressed and applied through Arab constitutions? Will the new wave of constitutions, in your opinion, lead to more effective protection of human rights?– Every constitution reflects the country for which it was drafted, entrenching its sovereignty, identity and specificity. The study allowed a comprehensive study of Arab constitutions that revealed they entrenched various rights and freedoms recognized at the international level. It is clear that the constitutional movement in these countries currently will build on what is existent, and will attempt to fill the gaps especially in terms of clarifying the standing of human rights agreements within the legal system of the countries that have not done so. This movement will also lead to the establishment and enhancement of institutional mechanisms, whether courts or constitutional councils, in addition to giving the courts the ability to protect the individuals from violations that may undermine their rights. The effectiveness of this new wave is subject to political will and its reflection on the appropriate legal system, as the constitution goes beyond being only a foundation but rather symbolically expresses society’s values.

Are there any other issues you feel would be of interest to readers of your report?
– It is essential that citizens are aware of their rights and the protection accorded to them, and the courts should not spare any efforts in the enforcement and protection of all types of rights within the framework of the rule of law.

Ms Samia Bourouba was one of the Key Note speakers at the RWI launch in Amman 26 May, where she made a presentation on the specialised study Jurisprudence in the Application of Human Rights in Arab Courts. The study is a result from the cooperation between a number of Arab judicial institutes in the MENA region from Algeria, Morocco, Jordan, Iraq, and Palestine, and was published by the Raul Wallenberg Institute earlier this year. 


An arabic version of the study can be found here