Rule of Law: an elusive panacea - Frank Richardson

The BRIC and Middle East economies increasingly command respect on the global stage, yet rule of law remains elusive. As the Arab world’s popular uprisings suggest epoch-making change, IBA Global Insight assesses the challenges of building lasting and effective rule of law.

If the December sentencing of jailed Russian oil tycoon Mikhail Khodorkovsky to six more years in prison wasn’t enough to highlight the increasingly central place of the rule of law in world affairs, ‘the Arab awakening’, coming hard on its heels, certainly has. The self-immolation of Mohamed Bouazizi in Tunisia, after police seized the vegetable stall from which he earned a meagre living, has ignited uprisings in Tunisia, Egypt, Bahrain, Libya and numerous other Arab states. They derive, in large part, from decades of being denied the rule of law and frustration among populations over official corruption, human rights abuses and economic mismanagement.

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Such pressures forced 82-year-old President Mubarak of Egypt to step down on 11 February, after 30 years in power (See box: Egypt – two-and-a-half millennia under hegemony). Despite his pretensions to democracy, he’d amended his country’s constitution with the aim of emasculating any real opposition. Mubarak had repeatedly extended the state of emergency, cracked down harshly on demonstrators and defied judges who were calling for the judiciary to operate independently. Indeed, the IBA’s Human Rights Institute (IBAHRI) carried out training for Egyptian judges in 2007 and 2008, based on the principles outlined by the UN International Bar Covenant on Civil and Political Rights (ICCPR).

In reference to recent events in Egypt and beyond, Justice Richard Goldstone, Co-Chair of the IBA Rule of Law Action Group, says, ‘The Rule of Law Action Group [is] dedicated to advancing the rule of law.’ He adds: ‘There is a natural yearning in most people on all continents for freedom and equality. Nowhere has this been demonstrated more dramatically and impressively than in recent weeks in Tunisia and Egypt. The aftershocks of those democratic movements are still reverberating around the Middle East. They should be welcomed, nurtured and supported by all peace-loving people.’

However, there are widespread concerns that the toppling of Mubarak could lead to a domino effect similar to Eastern Europe in 1989 with the end of the Soviet Union and the Warsaw Pact. This could upset current regional stability and bring about the rise of fundamentalist Islamic groups. Indeed, Silvan Shalom, Vice Prime Minister of Israel, overtly opposes the establishment of democracy in Egypt, on the basis that it ‘could have dire consequences’.

The US and UK justified its invasion of Iraq in 2003, on the basis that it would help confer liberty on an oppressed people. Unlike in Egypt, the change was not domestically driven and the death toll has been immense. The US military had a rule of law building programme which involved dispatching US judicial experts, with little knowledge of Iraqi culture and even less experience in the Arab world, to advise on the hasty reconstruction of an Iraqi legal system that lay in ruins. Responding to the abject failure of the rule of law that followed, US observers concluded, with classic understatement, that a far greater emphasis on strengthening the rule of law should have preceded the nation-rebuilding project.

This was despite the UN General Assembly acknowledging in 1993 that the rule of law was critical to both the upholding of human rights and peace-building, and later duly incorporating rule of law programming into its peace-building missions in Kosovo, East Timor, Haiti, Liberia, Afghanistan, Ivory Coast, Burundi, the Democratic Republic of the Congo and Sudan. Further emphasis was added in 2008, when the Commission on Legal Empowerment of the Poor – ‘the first global initiative to focus specifically on the link between exclusion, poverty and law,’ and backed by more than 20 world leaders, including Madeleine Albright and Hernando de Soto – highlighted the strong relationship between poverty and the rule of law. It boldly claimed that the only way to eliminate poverty was by creating a framework of laws and institutions that provide real protection and opportunity for everyone. Despite an apparent global consensus on the importance of the rule of law, it remains cripplingly elusive to those living in poverty. Some four billion people are estimated to be living in regimes that lack rule of law.

 

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The enormity of the task

Today there is considerable enthusiasm, even missionary zeal, on the part of political leaders in various parts of the world for building the rule of law. This passion has been fuelled by globalisation, but has yet to achieve lasting results. Despite the best of intentions, copious amounts of money and, seemingly, the best advice available, rule of law building by prominent players in the field – such as the World Bank, the IMF, the regional banks and USAID – has seldom produced stable democracy, long-term economic growth and the rule of law.

In post-conflict situations such as Iraq, the precarious task of reinstating law and order on the ground begins on the toppling of a government or the signing of a peace treaty. Aware of the dire need and, following a visit to Iraq by the International Legal Assistance Consortium (ILAC) in 2003, the IBAHRI commenced a series of programmes in 2004, providing training in international human rights and international humanitarian law for over 800 Iraqi judges, prosecutors and defence lawyers. At the time, Mark Ellis, IBA Executive Director, emphasised that: ‘a stable and independent legal system is fundamental to the entire process of rebuilding the Iraqi nation.’ The legal training in international humanitarian law was attended by judges and prosecutors who could well be involved in the conduct of trials relating to crimes against humanity, war crimes and genocide in Iraq’s criminal courts.

Nevertheless, success is far from guaranteed. On average, 39 per cent of states emerging from conflict return to conflict in the first five years, another 32 per cent return to conflict in the following five years, according to the World Bank Report, ‘Rule of Law Reform in Post Conflict Countries – operational initiatives and lessons learnt’. In the aftermath of war, the courts, prisons, judges, police, legal community, parliament and the media are all likely to have been compromised or be in disarray. Undisciplined and disgruntled armed militias or army units may be roaming the country subjecting a still traumatised population to their will through violence or the threat of it. The task of taking the country from a culture of violence and impunity, to one of societal healing, accountability and redress for serious crimes and human rights violations should not be underestimated. The greatest opposition comes from those who have thrived under the previous regime and fear both losing their privileged position and being made accountable for deeds that, in a society in which the rule of law prevails, would be considered criminal.


‘There is a natural yearning in most people on all continents for freedom and equality. Nowhere has this been demonstrated more dramatically and impressively than in recent weeks in Tunisia and Egypt’
Justice Richard Goldstone
Co-Chair of the IBA Rule of Law Action Group

As in present-day Iraq, the US’s Law and Development effort of the 1960s and early 1970s aimed to reform the judicial and legal systems of various developing countries. It, too, was deemed a failure, even by its main supporters, on the grounds that local ownership of the projects was absent, it was focused on the formal legal system to the detriment of traditional and informal mechanisms and was premised on the belief that the American legal system could be transplanted into developing countries.

Although law reform in developing countries has evolved, it is clear that it still remains a long way from anything approaching an exact science. Too many leaders in the former Soviet Union, Latin America, sub-Saharan Africa and much of the rest of the developing world are willing to pay lip-service to the rule of law, before lapsing back into dispensing with it when it becomes a threat to their grip on power. As a consequence, it is not just Iraq that is being convulsed as attempts are made to cajole and coax societies out of tyranny exerted through the rule by law to adopting the rule of law, something altogether different.

Many espouse the imperative to spread and effect the rule of law. But, lack of consensus on how best to tackle this daunting and complex challenge has often been compounded by disagreement as to both the role the rule of law plays in promoting development and what, exactly, it entails. In an attempt to fill this void the IBA adopted the following definition in 2009: ‘An independent, impartial judiciary; the presumption of innocence; the right to a fair and public trial without undue delay; a rational and proportionate approach to punishment; a strong and independent legal profession; strict protection of confidential communications between lawyer and client; equality of all before the law; these are all fundamental principles of the rule of law. Accordingly, arbitrary arrests; secret trials; indefinite detention without trial; cruel or degrading treatment or punishment; intimidation or corruption in the electoral process, are all unacceptable. The rule of law is the foundation of a civilised society. It establishes a transparent process accessible and equal to all. It ensures adherence to principles that both liberate and protect’. Mark Ellis points out that the term ‘the rule of law’ is often misused and that, to regain its meaning, there needs to be a paradigm shift to take it ‘beyond the formal definition’. He says, ‘A country that fails to protect non-derogable rights within the human rights framework cannot be designated as a country upholding the rule of law. This actually sharpens the definition of what it means to be a country based on the rule of law.’

 

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Not the preserve of the West

Russia: Mikhail Khodorkovsky

The IBAHRI is the only organisation to have had a full-time observer based in Moscow attending all sessions in the second trial of Mikhail Khodorkovsky. After months of hearings, proceedings completed on 2 November 2010 and the judgment was given at the end of December: Khodorkovsky was convicted. The IBAHRI report will be released after the completion of appeal proceedings in 2011.

Mikhail Khodorkovsky was the founder and former Chief Executive of Yukos Oil Company. He was convicted in 2005, under controversial circumstances, of fraud and tax evasion and was sentenced to eight years in prison. He served several years in the Krasnokamensk prison camp in Chita, Eastern Siberia. In February 2007, he was charged with embezzlement and money laundering. He was then moved to Moscow’s Matrosskaya Tishina prison for the duration of the second trial and he remains in detention. Proceedings were completed in November 2010 after 20 months of evidence, testimony and arguments.

Its current vogue may give the impression that the general concept of the rule of law is exclusively modern. However, it was as early as the 4th century BCE (before common era) that Plato enthused: ‘if law is the master of the government and the government is its slave, then the situation is full of promise and men enjoy all the blessings that the gods shower on a state’. Nor is the concept in any way exclusively European. In the third century BCE, one of Chinese philosopher Han Fei Zi’s three principles of governance was that laws, as opposed to rulers, should rule. Despite our current perceptions of countries, like Iraq, with majority Islamic populations, prior to the 12th century not even the caliph was deemed to be above Islamic law. Professor David Mednicoff of the University of Massachusetts Amherst explains. ‘Due to the influence of Islamic legal ideals and development, the rule of law exists as a political touchstone in Arab societies in a manner similar to its status in the United States.’ There are, of course, vast cultural and legal differences between Islamic law and Western secular systems, with the former predicated on God ruling directly through the medium of the Qur’an.

In recognising these different legal traditions, Mark Ellis considers a formal conception of the rule of law may be difficult to embrace in the Middle East. ‘Nevertheless, there is much common ground,’ he says. ‘The rule of law is about the pre-eminence of concepts and principles that transcend different cultures and legal systems, and there are scholars who consider the foundation for this is already there in the Middle East. On the other hand, there are some human rights principles that can be viewed as derogable and more flexible. This is important, because it allows countries to look at certain issues based on its own cultural differences and background.’ Even within Europe there are significant practical differences between the common and civil law traditions. Such differences need to be acknowledged and understood to better appreciate how the rule of law takes effect, so as to avoid vain attempts to transplant legal systems into inappropriate environments.

Indeed, judicial systems in developing countries may be little more than that: a culturally inappropriate transplant from a former imperial power that was aimed at keeping the native population in check.

Where one country has been dominated by another, its legal system inevitably reflects this. Thus, rather than the rule of law, it is often a system of rule by law that is bequeathed to states on gaining their independence. This is the case throughout Africa and the former Warsaw Pact. In the Democratic Republic of Congo, for example, Patrice Lumumba, the country’s first legally elected prime minister, advocated the full revision of the colonial legal system and its laws, stating in his Independence Day speech,

‘We [the Congolese people] have had our lands despoiled under the terms of what was supposedly the law of the land but was only a recognition of the right of the strongest… We are [now] going to see to it that the soil of our country really benefits its children. We are going to review all the old laws and make new ones that will be just and noble.’

A few weeks later he was deposed and murdered.

Moving from systemic rule by law imposed by a foreign power, to rule of law, domestically driven, is a tall order, fraught with challenges. The power vacuum left when a foreign power withdraws will often be filled by an aspiring elite that collaborated with the former imperial master. Such a coterie will be anxious to maintain a position of privilege, not only to continue to enjoy life in the manner to which it has become accustomed, but also to cover its back. President Alexander Grigoryevich Lukashenko of Belarus is a former officer in the Russian army and the only deputy of the Belarusian parliament who voted against ratification of the December 1991 agreement dissolving the Soviet Union. Lukashenko ensures his re-election by appointing his supporters as voting station staff and election monitors. Lukashenko has a counterpart in Central Asia: President Nursultan Abishuly Nazarbayev of Kazakhstan, a former Chairman of the Council of Ministers and First Secretary of the Communist Party of Kazakhstan during the Soviet era. Where throwing off the yoke of a foreign power has been effected by a war of independence as, for example, happened in Indonesia, the kudos, stature and resources acquired by the country’s military, coupled in some cases with naive faith in benevolent dictators, is likely to even further entrench rule by law, making the transition to the rule of law that much harder.

Professor Barry R Weingast of Stanford University, believes that understanding how societies bring violence under control is key to success in establishing rule of law. In ‘natural societies’ that have historically been the most common social order, violence is curbed by a finely balanced mollification of powerful individuals and factions through the granting of rights and privileges, even if this favouritism does hinder long-term development. In marked contrast to this are ‘open access orders’ of the modern developed world. These appear to control dissent, opposition and violence through competitive open access to organisations and institutions, founded on a more meritocratic and egalitarian theory of justice, conducive to adaptability and economic growth.

The finely balanced peace of natural societies – built on grace and favour, personality cults, the divine right to rule and so on – is personal in nature. Open access orders are far more inclusive and impersonal. This makes for greater societal stability, contrasting with the volatility of natural societies, which are more easily convulsed by climatic shocks, demographic and technological change, military intervention and so on, and may lead to a descent into armed conflict, as seen in the former Yugoslavia, Rwanda, Somalia, Chad, Iraq, Mozambique and Sudan. Mature natural states, such as modern day India, Brazil, Argentina and Mexico, on the other hand, have a far more developed meritocratic private sector, have a greater resilience to change and tend to generate more wealth.

 

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Putting down dissent

Emerging economies, such as Mexico, Indonesia and Russia – with their judiciaries, general elections, political parties and markets – appear to be open access orders, but lack inclusiveness, competition and perpetuity. The last of these is the aspect of the rule of law that is critical, but often neglected, and without which there can be no certainty of the law, no equality before the law and no absence of arbitrary abuse. The inability to bind successor regimes to the rules and institutions that currently prevail is, says Weingast, ‘a fundamental barrier to establishing the rule of law. No matter how attractive are today’s institutions or rights, they are no good in the long-term if tomorrow’s regime can alter them at will. This issue is intimately tied to the issue of creating a perpetually lived state, a state whose characteristics and institutions do not depend on the identity of leaders or dominant coalition’.

Perpetuity is a fundamental issue in Russia. Wanting Russia to join the Council of Europe, former President Vladimir Putin – who came to office in 2000 – initiated some important and positive changes to Russia’s criminal procedure. Yet, as early as 2005, the IBA expressed its concern about the Russian Government’s power over judicial appointments and other issues of judicial independence. Moreover, emboldened by his country’s gas and oil bonanza and responding to the demands of his military campaign in Chechnya, prior to elections in 2007/2008, Putin cracked down on civil society, freedom of the press and what he regarded as troubling individuals, such as Mikhail Khodorkovsky (see box). Russian reporters writing about Chechnya, organised crime, state officials and big business have been killed, while hundreds of others were indicted on various criminal charges. Russia’s current president, Dmitri Medvedev, a former law professor, who also pledged his commitment to the rule of law appears, nevertheless, to be restricting openness in much the same vein. Just as the Russian ministry of justice prepares more far-reaching proposals for judicial reform, public information on the activities of the courts has been so severely restricted, court reporters now complain that an essential anti-corruption element in the system has been removed.


‘Due to the influence of Islamic legal ideals and development, the rule of law exists as a political touchstone in Arab societies in a manner similar to its status in the United States’
Professor David Mednicoff
University of Massachusetts Amherst

Targeting the judiciary in natural states is nothing new, as was evidenced by the likes of former President Pervez Musharraf in Pakistan, whose refusal to bow to judicial authority in 2007 led to the removal of some 60 per cent of the country’s judges. Similarly, when, in June, 1975, Justice Jagmohan Lal Sinha of the Allahabad High Court in India, nullified Prime Minister Indira Gandhi’s election victory because of irregularities and banned her from standing in an election for six years, she responded by declaring a State of Emergency, which continued until March 1977.

Mature natural states such as Argentina, Brazil, Chile, Indonesia and India appear to foster the rule of law. But, beneath the veneers it is perfectly possible that constitutions are being subverted, corruption is rampant, government abuse is pervasive and civic rights – such as freedom of speech and the press that help reinforce the rule of law – are undermined. In Indonesia, for example, the police force is seen as the country’s most corrupt agency, a reputation that has only been compounded by its recent battle with the Corruption Eradication Committee, in which it is alleged the police force fabricated evidence as it jockeyed for power and impunity. Accordingly, democratic control of both the police and the military is one precondition that is vital in making the transition to an open access order and the rule of law. It is not at all unusual in such countries for the judiciary, police force and public prosecution service to have been in thrall to an autocratic natural state regime, such that concepts of equality before the law and serving the public are so entirely alien that corruption compromises principles of justice where political intervention once did.

In Africa, octogenarian presidents appear blasé about subverting the constitutions of their natural states – former president Hosni Mubarak of Egypt, having been just one example. Another is President Wade of Senegal who, although having backed an amendment to his country’s constitution restricting a president’s tenure to just two terms has, nevertheless, expressed his intention to run for a third presidential term in 2012, when he will be 86, and during which he is likely to continue to groom one of his children to succeed him. In his bid to hang onto power, he has also conferred on himself the right to dissolve parliament, had a former prime minister arrested, jailed journalists and is increasing his control over state media. Similarly, after 23 years in power, President Robert Mugabe of Zimbabwe, probably the most infamous of the octogenarians, has attempted to legitimise his three-decade grip on power through elections; but these are reportedly subject to vote-rigging and extreme violence.

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Not amendable to the rule of law

Reformers ‘seek to transplant a subset of open access institutions into natural states without understanding why natural states systematically differ from open access orders’. As a result, suggests Weingast, not only do the reforms fail because of the absence of perpetuity, but also, because the dismantling of the natural state’s systems for accommodating conflicting factions is seen as a serious threat to the peace, it heightens resistance to reform. Weingast concludes that the transplanting of rights, rules and institutions from open access orders into natural states is unlikely to work while the basic structure of the latter remains unaltered. A transitional period of structural change must be undertaken. ‘Although natural states have existed for 10,000 years, only a little over two dozen states have succeeded in this transformation, with most clustered in Europe’, says Weingast. However, more optimistically, Justice Goldstone says, ‘Apart from the traditional democracies of the western hemisphere there are a number of developing nations that have joined their ‘club’. In Africa they include, South Africa, Botswana and Ghana and there is a good prospect that Egypt under a new constitution about to be fashioned will also be numbered among them.’

The World Bank has acknowledged the challenges of establishing rule of law programmes, and suggested solutions. Lack of expertise to bring about legal change in developing and post-conflict countries, compounded by an inadequate evaluation of programmes, is one of the reasons the Bank cites. Progress is also hampered by an emphasis on the provision of, what often turn out to be empty institutional shells lacking the personnel with integrity and values who are able to understand and enforce legislation, while upholding rights. Because it can take considerable time to train judges and build judicial capacity, the easier and more tangible option of constructing buildings and equipping becomes the focus for donors. Programmes need to address pressing issues that are most likely to reap results, such as why judges continue to be corrupt, inconsistent and biased.

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Holistic engagement

However, the World Bank suggests that the most likely way to generate solutions is through holistic engagement. Establishing rule of law requires deep societal changes, but these can only be effected if the population comprehends them, assents to them, and is instrumental in implementing them. For this reason, the technically driven approach of lawyers who aspire to mimic Western systems is deemed unlikely to succeed, particularly where the local social dynamics are ignored. Political pressure for reform from local players imbued with certain ethics and beliefs in their role in society is viewed as essential if reform is to be effective and sustainable. Thus, key stakeholders, such as NGOs, the business and legal community – indeed, civil society in general – as well as the authorities, must be seen to embrace the outcomes sought. Such thinking informed the IBAHRI’s approach to establishing an independent bar association in Afghanistan. Phillip Tahmindjis, Co-Director of the IBAHRI, explains that: ‘Creating a sustainable bar association in Afghanistan has been a matter of winning hearts and minds and ensuring local ownership of the project through consultation with and input from lawyers, NGOs and government departments. It is important that it is not seen as foreign.’

Likewise, particularly with the Arab world in a state of flux, the process of designing a new constitution should be seen as an opportunity to negotiate divisive issues and bring factions together to determine a future vision for the state. An inclusive and participatory national dialogue of this type adds legitimacy and local ownership and is more likely to result in a democratic constitution. The role of the media in this process, through consensus building, facilitating dialogue changing expectations and norms, and making public the abuses of those in power, can go a long way to helping are reinforce the rule of law. Key to societal transformations of this type is time, commitment and inclusivity, as well as a thorough understanding of and sensitivity to the history, culture and social dynamics of the country concerned. The quick, top-down, externally-imposed fix can never be a viable option.

 

Timeline: Egypt – two-and-a-half millennia under hegemony

343 BC: defeat of King Nectanebo II by the Persians brings an end to the native, Pharaoh dynasty and subjects Egypt to Greek, Roman, Byzantine, Muslim, Mamluk and Ottoman suzerainty.

1798: following French invasion, Muhammad Ali, commander of the Albanian regiment and a moderniser, establishes a dynasty that rules until the revolution in 1952.

1869: The Suez Canal, completed in cooperation with the French, later becomes a millstone round the neck of the dynasty, fomenting unrest due to onerous taxes to pay off debt to European banks.

1875: sale of Egypt’s share in the Suez Canal to the British sees the presence of British and French controllers in the Egyptian Government.

1882: British and French bombardment of Alexandria and interference stirs nationalist sentiment, propelling Ahmad Urabi to head of a nationalist-dominated ministry committed to democratic reforms.

1919: Nationalist movement strengthened, leading to the revolution against British occupation.

1922: Britain unilaterally declares Egypt’s independence and a constitution and parliamentary system of government come into being.

1940s: the Muslim Brotherhood – a social and political movement with welfare state-like projects – has more than 2 million members and is an opposition force.

1952: Continued British meddling results in the revolution and a military coup, with General Muhammad Naguib becoming the first President of the Egyptian Republic.

1954: Gamal Abdel Nasser, considered the real architect of the 1952 revolution, forces Naguib to resign.

I956: Nasser assumes presidential office, whereupon the Muslim Brotherhood deploys its military wing. By nationalising the Suez Canal, Nasser triggers a military invasion by Britain. Opposed by the Americans, the invasion turns into a debacle for the British.

1970: Three years after the disastrous Six Day War with Israel, Nasser dies and is succeeded by Anwar Sadat. All political opposition is violently crushed and the country comes under a new hegemony, from the US.

1973: October War against Israel in which the Israelis triumph militarily, strengthens Sadat’s political position.

1979: Peace treaty includes Israel’s withdrawal from Sinai.

1981: Sadat is succeeded by Hosni Mubarak. Autocratic rule is ‘legitimised’ by single candidate presidential elections, drawing on Emergency Laws, applied almost continuously since 1967. Mubarak has since been among the West’s key allies in the region, with US$1.3 billion US annual funding for the military.

2005: Mubarak appears to make concessions to ‘freedom and democracy’ by ordering the enactment of pluralistic election laws, but, severely restricts the participation of popular politicians.

2007: Draconian changes to the constitution are steamrollered through, prohibiting religious involvement in politics; proposing the replacement of the Emergency Laws with anti-terrorism laws; ending election monitoring by the judiciary; giving the president the right to dissolve parliament and further increasing police powers.

2011: Triggered by unemployment, poverty and corruption, widespread and apparently leaderless protest, stoked by the internet, erupts against Mubarak’s regime. Despite dogged determination to hang onto power, he is finally toppled on 11 February. The military, seen by many as the people’s army, takes over governance of the country, with the Supreme Council of the Armed Forces promising to build a free, democratic country, to hold parliamentary elections in September. This could bring to an end 2,500 years of foreign hegemony.



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Frank Richardson is a freelance journalist. He can be contacted by e-mail at frank.richardson@opentrial.net.