Basil Fernando, Director, Policy & Programme Development, Asian Human Rights Commission & Asian Legal Resource Centre, Hong Kong
The theme for this discussion is that,
Countries transitioning to democracy often have to cope with fragile and dysfunctional political, economic and legal institutions. In the face of regulatory frameworks either completely lacking or totally unsuited for the “democratic refit”, constitutional and criminal law reforms are crucial for establishing solid foundations for emerging democratic States. Addressing the shortcomings of the legislative system on a day-by-day basis, the organized legal profession has a unique contribution to offer in promoting, stimulating and guiding legislative and institutional reforms aimed at ensuring that constitutional and ordinary legislation reflect contemporary human rights principles and standards.
Perhaps a way to introduce this theme is to reflect briefly on the meaning of ‘fragile and dysfunctional political, economic and legal institutions’. Although the theme places dysfunctional political, economic and legal systems together, these three factors need not always be linked. The economic factor in particular need not be the major factor in a dysfunctional justice system. Furthermore, some aspects of a legal system, for example administration relating to commercial and civil administration may still be functional, while the system of criminal law and constitutional law may become dysfunctional. It is invariably the political factor that creates the conditions for making the legal system dysfunctional. Consequently, in the fight to bring about reforms to give vitality to a justice system political aspects play an important role, as I will explain.
The meaning of dysfunction
The dictionary meaning of ‘dysfunctional’ is “abnormal or impaired functioning, especially of a bodily system or social group”. In modern usage, particularly influenced by the understanding of mental health, dysfunction has come to mean the kind of mental illness that makes it impossible for the person who is suffering from it to carry out the functions that a normal and rational person does. In the political sense it means a chaotic situation within which society cannot achieve its positive objectives. The sense in which the word is used in this presentation is a situation of a legal system that has turned against itself, and within which rule-of-law principles cannot operate. Aleksandr Isayevich Solzhenitsyn in his Gulag Archipelago characterizes the extreme form of this situation in Russia under Joseph Stalin as “abysmal lawlessness”.
From the civil and political rights point of view we may describe a dysfunctional system as one in which a state party has failed to comply with article 2 of the International Covenant on Civil and Political Rights (ICCPR). Under this article the state party is obliged to provide for legislative, judicial and administrative measures to make the realisation of rights possible for the people of a nation. Where a state party substantially fails in implementing article 2 of the ICCPR it results in a situation within which the justice system cannot function and deliver justice as envisaged under international frameworks and standards. As far back as 2002 the Asian Human Rights Commission issued an open letter to the international community drawing attention to this issue (see article 2, vol. 1, no. 1).
Case studies of dysfunction
We can illustrate dysfunction through some case illustrations:
1. Phyo Wai Aung is an engineer who is now a political prisoner in Burma. He was incarcerated on fabricated charges and has had no hope at all of a fair trial. The Asian Human Rights Commission has set up a webpage on his case (http://www.humanrights.asia/campaigns/phyo-wai-aung). While in prison he was met by the UN Special Rapporteur on human rights in Myanmar, Tomás Ojea Quintana, to whom he later wrote a letter regarding his observations on the circumstances of his arrest and detention:
About torture, we all know about that system used by authorities. In our country especially in this prison most have been tortured in ways. Myanmar Police interrogation methods are only hitting and killing. We cannot solve this system without sufficient salary and education of personnel, modern science against crime and policy.
For the prison institution the amount of personnel is not sufficient. The ratio of personnel to prisoners is approximately 1:200 and it causes stress on personnel. The quality of personnel is very low. Ordinarily one gets only Kyats 15,000 a month, approximately USD15. Sustaining a family is very difficult. To change the prison department these two issues must be solved.
We may also recall that the Special Rapporteur mentioned that on a visit to another prison he asked the inmates he met whether they had had lawyers at trial or received their services. Some of the prisoners could not understand what to have a ‘lawyer’ meant. “None of the prisoners with whom the Special Rapporteur spoke had been represented in the court by legal counsel. Many did not even know the definition of the word ‘lawyer’”, he wrote in his 11 March 2009 report to the UN Human Rights Council.
2. In Bangladesh a qualified law graduate, FMA Razzak, used to assist poor villagers to write various petitions to the police and other authorities regarding the injustices of which they complained. He was harassed both by the police and some powerful property owners and was even held in a remand prison on fabricated charges. He still continued his efforts, as he was a committed human rights activist. He sometimes sent reports to international organisations, which wrote to the government about the problems the people were complaining of.
Among Razzak’s opponents was an army major. Army officers are quite powerful in Bangladesh. This major’s family forcibly chased Razzak’s family away from the family home. Razzak attempted to get support from the police, but they refused to investigate. While he was making these attempts to get justice, one morning he was surrounded by people connected to the major’s family, including the officer’s brother, who abducted him, then attacked him and beat him severely. They even tried to gouge his eyes out, saying that it would stop him from doing his activities. Due to the severe beating he appeared to be dead. He later got medical treatment, but after several months following the incident, he had lost sight in one eye and has only partial sight in the other. His legs were also severely injured and now he needs the support of others even to attend to the most basic tasks.
The incident provoked outrage and his supporters made complaints to the police and every other authority. The Asian Human Rights Commission (AHRC) published his story and also wrote to state authorities and UN agencies and also western embassies in Bangladesh to get support from them to ensure inquiries were made into the incident (see article 2, vol. 10, no. 2). Many other international organisations also supported these efforts. However, no independent inquiry has been conducted into the incident. When human rights organisations complained to the National Human Rights Commission (NHRC) of Bangladesh it did not even send an officer to record a statement from the victim. When pressure was mounted on the NHRC it handed the inquiry over to the local police who were acting in connivance with the culprit army major. The NHRC also requested an inquiry from the notorious Rapid Action Battalion (RAB), which is known for a large number of extrajudicial killings and the torture and ill treatment of citizens. The police and the RAB reported to the NHRC that Razzak’s complaint was false and that there were no human rights violations. On the basis of this report the NHRC wrote to human rights organisations and the western embassies that Razzak’s complaint was false.
3. Lalith Rajapakse was a 17-year-old boy when he was arrested in 2002 by several police officers in Sri Lanka. During his detention he was subjected to torture for the purpose of obtaining a confession. The torture process, which caused serious injuries, was described as follows: “He was forced to lie on a bench and beaten with a pole; his head was held underwater for prolonged periods; he was beaten on the soles of his feet with blunt instruments; books were placed on his head, which were then hit with blunt instruments.”
Due to a head injury Lalith fell unconscious and in that state he was taken to a hospital where he remained unconscious for over two weeks. This incident was widely reported and human rights organisations took up the matter with Sri Lankan authorities as well as with UN agencies. The then Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment wrote to the Sri Lankan government on this issue, seeking a response. This led the government to refer the case to a Special Investigation Unit (SIU) of the Criminal Investigation Division. The SIU, after their investigation, found the complaint credible and submitted their report to the Attorney General’s Department for prosecution under the Convention Against Torture Act of Sri Lanka (Act No 22 of 1994), which prescribes seven years of rigorous imprisonment and a fine of 10,000 Sri Lankan rupees on conviction.
After a long delay, the Attorney General’s Department filed indictments against two police officers. In 2004 Rajapakse filed a communication before the UN Human Rights Committee complaining that because of undue delays in the adjudication of his case his rights under articles 7, 9 and 2 (paras 3 and 7) of the ICCPR had been violated. On 26 July 2006 the HRC expressed its view on this communication and held that
The facts before it disclose violations of article 2, paragraph 3 in connection with article 7; article 9, paragraph 1, 2 & 3, as they relate to the circumstances of his arrest, along and together with article 2, paragraph 3; and article 9 paragraph 1 as it relates to his right to security of person, of the Covenant and recommended that: a. the High Court and Supreme Court proceedings are expeditiously completed; b. the author is protected from threats and/or intimidation with respect to the proceedings; and c. the author is granted effective reparation. The State party [Sri Lanka] is under an obligation to ensure that similar violations do not occur in the future (CCPR/C/87/D/1250/2004, reproduced in article 2, vol. 4, no. 4).
The High Court completed the trial only on 9 October 2010. The High Court judge acquitted the accused on the basis that there was no evidence in the report of the Judicial Medical Officer (JMO) to show the alleged torture victim had been assaulted on his feet. However, the medical report of the JMO filed in court clearly mentioned contusions on the feet. The High Court judge had either not read the medical report and other evidence or for some reason deliberately misrepresented or ignored the facts that had been recorded. The torture victim filed an appeal before the Appeals Court and the court granted leave to appeal. However, the appeal is still pending. A Fundamental Rights Application filed before the Supreme Court has not yet been heard. Nor was any reparation paid in terms of the recommendations made by the HRC.
4. John Paul Nerio was a 17-year-old high school student in the Philippines when he was tortured in police custody on 11 December 2010. He was tortured while being questioned without counsel at the Women and Children’s Desk (WCD) of Kidapawan City. Police officers falsely accused him of being involved in a fight at a bar. He suffered injuries to his chest. Due to the trauma he stopped going to school and is afraid whenever he sees policemen.
John did not tell his parents of his torture until March 2011. Upon learning what had happened, his parents pleaded with the local senior police officers to have their son’s case investigated, but they were ignored. The police defended the policemen whom the family had accused of torturing their son. No investigation was conducted and no sanctions were imposed on the policemen involved, despite the fact that a formal complaint had been lodged.
It was only after the AHRC exposed the case in an Urgent Appeal (AHRC-UAC-063-2011, 18 March 2011) that it was investigated for violation of the Anti-Torture Act of 2009 by the Public Attorney’s Office (PAO) in Kidapawan City and the Commission on Human Rights (CHR) in Cotabato City. The PAO then filed both criminal charges and administrative charges against the policemen for torturing the boy.
However, while the hearing on administrative charges was ongoing before the People’s Law Enforcement Board (PLEB), the policemen used third parties to threaten the family of the victim and their witnesses. The PLEB, which had the power to provide provisional remedies to the complainants, like disarming and suspending the accused from service, did nothing to protect the complainants as they were legally obliged to. Despite the threats, witnesses and complainants were not given adequate protection, as required by the Anti-Torture Act.
Because some of the accused policemen were known locally to have connections with hired-killers, illegal armed groups as well as the military, the threats on the family were real. Due to the continuing threats on the victim and his family, and the fact that they were not provided with any protection, they had no choice but to withdraw the charges and settle the case outside the court by accepting a monetary offer.
5. Haren Pandya was a deputy minister in the Home Department of Gujarat, India when the massive killing of Muslims took place in that state on 27 and 28 February 2002, orchestrated by the government of the Chief Minister, Narendra Modi.
After the killings, in 2003, an enquiry commission was set up under Justice Shrikrishna. Haren Pandya, who was removed from the ministry, is reported to have deposed before the commission. Though the session was held in camera, the news that he had deposed was leaked out. On 3 June 2003 Mr Pandya was killed inside his car, allegedly by a group of Muslim terrorists who had hatched a conspiracy to kill prominent Hindu leaders in revenge for the killing of the Muslims in February 2002.
Investigators built a case primarily on the basis of the account of a single “eyewitness” who made several contradictory statements regarding what he had actually witnessed. Mr Pandya’s body had seven bullet wounds. His shirt had nine bullet holes. All the holes had gunpowder residue (blackening). The eyewitness claimed that he saw the assailant shooting Pandya through a small opening of the driver’s side window. However, the nature of the wounds, particularly a shot in which the bullet entered Pandya’s scrotum and moved upwards, seriously challenged the witness’s version. In addition there were several other anomalies, like the virtual absence of blood inside the car, recovery of only five bullets when Pandya had received seven wounds within the confines of the small vehicle and the divergence in the description of the appearance of the bullets recovered from his body at the time of the autopsy which had described the bullets being of “white metal” and by the forensic/ballistic expert as “grey”.
The trial judge ignored all these anomalies and contradictions. She also rejected the opinions of forensic science and ballistic experts brought before her by the defence. She ignored the evidence of surveillance of one of Mr. Pandya’s cell phones by the state Criminal Investigation Division after his alleged deposition before the Shrikrishna Commission. On the basis of “confessions” given by the accused, though these were retracted by them and the account of the sole eye witness, the trial court judge had found all the accused guilty of murder and conspiracy to launch Jihad in India.
The High Court has upturned the trial court judgement and called it perverse (see CR.A/975/2007 111/111 Judgment, Mohd.Pervez Abdul Kayuum Shaikh & Ors v State of Gujarat & One). It has clearly said that the entire investigation was a virtual sham. However, both the state government and the central government are keeping quiet. It seems that murder of Haren Pandya will remain an unsolved mystery.
Some features of dysfunction
Literally thousands of cases may be cited which manifest similar and other problems as in the five cases mentioned above. The Asian Human Rights Commission has in its Urgent Appeals archives a large number of such instances. What are some of the features of dysfunction that we can discern from these cases?
1. The shift from “the rule of law” to a law and order approach, which is used to describe any arbitrary means that may be used to keep order, as understood by a ruling regime
Under this approach any illegality can be treated as legitimate if the government thinks it needs to be done to maintain order. For example, the extrajudicial killing of those who are considered bad criminals may be considered as a means to be used for achieving order. However, this runs against the rule-of-law approach, whereby, according to Tom Bingham, a law lord in the United Kingdom, “all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly made, taking effect (generally) in the future and publicly administered in the courts” (Rule of Law, Penguin Books, 2011, p. 8).
2. Placing the head of the state above the law
This is sometimes done by constitutional provisions, as in Sri Lanka, or by treating the constitution itself as an unimportant parchment, with little or no practical value, as in Cambodia, or by having no constitution at all, as in Burma throughout the majority of years in recent decades.
3. Limiting the power and the scope of judiciary
This may done by excluding the court’s jurisdiction over public law and lifting or altogether excluding the court’s power to adjudicate on matters relating to the constitution. Once the power of the judiciary is limited, it has flow on effects, such as non-cooperation by state agencies, causing extraordinary delays, and making remedies like writ jurisdiction, including the writ of habeas corpus, ineffective.
4. Creating a system of punishment without trial
This may be by way of extrajudicial killings followed by media statements that the person who was killed is a bad criminal. In such situations, extrajudicial punishment is accompanied by failure to investigate crimes, either due to defects in the investigation capacity or due to political or other extraneous reasons.
5. Manipulation of powers of arrest and detention for reasons of corruption
Where police powers are heavily manipulated for moneymaking purposes, they are accompanied by the rise of mafia and the underworld, working in conjunction with police agencies, which has further profounds effect on the entire society and on the entire system of administration of justice. Sometimes, criminal elements perform functions that are usually assigned to legal agencies, such as debt collection, ejection of tenants and even providing security to VIPs. Police also often fabricate charges, sometimes on the basis of confessions obtained through severe torture or ill treatment.
6. Political control of institutions
Politicization is accompanied by loss of authority in key institutions, like the prosecutor’s office, and the absence of an effective system of command responsibility within the police, since officers increasingly develop relationships with outside patrons that serve their interests independent of their standing in relation to superiors.
7. Militarization
In some instances, the civilian policing function itself does not exist, either due to rule by the military or to due prolonged militarization, and in these circumstances even the memory of civilian policing is lost.
8. Mishandling of cases under trial
Vast delays in litigation lead trials in some places to take five or 10 years on average and in some countries even 20 years. On the other hand, sometimes cases are administratively speeded up and due process is completely ignored. ‘Judgements’ arrived at in this manner only reflect the version of events given by executive officers. To issue such verdicts, judges ignore requirements of procedural justice and often manipulate the process. Some do not give reasons for their orders. Judges may also attempt to bring pressure on lawyers and litigants in criminal trials not to go to trial but to agree to make guilty pleas or do deals, with promises of lesser sentences and or threats of giving harsher bail terms or even refusal of bail, if they refuse to agree. Judges at times sit to hear the appeals from their own judgments. And, contempt of court law is often abused in order to intimidate lawyers or litigants.
9. Various absences
These include: absence of witness protection laws and programmes, absence of budgets for administration of justice: policing, prosecution and prisons, and absence of effective mechanisms to investigate and prosecute in cases of violations of human rights. Consequently, another absence also is the absence of a perception of justice, in society, and also among lawyers, judges and police and others. This is often replaced by cynicism and negative comments about justice.
10. Professional decline
Threats are made to the independence of lawyers, arising out of the factors mentioned above, which cause divisions among lawyers and lower their morale generally, weakening professional associations, due to deep divisions as more lawyers begin to adjust to negative systemic changes. Consequently, professional bodies fail in their supervisory responsibilities, further lowering esteem of the profession among the general public and encouraging the withdrawal of talented lawyers due to tensions arising from the abovementioned factors.
All of the above points, it should be noted, describe the administration of justice in a dysfunctional system as it works in ‘normal times’. When there are exceptional times such as when emergency regulations and anti-terrorism laws operate, the situation becomes much more brutal. Abductions take the place of arrests, prolonged detention without court orders become possible, forced disappearances and various other kinds of extrajudicial killings often take place in large numbers, judicial inquiries into deaths can be suspended, convictions can take place solely on the basis of confessions, usually obtained through torture and ill treatment and habeas corpus actions become ineffective.
Some of these factors are noted by international observers and human rights organizations due to the increasing number of complaints. However, what the international observers and human rights organizations often do not notice is that the sheer cruelty of the exceptional situation is made possible only due to routine cruelty that exists in the normal situation.
Dealing with dysfunction
The problem that faces lawyers, human rights activists and every person concerned with the reform of dysfunctional systems essentially is about the nature of the public institutions of justice. There have been many attempts to articulate and to theorize about these problems but perhaps one of the more succinct explanations has come from an American lawyer, Gary Haugen, chief executive of the International Justice Mission. Answering the question as to why these public justice systems so massively fail the poor (in fact, everyone), he offers the following explanation which points to a fundamental problem that lies with the international human rights project itself:
One can see that two generations of global human rights work have been predicated, consciously or unconsciously, upon assumptions of a functioning public justice system in the developing world which, if incorrect, effectively undercut the usefulness of those efforts for their intended beneficiaries. Now, absent an effective enforcement mechanism, the great work of the first two generations of the international human rights movement can deliver to the poor only empty parchment promises (Speech delivered at University of Chicago Law School, 2010).
The global human rights project has, since the establishment of the Universal Declaration on Human Rights, devoted most of its time to articulating international norms on human rights and has made attempts to get domestic acceptance and pass legislation relating to these international norms. However, such efforts have not resulted in the actual possibility of people in less developed countries achieving these rights through their public justice systems.
It is this distance from parchment promises to actual enjoyment of rights that is the key issue when we are talking about dysfunctional systems.
Documenting dysfunction
The Asian Human Rights Commission became aware of this problem by the late 1990s and ever since has been making efforts to contribute to resolving it. The very first strategy that the AHRC adopted, together with its partners in several countries, was to document meticulously the actual manner in which the public justice system of each country functions. The method adopted was very similar to the one adopted by the historic anti-slavery movement in Britain, as demonstrated by the work of Thomas Clarkson and others who meticulously documented the conditions of the slaves, for example, the manner in which they were packed and brought in ships, which subjected them to scandalous inhumanity and cruelty. This information shocked the British population and their reaction lead to great efforts to illegalize slavery and end the practice altogether.
The AHRC was of the view that the meticulous documentation of dysfunction in public institutions of justice in different countries and the consequent suffering it imposes on the populations living in these countries would lead to a better recognition of the problem locally and internationally.
This documentation has been prepared in many ways, one of which is through the close following of many cases. Cases relating to torture and ill treatment and other human rights abuses have been followed from the very start of a complaint being made up to the cases proceeding through the courts, often for many years. Through this method it has been possible to document the manner in which the policing system in a particular country functions, the nature of its complaint mechanisms as found in legislation and how these in fact function. Later the case is pursued through observation of how prosecution is conducted, how indictments are filed and trials are prosecuted. The close observance of prosecution departments enables the observer to assess how independent the institution of prosecution is and whether the actions of such institutions can be justified from the point of view of objective criteria that is acceptable for a functioning rule-of-law system. The case is then pursued into the courts, from courts of first instance to the appeals courts. By observing the courts it is possible to document the behaviour of the judges as well as lawyers themselves.
The predicament of lawyers within a dysfunctional system
There are many problems that need to be considered when discussing the role of lawyers within a dysfunctional system.
From a holistic point of view, lawyers lose their traditional role that they would play within a rule-of-law system. The very assumption on which the legal profession functions in such a system is that law is supreme and the judiciary independent. Within a dysfunctional system both of these important aspects are, to varying degrees, absent. This creates confusion among lawyers as well as society in general as to what role lawyers can legitimately play under the changed circumstances. As time passes there is also the problem of the loss of memory both among lawyers and also the public about the role that the lawyers were previously able to play when the system was functional.
One of the major problems within the legal profession itself when the system has become dysfunctional is that there begin to arise extremely deep divisions among lawyers themselves. Quite a large section of the legal profession begins to adjust to the changed situation and learns to survive under these adverse circumstances. Within a very short time the habits that are acquired through such adjustments may even be looked upon as acceptable behaviour. As a result, a serious crisis in ethical standards takes place. What were once considered ethical standards to which legal professionals should adhere begin to be looked upon as unrealistic and demanding an impossible performance under the changed circumstances.
Besides this, the political forces that caused the system to become dysfunctional attempt to win over a section of the lawyers, if not all, to their point of view. Ideological justifications are created as to why the administration of justice had to be changed, and therefore, that there is a need to reconsider the norms and standards of a former time. The danger of this particular approach is that the dysfunctional legal system is presented as a better alternative to which national goals in the immediate period can be directed than the system that functioned earlier. These ideological changes, often couched in nationalistic jargon, begin to appeal to a section of the legal profession who then try to take advantage of the changed situation for their own ends.
The effect of all this is that those who are committed to the profession, as understood within a functional system, begin to become isolated and the possibility of a common front among the larger section of the legal profession to fight against the dysfunctional system becomes extremely difficult.
Added to the division among the lawyers are also the divisions among judges. In the early stages when a system is becoming dysfunctional, the majority of judges are likely to resent the change and try to reassert their earlier positions and try to return if possible to the system as it was. However, as the dysfunctional system consolidates itself, the earlier resistance becomes less and many judges also begin to adjust to the changed system. Initially this may cause serious conflicts but as time passes only those who adjust to the system survive. Political pressures play a significant role in the process of selecting those who would comply with the changes and the exclusion of those who are resisting and attempting to reassert the ways of the functional system. The change that takes place within the judiciary also affects the legal profession, particularly those who still attempt to fight against systemic change.
What lawyers within a dysfunctional system can do
It becomes obvious that once a system turns dysfunctional, those who want to fight for the professional status and rights available to lawyers within a functional system are faced with an enormous task. Turning the tide and returning to the ways of a functional system is not merely a matter of trying to preserve professional integrity but is a struggle to displace the political and social perspectives that have led to the system becoming dysfunctional. The fight is not a mere reassertion of values, ethical considerations and principles but also involves finding ways to undo the compulsions that created the dysfunctional system.
The following are some useful strategies:
1. A dysfunctional system creates a vast number of persons with grievances that are not being addressed. Lawyers who support these persons despite their knowledge that at the end very limited results by way of justice may take place in the process may win the support of the public and also gain a vast amount of knowledge about the actual ways a dysfunctional system works and its consequences. The sense of solidarity with litigants who are deeply frustrated due to the absence of justice may provide lawyers the insights needed to understand, as well as to fight against, this situation.
2. If lawyers train themselves to document their experiences in the dysfunctional system meticulously, this information could become a knowledge base both for the local population as well as the international community in understanding the related problems. In this sense the example of the British anti-slavery movement and the achievements that were made through the dissemination of sensitive material gathered under difficult circumstances may be considered a good example. As from one incident to the next and one case to the next information increases, soon there may be credible material that those who are concerned about this problem cannot ignore.
3. Fighting against a dysfunctional system is not the sole task of lawyers. The entire society is involved in dealing with this problem. Given the fact that a dysfunctional system is a political and a societal creation, fighting against it would require close cooperation with many who may be fighting the same problem from different perspectives. A lawyer’s contribution based on meticulously documented experiences could be a welcome instrument in the hands of all those who are fighting for change.
4. Even in the worst circumstances, many opportunities arise from time to time which if properly utilised could lead to positive changes. For example there are times of regime changes. There are also times when there are organised mass protests demanding greater space for justice. If a very conscious effort is not made under those circumstances to flag the problem of the dysfunctional nature of the system and the need for substantial changes, these moments can be lost. The involvement of lawyers with a comprehensive knowledge of systemic failures and weaknesses can contribute a lot to the articulation of reform programmes in order to ensure that a rule-of-law system can be re-established.
5. The lawyers and litigants in countries with dysfunctional systems are the persons who bear the brunt of the system’s dysfunction on a day-to-day basis. Each of these persons carries in their memories a deep imprint of injustice and how injustice is manipulated through what is called a ‘legal process’. In the minds and memories of these persons we have the greatest resource needed to compel the world for a commitment towards the creation of functioning institutions of justice. These persons also include judges, prison officers and others associated with the ‘justice process’.
6. In order to make an organised effort to accumulate and to articulate written material for public use out of the impressions of the minds and memories of people oppressed by a dysfunctional system of justice many activities need to be organised to bring such people together and also to provide opportunities for them to articulate their experiences. With modern communication facilities such as computers, tape recorders, cameras and other types of technology the transcription process from memory to written or other visual material is comparatively easy. However, such actions need initiators, who could be either individuals or organisations. With the facilities available in the Internet, communication of these materials has become easier and cheaper. Lawyers’ organisations and also human rights organisations need to learn how to have close association with the victims of the system and to facilitate the articulation and dissemination of their input.
7. Aspects of experiences within a dysfunctional system will correspond from one country to the next. Similar experiences provide the basis for cooperation among lawyers and human rights groups of different countries so that they could share experiences and also develop common strategies in order to fight common problems. Such cooperation could begin with linkages of lawyers and others with their counterparts in neighbouring countries, and to regions as a whole. Already, some effort towards implementing this approach has been done in the Asian context, through the work of the Asian Human Rights Commission. By replicating these efforts and by producing a final product by way of report, books and other publications, as well as videos, these experiences could be shared with all concerned persons throughout the world.
A new mandate for reform of dysfunctional systems
Lawyers from outside, particularly those from countries with functional systems, can assist lawyers living within dysfunctional systems to overcome their situations. Here we are, in fact, talking about some of the most sensitive areas in the international relationship among lawyers, as well as the international movement for human rights itself. We may mention some areas for cooperation, including the following:
1. Lawyers, including their organisations based in countries with functional systems, need to make the intellectual transformation that Gary Haugen has so well noted. That is to say, they should be able to transcend the approach to human rights of the earlier two generations that concentrated mainly on the articulation of international norms and standards and to get domestic legislation for the implementation of these international norms. As Gary Haugen has pointed out, this work was done under the assumption that public institutions to those that exist in countries with functional systems exist elsewhere. Such an assumption is baseless. A shift needs to be made, however difficult it may be, to lay the highest emphasis on human rights work providing assistance to develop public institutions of justice. This work would require a complete reorientation of the human rights movement. However, even Kofi Annan has agreed that this shift needs to be made. If at an intellectual level this problem is grasped, lawyers from countries with functional systems and their organisations could play a great role in developing the theoretical foundations as well as the practical strategies for this work. I would emphasise the need for theoretical articulation as the first priority, as without it, mere action programmes will not adequately be able to resolve the great problems caused by a dysfunctional system of justice.
2. International agencies for human rights, including UN agencies and international human rights groups, need to be aware that the formula that recommends governments conduct investigations into violations, ensure prosecutions and have trials before competent and impartial courts is an inadequate formula because of the absence of functioning institutions for the administration of justice in dysfunctional systems where extremely high levels of human rights abuses are found. These demands do not lead to any real response from the governments of countries with dysfunctional systems. Some countries, for various reasons, try to give an appearance of compliance, which is often highly appreciated by the persons from more developed countries thinking that such gestures are meant well and that the violations will at least be addressed to some extent. Increasingly, more governments of the less developed countries completely ignore the formula of the developed countries for investigation, prosecution and payment of compensation. The former UN Special Rapporteur on the question of torture, Manfred Nowak, on the basis of a review of recommendations made to several countries concluded that none of his recommendations had been implemented. Similarly, when one special representative for the UN Secretary General for Cambodia went to the country on one of his visits, the United Nations human rights centre presented a list of recommendations the representative earlier had made to the government. There were nearly 50 such recommendations. Against each recommendation there was a column under the heading ‘actions taken’. In that column, under each recommendation the comment recorded was: No action. If similar reviews were made into the recommendations of different human rights agencies of the United Nations to the governments of countries with dysfunctional systems of justice the result would most likely be no different.
3. Dealing with the problem of dysfunctional institutions for the administration of justice requires the allocation of adequate funds for this purpose. In the budgets of countries with dysfunctional systems, the allocations made are grossly inadequate for the maintenance of proper investigation mechanisms for crime in general and for human rights violations in particular. At the same time, in the granting of foreign aid by developed countries to less developed countries the issue of the reform of dysfunctional justice systems has not been considered, let alone treated as a priority. Gary Haugen has put it as follows:
It is difficult to overstate the degree to which public justice systems in the developing world are broken, irrelevant and dangerous to the poor. In June 2008, a careful United Nations report estimated that a staggering 4 billion people live outside the protections of the rule of law. The stunning conclusion of the UN study was simply this: “most poor people do not live under the shelter of law.” In the developing world, virtually every component of the public justice system – that is, the police, the lawyers, the prosecutors and the courts – generally diminishes the ability of the poor to enjoy the protection of the law.
4. International associations of lawyers such as international bar associations often make visits to less developed countries and make various recommendations. However, a study of many of these documents demonstrates that the international experts are reluctant to characterise the system they have monitored as dysfunctional. This may to some extent be due to diplomatic reasons. However, the failure to expose the depth of the problem and instead mention only some aspects of the problem does not contribute to solutions or even contribute to getting an adequate discussion internationally and locally on the actual crisis of law. If the international bar associations improve their perspective towards identification and providing assistance to dysfunctional systems, their reports and other expressions of views are more likely to contribute to a better understanding of the justice crisis and lead to greater initiatives towards resolving these problems. This would require that the monitoring missions develop their mandates in a way that will not hinder the experts engaged in the missions from probing into the systemic problems and making recommendations that address such problems. Such a change of approach would require dealing with many sensitive issues, such as the issue of respect for the sovereignty of a country. A dysfunctional justice system fundamentally denies the sovereignty of the people and also the capacity of the state to fulfill international obligations relating to human rights.
5. An important change in the practice of human rights that gives priority to the creation of functioning public institutions of justice in countries with dysfunctional systems can only happen if this approach is adopted as policy in countries with functional systems. Bringing about such a change of human rights priorities requires an enormous amount of work by conscientious organisations and individuals to prepare the way for such a change. Committed scholars, academics and other intellectuals need to play a very prominent role and bring this matter sharply to the attention of the governments of developed countries and also to civil society if the proposed change is to take place. Once again we are reminded of the role played by Thomas Clarkson and others in the anti-slavery movement, as well as many others in many of the important reform movements relating to human rights. There is also the work of many groups and persons, including creative writers such as Aleksandr Solzhenitsyn, who exposed the sheer cruelty and the absence of law and justice under former communist regimes. A dysfunctional legal system causes similar misery for the whole population of a country where such a system prevails. Thus, intellectual efforts and promotional efforts in countries with functional systems are the most important ways to make progress on the issue of how to create functioning institutions of justice in countries with dysfunctional systems.
6. Gary Haugen lays great emphasis on funding this project of creating functioning public justice systems. He appeals to western governments, as well as institutions such as the World Bank, to fund the work relating to this and argues that it will bring better results for these governments and financial institutions themselves. We agree with that point of view. However, we are of the view that to reach the stage where governments and international financial agencies will begin to support this cause, much work needs to be done by willing organisations and individuals to highlight this problem and to urge the adoption of positive policies.
7. If lawyers and their organisations in countries with functional systems are to be effective in bringing about this change of approach to the building of functioning institutions of justice in countries where they are dysfunctional, they will need to develop close cooperation with lawyers, their organisations and others based in those countries who are pursuing the same goal. There are, in fact, large numbers of lawyers, even judges—particularly those who are retired—legal academics and members of human rights organisations who are deeply committed to seeking a solution to dysfunction. Building close and creative cooperation will primarily depend on the initiatives undertaken and resources made available by those in countries with functional systems.
Recommendations
To the global human rights movement and international human rights organisations:
1. We need radical change in the priorities of the global human rights movement by laying emphasis on creating or reforming institutions of justice so as to make them functional and credible. As stated above, this will contribute to attaining a new stage in global human rights work, transcending the earlier emphasis on the articulation of international norms and standards and achieving domestic laws incorporating such norms, to an involvement with the institutional aspects of justice. This will require a re-examination by each international human rights group of their present-day practices and a discussion of the changes needed to meet the challenge in terms of institution building, which enables the actualisation of human rights.
2. We need much closer cooperation between those concerned with human rights in countries with dysfunctional systems and those with functional ones. If the actual depth of misery that people suffer under dysfunctional systems is to be understood by persons from countries with functional systems, who are fortunate not to experience such misery, closer linkages and cooperation with people from these two different contexts are needed. The intellectual efforts of human rights organisations based in countries with functioning systems will become richer, particularly with regard to the institutional developments, if there are such linkages and competence is developed to understand and articulate the concerns of people living under dysfunctional systems. It cannot be said that such close cooperation exists at present. There is a deep divide between those who live under better justice systems and those who live under dysfunctional systems. If human rights work in the future is to retain its credibility, this gap must be closed, and initiatives in this regard should mostly come from human rights organisations based in countries with functioning systems, as they generally have greater organisational capacities, greater intellectual freedom and greater financial and other resources. The response from people in the countries without these means will not be found wanting.
To the Office of the High Commissioner for Human Rights:
1. The accumulated experience of the High Commissioner’s office itself would confirm the premise that dysfunctional justice systems are the major obstacle for the practical implementation of human rights. Many statements from the commissioner’s office, many reports from treaty bodies and special procedures of the United Nations provide valuable and extensive information about this situation. However, if there is to be any change there has to be a radical transformation of the attitude coming from the commissioner’s office, which should unambiguously state that priority needs to be given to the creation of functional institutions of justice. The mere formula that advocates investigations, prosecutions and payment of compensation for violations of rights does not adequately represent the need to overcome the institutional obstructions to such investigations, prosecutions and other redress. The absence of compliance with recommendations made over the years is clear evidence of the failure of advocacy based on that formula. The leadership given by the commissioner’s office for a change of policy may yield positive responses from governments of developed countries to provide resources for such efforts and also from the UN human rights agencies themselves to adopt practices leading to the discovery of institutional defects and ways to remedy them.
2. The High Commissioner could direct United Nations agencies dealing with development goals to make the creation of functioning institutions of justice in less developed countries a higher priority. The commissioner could direct one or more of the relevant agencies to develop a conceptual framework for introducing this theme into all UN agencies and in particular those dealing with development. The commissioner may take other appropriate measures for the pursuit of this goal.
3. The High Commissioner’s office could facilitate training for its staff as well as those involved in treaty bodies to develop their capacity in dealing with the issue of institutional development as an essential element in the protection and promotion of human rights. The High Commissioner’s office can also facilitate such training for human rights and civil society organisations throughout the world.
4. The High Commissioner, in her reviews on the implementation of human rights, which she generally makes to the Human Rights Council and other UN bodies, may devote her efforts to reflect more upon the issue of the development of functioning institutions of justice and make suitable recommendations for the achievement of this goal.
To the International Commission of Justice (ICJ):
1. The ICJ is a unique institution that could contribute to the necessary development of jurisprudence and perspectives for taking up the issue of the struggle against dysfunctional institutions of justice as a primary obstacle to the achievement of international norms and standards that have been articulated and adopted by the international community during the last 60 years since the Universal Declaration of Human Rights came into effect. The previous work of the ICJ in contributing to the development and promotion of important human rights themes encourages others to look to the ICJ for leadership in this area.
2. Even to achieve the benefits of other great ventures of the global human rights community such as the International Criminal Court and the related developments for the prosecution of crimes against humanity and war crimes there is the fundamental requirement for the existence of functioning justice institutions. Where such systems do not exist, for example, as in Cambodia, the possible positive outcomes for a particular country where such tribunals are held end up being limited, as no living systems of justice exist under into which to assimilate the lessons taught by such tribunals. Thus, completion of the work done in the past for the protection and promotion of human rights, particularly in less developed countries, now requires serious efforts for the creation of functioning systems of justice.
3. The ICJ’s connection with jurists throughout the world and experts in the field makes it an eminently suitable agency to initiate this important new aspect of human rights promotion. Particularly in the area of the articulation of ideas, policies and strategies, the ICJ is placed in a uniquely advantageous position to take the initiative.
Conclusion
If the results of work done for many decades on the protection and promotion of human rights are to reach the people of countries with dysfunctional systems of justice, the issue of creating functioning public institutions of justice should become the priority of the global human rights effort. If this happens, the fruits of that success would be even greater than all the achievements the global human rights movement has made in the past. If this does not happen, for vast numbers of people living in less developed countries, human rights will remain “an empty parchment promise”.
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Footnote: This is slightly revised text of a speech delivered at the Second ICJ Geneva Forum of Judges and Lawyers, held in Geneva on 5-6 December 2011.
