COUNTRIES AT THE CROSSROADS GOVERNANCE BLOG

Future of Bolivian Justice Remains Hazy

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On February 18, Bolivian President Evo Morales appointed 18 interim justices to fill long-vacant posts in the Supreme Court of Justice, the Constitutional Tribunal, and the Judicial Council. These appointments were made possible by the recent passage of the “Ley Corta,” which empowered Morales to fill 20 of 27 total posts in the three judicial bodies until new justices are elected in December 2010. This controversial law has been the subject of a heated debate between its adherents, who argue that the new appointments will strengthen the country’s judicial system by bringing an end to the judicial paralysis created by the vacancies, and its critics, who counter that the law was a political move geared towards increasing government control over the judiciary. On the day the law was passed, opponents wore black to symbolize mourning, with some carrying signs lamenting the death of democracy. While this estimation of the situation may be extreme, Morales’ direct appointment of judicial officers, when viewed alongside the myriad issues already debilitating and complicating the Bolivian justice system, does raise serious questions about the government’s view of justice.

Addressing the severe case backlogs, which number some 13,000 in the Supreme Court and the Constitutional Tribunal combined, is undoubtedly crucial. But Morales’ attitude—and that of his Movement towards Socialism (MAS) party more broadly—has led opponents to argue that the government does not respect the very concept of judicial independence. Executive interference in the Bolivian judiciary certainly did not start under the MAS. However, the fights regarding the composition of the judiciary contributed to the creation of the judicial vacuum in the first place, as justices who resigned from their posts in the Constitutional Tribunal in 2007 cited executive harassment as their reason for leaving, and the Supreme Court has also been the forum for political squabbles. Thus the logic becomes somewhat circular: we must appoint judges to fix the backlog that our political disputes helped cause.

 It is worth emphasizing that justice in Bolivia has never been blind. Nonetheless, since coming to power, the MAS has often seemed to be more vigorous about prosecuting opponents rather than supporters. Since Morales’ landslide victory in the December 2009 elections, in which the MAS attained a two-thirds supermajority in the congress, the situation has intensified. Shortly following Morales’ January 2010 inauguration, Vice President Alvaro Garcia Linera announced that a priority of the Legislative Assembly would be to continue with the judicial proceedings against former government officials including ex-presidents Eduardo Rodriguez Veltze and Carlos Mesa, former Supreme Court Justice Eddy Fernandez, and ex-magistrate Rosario Canedo, along with a number of government ministers. While some of the cases brought against these officials are undoubtedly merited given Bolivia’s history of corruption, several of the charges are questionable, blurring the line between political disagreement, incompetence, and criminal negligence. What’s more, 59 opposition members currently face charges, including all six of the ex-governors of the departments in the opposition-dominated “Media Luna” region, mostly for corruption or abuse of office. The fact that only one MAS official has been charged along with these opposition members raises concerns over the role that politics has played in these accusations.

This slew of cases against opposition members has been accompanied by legal initiatives with other unclear consequences for justice. In addition to the “Ley Corta,” other laws with troubling provisions include the controversial anticorruption law, which is currently being debated in the legislature. More effective anticorruption efforts in Bolivia would be welcome, but certain provisions – in particular, the issue of what provisions will be retroactive – are extremely controversial. If retroactivity merely signals that corruption crimes that previously would have been dismissed on the basis of statute of limitations are now prosecutable, it is a debatable proposition. If the term means that former officials or citizens can be punished for acts they did not know to be criminal at the time of commission, it is far more problematic. In general, the boldness with which MAS members call for investigations or judgments of people with whom they disagree politically is at times jarring. Finally, the decision to include the election of high judicial authorities in the constitution is controversial in its own right. Very few countries select judges through elections – the US being a massive exception – precisely due to the unavoidable clash between political responsiveness and nonpartisan justice.

Justice for regular citizens is fraught with unresolved questions as well. Although geared towards improving the security of citizens and strengthening law enforcement in the country, the recently proposed changes to the penal code set out in the Fast Law Enforcement Bill also stand to decrease the due process guarantees afforded to alleged criminals. Another issue complicating the country’s justice system includes the problematic process of reconciling community justice with civil law. The new constitution officially endorses the communal justice system, but the question of how the two legal regimes will mesh remains fluid. The recent case of Felix Patzi, a candidate for the governorship of La Paz, Bolivia’s biggest department, is illustrative.  After being arrested for drunk driving on February 4, Patzi was sentenced to make 1,000 bricks under the community justice system. Although Patzi initially withdrew his candidacy at the request of Morales, he later changed his mind, and now argues that his drunk driving charge should not disqualify him from the La Paz race due to the fact that he has already served out his community justice sentence. However, his civil case remains open, leading to controversy over whether or not the communal punishment should suffice. Due to the MAS party’s commendable insistence on using Patzi to set an example regarding behavioral expectations for its candidates and continued unwillingness to allow Patzi to run, he abandoned the MAS.

The MAS envisions its political project as a refoundation of Bolivian society, and citizens have repeatedly endorsed its vision in elections. But justice and politics reside in tension in every country, which is the reason that separation of powers is considered such an essential element of democracy. The MAS has not always abused its power – indeed, Morales’ interim selections were viewed as fairly credible by most observers – but the government’s actions have been controversial in many different spheres related to the rule of law. With such political hegemony as the MAS now possesses inevitably comes temptation to abuse it, especially in conditions of unconsolidated institutions. How these issues are addressed will say a great deal about the MAS’s attitude toward basic democratic tenets more generally.

Evidence of Cambodian Governance Backsliding Accumulates

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In a recent Human Rights Watch press release on Cambodia, Brad Adams, the organization’s Asia Director, commented that “Hun Sen seems intent on reversing the political pluralism that has been created over the past two decades.” Adams’ statement was directly referring to the January 27 conviction of opposition leader Sam Rainsy on charges of fueling racial tensions and destroying demarcation posts on the Cambodia-Vietnam border. Rainsy was tried in absentia and sentenced to two years in prison and a fine of 8 million riels (US$2,000). His case is representative of the situation currently faced by most government-critical activists and politicians in the country, as Prime Minister Hun Sen has increasingly clamped down on dissent and strengthened his hold over the country, plunging Cambodia into a governance downslide.

As Rainsy’s case highlights, the undermining of the rule of law in has become increasingly prevalent in Cambodia. Rainsy’s unfair trial exemplifies the political perversion of the Cambodian justice system, which continues to be manipulated by Cambodia’s high-level officials. Rainsy has been the frequent target of politically motivated charges since the 1990s, with government officials engaging in repeated attempts to jail the opposition leader. Unfortunately, he is not alone. As most judges and prosecutors are members of the ruling Cambodian People’s Party, Hun Sen and other high-level government figures have been able to use the court system to target opposition leaders, activists, and journalists with defamation suits. The government’s use of the judiciary as a political tool has become even more flagrant of late, with at least ten government critics being sued for criminal defamation in 2009, including two additional opposition parliamentarians, a Sam Rainsy Party youth activist, and four journalists. In addition to lacking independence, the Cambodian judiciary is also plagued by corruption, an issue that gained international awareness when a kickback scheme was uncovered within the UN-backed Khmer Rouge tribunal in 2007.

Another particularly troubling rule of law issue relates to property rights, specifically the escalating issue of forced evictions and land confiscations. According to Human Rights Watch, “Cambodia’s epic of forced evictions of the urban poor and confiscation of farmers’ land in the countryside reached crisis proportions in 2009.” Land grabs have become increasingly common in recent years, a practice that is made possible by a convoluted land-titling system that has favored the wealthy elites, leaving 80 percent of citizens in rural areas without title deeds. The weak legal regime, combined with the ability of powerful officials and businessmen to manipulate the system, has left ordinary Cambodians without an avenue to protect their rights or receive adequate compensation in cases of eviction. High real estate prices and new development projects in both rural and urban areas have been especially to blame for this problem in the past years.

Most alarmingly, the security forces charged with carrying out evictions frequently engage in excessive force against civilians, who are rarely informed of evictions in advance. For example, in January 2009, 250 police hired by the company 7NG, which claimed ownership of the land, evicted 152 families from the Dey Kraham community, using tear gas to disperse the crowd. Furthermore, villagers and activists who protest against the unjust confiscation of land are often arrested and even shot, as was the case with four Che Kreng villagers in one March 2009 clash with the police. More than 60 people are imprisoned or awaiting trial for charges related to land conflicts, an indication that ordinary citizens who rebel against the government’s policies have not escaped the crackdown experienced by the formal opposition. Activists working on human rights and land and trade union issues, along with opposition journalists, have been especially subject to harassment, attacks, and even killings, and crimes are often committed by the security forces. In 2008, the Cambodian Human Rights and Development Association investigated the murders of 40 Cambodians, six of them political activists, by security force members. 

In yet another egregious example, a recent Human Rights Watch report chronicles the abuses endured by drug users who are sent to “rehabilitation centers.” According to the report, drug users detained in the center are beaten, raped, subjected to forced labor, and tortured rather than provided with effective treatment for their addictions. Many of the detainees end up in the center after being arbitrarily arrested in mass police round-ups of prostitutes, homeless people, the mentally-ill, and drug-users alike, and are often left in the dark as to the charges against them. In response to allegations regarding these abuses, the government has occasionally recognized these practices, although it normally justifies them as a necessary part of drug rehabilitation.

Cambodia’s governance backsliding is especially distressing due to the generous amount of funding the country receives from international donors. International assistance makes up over half of Cambodia’s annual budget. Most of Cambodia’s major development partners, which include the World Bank, the Asian Development Bank, the United Nations, the European Commission, and the United States, among others, have invested in a variety of projects geared towards advancing judicial reform, addressing past abuses (most notably through the UN-funded Khmer Rouge tribunal), instituting training programs on human rights issues, addressing health issues such as HIV/AIDS, and fostering economic development. However, these donors have had minimal success in ensuring that the government takes its international human rights commitments seriously. This is partly due to the fact that although investors will occasionally issue formal criticisms of the Cambodian government and urge reform, the aid keeps coming. Their limited achievements in this realm, and the recent backsliding on any progress made in the past, are also at least partly the result of China’s high levels of investment in the country, which has largely been funneled towards infrastructure development. As we discussed in a previous post, China’s assistance is not conditioned on the adoption of reforms, and thus increased Chinese assistance has afforded the Cambodian government a greater ability to turn its back on good governance efforts with lesser financial consequences, and to use China’s ever-mounting assistance as a bargaining chip when dealing with other donors.

Nigerian Power Vacuum Highlights Institutional Weakness

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On February 9, Nigeria’s presidential crisis reached its denouement, at least for now, when the National Assembly voted to install Vice President Goodluck Jonathan as acting president. Nigeria has effectively lacked a president since November, when President Umaru Yar’Adua left to seek medical treatment in Saudi Arabia. Yar’ Adua’s departure spurred a heated debate over the constitutional provisions regulating the matter, with some arguing that Yar’Adua violated the constitution by failing to hand his power over to the vice president, others (including the majority of the cabinet) countering that the president enjoyed a legal right to carry out his presidential duties abroad, and increasing numbers of Nigerians clamoring for his resignation. In the face of increasing unrest, with citizens taking to the streets with calls of “Umaru Where Are You” and rumors circulating of impending coup attempts, the National Assembly voted to empower Jonathan in the name of “peace, order and good government.” Unfortunately, it is unlikely that this ruling will achieve a lasting resolution of the matter, and the current turmoil is not an aberration, but rather a symptom of Nigeria’s unresolved institutional issues.

For one thing, informal understandings play a key role in the stability of the country’s democracy. In this case, contentious ethno-religious issues surrounding the presidency could be exacerbated as the ascendancy of Jonathan, a southern Christian, to the presidency in place of Yar’Adua, a northern Muslim, could throw a wrench in the tension-reducing system of alteration of power between members of the two faiths. In addition to the presidency, other institutions remain either frail or politically compromised, limiting the country’s ability to follow good governance practices. Political parties are feeble, with competitive politics rendered extremely difficult by the increasing dominance of the ruling People’s Democratic Party, which has been ensured through the manipulation of the state machinery, especially in the fraudulent 2007 elections. In a related vein, the country’s electoral institutions remain underdeveloped; the primary institution in charge of overseeing elections, the Independent Electoral Commission, has been accused of being a tool of the executive branch and implicated in several scandals. Promised electoral reforms geared toward addressing these issues have yet to arrive. In addition, the country’s new anticorruption institutions, the Economic and Financial Crimes Commission and the Independent Corrupt Practices Commission, have handed down few convictions, especially in cases implicating politicians with links to Yar’Adua. Finally, the government security apparatus continues to commit rampant abuses with impunity despite increased civilian control over the security sector.

The dilapidated nature of these institutions is inextricably linked to Nigeria’s political and social problems. Institutional ineffectiveness has paralyzed Nigeria’s response to serious internal challenges, most notably the presence of ethnic and religious tension between Muslims and Christians, which has claimed 13,500 lives since 1999, and the precarious peace in the Niger Delta, where the conflict over oil continues to simmer. Due to the institutional failure to address the root causes of these problems, they have persisted, with positive steps made towards resolution consistently impossible to maintain. Moreover, in some cases, the state’s incapacity to effectively provide basic services, an equitable distribution of resources, and the establishment of the rule of law directly contributed to the creation of the problems in the first place. It becomes a vicious circle: by fueling the most severe crises, institutional weaknesses has stymied efforts to address baseline governance concerns including electoral reform and corruption.

The eruption of violence in the months since Yar’Adua’s departure serves as an extreme example of the link between institutional failure-in this case the failure of the executive institution- and the country’s internal struggles. In the North, sectarian strife claimed more lives on January 19, when armed men, believed to be Christian, attacked the predominantly Muslim population of Kuru Karama, killing 150. The violence then spread to neighboring communities, where additional attacks brought the death toll up to at least 364.While this outbreak of violence was not the direct result of Yar'Adua's absence, the ethno-religious facet of presidential crisis, namely the alteration of power issue, has undoubtedly heightened tensions between the two groups during this time. The violence also illustrates that Muslim-Christian friction could stand to worsen if Yar'Adua cedes the rest of his term to a Christian. Following the attacks, Jonathan promised to immediately investigate the violence and bring the perpetrators to justice, although the halting pace of past investigations raises doubt over the probability of this taking place. This conflict was soon followed by an end to the truce in the Niger Delta. On January 30, Jomo Gbomo, declaring himself the spokesperson for a militant group known as the Movement for the Emancipation of the Niger Delta (MEND), announced the end of the ceasefire in the region, citing a belief that the government would never empower the region’s inhabitants with control over its hydrocarbon resources. The demise of the ceasefire was partly the result of the stalling of the amnesty program on account of Yar’ Adua’s absence.

Until Nigeria’s struggling institutions are empowered with increased capacity and find mechanisms to decrease the perceived zero-sum nature of politics, severe governance deficits will remain. Although no one would expect a country a country with such a short history of elected rule to feature pristine institutions, the lack of progress is disheartening, and a lack of political will has been a contributing factor. Regardless of the cause, the recent saga has crystallized the ongoing challenges, and hopefully will spur the country’s political class to do something about it.

Reform Lite Comes to Saudi Justice

On January 11, Saudia Arabia’s Shura Council approved the establishment of a public defender program that will appoint lawyers to indigent defendants at the state’s expense. This reform measure follows on the heels of a series of recent efforts geared towards advancing judicial reform through restructuring judicial institutions and introducting new programs and initiatives aimed at professionalizing the judicial sector. In February 2009, King Abdullah bin Abdul-Aziz passed amendments that appointed a new, less conservative chief of the Supreme Judicial Council (SJC) and formed a Supreme Court composed of nine heads of courts of appeals. Nevertheless, these reform efforts, while welcome, will not bring about the change necessary to uproot a judicial culture that systematically denies defendants’ rights due to its dependence on the arbitrary decision-making power of judges and high level government officials.

The kingdom’s efforts have been carried out as part of a judicial reform process announced by the government in October 2007 that sought to streamline and restructure the country’s ailing judicial system through a series of measures set out in 2007 amendments to the Law of the Judiciary and the Law of the Board of Grievances. These amendments set up specialized labor and commercial courts. They also moved to increase judicial independence by shifting the highest legal powers from the widely-disparaged SJC to a Supreme Court with the power to hear appeals and transferring the administrative authority to oversee the courts, judicial appointments, and matters of discipline and training from the Ministry for Justice to the SJC. A provision of the law granting the executive the power to interfere in the judiciary was also rescinded.  At this time, the government committed US$1.8 billion to build the specialized courts and implement training programs for the new court’s judicial officers.

This reform plan, while welcome, must be viewed in concert with the persistent injustices that plague the Saudi judiciary. Within the criminal justice system, defendants’ rights are consistently and systematically denied as a result of both deficiencies in Saudi law and the excessive power granted to Saudi judges. Extended pretrial detention is common, and defendants are frequently denied access to a lawyer and left in the dark about the charges against them. This is especially the case for Saudis detained on terrorism or political charges, who numbered 2,000 in 2009. Trial procedures are also severely flawed. Defendants do not enjoy the presumption of innocence and are often prevented from presenting evidence, while lawyers are occasionally barred from defending their clients in court.  Most alarmingly, Saudi Arabia lacks a penal code, which enables judges to determine criminality based on their own discretion, often in an inconsistent manner that is especially alarming considering the severe punishments that can accompany crimes. Saudi justice is predominantly based on a particularly strict interpretation of Sharia law, which provides for extreme punishments such as flogging, in addition to a body of “Basic Law,” which is subordinate to the authority of the king and the religious establishment.  Death sentences can be handed down by judges in cases involving rape, murder, offenses against God, and also those cases that the judge, in his own opinion, believes merit capital punishment. Meanwhile, members of the royal family enjoy almost complete impunity in both civil and criminal courts.

Given the incompatibility of the Saudi judicial framework with most international conceptions of due process protections, a systemic overhaul including codification of criminal law and the training of a new generation of judges would need to take place before the Saudi judicial system can truly be considered reformed. Technocratic changes are undoubtedly a salutary first step, but while new courts and training programs may serve to reduce judicial backlogs and modernize the system, they will fail to achieve real change if the prevailing judicial culture remains the same. Furthermore, the reform efforts focus only on civil courts, leaving the realm of criminal law, which is most in need of reform, untouched. The establishment of a public defender program will do slightly more to uphold the rule of law by safeguarding the rights of defendants. However, even if defendants now enjoy the right to be provided with a lawyer if unable to pay, this provides little guarantee that they will be granted a fair trial in a system where the personal opinions of the judges and the king prevail over codified, standardized justice. The new reforms will not deny the king his ability to influence and interfere in high-profile cases; he will also retain his authority to appoint the heads of the SJC and the Supreme Court, along with his power to reject the SJC’s recommendations for judicial appointments. Most importantly, he will remain the highest judicial authority in the land.

In some countries, technocratic reforms-often undertaken with donor assistance-mark an important first step, particularly when resources are extremely scarce or conflict has left judicial institutions in chaos. However, neither of these conditions applies to Saudi Arabia. Likewise, without political will to implement far-reaching changes, judicial reform often flounders or reaches a maximum level well below what’s necessary to achieve equality before the law. There is little indication that the necessary political will exists in Saudi Arabia to bring about such comprehensive change. Indeed, the fact that the implementation of even technocratic reforms efforts, which have been announced several times since 2005, has lagged serves as evidence that deeper shifts remain in the distant future. Finally, in societies like Saudi Arabia with more entrenched judicial norms, transforming judicial culture is a wrenching process. For now, average Saudi citizens and others caught up in the country’s judicial net can only hope that, however slowly, the wheels of reform in the kingdom are finally beginning to turn.