The dictionary meaning of being ‘dysfunctional’ is abnormal or impaired functioning, especially of a bodily system or social group. In the modern usage particularly influenced by the understanding of mental health, dysfunctional has come to mean the kind of mental illness which makes it impossible for the person who is suffering from it, to carry out the functions that a normal and rational person does. In the political sense it means a chaotic situation within which society cannot achieve its positive objectives.
l by Basil Fernando
This is the text of a speech delivered at the 2nd ICJ Geneva Forum of Judges and Lawyers, held in Geneva on December 5-6, 2011.
(December 09, Hong Kong, Sri Lanka Guardian) Countries transitioning to democracy often have to cope with fragile and dysfunctional political, economic and legal institutions3 . In the face of regulatory frameworks either completely lacking or totally unsuited for the “democratic refit,” constitutional and criminal law reforms are crucial for establishing solid foundations for emerging democratic States. Addressing the shortcomings of the legislative system on a day-by-day basis, the organized legal profession has a unique contribution to offer in promoting, stimulating and guiding legislative and institutional reforms aimed at ensuring that constitutional and ordinary legislation reflect contemporary human rights principles and standards. ICJ guideline for this session.
Perhaps a way to introduce this theme is to reflect briefly on the meaning of ‘fragile and dysfunctional political, economic and legal institutions.’
Sometimes these are referred to as ‘dysfunctional institutions.’
1. The meaning of dysfunctional
The dictionary meaning of being ‘dysfunctional’ is abnormal or impaired functioning, especially of a bodily system or social group. In the modern usage particularly influenced by the understanding of mental health, dysfunctional has come to mean the kind of mental illness which makes it impossible for the person who is suffering from it, to carry out the functions that a normal and rational person does. In the political sense it means a chaotic situation within which society cannot achieve its positive objectives. The sense in which the word is used in this presentation is a situation of a legal system which has turned against itself and within which the rule of law principles cannot operate. Aleksandr Isayevich Solzhenitsyn, in his Gulag Archipelago characterizes a similar situation in Russia under Joseph Stalin as “Abysmal lawlessness.”
From the civil and political rights point of view we may describe a dysfunctional system as one in which the state parties have failed to comply with the article 2 of the ICCPR. Under this article the state party is obliged to provide for legislative, judicial and administrative measures to make the realisation of rights possible for the people of a nation. Where a state party substantially fails in implementing article 2 of the ICCPR it results in a situation within which the justice system cannot function and deliver justice. In 2002 the Asian Human Rights Commission issued an open letter to the international community drawing attention to this issue.4
We can illustrate the connotation of a dysfunctional system through some case examples.
1. a. Some case illustrations
Phyo Wai Aung ( Burma/Myanmar) is an engineer who is now a political prisoner. He was incarcerated on fabricated charges and had no hope at all of a fair trial. While in prison he was contacted by a human rights activist through his relatives and they held a discussion during which the question of the torture of prisoners was raised by the activist. Later in a letter passed through some sources the prisoner wrote the following words:
About torture, we all know about that system used by authorities. In our country especially in this prison most have been tortured in ways. Myanmar Police interrogation methods are only hitting and killing. We cannot solve this system without sufficient salary and education of personnel, modern science against crime and policy.
For the prison institution the amount of personnel is not sufficient. In my word the ratio of personnel to prisoners is approximately 1:200 and it causes stress on personnel. The quality of personnel is very low. Ordinarily one gets only Kyats 15,000 a month, approximately US$ 55. Sustaining a family is very difficult. To change the prison department these two issues must be solved.
We may also recall that the Special Rapporteur on the situation of human rights in Myanmar, Tomás Ojea Quintana mentioned an incident which happened when he visited a prison. He asked the inmates he met whether they had met a lawyer and received his services. The prisoners could not understand what a ‘lawyer’ meant. “None of the prisoners with whom the Special Rapporteur spoke had been represented in the court by legal counsel. Many did not even know the definition of the word ‘lawyer'”.5
In Bangladesh a qualified law graduate, FMA Razzak, used to assist poor villagers to write various petitions to the police and other authorities regarding the injustices of which they complained. He was harassed both by the police and some powerful property owners and was even held in a remand prison on fabricated charges. He still continued his efforts as he was a committed human rights activist. He sometimes sent reports to international organisations who wrote to the government about the problems the people were complaining about. Among many of his opponents was an army major. Army officers are quite powerful in Bangladesh. This major’s family forcibly chased Razzak’s family away from their property. Razzak attempted to get support from the police, but they refused to investigate. While he was making these attempts to get justice, one morning he was surrounded by a large crowd organised by the major’s brother who then attacked him and beat him severely. They even tried to gouge his eyes out, saying that it would stop him from doing his activities. Due to the severe beating he appeared to be dead and the attackers fled. Some of his supporters took him to a hospital where he was treated for a long period of time but even now, after several months following the incident, he has lost sight in one eye and has only partial sight in the other. His legs were also severely injured and now he needs the support of others even to attend to the most basic tasks.
The incident provoked an outrage and his supporters in the village made complaints to the police and every other authority. The Asian Human Rights Commission published his story and also wrote to local state authorities and UN agencies and also western embassies in Bangladesh to get support from them to ensure inquiries were made into the incident. Many other international organisations also supported this. However, even after many months no independent inquiry has been conducted into the incident. When human rights organisations complained to the National Human Rights Commission (NHRC) of Bangladesh it did not even send an officer to record a statement from the victim. When pressure was mounted on the NHRC it handed the inquiry over to the very local police who were acting in connivance with the culprit army major. The NHRC also requested an inquiry from the notorious Rapid Action Battalion (RAB) which is known for a large number of extrajudicial killings and the torture and ill-treatment of citizens. The police and the RAB reported to the NHRC that Razzak’s complaint was false and that there were no human rights violations.
On the basis of this report the NHRC wrote to the human rights organisations and the western embassies that Razzak’s complaint was false.
Lalith Rajapakse ( Sri Lanka ) was a 17-year-old boy when he was arrested on April 18, 2002 by several police officers from a friend’s house. During his detention he was subjected to torture, for the purpose of obtaining a confession. The torture process, which caused serious injuries, may be described as follows:
He was forced to lie on a bench and beaten with a pole; his head was held underwater for prolonged periods; he was beaten on the soles of his feet with blunt instruments; books were placed on his head, which were then hit with blunt instruments.
Due to the head injury he fell unconscious and in that state he was taken to a hospital where he remained unconscious for over two weeks. This incident was widely reported and human rights organisations took up the matter with Sri Lankan authorities as well as UN agencies. The then Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment wrote to the Sri Lankan government on this issue seeking a response. This led the government to refer the case to a Special Investigation Unit (SIU) of the Criminal Investigation Division. The SIU, after their investigation, found the complaint credible and submitted their report to the Attorney General’s Department for prosecution under the CAT Act of Sri Lanka (Act No 22 of 1994), which prescribes seven years of rigorous imprisonment and a fine of Rs. 10,000/= on conviction.
After a long delay, the Attorney General’s Department filed indictments against two police officers. In 2004 Rajapakse filed a communication before the Human Rights Committee (“HRC”) complaining that due to undue delays in the adjudication of his case his rights under Articles 7, 9 and 2 (paras 3 and 7) of the International Covenant on Civil and Political Rights had been violated. On July 26, 2006 the HRC expressed its view on this communication and held that “the facts before it disclose violations of article 2, paragraph 3 in connection with article 7; article 9, paragraph 1, 2 & 3, as they relate to the circumstances of his arrest, along and together with article 2, paragraph 3; and article 9 paragraph 1 as it relates to his right to security of person, of the Covenant and recommended that: a. the High Court and Supreme Court proceedings are expeditiously completed; b. the author is protected from threats and/or intimidation with respect to the proceedings; and c. the author is granted effective reparation. The State party is under an obligation to ensure that similar violations do not occur in the future.6
The High Court completed the trial only on October 9, 2010. The High Court judge acquitted the accused on the basis that there was no evidence in the Judicial Medical Officer’s (“JMO”) report to show the alleged torture victim had been assaulted on his foot. However, the medical report of the JMO filed in court as P6 clearly mentioned: “8). Contusion 2″x2″ on the sole of the left foot, and 9). Contusion 2″x1″ on the sole of the right foot.” The High Court judge had either not read the medical report and other evidence or for some reason deliberately misrepresented or ignored the facts which had been recorded. The torture victim filed an appeal before the Appeals Court and the court granted leave to appeal. However, the appeal is still pending. The Fundamental Rights Application filed before the Supreme Court has not yet been heard. Nor was any reparation paid in terms of the recommendations made by the HRC. 7
John Paul Nerio (Philippines) was a 17 year-old high school student when he was tortured in police custody on December 11, 2010. He was tortured while being questioned without a counsel inside the Women and Children’s Desk (WCD). The policemen in Kidapawan City falsely accused him of being involved in a fight at a bar. He suffered injuries to his chest. Due to the trauma he stopped going to school and is afraid whenever he sees policemen. He did not tell his parents of his torture until March 2011.
Upon learning what had happened, his parents pleaded with the local senior police officers to have their son’s case investigated, but they were ignored. The police defended the policemen whom the family had accused of torturing their son. No investigation was conducted and no sanctions were imposed on the policemen involved, despite the fact that a formal complaint had been lodged.
It was only after the AHRC exposed the case, that his case was investigated for violation of the Anti-Torture Act of 2009 by the Public Attorney’s Office (PAO) in Kidapawan City and the Commission on Human Rights (CHR) in Cotabato City. The PAO then filed both criminal charges and administrative charges against the policemen for torturing the boy.
However, while the hearing on administrative charges was ongoing before the People’s Law Enforcement Board (PLEB), the policemen used third party persons to threaten the family of the victim and their witnesses. The PLEB, which had the power to provide provisional remedies to the complainants, like disarming and suspending the accused from service, did nothing to protect the complainants as they were legally obliged to. Despite the threats, witnesses and complainants were not given adequate protection, as required by the Anti-Torture Act. The CHR and PAO knows full well the threats and the risks the family are facing but have failed to provide prompt and adequate protection to them.
Because some of the accused policemen were known locally to have connections with hired-killers, illegal armed groups as well as the military, the threats on them were real. Due to the continuing threats on the victim and his family, and the fact that they were not provided with any protection, they had no choice but to withdraw the charges and settle the case outside the court by accepting a monetary offer.8
The murdered person Haren Pandya (India) was a deputy minister in the Home Department of Gujarat State government when the massive killing of Muslims took place in that state on February 27-28, 2002. You may be aware of the Gujarat killings and the role of the Chief Minister, Mr. Narendra Modi.
After the killings, in 2003, an enquiry commission was set up under Justice Shrikrishna. Haren Pandya, who was removed from the ministry, is reported to have deposed before the commission. Though the session was held in camera, the news that he had deposed was leaked out. On June 3, 2003 Mr. Pandya was killed inside his car, apparently while he was going for a morning walk, allegedly by a group of Muslim terrorists who had hatched a conspiracy to kill prominent Hindu leaders in revenge for the killing of the Muslims in February, 2002.
The CBI built the case primarily on the basis of the account of a single “eye witness” who made several contradictory statements regarding what he had actually witnessed. Mr. Pandya’s body had seven bullet wounds. His shirt (Kurta) had nine bullet holes. All the holes had gunpowder residue (blackening) The seven bullet entry holes also had blackening. The eye witness claimed that he saw the assailant shooting Pandya through a small opening of the driver’s side window (between 3 to 5 inches).
The nature of the wounds, particularly the shot in which the bullet entered Pandya’s scrotum and moved upwards, seriously challenged the witness’s version that the firing took place through small opening of a window on a person who was at that time sitting in the driver’s seat. In addition there were several other anomalies, like the virtual absence of blood inside the car, recovery of only five bullets when Pandya had received seven wounds within the confines of the small vehicle and the divergence in the description of the appearance of the bullets recovered from his body at the time of the autopsy which had described the bullets being of “white metal” and by the forensic / ballistic expert as “grey”. (Pistols use white metal jacketed bullets and revolvers use grey- lead bullets). Also there is the fact that the ballistics expert did not notice that the “firing pin” of the murder weapon had been tampered with.
The trial judge ignored all these anomalies and contradictions. She also rejected the opinions of forensic science and ballistic experts brought before her by the defence. She ignored the evidence of surveillance of one of Mr. Pandya’s cell phones by the state CID after his alleged deposition before the Shrikrishna Commission. On the basis of “confessions” given by the accused, though these were retracted by them and the account of the sole eye witness, the trial court judge had found all the accused guilty of murder and conspiracy to launch Jihad in India.
The High Court has upturned the trial court judgement and called it perverse. It has clearly said that the entire investigation was a virtual sham. However, both the state government and the central government are keeping quiet. It seems that murder of Harne Pandya will remain an unsolved mystery. Clearly, reopening the case will open many cans of worms which political leaders and the police cannot afford.9
Literally thousands of cases may be cited which manifest similar and other problems as in the three cases mentioned above. The Asian Human Rights Commission has in its Urgent Appeals archives a large number of such instances.
The following list of features of a dysfunctional/abysmally lawless system is a brief summary of the experiences of litigants and lawyers who struggle to seek justice within such a legal system.
2. The features of a dysfunctional/abysmally lawless system10
1. The shift from “the rule of law” to “law and order”. The term “law and order” is used to describe any arbitrary means that may be used to keep order as understood by a ruling regime. Under this approach any illegality could be treated as legitimate if the government thinks that this needs to be done to maintain order. For example, the extrajudicial killing of those who are considered bad criminals may be considered as a means to be used for achieving order. However, this is against the rule of law approach: “The core of the existing principle is, I suggest, that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly made, taking effect (generally) in the future and publicly administered in the courts.”11
2. Placing the head of the state above the law. This is sometimes done by constitutional provisions, as in Sri Lanka, or by treating the constitution itself as an unimportant parchment, with little or no practical value, as in Cambodia, Burma, China and several other countries.
3. Limiting the power and the scope of judiciary. This may done by excluding the court’s jurisdiction over public law and lifting or altogether excluding the court’s power to adjudicate on matters relating to the constitution.
4. For various reasons, such as non-cooperation by state agencies and extra-ordinary delays, writ jurisdiction, including the writ of habeas corpus, becomes ineffective.
5. Creating a system of punishment without trial; this may be by way of extra-judicial killings followed by media statements that the person who was killed is a bad criminal.
6. Failure to investigate crimes, either due to defects in the investigation capacity or due to political or other extraneous reasons.
7. Manipulation of powers of arrest and detention for corruption.
8. The absence of an effective system of command responsibility within the police and the politicization of the police.
9. The rise of mafia and the underworld, which creates a profound effect on the entire society and on the entire system of administration of justice.
10. Criminal elements have been substituted to perform functions which are usually assigned to legal agencies, such as debt collection, ejection of tenants and even providing security to VIPs.
11. Loss independence of the prosecutor’s office and political control.
12. In some instances, the civilian policing function itself does not exist, either due to rule by the military or to due prolonged militarization, where even the memory of civilian policing is lost.
13. Fabrication of charges; usually this is done on the basis of confessions obtained through severe torture or ill treatment.
14. Judges themselves attempt to bring pressure on lawyers and litigants in criminal trials, not to go to trial but to agree make guilty pleas, with promises of lesser sentences and or threats of giving harsher bail terms or even refusal of bail, if they refuse to agree.
15. Judges putting pressure on lawyers and clients to agree to compromised solutions, irrespective of the merits or adverse consequences.
16. Vast delays in litigation, with trials taking 5-10 years on average and in some countries even twenty years.
17. On the other hand, sometimes cases are administratively speeded up and due process is completely ignored. ‘Judgements’ arrived at in this manner only reflect the version given by the executive.
18. Judges often ignore requirements of procedural justice and often manipulate the process.
19. Often judges do not give reasons for their orders and even don’t provide reasons for some judgments.
20. Judges at times sit to hear the appeals from their own judgments.
21. Contempt of court law is often abused in order to intimidate lawyers or litigants.
22. Absence of witness protection laws and programmes.
23. Corruption affecting police, prosecution, judiciary and also other branches of government.
24. Inadequate budgetary allocations for administration of justice: policing, prosecution and prisons.
25. Absence or ineffectiveness of mechanisms to investigate and prosecute violations of human rights.
26. Absence of a perception of justice, in society, and also among lawyers, judges and police and others. This is often replaced by cynicism and negative comments about justice.
27. Threats to the independence of lawyers, arising out of the factors mentioned above.
28. Divisions among lawyers influenced by the factors mentioned above.
29. Low morale of lawyers in general- except for a brave few- due to the above mentioned factors.
30. Weakening of lawyers associations, due to deep divisions as more lawyers begin to adjust to negative systemic changes.
31. Failures in professional bodies supervising the professional conduct of lawyers.
32. Heavy costs of litigation that deprives access to justice for many.
33. Loss of an appreciation for the legal, judicial, police and other related professions due to the factors mentioned above.
34. Withdrawal of talented lawyers due to tensions arising from the above mentioned factors
What has been enumerated above describes the administration of justice in a dysfunctional system/or an abysmally lawless situation, works in ‘normal times.’ When there are exceptional times such as times when emergency regulations and anti-terrorism laws operate, the situation becomes much more brutal. Abductions take the place of arrests, prolonged detention without court orders become possible, forced disappearances and various other kinds of extra-judicial killings often take place in large numbers, judicial inquiries into deaths can be suspended, convictions can take place solely on the basis of confessions, usually obtained through torture and ill treatment and habeas corpus actions become ineffective.
Some of these factors are noted by international observers and human rights organizations due to the increasing number of complaints. However, what the international observers and human rights organizations often do not notice is that the sheer cruelty of the exceptional situation is made possible only due to routine cruelty that exists in the normal situation.
3. Dealing with the problems of dysfunctional/abysmally lawless systems
The problem that faces lawyers, human rights activists and every person concerned with the reform of dysfunctional and abysmally lawless systems essentially is about the nature of the public institutions of justice in any given country. There have been many attempts to articulate and to theorize about but these problems and perhaps one of the more succinct explanations has come from an American lawyer, Gary Haugen, and his organisation, the International Justice Mission, of which he is the Chief Executive Officer.
Answering the question as to why these public justice systems so massively fail the poor (in fact, everyone), he offers the following explanation which points to a fundamental problem that lies with the international human rights project itself.
“Looking back at the story, one can see that two generations of global human rights work have been predicated, consciously or unconsciously, upon assumptions of a functioning public justice system in the developing world which, if incorrect, effectively undercut the usefulness of those efforts for their intended beneficiaries. Now, absent an effective enforcement mechanism, the great work of the first two generations of the international human rights movement can deliver to the poor only empty parchment promises.”
The global human rights project, since the Universal Declaration on Human Rights has devoted most of its time for articulating international norms on human rights and made attempts to get domestic acceptance and pass legislation relating to these international norms. However, such efforts have not resulted in the actual possibility of the people in less developed countries achieving these rights through their public justice systems.12
It is this distance from parchment promises to actual enjoyment of rights that is the key issue when we are talking about dysfunctional/abysmally lawless systems.
What are the ways to resolve this contradiction?
The Asian Human Rights Commission (“AHRC”) became aware of this problem by the late 1990s and ever since has been making efforts to contribute to resolving this great contradiction.
The very first strategy that the AHRC adopted, together with its partners in several countries, was to meticulously document the actual manner in which the public justice system of each country functions. The method adopted was very similar to the one adopted by the anti slavery movement in Britain as demonstrated by the work of Thomas Clarkson and others who meticulously documented the conditions of the slaves, for example, the manner in which they were packed and brought in ships, which subjected them to scandalous inhumanity and cruelty. This information shocked the British population and their reaction lead to great historical efforts to illegalize slavery and making great efforts to end the practice of slavery altogether.
The Asian Human Rights Commission was of the view that the meticulous documentation of the manner in which the public institutions of justice dysfunction in different countries and the consequent suffering it imposes on the populations living in these countries would lead to a better recognition of the problem locally and internationally.
This documentation has been done in many ways, one of which is a close following of many cases. Cases relating to torture and ill-treatment and other human rights abuses have been followed from the very start of a complaint being made up to the cases proceeding through the courts, often for many years. Through this method it has been possible to document the manner in which the policing system in a particular country functions, the nature of its complaint mechanisms as found in legislation and how these, in fact, function. Later the case is pursued by observing how the prosecution departments conduct their affairs, how indictments are filed and trials are prosecuted. The close observance of the prosecution departments enables the observer to assess how independent the institution is and whether the actions of such institutions can be justified from the point of view of objective criteria that is acceptable from the point of view of a functioning rule of law system. The case is then pursued into the courts, from courts of first instance to the appeals courts. By observing the courts it is possible to document the behaviour of the judges as well as the lawyers themselves.
4. The role of lawyers within a dysfunctional system
There are many problems that need to be considered when discussing the role of lawyers within a dysfunctional system.
From a holistic point of view lawyers lose their traditional roles that they used to play within a rule of law system. The very assumption on which the legal profession functions is the supremacy of the law and the independence of the judiciary. Within a dysfunctional system both these important aspects are, to varying degrees, absent.
This creates confusion among the lawyers as well as society in general as in to what role the lawyers can legitimately play under the changed circumstances.
As time passes there is also the problem of the loss of memory both among the lawyers and also the public about the role that the lawyers were previously able to play when the system was functional.
One of the major problems within the legal profession itself when the system has become dysfunctional is that there begins to arise extremely deep divisions among the lawyers themselves. Quite a large section of the legal profession begins to adjust to the changed situation and learns to survive under these adverse circumstances. Within a very short time the habits that are acquired through such adjustments may even be looked upon as acceptable behaviour. As a result, a serious crisis on ethical standards takes place. What were once considered ethical standards to which legal professionals should adhere begin to be looked upon as unrealistic and demanding an impossible performance under the changed circumstances.
Besides this, the political forces that caused the system to become dysfunctional attempt to win over a section of the lawyers, if not all, to their point of view. Ideological justifications are created as to why there were needs for change of the system of the administration of justice and that therefore, there is a need to reconsider the norms and standards of a former time. The danger of this particular approach is that the dysfunctional legal system is presented as a better alternative to which national goals in the immediate period than the system that functioned earlier. These ideological changes, often couched in nationalistic jargon, begin to appeal to a section of the legal profession who then try to take advantage of the changed situation for their own ends.
The effect of all this is that those who are committed to the profession, as understood within a functional system, begin to become isolated and the possibility of a common front among the larger section of the legal profession to fight against the dysfunctional system becomes extremely difficult.
Added to the division among the lawyers are also the divisions among judges. In the early stages when a system is becoming dysfunctional, the majority of judges are likely to resent the change and try to reassert the earlier positions and try to return if possible to the system as it was. However, as the dysfunctional system consolidates itself, the earlier resistance becomes less and many judges also begin to adjust to the changed system. Initially this may cause serious conflicts but as time passes only those who adjust to the system survive. Political pressures play a significant role in the process of selecting those who would comply with the changes and the exclusion of those who are resisting and attempting to reassert the ways of the functional system.
Thus, the change that takes place within the judiciary also affects the legal profession, particularly those who still attempt to fight against what they consider as the downfall of the system.
Inferences that flow from this predicament of lawyers within a dysfunctional system
It becomes obvious that for those who want to fight for the professional status and rights available to lawyers within a functional system are faced with an enormous task. Turning the tide and returning to the ways of a functional system is not merely a matter of trying to preserve professional integrity but it becomes a matter for the struggle for political and social changes to displace the political and social perspectives that have led to the system becoming dysfunctional. The fight is not one of mere reassertion of values, ethical considerations and the principles on which the legal profession is based but also finding ways to undo the compulsions which created the dysfunctional system.
The following are some useful strategies:
a. A dysfunctional system creates a vast number of persons with grievances that are not being addressed. The lawyers who may support these persons despite their knowledge that at the end very limited results by way of justice may take place, may be wining the sympathy of the public and also gain a vast amount of knowledge about the actual ways a dysfunctional system works and the consequences resulting therefrom. The sense of solidarity with the litigants who are deeply frustrated due to the absence of justice may provide lawyers the insights needed to understand, as well as to fight against, this situation.
b. If the lawyers train themselves to meticulously document their experiences in the dysfunctional system, this could become a knowledge base both for the local population and well as the international community in understanding the related problems. In this sense the example of the British anti-slavery movement and the achievements that were made through the dissemination of sensitive material gathered under difficult circumstances may be considered a role model under these circumstances. As from one incident to the next and one case to the next, the information increases and soon there will be credible material that those who are concerned about this problem cannot ignore.
c. Fighting against a dysfunctional system is not the sole task of lawyers. The entire society is involved in dealing with this problem. Given the fact that a dysfunctional system is a political and a societal creation, fighting against it would require close cooperation with many who may be fighting the same problem from different perspectives. A lawyer’s contribution based on meticulously documented experiences could be a welcome instrument in the hands of all those who are fighting for change.
d. Even in the worst circumstances, many opportunities arise from time to time which if properly utilised could lead to positive changes. For example there are times when there are regime changes. There are also times when there are organised mass protests demanding a greater space for justice. If a very conscious effort is not made under those circumstances, to flag the problem of the dysfunctional nature of the administration of justice system and the need for substantial changes, these moments can be lost. One could enumerate several countries where such opportunities were lost. The involvement of lawyers with a comprehensive knowledge of the systemic failures and the weaknesses could contribute a lot for the articulation of reform programmes in order to ensure that a rule of law system could be reestablished.
5. What could the lawyers from outside, particularly those from developed countries, do to assist lawyers living within dysfunctional systems to overcome this situation.
Under this topic we are, in fact, talking about some of the most sensitive areas in the international relationship among lawyers as well as the international movement for human rights itself.
We may mention some areas for cooperation while at the same time not forgetting some sensitive areas:
a. Lawyers, including their organisations based in developed countries need to make the intellectual transformation that Gary Haugen has so well noted. That is to say, they should be able to transcend the approach to human rights of the earlier two generations that concentrated mainly on the articulation of international norms and standards and to get domestic legislation for the implementation of these international norms. As Gary Haugen has pointed out, this work was done under the assumption that public institutions to those that exist in developed countries exist in less developed countries. The situations we have discussed show that such an assumption is baseless. A shift needs to be made, however difficult it may be, to lay the highest emphasis on human rights work providing assistance to develop public institutions of justice. This work would require a complete reorientation of the human rights movement as we have known it so far. However, even Kofi Annan agreed that this shift needed to be made. If at an intellectual level this problem is grasped, lawyers from developed countries and their organisations could play a great role in developing the theoretical foundations as well as the practical strategies for this work. I would emphasise the need for theoretical articulation as the first priority, as without it, mere action programmes will not adequately be able to resolve a great problem like a dysfunctional system of justice.
b. International agencies of human rights, including UN agencies and international human rights groups, need to be aware that the formula that recommends governments of less developed countries conduct investigations into violations, ensuring prosecutions and having trials before competent and impartial courts is an inadequate formula in terms of the absence of functioning institutions of the administration of justice. These demands do not lead to any real response from the governments of less developed countries. Some countries, for various reasons, try to give an appearance of compliance, which is often highly appreciated by the persons from more developed countries thinking that such gestures are meant well and that the violations will at least be addressed to some extent. Increasingly, more governments of the less developed countries completely ignore the formula of the developed countries for investigation, prosecution and payment of compensation. The former Special Rapporteur for torture and ill treatment, Manfred Nowak, on the basis of a review of recommendations made to several countries as a Rapporteur, concluded that none of his recommendations had been implemented. If similar reviews are made into the recommendations made by different agencies of the United Nations human rights agencies to the governments of less developed countries the result is most likely to be no different. When one special representative for the UN Secretary General for Cambodia went to Cambodia on one of his visits, the United Nations human rights centre made a list of recommendations the representative earlier had made to the government. There were nearly 50 such recommendations. Against each recommendation there was a column under the heading ‘actions taken.’ In that column under each recommendation the comment recorded was: No action.
c. Dealing with the problem of functioning institutions of the administration of justice requires the allocation of adequate funds for this purpose. In the budgets of the less developed countries the allocations made are grossly inadequate for the maintenance of proper investigation mechanisms for crime in general and for human rights violations in particular. At the same time in the granting of foreign aid by the developed countries to less developed countries the issue of the reform of dysfunctional justice systems has not been considered, let alone been treated as a priority. ‘Therefore, my contention is this: that helping build effective public justice systems in the developing world should become the new mandate for the human rights world in the 21st century. To begin with, it is difficult to overstate the degree to which public justice systems in the developing world are broken, irrelevant and dangerous to the poor. In June 2008, a careful United Nations report estimated that a staggering 4 billion people live outside the protections of the rule of law. The stunning conclusion of the UN study was simply this: “most poor people do not live under the shelter of law.” In the developing world, virtually every component of the public justice system – that is, the police, the lawyers, the prosecutors and the courts – generally diminishes the ability of the poor to enjoy the protection of the law.’ (Gary Haugen).
d. International associations of lawyers such as international bar associations often make visits to less developed countries and make various recommendations. However, a study of many of these documents demonstrates that the international experts are reluctant to characterise the system they have monitored as dysfunctional. This may to some extent be due to diplomatic reasons. However, the failure to expose the depth of the problem and instead mentioning some aspects of the problem does not contribute to the solution of the problem or even contribute to getting an adequate discussion internationally and locally in the particular country on the actual crisis of law within a given society. If the international bar associations improve their perspective towards identification and providing assistance to dysfunctional systems, their reports and other expressions of views are more likely to contribute to a better understanding of the justice crisis and taking greater initiatives towards resolving these problems. This would require that the monitoring missions develop their mandates in a way that will not hinder the experts engaged in the missions from probing into the systemic problems and making recommendations which address such problems. Such a change of approach would require dealing with many sensitive issues. For example the issue of respect for the sovereignty of a country. A dysfunctional justice system fundamentally denies the sovereignty of the people and also the capacity of the state to fulfill international obligations relating to human rights.
e. An important change in the practice of human rights which gives priority to the creation of functioning public institutions of justice in the less developed countries can only happen if this is adopted as a policy in the developed countries. Bringing about such a change of human rights priorities in developed countries requires an enormous amount of work by conscientious organisations and individuals to prepare the way for such a change. Committed scholars, academics and other intellectuals need to play a very prominent role and bring this matter sharply to the attention of the governments of developed countries and also to the civil society if the proposed change is to take place. Once again we are reminded of the role played by Thomas Clarkson and others in the anti-slavery movement, as well as many others in many of the important reform movements relating to human rights. There is also the work of many groups and persons, including creative writers such as Aleksandr Solzhenitsyn, who exposed the sheer cruelty and the absence of law and justice under the former communist regimes. A dysfunctional legal system causes similar misery for the whole population of a country where such a system prevails. Thus, intellectual efforts and promotional efforts in the developed countries are the most important components of making progress on the issue of creating functioning institutions of justice in less developed countries.
f. Gary Haugen lays great emphasis on funding this project of creating functioning public justice systems. He appeals to western governments, as well as institutions such as the World Bank, to fund the work relating to this and argues that it will bring better results for these governments and financial institutions themselves. We agree with that point of view. However, we are of the view that to reach the stage where governments and international financial agencies will begin to support this cause, much work needs to be done by willing organisations and individuals to highlight this problem and to urge the adoption of a positive policy.
g. If lawyers and their organisations in developed countries are to be effective in bringing about this change of approach to the building of functioning institutions of justice in less developed countries, they will need to develop a close cooperation with lawyers, their organisations and others based in less developed countries who are pursuing the same goal. There are, in fact, large numbers of lawyers, even judges, particularly those who are retired, legal academics and members of human rights organisations who are deeply committed to seeking a solution to the trap they are in within dysfunctional systems. Building a close and creative cooperation will primarily depend on the initiatives undertaken and resources made available by those in developed countries.
6. Solidarity among lawyers and organisations in less developed countries
a. The lawyers and litigants in the less developed countries are the persons who bear the brunt of a dysfunctional system on a day to day basis. Each of these persons carries in their memories a deep imprint of the injustice and how the injustice is manipulated through what is called a ‘legal process’. In the impression of the minds and memories of these persons we have the greatest resource needed to compel the world for a commitment towards the creation of functioning institutions of justice. These persons also include judges, prison officers and others associated with the ‘justice process’.
b. In order to make an organised effort to accumulate and to articulate written material for public use out of the impressions of the minds and memories of people oppressed by a dysfunctional system of justice many activities need to be organised to bring such people together and also to provide opportunities for them to articulate their experiences. With modern communication facilities such as computers, tape recorders, cameras and other types of modern technology the transcription process from memory to written or other visual material is comparatively easy. However, such actions need initiators of such activities and such initiators could be either individuals or organisations. With the facilities available in the internet, communication of these materials has become easier and cheaper. The organisations of lawyers and also human rights organisations need to learn the ways to bring about close associations with the victims of the system and to facilitate the articulation and dissemination of their input.
c. The experience of a dysfunctional system in one less developed country will have similarities in other less developed countries. This provides the basis for cooperation among lawyers and human rights groups of different countries so that they could share experiences and also develop common strategies in order to fight this common problem which diminishes the value of everyone in these different societies. Such cooperation could begin with linkages of lawyers and others with their counterparts in neighbouring countries to regions as a whole. Already, some effort towards implementing this approach has been done in the Asian context, due to the efforts of the Asian Human Rights Commission. By a replication of these efforts and by producing a final product by way of report, books and other publications, as well as videos, these experiences could be shared with all concerned persons throughout the world.
7. To the global human rights movement and the international human rights organisations
a. What Kofi Annan, Gary Haugen and the Asian Human Rights Commission have called for is to have a radical change in its priorities of the global human rights movement by laying emphasis on creating or reforming institutions of justice in the less developed countries so as to make them functional and credible. As stated above, this will contribute to attaining a new stage in global human rights work, transcending the earlier emphasis on the articulation of international norms and standards and achieving domestic laws incorporating such norms, to an involvement with the institutional aspects of justice. This will require a reexamination by each international human rights group as to their present day practices and a discussion of the changes needed to meet the challenge in terms of institution building, which enables the actualisation of human rights.
b. This also calls for a much closer cooperation between those concerned with human rights in the less developed countries and those of developed countries. If the actual depth of misery that people suffer under dysfunctional systems is to be understood by persons from more developed countries, who are fortunate not to experience such misery, closer linkages and cooperation with people from these two different contexts are needed. The intellectual efforts of human rights organisations based in developed countries will become richer, particularly with regard to the institutional developments if there are such linkages and competence is developed in the developed countries to understand and articulate the concerns of people living under dysfunctional systems. It cannot be said that such close cooperation exists at present. There is a deep divide between those who live under better justice systems and those who live under dysfunctional systems. If human rights work in the future is to retain its credibility, this gap must be breached, and initiatives in this regard should mostly come from human rights organisations based in the developed countries, as they have greater organisational capacities, greater intellectual freedom and greater financial and other resources. The response from the less developed countries will not be wanting.
8. To the office of the High Commissioner for Human Rights
a. The accumulated experiences of the High Commissioner’s office itself regarding less developed countries would confirm the premise that dysfunctional justice systems are the major obstacle for the practical implementation of human rights. Many statements from the commissioner’s office, many reports from treaty bodies and Rapporteurs provides valuable and extensive information about this situation. However, if there is to be any change there has to be a radical transformation of the attitude from the commissioner’s office itself, which should unambiguously state the priority that needs to be given to the creation of functional institutions of justice. The mere formula that advocates investigations, prosecutions and payment of compensation for violations of rights does not adequately represent the need to overcome the institutional obstructions for such investigations, prosecutions and other redress. The absence of compliance with recommendations which have been made over the years is clear evidence of the failure of advocacy based on that formula. The leadership given by the commissioner’s office for a change of policy may lead to positive responses from governments of developed countries to provide resources for such efforts and also from the UN human rights agencies themselves to adopt practices leading to the discovery of institutional defects and ways to remedy them.
b. The High Commissioner could direct the United Nations agencies dealing with development to make the creation of functioning institutions of justice in less developed countries a priority in the work of development. The commissioner could direct one or more of the relevant agencies to develop a conceptual framework for introducing this theme into all UN agencies and in particular those dealing with development. The commissioner may take other appropriate measures for the pursuit of this goal.
c. The High Commissioner’s office could facilitate training for its staff as well as those involved in treaty bodies to develop their capacity in dealing with the issue of institutional development as an essential element of the protection and promotion of human rights. The High Commissioner’s office can also facilitate such training for human rights and civil society organisations throughout the world.
d. The High Commissioner, in her reviews on the implementation of human rights which she generally makes to the Human Rights Council and other UN bodies may devote her efforts to reflect more upon the issue of the development of functioning institutions of justice and make suitable recommendations for the achievement of this goal.
9. To the International Commission of Justice (ICJ)13
a. Perhaps the ICJ is a unique institution that could contribute to the necessary development of jurisprudence and perspectives for taking up the issue of the struggle against dysfunctional institutions of justice as a primary obstacle to the achievement of international norms and standards that have been articulated and adopted by the international community during the last 60 years since the adoption of the Universal Declaration of Human Rights. The previous work of the ICJ in contributing to the development and promotion of important human rights themes encourages others to look to the ICJ for leadership in this area.
b. Even to achieve the benefits of other great ventures of the global human rights community such as the International Criminal Court (ICC) and the related developments for the prosecution of crimes against humanity and war crimes there is the fundamental requirement for the existence of functioning justice institutions. Where such systems do not exist, for example as in Cambodia, the possible positive outcomes for a particular country where such tribunals are held is limited as no living systems of justice exist under those circumstances to assimilate the lessons taught by such tribunals. Thus, completion of the work done in the past for the protection and promotion of human rights, particularly in less developed countries now requires serious efforts for the creation of functioning systems of justice.
c. The ICJ’s connection with jurists throughout the world and experts in the field makes it an eminently suitable agency to initiate this important new aspect of human rights promotion. Particularly in the area of the articulation of ideas, policies and strategies, the ICJ is placed in a uniquely advantageous position to take the initiative for this task.
If the benefit of the work done for many decades on the protection and promotion of human rights is to reach the people of less developed countries, the issue of creating functioning public institutions of justice should become the priority of the global human rights effort. If this happens, the fruits of that success would be even greater than all the achievements the global human rights movement has made in the past. If this does not happen, for vast numbers of people living in less developed countries, human rights will remain “an empty parchment promise.”
1 Since 1990 this has been what I have tried to do. In the course of this time I have tried various strategies and methodologies and also observed what others have tried to do. This paper consists of reflections based on this experience. I have written several books in my own, language, Sinhala, and also in English in the course of this struggle. A few important publications in English are: Recovering the Authority of Public Institutions – a Resource Book on Law and Human Rights in Sri Lanka; The Phantom Limb: Failing Judicial Systems, Torture and Human Rights Work in Sri Lanka; and Gyges’ Ring – The 1978 Constitution of Sri Lanka. Since 2002 a quarterly publication entitled “Article 2” has been published without interruption and the purpose of that publication has also been to document the problems of dysfunctional systems in several countries in Asia. Kindly see Annexure A for a list of some of the relevant issues of Article 2.
2 Basil Fernando graduated from the Faculty of Law, University of Ceylon in 1972 and practiced law in Sri Lanka until 1989, acted as legal counsel for Vietnamese refugees based in Hong Kong under a UNHCR project, was a senior Human Rights Officer attached to the United Nations Transitional authority in Cambodia and the UN Centre for Human Rights in Cambodia. He was the director of the Asian Human Rights Commission and the Asian Legal Resource Centre from 1994 to 2010 and at present is the Director, Policy and Programme Development. He has published many books and articles in English and in the Sinhala language. He is also a well published poet.
3 Though ICJ note put dysfunctional political, economic and legal systems together, these three factors need not be linked, when discussing, dysfunctional systems. Particularly the economic factor need not be the major factor in a dysfunctional justice system. Further some aspects of a legal system, for example administration relating to commercial and some aspects of civil administration may still be functional, while system of criminal law and constitutional law may become dysfunctional. It is the political factor that creates the conditions for making the legal system dysfunctional. Further, in the fight to bring about reforms to give vitality to a justice system political aspects play an important role.
4 Please see Annexure 1.
5 Report of the Special Rapporteur on the situation of human rights in Myanmar, Tomás Ojea Quintana — 11 March 2009.
6 Human Rights Committee – Lalith Rajapakse v Sri Lanka (Decision) CCPR/C/87/D/1250/2004.
7 Documents regarding the judgement of the High Court of Negombo — Sri Lanka in case no. 259/2003 — regarding the torture of Lalith Rajapakse.
8 AHRC Urgent Appeals Case No. 063, 2011, ‘Torture of a 17-year-old boy at the Women and Children Desk at a police station’, Asian Human Rights Commission, 18 March 2011.
9 CR.A/975/2007 111/111 Judgment. Mohd.Pervez Abdul Kayuum Shaikh & Ors- Appellants Versus State of Gujarat 1 – Opponents
10 These features have been abstracted from a long series of reports on several Asian countries. Article 2, a quarterly publication of the ALRC, has meticulously documented the situation of these justice systems.
11 Tom Bingham, Rule of Law. Penguin Books 2011, page 8.
12 Gary Haugen’s speech to Chicago University Law School, 2010.
13 On several occasions during the last ten years or so, I was requested by some senior officers attached to the UN, as well as several academics in the field of human rights, to approach the ICJ and discuss the problems relating to dysfunctional systems. These persons felt that the ICJ was the suitable forum to initiate a discussion on this important area and to prepare the ground work for a wider understanding and acceptance of the need to give special attention to and emphasis in human rights work to the aspect of the development of functional institutions of justice.
# # #
About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation that monitors human rights in Asia, documents violations and advocates for justice and institutional reform to ensure the protection and promotion of these rights. The Hong Kong-based group was founded in 1984.