Angulimala’s Case: The Genesis of Criminology in Buddhism

Criminology is the scientific study of crime, including its causes, responses to it, and methods of prevention. The criminologist Dr Leon Moosavi recently noted that ‘like the rest of the social sciences, criminology is dominated by Western literature and perspectives.’ He went onto explain that this ‘is problematic because it unnecessarily excludes alternative accounts that may be useful for informing criminological scholarship.’

Taking this as a challenge, High Court Justice Lobzang Rinzin Yargay and GJG co-director Marcus Baltzer delve into the vast scriptures of Buddhism is search for examples of such alternative accounts. They specifically examine the case of Angulimala and a few related texts, seeking to identify reasoning that could possibly be relevant to criminological scholarship in Bhutan and other societies with Buddhist traditions.

The full article, published in the Bhutan Law Review, can be accessed here.

Angulimala as depicted by Junaidi. ©Junaidi 2014 https://www.deviantart.com/junaidi

Paralegals in Laos – redefining legal aid and bringing justice closer

‘Paralegals have served as a bridge between vulnerable people and the justice system.’

- Deputy President of the Lao Women’s Union, Vientiane Capital

Explaining family law by performing a two person family drama before a captivated audience. Photo credit: Helvetas Lao PDR

Almost exactly nine years ago, Adam Stapleton wrote that ‘the promise of legal aid is an empty one for most people in Africa, thanks to a shortage of lawyers, many of whom are located in capital cities rather than in rural areas. But a new approach that uses paralegals to provide frontline services could make legal aid a real option for people across the continent.’ To illustrate this new approach, the Paralegal Advisory Service Institute (PASI), which started in Malawi and then expanded to several countries across Africa and Asia, came up with the slightly cryptic formula: 1 + 10 = 100. The idea was to amplify the services of the few lawyers who were available by deploying paralegals to (a) do all the legal work for which a lawyer is not necessary and (b) reach out to a larger number of people than any single lawyer ever could. This frees up the lawyers to focus exclusively on tasks that only a lawyer can perform and thus allows them to serve more people. The formula represents one lawyer plus ten paralegals servicing one hundred people, and typically far more than that.

This model has now taken root in Laos, another country in which, for reasons to do with history and politics, is home to exceptionally few practising lawyers. Just as in Malawi, legal practitioners in Laos work almost exclusively in urban centres and mostly in the field of commercial law. Strong and steady economic growth over the last two decades has created an enormous demand for lawyers who can serve the needs of new investors and entrepreneurs.

In 2016, the Association for the Development of Women and Legal Education (ADWLE), with support from the Swiss NGO Helvetas and the EU, launched a project to provide legal aid services to victims of gender-based violence. The available funding was minimal, and the project couldn’t retain lawyers at commercial rates. However, thanks to ADWLE’s reputable standing, it was able to partner with a leading law firm, which offered to support the project with the time of the only lawyer in Laos who specialises in human rights law. While this support was immensely valuable, the part-time services of one or two lawyers were never going to be nearly enough to meet the demand for legal services in the areas that ADWLE had in mind.

They resolved this dilemma by applying the 1 + 10 = 100 formula. Only that in ADWLE’s project, the variables were more like 2 + 60 = 512. With the help of 60 community-based paralegals, the project has thus far provided direct legal services to 512 clients, and in addition to that, it imparted general legal information to 3,517 people.

This model is now breaking new ground by overcoming many of the barriers to accessing justice in rural Laos. Approaching village or district authorities, let alone police stations or courts, can often be intimidating, in particular in sensitive matters such as family violence. To help circumvent this and other hurdles like language and cost, the project engages paralegals. The paralegals are ordinary approachable people in society, who are trained to be available to listen to people’s concerns and grievances in confidence. A paralegal is a volunteer, and the paralegal work is not a full-time job. On average, each paralegal handles only a couple of cases per month. Most paralegals are farmers, craftsmen, shopkeepers, or employees of companies or local government. Their paralegal role must never become so burdensome that it interferes with their regular job. This is an essential part of the sustainability strategy in the ADWLE project. The paralegals all have their livelihoods secured, so they don’t need much support to continue their paralegal work beyond the project. In Laos, we find the convergence between Buddhist notions of spiritual communality (manifested in precepts like het boun and tamboun) and Socialist ethics of solidarity and collective responsibility. In other words, there is a long-standing culture of volunteerism and working for the public good.

For the concept to be practical, it must be easy to approach a paralegal, anywhere, and at any time – in the break from ploughing the fields, over a cup of tea on the porch, or at the local temple. The paralegal, who has undergone practical training and is familiar with the kinds of difficulties people face, can advise on possible courses of action. When a client brings a case to the authorities or the legal aid clinic, the paralegal, who knows the members of the village and district authorities (getting introduced to these authorities is part of the training) accompanies the client and serves as a support person and sometimes as a translator. In complicated cases, the legal aid clinic will also assign a fully qualified legal representative to support the client. As the Deputy President of the Lao Women’s Union put it, the paralegals thus effectively ‘serve as bridges between people and the justice system.’ The Xaythany District Justice Office noted that the paralegals have been very helpful in facilitating access to the village mediation committee, which in Laos is the first instance formal dispute resolution mechanism. One official explained that ‘before the project, people may have been reluctant to approach these services for fear of biases or prejudice, but with the support of paralegals, people are more confident to present their cases to the village authorities.’

Talking to paralegals in Xaythany District, there were numerous anecdotes of people who felt hesitant about approaching justice institutions with their problems directly, possibly due to concerns about bigotry or not being able to present their issues in a sufficiently eloquent manner. The opportunity to speak with a paralegal about the matter, who can then help bring it to the attention of the authorities, has been instrumental in facilitating access to justice.

Several of the target villages in Xaythany District have a relatively high proportion of residents of Hmong ethnicity. The family traditions and customs of the Hmong differ in many respects from those of the Lao-Tai (known colloquially as Lao Loum or lowland Lao), and the Hmong language is also very different from the majority Lao language used in all formal settings such as courts. The project tackled this obstacle by recruiting paralegals from the within the Hmong community who speak good Lao and can help people who are disinclined to approach the justice system because they feel unable to present their case in fluent Lao.

In less than three years, the uptake of cases by paralegals resulted in six perpetrators of violence against women being convicted of grievous assaults, battery, rape and sexual assaults. A further two alleged perpetrators have been indicted, and trials were ongoing at the end of June 2019. A total of 18 civil cases have also been filed, allowing women to secure divorce settlements and custody arrangements under the civil code. In 47 cases, the project’s legal team made direct representations to village mediation committees to ensure that settlements were compatible with the law and did not fall short of the non-discrimination provisions enshrined in both the constitution and the civil code. However, this is but the tip of an iceberg; most legal problems are solved without recourse to the formal justice system, through informal dispute resolution by village chiefs, monks or respected elders. By having paralegals in the communities who can monitor these unofficial proceedings, the project has helped safeguard the rights of weaker parties also in these less formal mediation forums. If ever a paralegal feels that something might not be quite right in how a dispute is handled, he or she just asks the lawyer at the legal aid clinic who can then weigh in if needed.

While many people have been helped to use the law to ascertain their rights, the project has arguably achieved something beyond allowing women to leave abusive relationships and hold their tormentors accountable. Like in many other rapidly developing countries, the Government in Laos sees a need to establish a legal aid system. But when they look to the legal aid systems in wealthier countries, they find mainly models that rely on lawyers providing representation to individual clients. The costs of such models remain, for the time being, prohibitively high for governments in most developing countries.

As Adam Stapleton noted in his article nine years ago, as long as legal aid is defined only in terms of lawyers representing people in court, legal aid will remain illusory. What PASI demonstrated in Malawi and what ADWLE has now demonstrated in Laos is that with the help of paralegals, legal aid need not be illusory. Not only are these services vital to poor people who need them to settle their disputes and navigate the justice system, but they are also a fundamental building block of the rule of law. The phenomenon of gender-based violence illustrates this well, as it is a veritable litmus test for any justice system. Only when the most vulnerable people in our society are enabled to invoke the law to help put an end to their anguish, only then can we say that the rule of law truly prevails.

Rethinking development – what the world can learn from Bhutan

This article was first published in The Kuensel, Saturday, March 23, 2019

Last week I had the benefit of attending the fourth dialogue hosted by the Royal Institute for Governance and Strategic Studies (RIGSS), featuring the UNDP Administrator, Mr Achim Stenier, in conversation with Dasho Kinley Dorji, the former Editor in Chief of Kuenseland Secretary in the Ministry of Information and Communications.

In the course of the discussions, there were several attempts at comparing the 2030 Agenda for Sustainable Development and its Sustainable Development Goals (SDGs), with Bhutan’s own development paradigm and its aspirations towards greater Gross National Happiness (GNH). Many fascinating similarities and differences were identified (see the video below). There are, however, two rather profound aspects of the GNH, that I personally greatly appreciate, but which seem overlooked in much of the global development discourse.

The first is the recognition, within the GNH philosophy, that external and material factors will never, on their own, be sufficient to attain happiness or contentment. While the 2030 Agenda and the SDGs focus exclusively on improving the external dimensions of our wellbeing such as schooling, healthcare, food and water, the GNH also incorporates internal dimensions, for instance psychological well-being and time use. These internal dimensions are then measured by indicators like how mindful people are and how much they meditate. Research over the last two decades has proven, rather conclusively, that various mindfulness practices, both in Buddhist and secular contexts, have had significant positive effects on people’s psychological and physical health. People in Bhutan, who are generally very familiar with Buddhist teachings, may smile at these ‘new scientific findings’ given that the Shakyamuni Buddha advised us, already some 2,500 years ago, that practising meditation (samyak samadhi) and being present-minded (samyak smrti) will be beneficial if we wish to save ourselves from dukkha, dissatisfaction and suffering.

The second aspect of GNH, which I find inspiring is its recognition that happiness is something that we, as individuals, have a role in creating for ourselves. Yes, sure, government can and should facilitate, but quite regardless of what any given government says or does, we all have the power to alter our minds in such a way that we experience less frustration, less unfulfilled desire, and less attachment to all that which we must inevitably lose.

By contrast, when reading the UN General Assembly Resolution that sets out the 2030 Agenda, we find ‘the Heads of State and Government and High Representatives, meeting at United Nations Headquarters in New York…’ promising to do everything from ‘ending poverty and hunger everywhere’ and ‘protecting human rights’ to ‘ensuring lasting protection of the planet and its natural resources’. We ordinary people, you and I, we seem largely to be considered recipients of all these good things. It appears to be the benevolence of the ‘the Heads of State and Government’ that will ‘free the human race from the tyranny of poverty and want…’ There is of course nothing wrong with that; I am sure we all want our governments to foster and safeguard prosperity, preferably without destroying the planet in the process. But all that falls slightly short of the GNH concept, which again goes a step further by suggesting that we, as individuals, have the innate power to cultivate happiness and contentment by training our own minds. This means that even if or when governments around the world betray their promises and fail to live up to their grand pledges, we need not be passive victims of this misfortune.

The Shakyamuni Buddha noted ‘Ah, so happily we live, without hate among those who hate. Without misery among those in misery. Without ambition among those with ambition – We who have no attachments.’ (Dhammapada 15:197-200). The point I imagine he wished to make in that verse is that even when the external circumstances are rather dreadful and inconducive to happiness, we can still do something to uplift ourselves. The eightfold path is open to us all, right here, right now, and it remains open to us even should we find ourselves, as indeed the Shakyamuni Buddha often did, surrounded by hate, misery, greed and corruption.

Now, surely, that is, not only immensely empowering, but it also shows a deep-seated trust in the ability of every human being, in the capacity of you and I, to change our situation for ourselves and for the people around us, and to attain happiness.

In her vote of thanks, the UNDP Resident Representative reflected on the dialogue by saying that she thinks the people of Bhutan have a lot to contribute to the global discourse on development by helping us to better understand what happiness really is, how it relates to development, and how to realise it in our everyday lives. I certainly hope that we will have the humbleness and the wisdom to study and learn from Bhutan.

Marcus Baltzer

Legal aid in Bangladesh: a matter of timing

This article was first published in the Bangladesh Journal of Legal Studies at https://bdjls.org/legal-aid-in-bangladesh-a-matter-of-timing/

In 2016, Farzana Akter of the University of Dhaka published an article in the Asian Journal of Criminology, outlining the legal obligations on the part of the Bangladeshi state to make legal aid accessible from the earliest stages of criminal proceedings.

At the time, there was very little data available on the extent to which people were able to access legal aid and at what stages they were able to do so. In 2016, the Ministry of Law, Justice and Parliamentary Affairs commissioned a Justice Audit in order to build an evidence base for justice sector reform. The Justice Audit establishes a system for regularly collecting different types of data, from across the criminal justice system, for the purpose of informing policymaking and programming. With the help of this data, it is now possible to demonstrate the potential effect of the reforms recommended by Farzana Akter, not only in making the Bangladeshi criminal justice system more compliant with both international and domestic law, but also in terms of reducing the perennial overcrowding in the country’s prisons.

Download the full article by clicking here.

Beating the backlog in Lao courts

The article was first published by the East Asia Forum at http://www.eastasiaforum.org/2018/12/14/beating-the-backlog-in-lao-courts/

Law courts in many Asian countries are overburdened. A perfect storm of factors including rapid economic growth, urbanisation, industrialisation and the withering away of traditional governance systems has caused the number of both criminal and civil cases to soar. At the same time, courts are often ill-equipped to cope with the increasing pressure. Perhaps the most commonly cited indicator of this phenomenon is court case backlog. These backlogs arise when more new cases are filed than what the courts can dispose of. As ever more cases are processed by the same number of judges, prosecutors and clerks, it takes longer to conclude each case. This slows down the disposal rate further, the build-up of pending cases accelerates and eventually the system grinds to a halt. In some jurisdictions it can take decades for a verdict to be reached.

India has a case backlog exceeding three million cases, Bangladesh has a similar figure and the Philippines, despite its smaller population, has also hit six-digit figures. In Myanmar the backlog is piling up at an alarming rate and Sri Lankan courts are struggling, too. Not only does this hamper access to justice for individual citizens, it also spoils the investment climate.

One country stands out in this picture: the Lao People’s Democratic Republic. The Lao government pursues a policy of providing access to justice through mediation at the village level rather than primarily through courts. Civil disputes and some criminal offences are mediated informally by families, elders and monks. And if that fails, a panel of appointed mediators conducts a round of more formal mediation.

This system is not only geographically accessible (as it exists in some shape or form in every village), it also follows procedures adopted from traditional dispute resolution and so is more familiar to Lao people than court proceedings are. It seeks to achieve reconciliation and communal harmony through restorative justice, which is more in tune with the values of Lao people than the more individualistic and retributive nature of western legal systems.

This is not to say that mediation in Laos always yields optimal results. There are concerns that economically and socially weaker parties could be at a disadvantage, that political or financial incentives sometimes influence outcomes, or that matters over which mediators do not have jurisdiction are mediated when they should instead be referred to the courts or the police.

Responding to such concerns, the Lao government recently adopted a new set of regulations and guidelines for how mediation should be conducted, emphasising the importance of impartiality, integrity and professional conduct on the part of mediators. Given that there exists no baseline and no agreed indicators for how to measure the quality of mediation or its outcomes, it is difficult to say anything with certainty about it.

Still, 75 per cent of respondents in a 2015 survey across three provinces expressed that they were ‘satisfied’ or ‘very satisfied’ with the services of the village dispute resolution committees. And a survey from 2011 covering four provinces showed that 72.5 per cent of respondents ‘expressed confidence in the customary system to solve problems or disputes’. The corresponding figure for the village dispute resolution committees was 66.3 per cent.

The lack of a case backlog in Laos offers another indication of the success of the government’s investment in mediation. Verdicts are generally reached within the statutory timeframes, and over a five-year period the number of new cases filed does not exceed the number of cases concluded.

Unlike in Bangladesh, for instance, where the government is now investing in local justice to alleviate the colossal burden on the judiciary, the Lao government had the foresight to adopt measures to prevent the courts from becoming overwhelmed. Data from the Ministry of Justice shows that there were a total of 3900 cases registered by village dispute resolution committees in 2017. Out of those, only 453 (or under 12 per cent) could not be resolved and were referred to a court.

Laos is, of course, subject to the same factors that are giving rise to jammed court systems elsewhere, and the caseload in Lao courts has been creeping up over the last decade. Between 2013 and 2016 the caseload pending at year-end rose by 35.5 per cent while the disposal rate only climbed by a little over 8 per cent.

Although current levels are still manageable, Lao policymakers and practitioners have taken this trend as a nudge to invest further in the capacity of mediation systems at the village level, while simultaneously ensuring that the formal system can handle matters that cannot or should not be settled through mediation.

Yet when speaking to Lao policymakers about mediation, it is clear that the state’s investment in local justice is driven not so much by the need to save the courts from becoming overburdened, but by a deep-rooted belief that quarrels — however minor they may initially appear — disrupt social harmony and must therefore be resolved quickly and to the satisfaction of all parties.

The venerable Ajahn Chah once likened ‘wrangles and squabbles to small injuries which, if left untreated, risk becoming infected and turn into life-threatening festering wounds. Treating an injury when it is but a scratch will be far easier than when it has caused the blood in the whole body to be poisoned’.

It would appear that this is what Laos is seeking to do.

Marcus Baltzer

False assumptions - the case for redefining drug offences in South East Asia

This article was first published in the Singapore Academy of Law Journal at http://journalsonline.academypublishing.org.sg/e-First/Singapore-Academy-of-Law-Journal

In the global debate around drug policy and its interface with criminal justice, there is a wide spectrum of viewpoints. At the one end, there is the idea that the drug market can be minimised, even eradicated, by deterring people from taking part in it. This is a position of many governments around the world. Governments of countries like Singapore attribute the relatively limited scale of the drug market in their countries to what in this article refers to as ‘high deterrence policies’. At the opposite end of the spectrum, it is argued that high deterrence policies (sometimes associated with the ‘the war on drugs’) have been an epic failure and that the best way to manage drug markets is to legalise and regulate them with a view to mitigating the harm caused.

Most countries, however, find themselves somewhere in-between these two extreme points on the scale. Laos and many of its neighbours in the South East Asia region are, in different ways, examples of this category of countries. The social and economic costs of high deterrence policies are evident, yet for a host of reasons, it is difficult for these governments to abandon their high deterrence policies in relation to drugs. There are powerful conservative political blocks that remain favourable to the high deterrence stance on ideological grounds, and a significant segment of public opinion probably demands a ‘tough response’ to drug crime.  There might be a reluctance to acknowledge problems with existing policies (sometimes described as ‘losing face’), but ultimately, there is a genuine belief that high deterrence policies have indeed been effective and are appropriate in given social, cultural, and economic contexts.

This paper puts forward an alternative, which would satisfy constituencies demanding the retention of high deterrence policies, yet avoid many of their costly side effects. This could be achieved by defining drug offences with reference to the role of a person in the drug industry, as opposed to defining drug offences mainly or exclusively with reference to the quantity of drugs that a person is in possession of. This option would allow criminal justice resources to be concentrated on offenders with a leading role in the drug industry while freeing up the vast resources that are currently being spent pursuing offenders who have relatively minor roles.

The full article can be downloaded here. 

Chinese meritocracy: nothing to fear, so much to learn

This article was first published by China Radio International at http://chinaplus.cri.cn/opinion/opedblog/23/20180706/153768.html

Open a newspaper in almost any country today, and you are bound to come across a story or a debate about Chinese overseas investments. We read that these investments may pose national security risks, that they compromise sovereignty, and that accepting them somehow implies endorsement of China’s supposedly poor human rights record. The tone typically ranges from slightly suspicious to outright xenophobic. 

I have often asked: why this resentfulness? The answers have been vague and somewhat abstract. A book by Daniel A. Bell entitled The China Model: Political Meritocracy and the Limits of Democracy helped me better understand why China’s new role in the world is causing so much unease. China, with its unique system of governance and extraordinary economic track record, might soon challenge the widely held belief that the western liberal democracy is the only path to human prosperity and social stability. 

Since the 1980’s, the Chinese Communist Party has sought to develop a system of governance based on meritocracy, drawing on Confucian principles and values, but also on the practical experiences of the meritocratic elements of Singapore’s political system. The fundamental idea is simple. Instead of letting citizens elect leaders freely, leaders are appointed or have to qualify as candidates for election, based on merit measured through examinations on relevant topics and assessments of past performance.

So, how is this model working? Even China’s harshest critics cannot deny the 'single most impressive poverty alleviation achievement in human history.' The World Bank estimates that the number of people living below the official poverty line in China was reduced by 94% from 1980 to 2015. That means that some 800 million people were lifted out of poverty during that period. That is equivalent to the entire population of Africa south of the Sahara. Yes, the critics will say: ‘but look at the degradation of the environment and the inequality that has ensued’. These are effects of how merit was defined. The Party priority, from the 1980’s onwards, was to reduce poverty through economic growth. Leaders were selected and promoted based on their ability to stimulate economic growth and reduce poverty. The meritocratic system was asked to put in place officials who would generate economic growth and reduce poverty; the meritocratic system delivered precisely that, and it did so at a pace and on a scale never previously witnessed in human history. When the environmental and social side effects became intolerable, new criteria for promoting officials were introduced. These included, for example, having a good understanding of climate change science and a solid track record on promoting renewable energy. The adjustments appear to have had the intended effect. If we stick just to the example of renewable energy – perhaps the most pressing issue of our time – the Chinese energy portfolio is now rapidly embracing a variety of renewable resources, such as hydro, wind, solar, and bio-energy; more than one-third of global investments in renewable energy are happening in China. 

After the breakup of the Soviet Union, it was widely assumed that western liberal democracy was the only system of governance that could generate and sustain human development. I have worked on numerous development assistance projects designed to establish and strengthen institutions and processes copied from the liberal democracy blueprint. Very often elections are highly polarising and destabilising events. Parliaments are seldom able to represent their constituencies effectively. And elected heads of state seem no more accountable than their unelected predecessors. Data from any set of commonly cited governance indicators will validate my experiences. And even in some western countries, the liberal democracy appears to be questioned.

Maybe this is where some of the uncertainty over China comes in. China has succeeded, and continues to flourish, in ways that we in the west for so long thought impossible for a country that doesn’t subscribe to our model of western liberal democracy. Is the reaction from the west one of injured pride? Either way, the anxiety we now see is probably unwarranted. As Daniel Bell explains, unlike many western nations, China has no ambition to export or impose its system of governance on any other country. And just as liberal democracy may not be suitable for every human society, neither would Confucian style meritocracy be appropriate in all economic and social contexts.  

Instead of responding with trepidation, the success of meritocracy in China should be welcomed, studied, and continuously evaluated. Doing so will enrich our shared understanding of the relationship between political science and human development and allow us to improve the quality of governance in all countries.

Marcus Baltzer

Telephone country codes: A shorthand history of the world

I’ve never been able to figure out the logic behind our telephone country codes. ‘Follow the Humming’ explains why: there is no apparent logic. The codes are simply a patchwork reflecting our tumultuous history. 

Diary date: 31st July, 1985

A watershed moment 28 years ago this week: I’ve arrived in Sweden for a three-month stay working as a cleaner on the dockyards in Gothenburg. After a week, I managed to get enough Kronor in a public phone box to call my family and let them know I’d arrived safely. I spoke to them for about 20 seconds before my change ran out.

As a child of International Direct Dialling – the ability to make country-to-country phone calls without the help of a human operator – it was around this point that I started to make a mental note of the ‘country codes’ of places I’d visited. From Sweden, I knew I needed to dial 44 to get back to the UK. Doing the reverse – calling Sweden from the UK – I needed a 46 instead. At the time, I remember thinking that the allocation of these numbers was probably based on the alphabet. 44 was close to 46, and the ‘U’ of United Kingdom was close to the ‘S’ of Sweden. Who needed Wikipedia back then?

In fact, the development of the country code system is not nearly that simple, telling as it does by proxy the story of global geo-political change since the early 1960’s.

An initial list of largely European country codes was mooted in 1960 by the organisation which was to become the ITU (International Telecommunication Union) – the UN agency which helps coordinate global telecoms. The list was published as the Red Book and proposed around 50 two-digit codes (presumably used at the time by operators rather than subscribers), including the now-defunct Yugoslavia (63), Arabia (26) and Czechoslovakia (57).

The Red Book became Blue in 1964 and brought with it a proposal for a new system. The world was divided into nine zones, and countries were given one, two or three-digit country codes, with the initial digit representing their zone. World Zone 1 was North America, Zone 2 was Africa, Europe bagged both 3 and 4 because of the sheer number of larger countries, and so on.

In 1968 the Book was White and built on the new model, with a wide range of changes and additions, including East Germany (37), the Trucial States (971) and Zanzibar (252). Turkey, which in 1964 had the European code 36, moved to Zone 9 (Western Asia and the Middle East) and adopted its current code – 90.

1972 was Green and did a lot of tidying up.  Several Central American countries like El Salvador and Honduras left the North American Zone 1, and became part of Zone 5 – South America. The Trucial States merged to become the United Arab Emirates and acquired code 971, and Rhodesia (263) became Zimbabwe. Ceylon (92) kept the same country code but became Sri Lanka. Meanwhile, Morocco strangely found itself with with three codes all to itself (210, 211 and 212).

The books in the next few years started with Orange and Yellow, but their four-year cycles were eventually abandoned so that the ITU could keep pace with the demands of the new world of personal computing.

The changes since then read like a shorthand history of the world:

In 1984, the Republic of Upper Volta (226) became Burkina Faso, and the Falkland Islands, previously assigned to Guatemala, acquired their own code – 500.

The same year, a new code – 850 – was created for North Korea, with South Korea retaining code 82.

After German reunification in 1990, East Germany’s code 37 was deleted in favour of West Germany’s 49.

Eritrea seceded from Ethiopia (251) in 1993 and acquired a new code – 291.

Lithuania (370), Latvia (371), Estonia (372) and several other states split from Zone 7 (originally named ‘USSR’ in 1964) in 1993. The only former Soviet republic that retained its ‘7’ designation was (and remains) Kazakhstan.

Yugoslavia (38) was deleted in 1993 and became Serbia and Montenegro (381), Croatia (385), Slovenia (386), Bosnia (387) and Macedonia (389).

Vatican City gained its own code (379) in 1995 – instead of just being reachable through Italy.

In 1997, Czechoslovakia (57) became the Czech Republic (420) and Slovakia (421).

Following its independence from Indonesia, East Timor was assigned code 670 in 1999.

Palestine was given code 970 in 1999, replacing its previous access via Israel on code 972.

In fact, of the original 1960 Red Book list, only six countries* today retain the codes they were initially given.

Coincidentally – and rather fittingly for my followthehumming story – two of these are the ever-lovely Sweden (46) and my own United Kingdom (44).

*Just out of interest – since you’ve got this far – the other four are Greece, France, Italy and ‘Germany.’

The law courts of Bangladesh: standing up to the test of time

This article was first published in The Independent at http://www.theindependentbd.com/arcprint/details/129137/2017-12-22

There is a vast virtual library of reports, written by countless reputable experts and organisations, describing how dysfunctional the criminal justice system in Bangladesh is; how corrupt, how slow, and how inefficient it is. No report fails to fret over the millions of pending cases in ‘the backlog’.

Yet, despite all that, it is a deeply fascinating and intriguing system. Nothing ever quite is what it seems to be, and every time I visit, I learn something I didn’t know before, and that certainly isn’t mentioned in all those reports.

Visiting courts in Bangladesh is like travelling in a time machine to a bygone era. The language is a mixture of Farsi from the Mogul empire, English from the Raj, all embedded in legal Bengali – a bahasa so cryptic that laypersons whose mother tongue is Bengali will, at best, understand it only partially.

I find myself walking through scenes from a Charles Dickens novel. Hawkers are selling food and drinks to weary litigants and their families.  Lawyers dressed in long black robes hasten by, carrying bundles of time-faded documents, bound together with pieces of string.

Cases and all information associated with them are recorded in enormous ledgers, filled to the margins with Bengali handwriting so neat it could pass for calligraphy. Judges write down what every witness, complainant and accused says, in shorthand.

Everything is manual; the administration of justice for over 160 million people is done with the help of nothing but pen and paper. Computers are few and far apart, often covered with a towel to protect them from dust, and hardly ever switched on. In a system from the 19th century, computers remain, for the most part, superfluous. 

Commenting on plans to digitalise court processes, a Nari-o-Shishu judge cautioned; ‘if my computer breaks down today, it makes little difference – my court will carry on regardless. But if you make us dependent on those machines, then what happens if they break down?’ Her comment helped me realise what it is that has come to fascinate me so much about the justice system: its resilience.

Every morning, for hundreds of years, these courts have opened their doors. They have been through colonialism, wars of independence and liberation, political upheaval and coupes, flooding and droughts. While the world around them has transformed itself through technology, the law courts of Bangladesh have resolutely stood firm, and very little has changed. Every day, thousands of cases are adjudicated, according to laws from an era when neither cars nor aeroplanes existed, and when it was still considered fitting for European rulers to exploit colonies for profit and strategic advantage. Miraculously, Bengali ingenuity has somehow managed, through a patchwork of pragmatic bypass solutions, to make this supposedly anachronistic system operate in 2017, serving a young, energetic, independent nation that is generating impressive economic growth.

Almost defiantly, the court machinery somehow grinds on. But perhaps there is more to this than the scenes from a 19th-century saga.

Cases often drag on for many years, prompting parties to settle grievances on their own terms. The fashionable phrase seems to be ‘alternative dispute resolution’ only that in many cases, it is not an alternative at all, but rather the only way to get a result since the formal system is so unlikely to reach a verdict. But then it also appears as if the tedious court process serves to incentivise parties to do a deal, and if the alleged offender is in custody, then the pressure is undoubtedly on to try and find a solution. Prison conditions are said to be grim and people are known to sell all they have to get their loved ones out.

We might be looking at a colossal informal negotiation scheme, in which the formal process is merely a lever used to coax an antagonist into an accord. Money is undoubtedly critical in all this, and as in every other aspect of life, it will buy significant advantages.

So effective might this scheme be, that some insiders say that many of the old pending cases have in fact been settled and that those cases only exist as stained and dusty files, tucked away in some corner, long since forgotten by the litigants.  If we just count cases that are 'live' in the sense that the parties have not settled them, then the infamous ‘backlog' may not at all be as overwhelming as the official data suggests. Similarly, if we measure the time it takes to settle, instead of counting the years it takes to dispose of a case formally, then the system may not be as slow as it appears from statistics.

Perhaps the best way to understand the criminal justice system is to think of it as a theatre. There is one performance on stage, one that we can all come and watch, the one that is reviewed and critiqued in the all those reports I mentioned earlier. Then there is another drama, taking place backstage, where only the actors and crew are permitted. Those of us sitting in the audience will know precious little, if anything, about what goes on in that drama after we have all gone home at the end of the evening's performance.

Maybe this helps explain how the criminal justice system can be so resilient.

Maybe it is only that play on the stage that has stuck to the 19th-century manuscript, allowing the real drama to unfold behind the scenes, unfettered by obsolete laws, archaic procedures and mystical language.

Maybe by looking at what is functional, as opposed to being so obsessed with that which appears dysfunctional, will we understand the real story better.

Maybe.

Only the actors would know.

Marcus Baltzer

Are we asking too much from prisons?

The Solomon Islands Correctional Service is currently offering their induction training for newly recruited prison officers, and I was invited to facilitate a few sessions on the Mandela, Bangkok and Beijing Rules.

With an eager, inquisitive and energetic group of recruits, many critical questions arose. One of them was in relation to rule four of the Mandela Rules, which states that:

‘The purposes of a sentence of imprisonment…are primarily to protect society against crime and to reduce recidivism. Those purposes can be achieved only if the period of imprisonment is used to ensure…the reintegration of such persons into society upon release so that they can lead a law-abiding and self-supporting life.’ (Emphasis added)

That sounds very good, but the recruits here in Honiara were under no illusions as to how difficult this would be in practice. Just like in so many other countries, mental health care is virtually non-existent in the Solomon Islands, and thus many people with mental disorders end up in prison. One recruit asked ‘so how can we be expected to rehabilitate and reintegrate people with mental disabilities?’ I’m ashamed to admit that I had no good answer.

It was also recognised that there are typically a whole array of social and economic factors that lead to a person being sent to prison: ‘these are often people who never had real parents, who missed out on basic education, and who suffer from drug or alcohol abuse disorders – that is a lot of problems to fix.’ And it is true, isn’t it? Rule four seems to be asking prisons, and the people who work in the correctional services, to effectively reverse decades of letdowns in a person’s life. Where the social welfare, education, and public health systems have all failed – prisons, with their almost total lack of specialised personnel and resources, are somehow expected to succeed.

To make matters worse, in many countries prisons are seen as the poor cousin, both among the uniformed services and in the criminal justice system. Justice Audits from around the world suggest that prisons are often far less of a priority for governments than for instance the police. Too often the resources available are just enough to ‘maintain security’. In such situations, prisons become little more than storage facilities where people are ‘put away’ for a certain period of time. Rather than rehabilitate and reintegrate people, prisons are then very likely to exacerbate their problems. Many prisons in the world, even in very rich countries, are known to aggravate drug abuse, gang cultures, violence and alienation from society. Such conditions will also do further harm to people’s physical and mental health.

It is of course easy to blame it all on political desicsion makers for not allocating enough resources. But again reality is slightly more complex; no politician, anywhere in the world, will gain much public support by advocating that more money be spent on prisons at the expense of all the other priorities of a government.

So, the question posed by the recruits here in the Solomon Islands then remains; are we not asking too much from prisons?

Marcus Baltzer

Induction training for recruits of the Solomon Islands Correctional Service, Honiara, January 12, 2017

Who is truly ‘developed’ and who has the skills to live sustainably?

This article was first published in the Solomon Star, Monday October 10, 2016

According to the United Nations, the Solomon Islands is a ‘least developed country’. The underlying assumption is of course that this is an undesirable state of affairs, and that every effort should be made to ‘develop’ by fostering economic growth, in much the same way as most other countries have done. One of the most frequently cited obstacles to economic growth is the perceived inadequacy of skills among people in the Solomon Islands. The World Bank tells us that ‘there is a serious skills deficit in the Solomon Islands, constraining its people from taking advantage of the economic opportunities.’

I recently went for a hike from Kakabona, across Guadalcanal, to Tangarare on the Weather Coast. Before the advent of the motorised ‘banana boats’ a decade or so ago, this was something of a highway. It was the only way in which people from the west side of the Weather Coast could reach Honiara. Today, hunters use the trails occasionally, but long stretches of the trail have practically vanished in the thick undergrowth.

It isn’t a hike for the faint hearted, and I carried about 15 kilograms worth of food and gear. I will not bore you with my packing list – the point is, even though I have some outdoor experience, I needed a lot of stuff to undertake a three-day journey through the jungle. Most importantly, I hiked with a friend and guide, Stanley Mapaniata, without whom I would undoubtedly have gotten lost within hours. It would not have been the first time a foreigner went missing in the dense tropical forests of Guadalcanal. So, you can picture me there, with a big backpack, good footwear, and outdoor clothing.

By contrast, the Solomon Islanders who venture into the forest typically carry little more than a bush knife. They don’t have to bring anything else, since they have a very special set of skills, sometimes described as ‘wilderness skills’ although I much prefer the Australian term ‘bush craft’. They need not carry water, since they know what vines they can cut to get a drink. They need not carry food, as they have the skills to catch fish in the rivers, and the knowledge to identify and harvest edible plants along the way. They need not carry a tent, since they can construct a shelter in less than 20 minutes, using nothing but materials from the forest. And they need no medical kits, as they know what plants can be used to treat cuts, bruises, headaches and diarrhoea. They don’t even need matches. In Kusumba, I met a man who made a friction fire with no tools faster than I could make it with my matches and prepared tinder – a fine display of bush craft skills.

Stanley Mapaniata cooking kasume, harvested from the forest, using bamboo as a cooking pot.

This prompted me to start asking people around me about their bush craft skills. Very quickly I realised that many people in the Solomon Islands, especially those who grew up outside of Honiara (which is the vast majority), still have the skills, the knowledge, and the mindset to live in symbiosis with nature; to live as all human beings did for hundreds of thousands of years, right up to the industrial revolution. This way of life, and the skills it requires, may not generate much economic growth, but living off subsistence farming, small-scale fishing, and the occasional outing to harvest wildlife from the jungle, is clearly far more sustainable than the way in which people in my ‘highly developed’ country are living.

Put in a different way; it wasn’t the lifestyles of ‘unskilled’ and ‘least developed’ Solomon Islanders that caused global warming, polluted oceans, poisoned rivers, and destroyed ecosystems. Sure, we are seeing considerable environmental degradation in the Solomon Islands today, but that is a symptom of unregulated capitalism – not exactly an economic system that the people of this country chose for themselves. Ironically, the ongoing ecological destruction in the Solomon Islands is a direct consequence of the largely failed attempts to ‘develop’ and spur economic growth.

Earlier this year, the United Nations adopted the new Sustainable Development Goals (SDGs) largely in response to the realisation that what so far has been considered ‘development’ (a term taken to be little more than a euphemism for ‘economic growth’) has caused social and environmental side effects so disastrous that a radical revision was needed. While the SDGs retain an emphasis on economic growth, they redefine sustainable development as being ‘development that meets the needs of the present without compromising the ability of future generations to meet their own needs.’

To me, this all begs a fundamental question: who is truly ‘developed’? The people who live rather sustainably, with skills to live in harmony with nature, or people like me, who live totally unsustainably, estranged from nature, with only the ‘skills’ to fuel an economic system that has devastated our global environment to the extent that our entire existence on this planet is now threatened?

The Solomon Islands may be described as ‘least developed’ on account of its failure to generate economic growth, and its people may lack the skills needed to make the national economy grow. But if we apply the sustainability criterion, as the SDGs suggest we do, then we may find that the way in which most people in this country live is actually highly developed, in the sense that they indeed are trying ‘to meet the needs of the present’ using skills and knowledge that have been passed down through generations, ‘without compromising the ability of future generations’ to do the same.

As for those of us who pump out massive amounts of carbon dioxide by running air conditioners powered by diesel generators, driving our SUVs, flying around the world, consuming products transported half way around the globe, and generating mountains of waste in the process – perhaps we ought to show more respect for the rural people in this country who live quite sustainably and who have the skills to do so. Achieving sustainable development globally will probably require us to live a lot more like them, and not the other way around.

Marcus Baltzer

When democracy yields: Saburo Ienaga’s lessons from Japan’s role in World War II

Over last decade or so, working with governments and civil society all over the world, I have sensed a growing degree of fatigue with concepts associated with liberal democracy such as civil liberties, human rights, or participatory and inclusive political processes. Or perhaps it isn’t fatigue with the concepts as such as much as the overuse and misuse of the terms. Either way, in the non-western world, authoritarianism is now often seen as an effective and efficient system of governance for purposes of attaining economic growth. And in the western world, being politically correct (i.e. trying to avoid the use of offensive and inflammatory rhetoric) has become synonyms with cowardliness and insincerity. Political forces with scant respect for the fundamental pillars of the liberal democracy appear to be faring better than they have since the end of World War II, so much so that they have become known as ‘populist’ in the mainstream media.

Against this backdrop, I was lucky to find a copy of Japanese historian Saburo Ienaga’s ‘The Pacific War 1931 – 1945’, originally published in 1968. This is an account of the events that led Japan onto its path of self-destruction, culminating in the defeat and occupation of Japan in 1945. Ienaga’s work is precise, rich in detail, and in Japan at least, politically explosive. After all, this is a man who was nominated for the Nobel Peace Prize by none other than Noam Chomsky. Ienaga is perhaps best known for his tireless efforts to document atrocities by the Japanese Imperial forces, not only in occupied countries such as Korea or China, but also, and perhaps less widely acknowledged, in Japan itself (see press cutting below). 

The book sets out by asking a fundamental question: ‘Why was the Japanese people not able to prevent their government from starting the war?’ To Ienaga, it was critical to get history right. He noted how ‘[t]he public only wants to forget the unpleasant experience, but collective amnesia will also erase the costly lessons of the war. This book is an attempt to halt that erosion of consciousness.’

He offers overwhelming evidence pointing at three underlying factors that combined to give rise to a tragedy in which tens of millions of people lost their lives.

Firstly, the use of an education system, which has always placed emphasis on conformity, to indoctrinate a whole generation in fascist ideology and the need to fight and die for a god-emperor. This meant that too few people had the intellectual urge to question the increasingly fascist and aggressive ideology of the state.

Secondly, the quashing of all free debate and suspension of civil liberties, which meant that even the relatively few who were inclined to question, despite the propaganda, were swiftly silenced. Questioning any government policy, or even the way in which it was implemented, became tantamount to treason.

And thirdly, the ever-increasing power and autonomy of the military and police, a process justified with reference to ‘national security’, which meant that the armed services gradually did away with civilian control, ensuring that the country evolved into a de facto military dictatorship.

Ienaga sums up his findings in a paragraph:

‘The pre-war state kept the populace in a powerful vise: On the one side were the internal security laws with their restrictions on freedom of speech and thought; on the other side was the conformist education that blocked the growth of free consciousness. The vise was tightened whenever any individual or popular resistance challenged reckless military action. These laws and public education, used as instruments of coercion and manipulation, were the factors that made it impossible for the Japanese people to stop their country from launching the Pacific War.’

Ienaga also describes how once a society begins to lose its democracy and its freedoms, the process quickly gathers momentum, and it becomes ever more difficult to reverse it: ‘There was no way to stop the escalation in the 1930s; there was no freedom to demand an end to the war in the 1940s even when it was obviously lost. The meaningless slaughter continued until Japan’s cities were smouldering ashes and atomic bombs brought the Japanese people to the brink of genetic holocaust. If the popular will had influenced policies, the conflict might have been avoided or at least shortened. It was a vicious cycle: the weakness of democracy was one cause of the war, and the war further eroded freedom.’

Ienaga’s analysis serves as yet another reminder of why it is so dangerous when politicians, even in relatively stable democracies, begin to sacrifice civil liberties purportedly in the interest ‘national security’. Surly the fate of Japan between 1931 and 1945 warns us that whatever national security risks we seek to mitigate by dismantling civil liberties, the very act of doing so gives rise to far greater risks, not just to the nation, but more importantly to its people.

It also reminds us of how important it is that the education system encourages critical and independent thinking. Aside from spurring innovation and entrepreneurship, Ienaga shows how this can serve as an effective insurance policy against tyranny and oppression. Finally, in an era in which many countries are again investing more resources in military might, again supposedly necessitated by ‘national security concerns’, Ienaga’s work illustrates how a powerful military relatively quickly can turn itself into a national security nightmare of downright apocalyptic proportions.  

Saburo Ienaga dedicated his life to ‘the truth about the Pacific War and making these facts as widely known as possible…’ this was, he believed, ‘the only way to avoid another tragedy, and a solemn obligation, a debt we owe to the millions who perished in the fires of war.’ Professor Ienaga, who passed away in 2002, clearly fulfilled that obligation. The question is if the people who call themselves leaders today will care to listen. 

Marcus Baltzer

An obituary in the UK Guardian can be downloaded here. The article below is from the Canadian Globe and Mail. 

A cartoon from 2016. Saburo Ienaga may have found it helpful in illustrating some of his messages. Thanks to "Anonymous" for sharing it. 

What is Justice Reinvestment?

This video explains Justice Reinvestment (JR). It describes how JR can be used to reduce imprisonment of young people, and of young Aboriginal people in particular. Produced by NAAJA (North Australian Aboriginal Justice Agency), Fiona Allison (Researcher, James Cook University) and Round 3 Creative (video production studio), with assistance from the community of Katherine, NT and UNSW's Australian JR Project. Narrated by Warren Clements. This film was fully funded by Amnesty International.

Notes from today's High Court session

At about 18.30, D and V had an argument. V punched D. D staggered and attempted to launch a punch towards V’s chest, but V took a step backwards, so the punch either (a) did not connect or (b) connected rather poorly (witness statements differ on this point). Either way, the effect was to put V off balance. At this point, D’s brother D2 stepped in and punched V in the face. V fell to the ground and his head hit the concrete. V suffered a concussion and a fractured skull, but was not given any medical attention until a few minutes past midnight. That same night V died from oedema in the brain.

Both D and D2 were charged with manslaughter. D2 pleaded guilty, D pleaded not guilty.

1. Can D argue that D2’s punch was an intervention, a novus actus interveniens, that broke the chain of causation between D's attempted punch and V’s death?
2. Can D argue that his attempted punch was an act of self-defence, meaning that this was not a culpable act to which the death of V can be attributed?
3. Can D argue that V would have hit the ground and sustained the same injuries even if D had not launched his attempted punch (a reverse ‘but for’ test)? 

We shall find out in the coming days, and hopefully we will not have too many adjournments. 

Marcus Baltzer

Postscript: Once the prosecution had presented its case, D filed a 'no case to answer' motion. The High Court ruled that D indeed had no case to answer, as the evidence put forward by the Crown was never going to be sufficient to prove beyond reasonable doubt that D's actions had contributed substantially to V's death. 

Ideology or evidence? The dichotomy in criminal justice reform

Last year, when we were working on a new national plan for countering the effects of illicit drugs in Laos, one of the main arguments put forward in favour of decriminalising possession for personal use was a public health argument: If drug users fear arrest and prosecution, it will be impossible for the health system to reach them with services to prevent the transmission of infections diseases, and to help them manage their drug use. The public health consequences will be detrimental: more deaths from overdoses, increased transmission of HIV and other infections diseases, and more people transitioning from recreational use into problem use and dependency.

Yet, as these discussions went on between the various stakeholders, health practitioners began to ask; what if there are other provisions in the criminal law that also have a bearing on pubic health? The fact that Laos is currently developing a new penal code presented an excellent opportunity to review the criminal law from a public health perspective. And so, over the last two months, a small multidisciplinary team has been examining the draft penal code, asking ourselves: what would the public health effects be if the current draft wording were to be adopted and enforced?

Big questions immediately began emerging. One of first issues that came up was whether selling sexual services should be an offence or not. From a strict pubic health point of view, it became obvious that criminalising sex work would be counterproductive. It would hamper efforts to reach sex workers (a so called ‘key population group’ for purposes of HIV transmission) with critical medical services, including free condoms and voluntary counselling and testing. Furthermore, sex workers would be even more disempowered, thereby severely curtailing their ability to insist on the use of condoms and safer working conditions. Yet, it also became clear that many people also felt that decriminalising sex work would be incompatible with state ideology, religion, and moral values. This divergence between public health interests on the one hand, and ideological and moral values on the other, manifested itself again and again throughout our assignment. 

When examining the consequences of criminalising abortion, the evidence, from Laos and from around the world, suggested that penalising women who are in need of a safe abortion would not lead to a reduction in the number of unintended pregnancies. Such provisions would instead force women into harmful and unsafe procedures, thus jeopardising women’s lives and undermining public health. Additionally, complications from unsafe abortions would create an unnecessary burden on the health system resulting in increased costs and inefficient use of human resources. During the course of our consultations, nobody actually disputed the factual correctness of these findings. Arguments in favour of retaining criminal sanctions for women seeking abortions were instead based on the belief that human life commences at conception, and that abortions therefore are unacceptable, regardless of the public health benefits of making safe abortions available.

The dichotomy of evidence-based public health arguments versus deeply ingrained social values arose in relation to several other provisions, such as the criminalisation of drug use relapses, the transmission of HIV, and obviously, the possession of illicit drugs.

This is, of course, neither surprising nor new. Many countries have had, and continue to have, vibrant debates around these topics, and as we discovered, these debates have led to widely differing legislation in different countries. But in Laos, this is all quite novel. By asking medical practitioners to review the draft penal code from a scientific and medical point of view, the Lao Government has set a valuable procedural precedent, and it demonstrates an increasing willingness to take data and science into account in the law making process.

Regardless of what the National Assembly decides upon when they adopt the new penal code later this year, the Lao Government should be commended for their willingness to consult scientists and medical practitioners.

The evidence now put before the law makers will require them to make difficult judgement calls, in which the opportunity to improve the health and well-being for large numbers of people may be pitched against personal moral convictions. As one of my colleagues noted ‘while this [the review recommendations] may cause some controversy, the public health consequences of not giving effect to these recommendations will, without any doubt, be far more detrimental.’ 

Marcus Baltzer

Everything you think you know about addiction is wrong

What really causes addiction — to everything from cocaine to smart-phones? And how can we overcome it? Johann Hari has seen our current methods fail firsthand, as he has watched loved ones struggle to manage their addictions. He started to wonder why we treat addicts the way we do — and if there might be a better way. As he shares in this deeply personal talk, his questions took him around the world, and unearthed some surprising and hopeful ways of thinking about an age-old problem.

Understanding both the medical and science behind drug use patterns and drug use disorders is absolutely critical for purposes of designing an effective response. And as Johann Hari notes, the day we are ready to accept the science, drug control policies will have to change radically. 

Please watch his TED talk below. In Lao, the word for 'understand' is 'khao chai' - which actually means that something enters one's heart. I think Hari's way of explaining addiction helps us understand drug use with our hearts. If you want to watch the video with Thai subtitles, please click here. 

Law enforcement versus victims’ rights – a balancing act

During the last few months, I have had the opportunity to make some minor inputs to the process of finalising the draft bill on countering human trafficking in Laos.

One of the issues that the drafting committee has had to grapple with is victim identification. This has proven to be a walk on a tightrope between (a) the duty of law enforcement agencies to pursue perpetrators and (b) the understandable wish of many victims to not be part of any criminal investigation. In countries where it is difficult to offer reliable witness and victim protection, it may even be dangerous for victims of human trafficking to be perceived as providing information to the police.

Policy makers appear to be faced with a difficult choice.

Option one is to separate the identification process from law enforcement. This would allow a victim to be recognised as a victim, receive the medical, psychosocial and material support that he or she is entitled to, and to then decide whether or not to report the matter to the police. The anticipated drawback with this option is that many victims may not report what they have experienced to the police. This would create a situation in which the state has to recognise a potentially large number of victims of this very serious crime, but is left unable to take any action against the perpetrators.

Option two is to let the police manage victim identification or to have some other system whereby the police is notified of all instances in which victims seek help from the state. The anticipated drawback with this option is of course that many victims might decide to forfeit the offer of medical, psychosocial and material help for fear that their perceived cooperation with the police could trigger retaliation by the syndicates that orchestrate the trade.

While policy makers in Laos are doing what they can to find some middle ground between these two options, it is reassuring to know that they aren’t the only ones struggling with this dilemma. As I was doing my research, I stumbled across a UK Home Office Memorandum addressed to the Joint Select Committee of the Modern Slavery Bill. The memorandum was a response to a set of questions around ‘the duty to notify’ in clause 35 of the draft Modern Slavery Bill. The Committee was concerned that this legal duty to report all suspected victims of human trafficking to the police would deter victims from coming forward.

In the UK, they now appear to have landed in a compromise. Service providers have a duty to report cases to the police, however, there are two crucial safeguards to ensure a victim-centric approach and to avoid discouraging victims from seeking help:
(1) Adult victims will always have the choice to remain anonymous and so can request that their personal details are not provided to the police.
(2) The legal duty to notify does not apply to Non-Governmental Organisations (NGOs). In the words of the Home Office: ‘Whilst we would like NGOs to have an excellent relationship with law enforcement and share information on victims – to protect them and tackle those exploiting them – we will not use this Bill to compel them to provide information.’

As Laos continues to find its own solutions, perhaps the last sentence in the Home Office reply is worth recalling. ‘We will not use this Bill to compel them [the victims] to provide information.’ This is not only a matter of respecting victims’ rights. It is also a question of ensuring the quality of evidence. Victims who are compelled to report to the police, and who do so only because it is a condition for accessing other kinds of desperately needed help, may not be the best sources of information. If things other than a desire to hold the perpetrators accountable motivate victims’ cooperation, there is a risk that they will try to give as little information as possible, or worse, that they will mislead investigators so as to avoid retribution. In short, law enforcement might not get much to work with, even if victims were compelled to provide information. 

There are many causes of human trafficking in Laos. Many argue that the economic differences in the Sub-Mekong region encourage people to migrate to relatively wealthier neighboring countries like Thailand. An ILO supported study by the Lao Government found that nearly seven percent of households in three border provinces had family members working in Thailand. With more than half of the population under the age of 20, young Lao migrate to fill unskilled jobs and become vulnerable to trafficking.

Marcus Baltzer

The iron law of prohibition

Last week, I had the pleasure of meeting Dr. Alex Wodak, a physician and the director of the Alcohol and Drug Service, at St Vincent's Hospital in Sydney. Alex is one of the world’s leading advocates for pragmatic and public health focused reform of laws and policies on drugs. The WHO and the Ministry of Health invited him to Laos to offer advice on our draft Drug Control Master Plan.

Having spent his entire professional life trying to find better and smarter ways of mitigating the harm caused by drugs, both to users and to society, Alex was able to suggest a number of relatively cheap and simple interventions, which are likely to save the lives of many, and improve the lives of many, many more.

Dr. Alex Wodak is the President of the Australian Drug Law Reform Foundation and was President of the International Harm Reduction Association. Wodak also helped open Australia's first needle exchange programme and the first medically supervised injecting centre in Kings Cross. Pay attention to the dilemma presented on the powerpoint slide. 

But what perhaps made an even stronger impression on me, personally, was his analysis of the cause and effect relationship between various drug policy options and the drug markets. An example is the ‘iron law of prohibition’ to which Alex introduced us in one of his presentations. So, what is this law? Well, it is based on the premise that when drugs or alcohol are prohibited, they will be produced on illegal markets in more concentrated and powerful forms, because these more potent forms offer better business efficiency—they take up less space in storage, less weight in transportation (thus minimising he risk of detection), and they sell for more money.

In much of Asia, we saw the effects the iron law of prohibition in the late 20th century. Bulky and pungent opium was made illegal, so refined and nearly odourless heroin became more prevalent, albeit with significant risk of blood-borne disease when injected by needle, and far greater risk of death from overdose. In the Americas, cannabis was also found too bulky and troublesome to smuggle across borders, so smugglers turned to refined cocaine with its much higher potency and profit per pound. Crack cocaine is entirely a product of the prohibition and so is crystal methamphetamine.

There is very little data around drug use patterns in Laos. However, looking back over the last two decades, two clear trends can be observed: opium for domestic consumption has fallen considerably, and so has the number of opium users. Most of the opium grown today is destined for export, refinement into heroin, and sale on international markets. At the same time, ever more people have begun using various amphetamine type stimulants (ATS) or yabaa, as it is known locally. Luckily, the habit of injecting heroin has not spread as quickly in Laos as it has in many neighbouring countries.

But can the yabaa trend be a product of the iron law of prohibition? The inconveniences of producing opium are many; large tracts of land are needed, and the plant is a little picky; it requires certain conditions to grow well. Opium plantations can easily be spotted from the air, and even from space with the help of a satellite – in fact this is why we know on how many hectares of land opium is cultivated. Being a plant, opium has to be planted (on fields carved out from dense jungle vegetation), it has to be looked after and harvested, all of which is labour intensive. And it is of course subject to same risks as all other crops; too much or too little rain, too hot or too cold – and much of the investment can be lost. Compare that to ATS – it can be made anywhere, regardless of climate, in small and mobile laboratories, that can be set up in sheds, basements, barns, attics, old warehouses – anywhere. Certainly nothing that will stand out on a satellite photo. ATS can be produced around the clock, every day of the year, regardless of seasons – and the precursors are readily available in abundance in any country with a pharmaceutical industry. So, it is not so hard to imagine that when law enforcement threw spanners in the machinery of opium production, it may inadvertently have encouraged the industry to look for easier and more pliable alternatives.

Of course, opium production carries on, but it is no longer produced for the Lao market. The costs and inconveniences of production today are only justifiable if the raw opium is processed into heroin and sold on markets where retail prices are far higher than in Laos. Maybe Lao consumers are still too poor to constitute a good retail market for heroin. On the domestic Lao drug market opium has instead completely lost out to yabaa, which is selling at record low prices to a seemingly ever-expanding customer base.

One should certainly not be too nostalgic about opium. The widespread opium use of the olden days had serious implications, but as Alex pointed out, it was a drug used primarily by an older generation. Yabaa, on the other hand, is a drug used mostly among young people, so its effects on society are very different. Nobody (to my knowledge) has done any scientific socio-economic impact studies on opium versus ATS, so it is not possible to tell exactly what consequences the shift from opium to ATS has had on Lao society and its economy.

What we now do know, however, is that deploying law enforcement to crack down on the drug industry is a huge gamble. History has taught us the iron law of prohibition: rather than just accepting defeat and dissolving itself, the drug industry is likely, not only to fight back, but also to adapt and reinvent itself by launching alternative drugs. And more often than not, these alternatives will be both more dangerous and more difficult to control than the drugs they replace.

The lesson for us all to take away is that when it comes to drug policy, law enforcement is an instrument that policy makers should use surgically and only very sparingly. As Dr. Alex Wodak demonstrated, there are far more effective ways of taking control over drug use and its consequences. 

An opium field in Phongsaly Provicne, Laos. Farmers build small camps adjacent to the opium fields, in which they stay throughout the opium growing season. Opium is mostly grown in very remote parts of Laos. Photo: Oudone Sisongkham (2015)

Written by Marcus Baltzer

How should a drug offence be defined?

Criminal offences pertaining to illicit drugs are typically defined with reference to the quantity of the narcotic substance involved in the offence. In general, the principle is that the more drugs that are involved, the more serious the offence is, and the longer the corresponding prison sentence will be. I have, in practice, come across at least four problems with defining drug offences in this way:

1. Many drug laws today incorporate the important principle that a drug user is not a criminal but a person who may be in need of help and care. Regardless of how much drugs a person is caught with, if that possession is a consequence of drug use, then the possession is merely a corollary or an extension of drug use. A common modus operandi used by dealers in East Asia is to demand that drug users take part in drug distribution as a way of financing their drug use. In such cases, the possession is effectively the culmination of the use of drugs. Nonetheless, because the law defines the offence based on the quantity of drugs the accused is in possession of, drug using distributors end up being prosecuted.
2. If possession of drug quantities, which fall well within the range of what is reasonable for personal consumption, remains a criminal offence, then the criminal justice system will continue to unwittingly arrest, prosecute and convict large numbers of drug users, not on account of their drug use per se, but because they have been in possession of drugs. This creates a paradox whereby the act of using drugs is decriminalised, but as soon as the drug user takes possession of drugs an offence is committed for which he or she can be charged, convicted and sentenced. The consequence of this is that drug use is, in effect, re-criminalised, and the benefits of decriminalisation are largely forfeited.
3. No drug is 100 percent pure. The laws typically refer to the weight of the pure substance. A package of heroin may weigh 100 grams, but if the purity of that heroin is only 40 percent, then the offence involves 40 grams of heroin, not 100 grams. Due to the lack of forensic technology and capacities in many countries, law enforcement agencies have faced challenges in accurately determining purity and the weight of the pure substance. Even where the analysis equipment is available, the necessary chemicals have to be continuously imported, which leads to frequent shortages. Often officials proceed on rough estimates, for instance, that one yabaa tablet is equivalent to 0.1 gram of methamphetamine. In other cases, only a small sample is tested. However, as UNODC notes, ‘the purity of methamphetamine tablets vary considerably…The actual weight may vary from tablet to tablet and batch to batch as they are produced under clandestine conditions. Considering tablet purity alone can be misleading as tablets of different weights contain different amounts of methamphetamine even if the purity is the same.’ Hence these approximations are unsatisfactory so long as the severity of the offence is determined exclusively with reference to the weight of the drugs involved in the offence.
4. Experience from around the world suggests that the people who are made to perform the risky task of physically transporting drugs are typically not the people in charge of the operation. In other words, very often there is a negative correlation between the quantities of drugs a person is carrying and the person’s significance in the drug industry. This also means that it is ineffective to sentence couriers to death or to long prison terms, since they are very easily replaced. It has been argued that such sentences can deter people from taking on assignments as couriers, but regrettably the truth is that the drug cartels have had no difficulties recruiting couriers, even in the jurisdictions with the most unforgiving drug laws.

The solution to this conundrum might be to place less emphasis on drug quantities and instead pay more attention to the functions and motives of the people who work in the illicit drug industry. This would allow criminal justice systems to direct its resources towards the people who orchestrate, manage, and control the drug industry, instead of pursuing non-violent and relatively minor participants in the market.

So far, I have not come across any legislation in the world, which defines drug offences primarily with reference to the degree of control or responsibility that an accused person has in the drug manufacturing and distribution network. Is there any jurisdiction in which the severity of a drug offence is determined not by how much drugs a person is carrying, but by how much influence that person has over the trade and marketing of drugs? Is there a law which asks: is the accused a person who planned and managed drug operations, as opposed to merely a person who followed instructions or acted out of necessity? Is there a legal system which considers the motives of the accused – was the defendant’s engagement in the drug industry driven primarily by a profit motive, or was he or she involved mainly as a consequence of a drug use disorder?

If you know of examples of such legislative approaches, please send a note to Marcus Baltzer at mbaltzer@governancejustice.org