Practitioners associated with the Governance and Justice Group have been working on police reform in a number of South Asian countries. Because of a common historic legacy, the opportunities and challenges for policing are often similar in the region. Many reports have been written on this, but few have been able to explain the issues as well as this clip does. It narrates the story of police reform in India, describing how colonial-era laws continue to influence the functioning of the police as a force and not a service meant for the public. The video also explains, in about four minutes, how the recent Supreme Court directives might provide pathways for meaningful reform. Thanks to the Commonwealth Human Rights Initiative in New Delhi for making the video, and to Rupert Beford for sharing it.
Women Behind Bars
Thirteen years after Sierra Leone's long civil war came to an end, its broken institutions and weak development indicators continue to impact on the lives of its people. Aside from the usual grim data, one statistic stands out: the number of female prisoners has doubled over the past three years. This is a trend we now see in many countries around the world. This film follows two paralegals, Marvelle and Victoria, as they navigate their way through the criminal justice system, helping us answer the question: why is the number of women in prison increasing?
'This Is Working': Portugal, 12 Years after Decriminalizing Drugs
By Wiebke Hollersen, first published in Der Spiegel
Twelve years ago, Portugal eliminated criminal penalties for drug users. Since then, those caught with small amounts of marijuana, cocaine or heroin go unindicted and possession is a misdemeanor on par with illegal parking. Experts are pleased with the results.
Before he got involved in the global war on drugs, João Goulão was a family physician with his own practice in Faro, on Portugal's Algarve coast. Arriving in his small office in Lisbon, the 58-year-old tosses his jacket aside, leaving his shirt collar crooked. He looks a little tired from the many trips he's taken lately -- the world wants to know exactly how the experiment in Portugal is going. Goulão is no longer able to accept all the invitations he receives. He adds his latest piece of mail to the mountain of papers on his desk.
From this office, where the air conditioning stopped working this morning, Goulão keeps watch over one of the world's largest experiments in drug policy.
One gram of heroin, two grams of cocaine, 25 grams of marijuana leaves or five grams of hashish: These are the drug quantities one can legally purchase and possess in Portugal, carrying them through the streets of Lisbon in a pants pocket, say, without fear of repercussion. MDMA -- the active ingredient in ecstasy -- and amphetamines -- including speed and meth -- can also be possessed in amounts up to one gram. That's roughly enough of each of these drugs to last 10 days.
These are the amounts listed in a table appended to Portugal's Law 30/2000. Goulão participated in creating this law, which has put his country at the forefront of experimental approaches to drug control. Portugal paved a new path when it decided to decriminalize drugs of all kinds.
"We figured perhaps this way we would be better able get things under control," Goulão explains. "Criminalization certainly wasn't working all that well." Please download the full article here.
João Augusto Castel-Branco Goulão is credited as being an architect of Portugal's drug policy established in 2000. He is currently chairman of the European Monitoring Centre for Drugs and Drug Addiction (EMCDDA) and has been a delegate at the United Nations Commission on Narcotic Drugs.
'I believe that drugs have destroyed many lives, but wrong government policies have destroyed many more.'
That was Kofi Annan's conclusion a few days ago, in a speech before the World Health Assembly. For those of us who work at the intersection between drug policy and criminal justice, Mr. Annan's words are a reassuring sign that the reality, which we see unfolding on the ground here in South East Asia, is indeed being acknowledged at the very highest levels. 'In what other areas of public health do we criminalise patients in need of help? Surely it cannot be the job of the criminal justice system to prescribe remedies to deal with public health concerns. This is the job of public health professionals.' Yet users and low level dealers continue to be pushed through our criminal justice systems and into already overfull prisons.
The UNODC Executive Director Yury Fedotov has said, 'the [drug] conventions are not about waging a “war on drugs” but about protecting the health and welfare of mankind.'
We should focus on that objective. Current drug policies are not achieving that goal. So the question is: what policies would enable governments and health authorities to counter and reduce the social and health harms that drug use can cause? Mr Annan offers three solutions:
- Decriminalise drug use. Punitive measures do not work and put lots of people in prison where their drug use may actually get worse.
- Strengthen treatment services, especially in middle and low-income countries.
- Learn how to live with drugs so they cause the least possible harm. Even though we would like a “drug-free world”, this is not a realistic ambition.
These are the three headings of an evidence based national drug policy. But as Mr. Annan notes, 'sadly, drug policy has never been an area where evidence and effectiveness of policies have led the way. His full speech is available here.
Contributed by Marcus Baltzer
Somaliland: Where There Has Been Conflict but No Intervention
BY RAKIYA OMAAR AND SAEED MOHAMOUD
Visiting Colombia in June, 2014, as part of the Africa-Colombia Dialogue of the Brenthurst Foundation, was an opportunity to reflect on the power of misconceptions. Even among conflict veterans, which the people of Somaliland have become, the prospect of a journey to Colombia provoked concern about safety and security. Talking to people in Colombia about Somaliland elicited expressions of sympathy for a far off place they knew very little about. This is unsurprising, given the fact that what they thought they knew was based on the recurrent head- lines about war and violence, bombings by al-Shabaab militants, famine and displacement in Somalia.
The distinction between Somalia and Somaliland is lost on most outsiders, but for the peo- ple of Somaliland, who made the decision to separate from Somalia in May 1991, it is both very real and immensely significant. It has meant living in peace for two decades – a peace brokered, implemented and sustained by local people. There has been neither a military intervention to end a conflict nor substantial political, military or economic engagement with the international community, focused as it has been on the mayhem in Somalia.
The Importance of Data and Information Technology in the Justice Sector
In her winning essay on improving foreign aid: ‘What goes up, must come down’: the role of open data in improving aid accountability Susannah Robinson looks at the role of open data with reference to the health sector. In his essay for the same competition, Adam Stapleton looks at it from the persective of the justice ‘sector’. What follows is an abstract and a link to download the full essay.
When you go to a doctor because you are not feeling well, s/he will ask some questions and run a few checks before prescribing a treatment. The diagnosis is sometimes surprising: the original complaint turns out to be a symptom of something deeper and wider that needs a concerted course of treatment over time.
So too with criminal justice systems: the symptoms of dysfunction (the length of time it takes to process cases, low conviction rates, prison overcrowding etc) that shout for remedial action are seldom solved by attention to the particular institution alone because all need to function if the system as a whole is to work.
A determination of the appropriate course of treatment, requires first an assembly of data from across the system and benefits from wide consultation with practitioners and users. International aid programmes in the justice sector have at best been inconsistent in observing this basic step.
Advances in software development are on the way to replacing the narrative report with its dizzy-making pie-charts, bar columns and spiderweb graphs (outdated the moment it is published) by an inter-active, visualisation of the justice system that enables planner, practitioner or the public - at a click of a mouse - to see whether justice is being done.
This essay argues that the ‘data revolution’ called for by the report of the High Level Panel of Eminent Persons on the Post-2015 development agenda would transform planning and assistance in the justice sector.
Adam Stapleton led the first Justice Audit in Helmand Province in Afghanistan in 2010. Adam notes how 'rule of law advisers in the Helmand Provincial Reconstruction Team (PRT) cast doubt over the existence of any data worth the noun. Yet, this first ‘Justice Audit’ gathered reams of data by visiting the courts, police, prosecutors, prison, lawyers and other justice actors and listing the data under institutional headings. It established that even in a ‘broken’ justice system, there was data and furthermore the data was instructive.'
Justice and development: the post 2015 agenda
In a series of short films, with artistic footage and dramatic music, the Open Society Justice Initiative is trying to make the case for the inclusion of ‘justice’ in the post 2015 era of aid and development. Are they convincing?
To me, while all these arguments sound good, they fail to address one important aspect, one which every policy maker and ruler has to grapple with on a daily basis: the opportunity cost. A dollar spent on legal aid, is a dollar that cannot be spent on primary health care. A dollar spent on procuring arms cannot be spent on buying school text books. It is not enough to just explain why investing in a fair justice system is a good thing to do - one must show why it warrants a reallocation of resources from other priority areas, in what will always, in every country, be a limited budget. So far, if one only looks at budget allocations around the world, the advocates of spending on health and education, not to mention security (of the military kind) appear to have far more persuasive arguments. We know this because it happens to be one of the measures that the Justice Audit tracks. So, what is the best argument for why investing in access to justice justifies using money that otherwise would have been used to increase the number of hospital beds, to boost teachers' wages, or to build a new highway?
Marcus Baltzer
Diversifying legal service providers in the socialist legal tradition
The Lilongwe Declaration on Accessing Legal Aid envisages a model where lawyers, who are often few and relatively expensive as service providers, are used as efficiently as possible. The Lilongwe model takes advantage of the fact that the category of cases, in which representation by a lawyer is necessary, is akin to the ‘tip’ of the iceberg of legal services. There are a number of other services, including alternative dispute resolution, advice and assistance, which can be provided by suitably trained non-lawyers, or paralegals, and which in many cases are for more effective than litigation in solving the problem. Adam Stapleton once developed the ‘legal aid triangle’ to illustrate the point. I believe diversifying legal aid in this manner is the only way to make it financially sustainable.
One of the main hurdles that has often been encountered, around the world, is the reluctance within the legal fraternity to abandon the monopoly that lawyers have on the provision of legal services. In many countries, this monopoly is entrenched in law, and the legal profession guards it jealously. In practice, of course, paralegals are seldom a serious threat to the business interests of lawyers. People who can afford to retain private counsel will always do so, regardless of how many paralegals there are. When faced with the risk of losing our liberty, none of us would spare any expense in putting up a defence. Paralegals will inevitably only serve those accused persons who otherwise would not get any service at all. Still, the mere thought of other actors entering the legal services market, albeit at the very bottom end, where few lawyers wish to go, has been enough to make bar associations resist attempts to diversify legal aid. Stapleton notes how ‘the legal establishment have viewed legal aid restrictively, as a service provided by a lawyer to someone who could not otherwise afford [that] service.’
This year, I had the opportunity to work a little bit in Asian countries with a socialist legal tradition, and one of the first things that struck me, when sitting in court, was how relatively diminished the role of the lawyer is in the criminal process. This is partly due to the inquisitorial principles upon which these systems are based, but there are also interesting historical and ideological factors.
Post revolutionary legal reform was radical, but the basic analysis was in large part logical; the legal system of the ancien régime was designed to maintain the status quo and to safeguard the interests of the ruling class. Lawyers, judges, prosecutors - the whole legal establishment was, again probably quite accurately, deemed to be part of that ruling class, and thus unfit to serve the new revolutionary state. Many lawyers emigrated, others were put through re-education and some were even killed. Another factor was the Marxist idea that, as a society progresses towards Communism, through Socialism, there would be less conflict. Crime and disputes, the very phenomena that the legal system is set up to handle, are, according to Marx, primarily an effect of class tensions in a society; tensions arising from poverty, inequality and the desire to acquire and protect private property. Thus, as the classes would wither away along the march towards Communism, so would the need for the legal system. In other words, if only sufficiently quick political progress could be made, all those lawyers would soon be superfluous anyway.
As we know, post revolutionary states eventually came to re-establish their legal systems, but it is interesting to note that for instance the Maoists in China were highly sceptical of any formal rules that might come to inhibit revolutionary transformation. They feared that laws could potentially constrain the social and economic development that they foresaw. For partly the same reasons, in the Lao People’s Democratic Republic, established in 1975, they waited until 1991 until they adopted a constitution for their new state.
With time such worries gave way to the inclination to use legal arrangements to consolidate power and the achievements of the revolutions. The law, the legal system, and the lawyers began to make a gradual comeback. This was speeded up when market oriented economic policies were adopted, and as new commercial actors demanded more certainty and clearer rules. This reform is still very much work in progress, with China and Vietnam having come quite a bit further than Laos.
And while lawyers in all three countries undoubtably have a more prominent role today than in the immediate aftermath of the revolutions, they do not have the formal monopoly on providing legal services in the way that we see in many other jurisdictions. The Criminal Procedure Law (CPL) in China, for instance, permits accused persons to entrust as defenders either lawyers, persons representing public organisations (often known as ‘mass organisations’), guardians, relatives or friends (CPL Art. 32). Non-lawyer defenders can be authorised by the People’s Court to ‘consult, make abstracts of or reproduce the indictments and technical appraisals of the case, and may meet and correspond with the suspect in custody…’ (CPL Art. 36). The procedural laws in Vietnam and Laos have similar provisions.
I am not suggesting that criminal procedures in these countries are exemplary - they are not - in fact there are very legitimate concerns around due process, which have been well documented by a number of writers, academics and activists for several decades. However, as China, Laos and Vietnam are all now in the process of either building up or reforming their legal aid systems, their criminal procedure and legal practice codes offer rather unique opportunities to set up structures through which different service providers can contribute. In short, the laws here seem to lend themselves well to the Lilongwe model. Nobody questions the importance of having highly qualified lawyers to represent persons who are accused of very serious offences, but given the relatively low crime rates in all these countries, such cases will remain just the very tip of the iceberg. For all the other cases, the last ten years of implementing the Lilongwe Declaration has proven that non-lawyers with targeted and highly practical training, can provide very effective legal aid services, at a cost that is affordable even to some of most financially constrained governments in the world.
Contributed by Marcus Baltzer
Temples of Injustice
Going undercover to expose corruption at the heart of the judicial system
In this film by Emmanuel Mutaizibwa, broadcast on Al Jazeera's Africa Investigates, we get to follow the trail of corruption through the murky window of one court. We trace a chain of corruption that begins from the police who receive a crime's initial report, right up to the magistrates who preside over the verdict.
Mutaizibwa and his team uncover a court system more akin to a market place where justice (or rather injustice) is on sale, with the higher bidders standing a better chance of sealing buys. Going undercover with the help of litigants and journalists, the film shows that this crime is perpetrated by a cobweb of police and judicial officers, all out for profit in the guise of justice. Everyone's faith in the judicial system is being undermined.
Yet as we see in this film, ordinary working class people are standing up for themselves, people seen as uneducated are learning about the law and their rights and are fighting to take corrupt officials head on. Emmanuel Mutaizibwa asks himself: 'will they triumph against the mighty? Only time will tell - but maybe this film will help.
'The war on drugs is a war on poor people...'
That is one of the messages offered by Dr. Cornel West in yesterday's BBC Hardtalk interview. Dr. West's sharp analysis of the injustice and discrimination in the US criminal justice system has received renewed attention following demonstrations across America. Watch a clip of the interview below, or download the full interview, as an MP3 file over at http://www.bbc.co.uk/programmes/p02dgzmk
A ‘cool, dispassionate voice’ on drugs and drug policy
Drug related cases have been taking up ever more resources in the criminal justice systems across South East Asia. Laos is an example; in 2013 about 36 percent of criminal cases were based on alleged violations of drug laws. Add to that the unknown number of other cases, which although not based on drug charges, nevertheless arise as a consequence of the drug trade (property offences, violence, and corruption, just to name a few). Data from neighbouring countries depict a similar picture. This suggests that policies on drugs, and the way in which those polices are implemented, will be critical factors in how criminal justice systems in the region evolve.
Given the work we do in criminal justice reform, I personally felt I knew far too little about drugs and drug policy. Hence I was delighted when I recently came across the book ‘Drugs and Drug Policy - What Everyone Needs to Know’ by By Mark Kleiman, Jonathan Caulkins and Angela Hawken at the Kinokuniya bookshop in Shinjuku. The Economist described the book as ‘a cool, dispassionate voice to sift through the facts.’ That sounded like a good place to start.
Drugs is one of those topics on which many of us have opinions without always appreciating the complexities, and it is also a topic that comes with heavy ideological and moral baggage. This became obvious to me as the book began to dismantle some of my not so well founded beliefs and assumptions. Not wanting to write a book review (if you want one, read the one by the Economist), I will just to share two examples of where I had to reconsider my views.
The paradox of decriminalisation
Many countries have, in recent decades, sought to liberalise drug policy. One of the most common steps in that direction has been decriminalisation. Personally, having seen the failings of ‘the war on drugs’ I had long been a believer in decriminalisation. I probably still am, but with more reservations. The main problem with decriminalisation is that it gives consumers permission to buy what the dealers are forbidden to sell. It is hard to know just how much effect the threat of arrest and criminal proceedings has on potential drug buyers, and it probably varies from country to county. However, if one accepts that the removal of that threat, through decriminalisation, might increase demand for the still illicit drug, then that will inevitably generate more supply - the drug market is very good at responding to demand. This, in turn, would mean more revenue for criminal networks, more dealers (who would still be subject to prosecution) and more dealing related violence. In the Netherlands the rate of cannabis use roughly doubled after coffee shops began to proliferate between 1984 and 1996, but it is difficult to know how much of that rise can be attributed to the drug policy reform. Portugal has decriminalised possession of any drug for personal use, and while some studies suggest that dug consumption in Portugal has increased, such findings have been contested. So, although decriminalisation saves criminal justice resources from being wasted on pursuing buyers and users, it has little effect on the illicit market - it may even boost it, if demand picks up. The illicit market, and all the big problems associated with it, can only be outdone by some legal alternative - by legalisation.
Legalisation and the economics of drugs
Criminal sanctions are typically said to work in three ways: deterrence, incapacitation and rehabilitation. The latter two are almost irrelevant in relation to drug dealers; as long as users continue to want to buy, there will be opportunities for newcomers to replace sellers and traffickers who are incarcerated, executed, or who find alternative ways of making a living. Seizing drugs is even less effective because drugs are even more replaceable than dealers (worth remembering next time I see data on how much drugs the police has confiscated). However, deterrence has one interesting effect. The greater the risk of enforcement, the more money drug dealers and traffickers demand as compensation for taking those risks. That compensation increases the cost of distribution, resulting in considerably higher prices. The book offers a nice example: ‘A kilogram of cocaine that sells for $1,500 - $2,000 in Colombia ($1.50 - $2.00 per gram) could be shipped to the United States by express delivery for less than $50 if it were legal, but prohibition and enforcement increases the cost of that kilogram, in the United States, to about $100,000 (or $100 per gram), after adjusting for dilution.’ The more effective enforcement is, the higher the import-to-retial markups will be.
So, prohibition and enforcement drive up the prices (the book, however, explains how this is subject to diminishing returns). The higher prices, in turn, reduce both the volume of drugs consumed by current users and the number of new users - the evidence for this is convincing (and the book presents it). On the face of it therefore, it appears that higher prices are better than lower prices, and that legalisation would be counter productive, as it would lead to a dramatic drop in prices. But it isn't quite that simple.
Distinguishing drug consumption from drug spending
Much drug related crime is driven more by drug spending than by the quantity consumed. Paul Goldstien, at the University of Illinois, set out three categorises of drug related crime: (a) psychopharmacological crime driven by intoxication or withdrawal, (b) economic-compulsive crime committed by users to finance their drug use and (c) organised crime of producing, trafficking and supplying. Out of these, (b) and (c) relate more to the money spent on drugs than to the quantities consumed. So, how do drug prices affect (b) and (c)? This is where the economic theory gets a little abstract, but bear with me. Drug sending is the product of quantity consumed multiplied by price. We know that consumption will increase in repose to lower prices, but the effect on drug spending depends on how much the consumption responds to the price drop. Imagine a 10 percent price drop leading to a 15 percent increase in consumption - this would indeed mean more money spent on drugs, and more revenue for the drug dealers. If, on the other hand, the same 10 percent price drop triggers only a 5 percent increase in consumption, then drug spending and drug syndicate revenues will have gone down.
Would legalisation help reduce drug related crime? The short answer seems to be that it depends a lot on how the market would react to the price fall.
These are but two points that I found rather intriguing - there are of course many more. So, what is the conclusion? Well, the main conclusion for me was that conclusions, in the debate around drugs, are far harder to reach than I imagined before reading the book. For obvious reasons, the book is centred on the situation in the US, which is a very different from that in South East Asia. But the point of the book is universally applicable; we need to really understand how the business functions in practice, as a global industry, in order to predict the effects of the different policy options available. I am not so sure we always do.
Contributed by Marcus Baltzer
References: Vientiane Times, June 5, 2013, January 8, 2014 and May 23, 2014
http://www.vientianetimes.org.la/FreeContent/freeCont_Police.htm
http://www.vientianetimes.org.la/FreeContent/FreeConten_Lao%20crime.htm
http://www.vientianetimes.org.la/FreeContent/FreeConten_Violent%20crime.htm
What can we expect from a criminal justice system?
The Lao People’s Democratic Republic (the ‘Lao PDR’, or simply ‘Laos’) is currently undertaking major legislative reform. One of the most momentous projects is the drafting of a new Penal Law, to replace the current Penal Code.
The very first article of the draft Penal Law sets out the objectives of the new law. Mindful of the fact that the existing translation, from the original Lao version, is unofficial, it is pointless to quote directly from the translated version. In broad terms however, the draft suggests that the function of the Penal Law will be to safeguard the political, economic and social system of the country, as well as the legitimate interests of the state, citizens and organisations. The new law is also envisaged to protect life, health, and freedom, as well as national security and public order. Finally, and perhaps not surprisingly, the Penal Law is meant to prevent and respond to criminal offences.
All this got me thinking - what can we reasonably expect the criminal law, and by extension, the criminal justice system, to deliver?
Just glancing at some criminal codes from other jurisdictions, one quickly realises that Laos is not alone in having very high expectations in terms of what the criminal law can and should do for us. Many modern codes are slightly more cautious in their ambitions, and restrict themselves to things like preventing crime, punishment and rehabilitation of offenders. But the kind of social, political and economic goals, to which the Lao draft refers, are not at all uncommon.
So why does all this matter? Are these not just grand statements in the preamble that are meant to sound good when quoted? Are these not the bits of a statue that we all skip over as we search for the technical clauses that are relevant to the particular case we are working on?
I think it matters for at least one reason; the objectives that we set out for our criminal law, and for our criminal justice system as a whole, informs our expectations and sets the benchmarks for future appraisal of the system’s effectiveness.
When I asked myself, what I expected from a criminal justice system, my immediate response was that I wanted it to help people to live a life in which they did not have to resort to crime. But then a good and very wise friend of mine challenged me - is that a reasonable expectation? Just imagine the wide range of complex factors that have a bearing on crime in a society. Criminologists have some idea of what the most basic factors are; for instance, we can prove the strong correlation between crime rates and economic inequality. But cultural, historical, and other far less quantifiable factors clearly play a major role. Japan has one of the lowest crime rates in the world, yet few people would argue that this primarily is a result of a highly effective criminal justice system. In fact, even if one were to remove all institutions of criminal justice overnight, the Japanese would continue to be exceptionally law abiding. The almost total absence of looting, abuse and violence following the 2011 earthquake and tsunami is a phenomenon worth contrasting with the breakdown of law and order that typically follow similarly calamitous disasters elsewhere.
The point here is that the criminal justice system probably only has a very marginal effect on the amount and severity of crime in a society. If that is so, are we not asking too much of the system when we ask it to control crime rates, let alone the more aspirational objectives we see in some criminal codes?
So what then, one may ask, what does it matter if we have too high expectations on the criminal justice system? It seems to matter when it comes to how we respond to crime, as well as to other social issues, which we hope the criminal justice system will address for us. In many countries in which I have worked, there is a strong perception, among the public, that crime is on the rise. Leaving aside the issue of how well founded that perception is (given the often very unreliable data around crime), the immediate response, is often to (a) blame the criminal justice system for being ineffective and (b) strengthen certain visible components of the criminal justice system. The slogan ‘tough of crime’ is one which politicians all over the world have been quick to adopt. More resources to law enforcement, ever more draconian powers to law enforcement agencies, harsher sentences, more prisoners, and in some countries even more executions - this response pattern can be seen all over the world. At the same time, the many other (and often more important) factors that contribute to the real (or perceived) rise in crime are typically overlooked.
So, the reason why unrealistic expectations on the criminal justice system are problematic is because they cause us to respond to crime in the wrong way - we end up thinking the system can fix predicaments, over which it actually has relatively little influence. It reminds me of how, for a long time, we sought to address obesity, primarily by limiting the amount of fat that people consumed. The results were not successful. Later research then revealed that fat intake was but one relevant factor, and that other factors actually contributed far more significantly to obesity.
My wise friend, with whom I had an exchange a few days ago, suggested that all he wanted was that whenever there was a transgression of the criminal law, the criminal justice system should provide a restorative remedy to the parties involved. Nothing more, nothing less. The point here is that we ought to appraise the criminal justice system by how well it meets the needs of the parties in a case. We should look at how cases flow through the system, what the outcomes of those cases are, and how the parties are treated in the system. These are things that the criminal justice system has control over, and which it therefore can be held accountable for. But when we demand that the criminal justice system save us from political turmoil, economic demise, and rising crime rates, then we are not only setting it up for failure, we also risk tricking ourselves into believing that we can solve all those problems by having more police, more courts and more prisons.
Contributed by Marcus Baltzer
Customary law in Laos - offering a model for the legal protection of the environment?
The value of customary legal traditions in providing effective dispute resolution has become ever more appreciated, and many countries around the world have sought to build on such traditions to offer dispute resolution mechanisms that are accessible to the large numbers of people for whom litigation in a formal court is not an option.
Here in Laos, we are now re-discovering another aspect of some of the customary legal traditions in this country; their potential to provide a normative framework for environmental conservation.
While modern western legal systems evolved with the purpose of protecting individual property rights and economic interests, many customary legal systems have a totally different point of departure. These systems typically evolved in a context in which human beings depended directly on nature, and therefore respect for nature, and the spirits that represent nature, is paramount in many such legal orders.
This can be contrasted with modern legal systems, which essentiality regard nature as an economic asset that can be used and disposed of as any other asset. Consequently, our legal mechanisms are quite ineffective in regulating the rights and duties of humanity in relation to the nature. The fact that we remain unable to enforce a normative framework to limit the emissions of greenhouse gases, despite global warming now clearly threatening our very existence, is but one of many examples of this catastrophic failure. Nature simply does not have locus standi in our legal systems.
In many customary legal systems however, nature, and the more importantly the spirits that represent nature, are legal persons; they are ‘rights holders' to use popular rhetoric, and if those rights are violated, there are remedies to address such violations. The effect of this is that the environment is afforded a degree of protection, which modern legal systems have often failed to provide.
This video illustrates how it works in one community in central Laos.
This video was produced by the International Union for the Conservation of Nature (IUCN). The text above was contributed by Marcus Baltzer and does not represent the views of the IUCN.
Another call for more evidence based criminal justice
‘Of all the great institutions passed down to western civilisation by the Enlightenment, none has been a greater failure than the criminal justice system.’ - John Braithwaite
***
Johann Kriegler, who heads up the Justice Audit (JA) for the GJG has described the JA as ‘the justice equivalent to a full medical check-up’ providing ‘a survey of all factors that contribute to the functioning of the body politic.’ Stephen Golub has sought to explain the importance of primary justice services by drawing parallels to the health sector. He writes; ‘today’s heavy emphasis on judges, lawyers and courts is analogous to what the public health field would look like if it mainly focused on urban hospitals and the doctors staffing them, and largely ignored nurses, other health workers, maternal and public education, other preventive approaches, rural and community health issues, building community capacities, and nonmedical strategies (such as improving sanitation and water supply).' [1]
In a recently published book, John Braithwaite of the Australian National University takes the parallel one step further. The book, ‘Civilising Criminal Justice: An International Restorative Agenda for Penal Reform’ is a damning account of how criminal justice is administered, in a wide range of jurisdictions, but it also offers some very helpful suggestions for reform. [2] Having noted that ‘of all the great institutions passed down to western civilisation by the Enlightenment, none has been a greater failure than the criminal justice system’, Braithwaite goes on to reflect a little around what has led to this failure.
As the book shows, almost anywhere you go in the world today, ‘encounters with the courts and prisons not only accelerate rather than decelerate criminal careers in a large proportion of cases, they also usually leave the victims and affected family members feeling more damaged as result of either the process or the outcome of the trial, or both.’ This paradox was once true for health services too; ‘as recently as a century ago, an encounter with a doctor was just as likely to leave a patient worse as better off.’ But medicine evolved; 'medicine has been evidence based in a way that law has not.' Braithwaite notes how ‘the practice of medicine of a century ago would be unrecognisable to a doctor training in the 21st century.’ But as Fred McElrea shows, in a different chapter of the same book, the fundamentals of the criminal justice system remain largely intact; it ‘has been less adaptive than other institutions, less responsive to the transformations of the environment in which it operates.’
However, if we want more adaptive criminal justice institutions, we first need to know what they must adapt to. If we want a more responsive criminal justice system, we must establish exactly what it is supposed to respond to. This is precisely the dilemma that the JA seeks to address. It is designed to help policymakers, civil society and the public understand what is really happening in police stations, in courts, and in prisons. But the JA also looks at what is happening in what Eleanor Roosevelt referred to as the ‘small places, close to home’ - in the neighbourhood, the school, and on the streets. This is much akin to how health research would, not just examine what is going on in hospitals and clinics, but also consider relevant socio-economic factors such as sanitation, hygiene and diet in order to figure out how best to improve public health.
Thanks to public health research, combined with the political will to use that science to deliver better healthcare, most people in the world today enjoy far better health services than they did fifty years ago. [3] Why can justice services not evolve in the same way?
***
References:
[1] Stephen Golub, ‘Beyond Rule of Law Orthodoxy: the legal empowerment alternative’, Rule of Law series no 41 October 2003. Democracy and Rule of Law Project. Carnegie Endowment for International Peace
[2] Civilising Criminal Justice: An International Restorative Agenda for Penal Reform, edited by David Cornwell, John Blad and Martin Wright - with a Foreword by John Braithwaite, Waterside Press (2013)
[3] One of the best illustrations of this trend is the ‘Wealth & Health of Nations’ presentation available at www.gapminder.org
The trial
Stand up, boy, you are accused!
Do you have a name?
His head is bowed in shame,
Cuffed and barefoot, face abused.
In a prisoner’s attire and blemished skin,
He already looks like a convict,
Yet his day in court is just to begin.
Amphetamine – twenty pills in all.
What do you say, boy, how do you plead?
Silence for an answer, captured in thrall.
Speak up boy, answer me now!
A woman whimpers ‘so sorry, he won’t do it again.’
Be quiet there, you speak when I allow!
So now, boy, back to you,
What shall I do?
Trafficking in narcotics, says the writ.
Trying to make money fast,
I take it.
In the war on drugs, you are an enemy soldier,
But fast money is not for the rank and file.
It is for the generals, with minds calculating, and much colder.
In this war, you are a hostile,
But with your lords,
We stand shoulder to shoulder.
The show must go on,
We are tough on crime,
All mercy is gone.
Trafficking, I say, you must now feel the pain.
Five years in a cell,
Five years locked to a chain.
And you, boy, will think you are in hell.
Case is closed,
Justice has been done.
The poor are to crime pre-disposed.
The market rules do proclaim;
The well heeled must forever so remain.
Hence poverty is a crime,
And prisons are for the dispossessed,
Our system is sublime,
The rule of law will quash all unrest!
My notes from a day in court - contributed by Marcus Baltzer
Where there is no lawyer…
What does the phrase ‘legal aid’ mean to you?
To most people it conjures up lawyers representing people in court. To most people in Africa, legal ‘aid’ remains illusory and the promise an empty one when there are so few lawyers to go round and those there are are to be found in the capital, rather than in rural areas where most people still live.
The meaning was given a broader definition in 2004 at a conference on legal aid held in Lilongwe, Malawi, involving representatives from 21 African countries who looked at the matter from the point of the person in the village, asking not ‘what can the state provide?’ but rather: ‘what legal services do people need?’
The conference listened to legal anthropologists, law professors, practicing lawyers and paralegals and took soundings from the formal justice system and the informal. The definition they came to reads as follows:
‘Legal aid should be defined as broadly as possible to include legal advice, assistance, representation, education, and mechanisms for alternative dispute resolution; and to include a wide range of stakeholders, such as non-governmental organizations, community-based organizations, religious and non-religious charitable organizations, professional bodies and associations, and academic institutions.’ (Lilongwe 1)
The adoption of the Lilongwe Declaration and its plan of action by the African Commission on Human and People’s Rights (ACHPR) (2006) and UN (Ecosoc 2007/24) forms part of an international movement to recognise the role of paralegals as primary justice service providers. Inspiration is drawn from the health sector and the provision of primary health care through paramedics and nurses and it was noted that the justice ‘sector’ offers no such primary services.
Paralegals work as ‘barefoot lawyers’ in many countries in Africa providing a range of advisory services to ordinary people. Since 2000, they have moved into the criminal justice arena to offer advice and assistance on the front line of the criminal justice system – at the police, in prison and in court. The impact has been extraordinary: Remand prison populations have gone down where the paralegals are in evidence as they push the cases through the system and empower prisoners to represent themselves in the courts; at the police they divert young offenders from entering the justice system; and in court they provide advice and guidance to allcomers. Lawyers too have welcomed the development as paralegals do much of their donkey work (taking statements, tracing witnesses etc) and refer the serious and complex case to them.
Governments are increasingly recognising the role of paralegals in national legislation (Sierra Leone, Malawi and Uganda being cases in point) as providing an affordable way of providing meaningful legal services to the poor.
A Survey of Legal Aid in Africa researched by the Paralegal Advisory Service Institute last year and to be published later this year by the United Nations Office on Drugs and Crime (UNODC) found that:
- Coverage by the state legal aid system is incomplete at best
- Access to legal aid ‘at all stages’ of the criminal justice system is generally unavailable
- Budgetary allocation for legal aid is minimal
- Persons accused of crime cannot expect legal advice in mounting a defence or informing – a plea to a serious charge; or representation in cases attracting a prison sentence
- Lawyers are few in number and generally unavailable in rural areas
- Paralegals, or trained non-lawyers, are not provided in most countries in a systematic manner
- Community legal services are not available in every district or accessible by every person in need of such services
- Information on legal aid is not available to the general population
- Most governments do not have an over-arching legal aid ‘strategy’ to maximise the use of the resources available.
The Lilongwe Declaration speaks of the ‘societal benefits’ that these services can produce. These benefits include ‘elimination of unnecessary detention, speedy processing of cases, fair and impartial trials, and the reduction of prison populations.’ (Lilongwe 2). The work of paralegals in East and West Africa has born this out (namely in Malawi, Kenya, Uganda and Sierra Leone). In 2008, senior justice actors in Bangladesh visited Malawi to learn how these paralegals operate at first hand. They returned to their country and promptly established a pilot in three districts. There is symmetry in this as the previous year a team from Madaripur (in Bangladesh) came to Malawi to assist establish a village mediation programme, based on a mediation model developed by the Madaripur Legal Aid Association and refined over 30 years.
In common law and civil law jurisdictions and from Africa to Asia, paralegals are proving their worth. Last year, UNODC started the process of drafting new Principles and Guidelines on Legal Aid to broaden the definition (away from the narrow sense of ‘legal aid’ to one encompassing a broad range of legal services, drawing on the innovative work of the paralegals in Africa).
Recently the African Correctional Services Association (ACSA) met in Ghana to discuss overcrowding in the continent’s prisons and the work of paralegals in helping them to reduce the remand caseload. Africa is not alone in having congested prisons, but it is unique in seeking to approach the problem in a manner that places partnership with civil society organisations at the centre of the strategy.
1+10=100
On 23 September in Malawi, four organisations signed a Memorandum of Understanding to establish the Association of Paralegal Organisations (APO) – an international alliance of organisations to promote primary justice services to the poor. APO seeks to disseminate the good practices of other organisations to persuade governments that legal aid need not be illusory; that legal services are important to upholding the rule of law and inherent sense of justice in society’; and that these services – adopting the formula above (ie: 1 lawyer + 10 paralegals reaching 100 persons) – are affordable and attainable and can make a real difference in assisting people settle their disputes and/or navigate the justice system.
APO Focal points: West Africa (Timap for Justice, Sierra Leone – Simeon Koroma); North Africa and Middle East (Peoples’ Legal Aid Centre, Sudan – Rifaat Makkawi); Southern Africa (Paralegal Advisory Service Institute, Malawi – Clifford Msiska); Europe (The Governance and Justice Group, Portugal – Adam Stapleton.
Contributed by Adam Stapleton