The spread of COVID-19 led governments across the Middle East and North Africa (MENA) region to take remarkable and largely unique preventative and receptive measures. Invoking the exceptional nature of this moment, numerous countries have declared health-related states of emergency that have affected citizen rights in the process. One aspect that is common across the Arab and Muslim nations is a major deficit of the rule of law. Tackling this discrepancy might not avert further conflict, but not doing so will undoubtedly make hostilities more likely (Esmaeili, 2014). In many Middle Eastern countries, weak institutions, vague/broad legislation, privileges, and discrimination mean that social, political, and ethno-religious fault lines are only strengthening (Esmaeili, 2014).

In some places, the Arab Spring has come and gone. In others, it never arrived. Either way, there is limited justice for citizens. Court systems are not clean, impartial, or transparent. Little due process is anticipated or bestowed. What rights exist are suddenly granted. Corruption, including bribery and influence peddling, are rampant (Esmaeili, 2011, p. 332-333). Establishing the rule of law in the Middle East will be the sum of several projects rather than one big-bang job. The international community of multilateral organizations, NGOs, donor governments, and in-country allies must seek to inspire those Arab populations and target those aspects of life, which may act as rule-of-law multipliers (Elgar, 2013).

Courts must be strengthened, and judges need to be trained. Conflict-of-interest legislation and resource management systems are crucial mechanisms to clarify legal rights and facilitate a responsible way of governance. In short, Arab leaders must prioritize governance over government (Klich, 1996). Some scholars blame Islamic political culture for the absence of democratic institutions and the rule of law. For instance, Samuel Huntington argued that “the Islamic concept of politics differs from, and contradicts, the premise of democratic politics.”(Huntington, 1991). Sexism and the role of women in Muslim societies have also been mentioned as justifications for the underdevelopment and failure of civil society institutions in the Middle Eastern nations (Fish, 2002). It should be noted that calls for the rule of law to be created in the Middle East and the rest of the Arab world are becoming more forceful. Nevertheless, attitudes differ regarding the nature of a rule of law system and which model will best serve the transition from totalitarian structures to rule of law systems2 (‘Arafa, 2020).The views vary as to how to administer the transition from tyranny to the rule of law (Esmaeili, 2009)3.

According to the United Nations (UN) Code of Conduct, public officials, including leaders and Heads of State, shall guarantee that they accomplish their obligations and functions competently, creditably, with integrity, and in accordance with legal values and reasonable administrative policies (Durrant, 2008). They shall at all times pursue to confirm that public resources and government funds, for which they are accountable, are managed in the most operative and well-organized way (Clark, 1996; Leys, 1965; Hess; Dunfee, 2000). Additionally, they shall be attentive, fair, and impartial in functioning their tasks, particularly in their relations with the general public, as they shall afford any extreme favored behavior to any group, entity, or individual or improperly discriminate against anybody, or otherwise abuse the power and authority conferred to them, and committing the peddling influence’s crime (Buscaglia, 1999; Cassell; Johnson; Smith, 1997). Therefore, an inclusive attitude to transparency, accountability, and executing a range of responsibilities, activists, democratic, judicial, media, and civil society are invited (Harms,2000; Kennedy, 1999).

In addition, the Organization for Economic Co-operation and Development (OECD) has a long history in front of endorsing good governance and due process. The OECD approved a proposal to advance ethical conduct in the public service that encompasses “Principles for Managing Ethics in the Public Service,” as these norms are intended to be a reference point for state members when merging the fundamentals of an active ethics management system in line with their personal political, managerial, due process, and cultural settings (OECD, 1998)4. Ethical laws and codes of conduct are comprehensively used apparatuses in the common moral values supervisor’s toolbox (Brazil,1999; New Zealand, 1998; United Kingdom, 1998)5. In this regard, ethical codes and rulings are not, of course, adequate implements to verify moral and proper governance, especially to the rule of law and due process guarantees. In 1999, Mike Nelson recites:

By the same token, regarding the evaluating role of the moral and ethical codes in the European Union (EU) countries, Bossaert and Demmke stated:

Whistleblowing laws and performs vary immensely around the World. The United States has normal legal norms that boost and protect people and entities who blow the whistle on those who involve in white-collar crimes, particularly corruption, embezzlement, misappropriation of public funds, fraud, and peddling in influence (power’s abuse) and make sure they have access to the due process (Duncan, 200; Milbank; Brauchli, 1995). Unlike the U.S., India’s anti-corruption laws, for example, do not offer the all-encompassing defense (due process guarantees) for whistleblowers (Johnson; Kraft 1990). Due to some foremost corruption situations and public servants’ misconduct and politicians, citizens are increasingly aware of the prominence of integrity and ethical management (Windsor; Kathleen 2000). Ethical codes of conduct, deterrence (preventative) procedures, whistleblower protection, and other practices of firming the virtuous dimension of politics and management have stretched an unexpected status on the agenda in several countries, especially the MENA region (Banfield, 1975).

Launching and promoting the rule of law, especially due process in the Middle East, has become an essential and complicated issue in the region and internationally. It is an exceptionally complex dilemma given the region’s diversity, history, religion, tribal structures, and the development of modern institutions, mainly since the Arab Spring. Generally, the region is gradually moving towards the rule of law, but most Middle Eastern nations still do not have efficient autonomous and self-governing judicial systems with control over the State and powerful institutions. Notwithstanding the slow and gradual movement towards creating rule of law systems, an active rule of law system is inaccessible in most Arab nations.

Against this succinct backdrop, this article examines theoretical discussions on the concept of the rule of law and due process in the Muslim nations, discusses the causes behind the absence of it in the region by gaming laws, and underscores various perspectives towards the establishment of a practical rule of law and its institutions in the Middle East. It concludes by arguing that due process should be a priority among practitioners/specialists in fighting unethical, unfair behavior and promote a clean litigation manner globally, and mainly in the MENA region, towards a democratic transition.

These actions bear a crucial impact on due process, especially the rights to counsel, habeas corpus, and a fair, impartial trial. Across the region, attorneys and defense lawyers have been forbidden from meeting with their clients, and persons have been kept in confinement (custody) even as pretrial detention hearings have been canceled or cruelly delayed. Courts have also significantly reduced their operations. While some countries have taken measures to reduce these issues, serious, long-term questions surrounding due process remain. As countries continue to respond to the pandemic’s spread, it is vital that governments recognize the domestic and international legal commitments that remain incumbent upon them at this moment (23.

“Gaming” in its numerous forms includes the use of technically legal instruments to undermine the intent of the law to gain advantages over competitors, maximize reported earnings, preserve high credit scores, reap superior personal rewards, preserve access to capital on favorable terms, to name a few(Yingling, 2013). It is one of the most vicious forms of institutional corruption in politics today(Podgor; Borman; Hennning; Israel, 2003). “Institutional corruption” refers to institutionally-sanctioned behavior and relationships that may be legitimate but either harms (Harms, 2000) the public interest or undermines the capacity of an institution to achieve its professed objectives by destabilizing its legitimate procedures and core values (Miller, 2013). The most visible consequence of institutional corruption is diminished public trust in the governance of the institution in question (Miller, 2013). While institutional changes promoting integrity, transparency, and accountability in the state institutions are necessary parts of any litigation affairs strategy, a long‐term social foundation is vital, mainly where judicial corruption is systemic (Johnston, 1998).

Social empowerment, which means expanding and protecting the variety of political and judicial resources and options open to ordinary citizens, is one path to address this task (Yingling; ‘Arafa, 2014). Social empowerment entails reinforcing civil society to enhance its political vitality, providing more orderly methods of access and rules of cooperation between state and society, and escalating legal, political opportunities (Yingling; ‘Arafa, 2014). Development legal policies intended particularly for disempowered people and regions within a country are of unique significance(Cavanagh, 1981; Noone, 2007). It does not involve wholly new remedies, but rather the practical coordination of a range of familiar development and litigation programs (Shihata, 1997). Social empowerment will not entirely eliminate judicial corruption; However, it can provide crucial sustenance for institutional reforms, weaken the combination of bias, discretion, and lack of accountability that creates systemic judicial corruption, and help institutionalize reform for the long term (Shihata, 1997). On the other hand, corruption does not necessarily involve violation of legal rules or principles. Rather, the relevant standards for defining institutional corruption include public interest and procedural standards (Yingling; ‘Arafa, 2014). In this regard, Jack Knight said: “These twin standards show how corrosive institutional corruption can be: it involves both social injury (‘corruption by the institution’), whether illegal or not, and institutional injury (‘corruption of the institution’).”(Knight, 1992; MCmillan; Zoido, 2004).

Persistent institutional corruption – including corruption stemming from gaming the law –certainly shapes democracy, including how Congress, courts, and regulatory agencies monitor and control the administration and government operations(Cavanagh, 1981; Daehler, 1995). This is because few institutions in a democratic society – especially in the public sector – can survive in the long run in the absence of public trust (Wallis, 2005; Lambsdorff, 1998). Thus, gaming and institutional corruption looks like a massive phenomenon. The legislative bodies have various ways to structure and design the law (many of society’s rules) that may foster institutional corruption given the strong temptation for the executive to manipulate the law that impacts due process (Yingling; ‘Arafa, 2014).

These ways may comprise the extensive congressional lobbying by political interest groups seeking to minimize regulatory constraints and preserve opportunities to game or legally subvert the intent of those rules for private personal interest (Miller, 2013). Additionally, the purposeful gaming of society’s rules by politicians and lobbyists is fueled by the short-term decision-making of the executive, whose behavior is often acclimatized and reinforced by perverse incentives embedded in their policies (Banaji, 2012). Furthermore, this theme acknowledges the influence of professional advisors, such as lawyers and legal consultants, as these advisors often support their clients’ gaming of community rules (Banaji, 2012). In this respect, scholars and experts interested in law, public policy, and political philosophy have long been working to develop a set of notions that amply define corruption in public life and its relation to (or impact on) due process(Banaji, 2012).

Professor Dennis Thompson (Thompson, 1036) argued that institutional corruption is “a form of corruption in which an institution or its agents receives a benefit that is directly useful to the institution, and systematically provides a service to the benefactor under conditions that tend to undermine legitimate procedures of the institution.”(Thompson, 2005; Ethics In Congress, 1995). In Thompson (Thompson, 1036)’s paradigm, corruption is defined by institutional behavior that damages an institution’s central, “legitimate” procedures (Thompson, 2005; Ethics In Congress, 1995). Legitimate procedures refer to processes “necessary to protect the institution against interests that undermine its effectiveness in pursuing its primary purposes, and the confidence of the relevant publics that it is doing so.” (Yingling, 2016).Additionally, Professor Lawrence Lessig has also initiated a study of institutional corruption, primarily focused on the public sector. Lessig said,

[t]he seeds of institutional corruption are planted when an entity’s behavior becomes rooted in dependent relationships with outside parties that conflict with the institution’s intended purpose. Institutional corruption also occurs when an organization’s internal “economy of 0 influence”— such as performance measurement and reward systems, and leaders’ directives — leads people to act in ways that compromise that organization’s essential processes, espoused values, and intended purpose (Lessig, 2009).

Lessig’s study of Congress is a prime example of institutional corruption in the public sector. He shows how persistent fundraising, for instance, members of Congress have debased the legislative process, as powerful interests have become increasingly active in “purchasing public policy.”(‘Arafa, 2011) “The corruption of a hard disk on a computer may serve as an illustrative metaphor. If the disk becomes corrupted, the computer will no longer serve its purpose — to reliably store and permit the retrieval of data.” (Lessig, 2021) The analogy’s language of corruption does not point to the blameworthiness of any individual; rather, it emphasizes the implication of loss (or damage to) the data. If the data happens to be the only copy of a first novel or a patient’s medical records, the corruption of the disk will be of great consequence(Farrales, 2005). Institutional corruption in context is clearly intended to do some work in the world by signifying the importance of a particular institution (e.g., judiciary) and the way that institution is operating. It is a call for attention and action (although it does not prescribe the kind of attention or action that should follow). The term is also useful in that it includes issues and concerns that other terms, such as “conflict of interest,” might not (Banfield, 1958; Banfield, 1975; Bayley, 1966).

In contrast to work addressing illegal conduct, it is vital to focus on the socially destructive corruption’s aspects, as it should be noted that the three of four most common forms of trust-destroying public sector behavior; as documented by scholars and practitioners, are: (a) violating norms of fairness; (b) tolerating conflicts of interest, and (c) exploiting cronyism in government/citizen partnerships (social contract) (Turner; Hulme, 1997). Further, another key form of institutional corruption in the public sector is the gaming of the law by politicians, often supported by their external legal and political advisors(Leff, 1964; Leys, 1965). This increasingly ubiquitous behavior is perhaps the least visible variant of institutional corruption and has, therefore, received much less systematic analysis than the first two(Rose-Ackerman, 1999). Hence, the fundamental strategies suggested for curbing gaming and institutional corruption as much more work remains to mitigate such behavior.

This work includes, and should focus on, confronting rulemaking issues, as lobbying and bias in due process is at the center of most rulemaking activities (Arafa, M. 2016). However, in thinking about lobbying remedies that lead to diminished public trust, it is critical to distinguish between lobbying aimed at securing new rules and regulations that place adverse restraints on productive invention and lobbying intended to conserve gaming opportunities (Johnson; Kwak, 2010). Moreover, addressing rule-following (“gaming”) problems in due process should be considered. Potential remedies for the time horizon problem are less scary than those for the rulemaking problem but will also require extreme patience and steady commitment (Koehler, 2012). It is a deep commitment to “quality” objectives, meaning compliance not only with the law and the principles underlying it, but also with ethical ideals that promote public trust(Méon; Sekkat, 2005). When governments and their delegated agents fail to build sustained obligations to such values or neglect to provide clear guidelines for responsible action, they put the institution’s reputation and its very future at risk.(Williamson, 1979.) The key to achieving quality objectives and preserving public trust lies in three organizational commitments: qualitative attention, balanced incentives, and active monitoring.

Qualitative Attention(Andrews, 1989). Through political and legal stories, it is obvious that without persistent attention to the qualitative aspects of individual and group performance, the chances of developing an organizational environment conducive to thoughtful social and ethical deliberation are minimal (Andrews, 1989). For this reason, negotiation and review of personal and legal plans must include attention to the ethical standards, such as the protection of personal integrity and reputation, truth-telling, formal performance management (Andrews, 1989), compliance with the intent of society’s rules and regulations, and a host of other possible goals in addition to whatever standard, quantitative measures the plans may require (Andrews, 1989).

Well-adjusted Incentives and Monitoring (Efficient Auditing). A commitment to the qualitative aspects of organizational performance requires a disciplined approach to incentives. Audits of critical decisions by public officials are as important as internal audits by judicial administration in building a strong organizational commitment to quality objectives and high-performance standards(Salbu, 1999.). Control of litigant affairs and board oversight is essential. Additionally, extensive and expensive documentation of internal controls by management, and an annual review of these controls by outside attorneys or consultants, is required for a practical, robust due process(Iliev, 2010).

As is generally well-known, corruption is a significant and thoughtful deficiency to reducing poverty, accomplishing development regarding due process objectives, and growth evolution. Given that corruption is remarkably ubiquitous in less developed (Third World) countries without a robust tradition of democracy, transparency, and human rights’ respectability, it was not surprising that the former Head of the United Nations Anti-Crime Agency (UNACA) said: “this …uprisings in the Arab world highlighted the anger within societies at this scourge.” Furthermore, the former Executive Director of the United Nations Office on Drugs and Crime (UNODC), Yury Fedotov, declared that: [T]he Arab Spring was “an emphatic rejection of corruption and a cry for integrity,” . . . “At the movement’s center was a deep-seated anger at the poverty and injustice suffered by [e]ntire societies due to systemic corruption.”

One of the most fundamental and important rights that all of us have, “due process,” has been in the news a lot recently. If you are charged with a criminal offense, all the rights that protect you—the right to counsel, the right to remain silent, the right to a jury—all fall under the umbrella of “due process.” It is “due process” that is intended to defend and protect defendants from passion and prejudice (discrimination) and ensure that every person who faces prosecution by the state has the ability to mount a full and complete defense. Due process is enshrined all over the globe within countries’ domestic laws and constitution(s), which provides that no person shall “be deprived of life, liberty, or property, without due process of law.” That includes the right to a speedy and public trial; right to an unbiased tribunal (impartial jury); right to full notice and description of the charges being brought (the grounds for bringing such charges); right to counsel; right to confront and cross-examine adverse witnesses; and the right to have the court compel favorable witnesses to appear. Furthermore, it comprises a right to receive exculpatory (opposing) evidence from prosecutors; right to call witnesses and present evidence; right to make a record that can be reviewed on appeal and have a decision based merely on the evidence presented, and right to review (appeal) of a judge or jury’s decision.

If You Lose Your Rights, You Could Gain Your Freedom: Due process in legal matters has several aspects and nuances, and the practices in which defendants can be deprived of due process are various. When any element of due process is missing during a litigation process, the impartiality, fairness, and constitutionality of the state’s attempt to deprive an individual of their freedom has been negotiated. A defendant whose due process rights have been breached can challenge the prosecution on those grounds and possibly have the charges thrown out. Having an experienced defense lawyer who understands the complexities of litigation and the technicalities of due process and who will forcefully protect your constitutional rights can be of vital importance when you have been charged with a crime.

The key difference between a country of laws and a police state is just this. It is the imposition of an independent individual, a judge, to decide if the police officer got it right. Indeed, because the judge exists, the police officer is more likely to try harder to get it right. However, when persuaded to cheat, people are afraid of getting caught. If the policeman becomes the judge, his power increases massively. Authoritarian regimes follow different processes that ignore the notion that an equally fair process will render a fair and just result. Autocratic systems start with an end result in mind. Then, with that result always in view, a process is used to ensure that the desired outcome is achieved. Any proceeding where the outcome is predetermined is basically a “show trial.” In fact, the proceeding is not genuine or real. It is a dramatic production to accomplish results irrespective of the truth. The easy test is to ask, “Is the matter process-driven or result-driven?” If the matter pursues a set process with no preference for how it will end, then due process is the focus. If the matter has a set result in mind and prefers processes to guarantee that outcome, it lacks the ideal of fundamental due process.

Courts in democratic regimes strive to uphold due process, as they have written rules that apply in every case no matter who files or brings the lawsuit. The rules are instantly available so that everyone can know them in advance. Rules regulate which evidence is admissible, when cases will be heard, when a judge or jury decides a case, how court hearings will be conducted (including when and where to stand), and a myriad of other policies to ensure fairness to both sides. It is anticipated that ample executive, legal, and judicial communities will monitor and follow these strategies along with the political will, hence, contributing to sousing the firestorms of political corruption, especially the judicial one. The struggle should be stopped at this point. This ambition would be fulfilled through abandoning neoliberal prescriptions and putting realistic, reasonable, and robust legal policies into play. As the proverb said, “Bees that have honey in their mouths have stings in their tails ,and honey is sweet, but bees sting . . .!”