Re‐inventing the rule of law: Human rights in El Salvador

Recent transitions from authoritarianism to democracy have been front‐page news. Often attention to such transitions has focused on efforts to create and sustain democratic elections and to guarantee open political competition between parties that are committed to majority rule. However, equally important in such transitions is the implementation of the rule of law. This article examines the efforts of one country, El Salvador, to re‐establish the rule of law as part of its passage to liberal democracy. The efforts to implement the Salvadoran peace accords that were signed in January 1992 provide the focus. The United Nations Observer Mission in El Salvador (ONUSAL) was created to monitor compliance. One important consequence of the accords was the effort to achieve broad reform of the justice system. Salvador's progress here is evaluated both in respect of the degree of compliance with the accords, and, more importantly, in establishing an independent judiciary that will be capable of protecting human rights. Salvador's reforms are compared with other efforts to re‐establish the rule of law in some formerly authoritarian regimes.     

The evolution of rule of law in Cambodia

Cambodian leaders have confounded the efforts of the international community to promote rule of law. Over the past decade the Cambodian government has introduced a series of legal reforms and overseen an increase in the use of legal proceedings including defamation lawsuits against opposition politicians and members of civil society. These reforms and practices, as well as the role of the judiciary in relation to each, may be better understood through elite perceptions of the rule of law in Cambodia. Comprehending the rule of law as it is understood by the ruling elites offers better insight into the trajectory of legal development and the obstacles to Western ideals for legal reform. This article situates Cambodia within the context of illiberal democracy and examines how a thin rule of law has evolved, focusing on defamation law as a legal and political strategy of control. While the international community has pressed Cambodia to carry out liberal legal reforms for some time, the article will outline the obstacles facing reformers and the competing desires of Cambodian leaders embedded in the patronage based political order.     

Economic reform and judicial governance in Brazil: balancing independence with accountability

Conventional wisdom on judicial governance posits that an independent judiciary is the single most important prerequisite of the rule of law. However the case of Brazil demonstrates that this is not necessarily the case, as there exist tensions and trade-offs between independence and accountability. The democratic constitution of 1988 clearly succeeded in isolating the judiciary from political interference, thus enabling it to perform its role as an institution of horizontal accountability in particular through the judicial review of executive decrees. However, Brazil's unrestricted independence has progressively become a hindrance to effective economic governance, a policy area in which the judiciary has especially asserted itself The central question is whether the judiciary is too autonomous, lacking effective mechanisms of democratic accountability and external control. The paradox is that excessive independence makes it particularly difficult to reform the judiciary. This study assesses the governance of the judiciary in Brazil and its impact on economic reform. It argues that the challenge of judicial reform resides in strengthening the countervailing mechanisms of accountability to enhance the judiciary's social responsiveness and political responsibility. Finding the right balance between independence and accountability is the defining challenge of judicial governance in Brazil.     

The limits to judicial independence: Cambodia’s political culture and the civil law

Distinctions between the common and civil law are crucial when considering the rule of law and judicial independence in a political system. The 1993 Constitution of the Kingdom of Cambodia provides for a democratic government with separation of powers, judicial independence and human rights guarantees consistent with international legal instruments. However, Cambodia ranks poorly in international indices of political interference and corruption in the judiciary and for the rule of law. Drawing on interviews with Cambodian state officials and legal practitioners, the article situates the domestic judiciary within the socio-political environment and constitutional arrangements in which it must operate and examines the limits to judicial independence in the country. The article argues that the lack of judicial independence in contemporary Cambodia is not only attributable to its neopatrimonial political culture but also to the legal-institutional framework established during the United Nations Transitional Authority in Cambodia (UNTAC) period. The legal-philosophical underpinnings of civil law, the nature of the civil law system operating in Cambodia, and how it is interpreted locally, are crucial to understanding the limits to judicial independence in the country.     

Democratic theory,the courts and the press

Powerful social forces block the transition from authoritarianism to democracy. Economic, political and social stability has not yet been achieved. The corporatist political and social structures have not been transformed to allow the vast majority to enjoy the basic necessities that ensure a life of dignity. Institutional structures of government, such as an independent judiciary, must be developed and stabilized. The rule of law and the guarantees of due process have to be consolidated and become an accepted, basic requirement of social interaction. Creating a specific kind of deliberative democracy based on the epistemic value of democratic decision making and discussion is the only way forward. This justificatory theory is more likely to allow for equal participation and rational discourse among all segments of the population. Objective information on important societal issues is a necessary prerequisite for such participation. This requires an independent press that adequately performs its democratic functions. Moreover, an independent judiciary has an indispensable role to play in this process, particularly in protecting the free flow of information to the people so that they can make informed choices on issues crucial to a democracy.     

Renegotiating ‘law and order’ : judicial reform and citizen responses in post-war Guatemala

This study examines reforms aimed at strengthening the rule of law in Guatemala implemented since the signing of the peace accords in December 1996. Despite nearly US$200 million in foreign aid to the justice sector, impunity remains the rule, the judicial process is subverted by military and criminal networks, citizen confidence in the judicial system remains low and recourse to non-judicial measures – the ‘privatisation of justice’- is on the increase. It is argued that the institutionally-focused approach to rule of law reform currently predominating in donor thinking ignores the historical context within which understandings of ‘law’, ‘justice’ and ‘rights’ are shaped. Institutions do matter, but only by understanding the role of law in long-run processes of state formation and the dynamic, inter-subjective nature of legal interactions can we begin to understand the specificities of socio-legal change.     

Rule of law and the democratization process: the case of Albania

This article will explore the dilemmas that Albania has been experiencing in implementing the rule of law during the past two decades with particular attention to the political institutional obstacles, including the difficulties of establishing an independent judiciary and the pervasiveness of corruption. The concept of the rule of law will be the lens through which the difficulties of the democratization process will be examined. The lack of transparency in the legislature and more broadly in the political decision-making process, and the divisive and leader-dominated political party system are two additional obstacles that Albania is facing in consolidating democracy. Since its first post-communist election in 1991, Albania has experienced challenges in conducting legitimate elections that meet international standards. The political and cultural environment where these political institutions operate and from which they have been constructed will provide the backdrop for analysis.     

Constraining consolidation: military politics and democracy in Pakistan (2007–2013)

Why do some militaries retain high authoritarian prerogatives during transitions from militarized authoritarian rule? The Pakistan military's 2007 extrication shows that an important part of the answer lies in the level of structural differentiation between the “military government” and the “military institution”. Despite sustained contentious opposition to military rule, the high level of separation between these two military dimensions of the state allowed the institutional military to delink itself from the discredited dictatorship and exit on its own terms. In the post-authoritarian context, the military has preserved its expansive prerogatives by using a variety of adaptive contestation mechanisms – including the mobilization of the media and the judiciary – that act as a continuing source of political instability and uncertainty.     

俄罗斯的制度伦理变革与法治现代化——以信任取向为考察线索

制度伦理为制度之灵魂,它通过某种价值取向与正义理念,或支持、或规避某种制度。制度伦理一般可以分为以特殊信任为取向的制度伦理和以普遍信任为取向的制度伦理。事实证明,以普遍信任为取向的制度伦理有利于法治现代化,以特殊信任为取向的制度伦理不利于法治现代化。俄罗斯的法治现代化并不顺利,其中一个重要原因在于其制度伦理长期以来是以特殊信任为取向的。不过,制度伦理并非不能改变,只是改变起来较缓慢一些。俄罗斯的制度伦理变革仍还很艰难、很漫长,但俄罗斯通过制度伦理变革解决法治现代化深层问题的进路无疑是正确的。这在方向上是对的,只要假以时日,俄罗斯的法治现代化还是可待的。     

Analysis: Reconceptualising transitional justice: embedded and distanced justice

This article argues that transitional justice ranges from the very personal and local to the global and structural, spanning processes and outcomes, clear demands, compromises and contracts. It explores this diversity using the framework of ‘embedded justice’ and ‘distanced justice’, and the case studies of South Africa, Rwanda and Sierra Leone. The argument draws on Fletcher and Weinstein (2002) to argue that justice needs to be embedded within and to engage the communities, cultures and contexts of conflict. A recent article by Sieff and Vinjamuri (2002) is used to advocate decentralisation. Transitional justice debates have generally overlooked justice, and human rights, as manifest in political, economic and social processes whilst privileging the law, and dismissing the potential of locally generated and embedded justice. The article argues that achieving the correct balance requires a shedding of naïve faith in, and the transformation of, both local and international justice, and the contexts within which they operate, whilst seeking to build on their complementary capacities and legitimacies.     

拉美国家的法治与现代化

法治与现代化的关系问题是现代化理论中的重大问题。通过司法改革促进法治是当今拉美国家现代化的必然要求。在法治与政治的关系方面,法治为政治的有序运转提供保障,拉美国家正在通过司法改革推进政治的现代化和民主化。法治与政治互动反映出各国政治发展不同阶段的两种情况:司法政治化和政治司法化。在暴力和独裁逐渐远离政治的现代化进程中,法治必将发挥更大的作用。法治与政治的良性互动有利于现代化的推进。     

Genealogies of the colonial present: the rediscovery of the local in conflict management interventions in Mindanao,the Southern Philippines

This article argues that the current attention on indigenous institutions, and the ‘local’ more generally, in peace-building and conflict management bears similarities with colonial and post-colonial attempts at pacifying volatile borderlands. This will be illustrated through a historical case study of the Southern Philippine island of Mindanao, which has witnessed a recurring Muslim insurgency throughout different phases of its history. In an attempt to cope with these violent uprisings, both the American colonial authorities and the authoritarian Marcos regime, as well as a range of contemporary international NGOs, have endorsed traditional institutional avenues of informal mediation. The argument for the deployment of the local in state reconstruction and peace-building as propagated in current literature on hybrid peace should therefore be reframed as a reinvention of colonial governance techniques of indirect rule. It will hereby also be argued that the underlying rationale for this current deployment of local/traditional institutions of mediation and governance confirms and builds further upon a colonial framing of the non-Western other as incapable of modern, liberal democracy.     

跨越东西差异,践行多边主义

今年中方的出席具有特殊意义,因为我和我的同事是从前线而来。中国政府正在习近平主席坚强领导下,全力抗击一场突如其来的新型疫情,14亿中国人民团结一心,投身到这场没有硝烟的战争之中。我们决心守护武汉,守护湖北,守护与病毒抗争的每一位骨肉同胞,坚决打赢这场疫情阻击战。     

Strengthening civil society: Participatory action research in a militarised state

ABANTU for Development embarked on a regional programme to strengthen civil society capacities for engaging with policy from a gender perspective. An early programme activity involved an in-depth study of NGO capacities for policy engagement which ABANTU carried out in Nigeria during the recent period of military rule. In keeping with ABANTU's commitments as a regional human resources network dedicated to promoting development and gender equality from an African perspective, the local research team used a participatory action methodology to gather and interpret the findings in a way that privileged local NGO perspectives and understandings of gender and policy. The exercise generated hitherto unavailable information and experiential case study material, and simultaneously identified and involved a core group of NGOs in the development and planning of the subsequent training programme. More importantly, it also furnished the regional training network with an understanding of indigenous cultures and local gender politics. These were found to be infused with diverse local cultural dynamics, as well as with the contradictory legacies of the military's state-driven programmes for women, both of which constrain the extent of gender activism, especially when this is monitored through instances of direct policy engagement.     

The Rule of Law and the UN Peacebuilding Commission: a social development approach

There is a danger that the Rule of Law Assistance Unit of the United Nations Peacebuilding Commission will employ the same dominant but problematic paradigm that the international development community has pursued across the globe. This top-down, state-centred paradigm, sometimes known as ‘rule of law orthodoxy’, stands in contrast to an alternative set of strategies: legal empowerment. Legal empowerment involves the use of legal services, legal capacity-building and legal reform by and for disadvantaged populations, often in combination with other development activities, to increase their freedom, improve governance and alleviate poverty. It is typically carried out by domestic and international non-governmental organisations (NGOs), but also by governments and official aid agencies. This alternative approach focuses directly on the disadvantaged and integration with other development activities, which means it often operates under the de facto rubric of social development. Legal empowerment strategies vary among countries and NGOs. But their impact includes reforming gender-biased, non-state justice systems in Bangladesh; ameliorating the legal system's corruption in post-conflict Sierra Leone; keeping the human rights flame burning in post-conflict Cambodia; advancing natural resources protection and indigenous peoples' rights in Ecuador; and strengthening agrarian reform in the Philippines. Addressing such priorities can help alleviate poverty, ameliorate conflict and prevent chaos or repression from dominating the disadvantaged, particularly in conflict or post-conflict societies.     

The politics of judicial review in Chile in the era of democratic transition, 1990–2002

The study addresses the politics and effects of judicial review in Chile. It concludes that by and large the Chilean courts have refused to exercise their constitutional review powers in defence of individual rights. Although this suggests that Chile represents a ‘negative model’ of judicial review in transitional democracies, the author argues that such an understanding would be simplistic. The Chilean courts' reluctance to exercise their review powers represents the continuation of a long-held strategic stance of avoiding politically controversial cases. This in turn has contributed to the preservation of the autonomy and political independence that has historically allowed the Chilean judiciary to play a crucial role in the promotion and maintenance of the legality that characterises this country. Merging the insights of two academic fields that rarely communicate – democratization studies and public law and courts – the author proposes that prematurely introducing judicial review of the constitution in non-consolidated democracies could actually make things worse. This, because it introduces irresistible incentives for government intervention in the work of the courts, thus destroying a sine qua non of the rule of law: judicial independence.     

Pioneers of peace research: II. Quincy Wright: Apostle of law

This is an interpretative review of Quincy Wright's A Study of War. In his anthropological and historical surveys, Wright traced warfare from the animals to the atomic age, including primitive warfare, civilized warfare, and modern warfare. These surveys suggested that war was primarily a function of civilization and imperialism. In order to control war, the conditions of peace have to be established. This means creating a new world order oriented toward justice and welfare rather than wealth and power. This is the task of world law, but the law cannot be effective without world acceptance of justice and welfare as standards of human behavior. A sense of world citizenship is required to support the law in its efforts to achieve justice, maintain order, and administer welfare. It would seem that something like world welfare is required to control world warfare.     

Justice delayed? Internationalised criminal tribunals and peace-building in Lebanon,Bosnia and Cambodia

In countries emerging from violent conflict and/or mass atrocity, there is an urgent need to promote stability and often also widespread demand for accountability for abuses which have taken place. Debate has raged among scholars and practitioners about whether justice should be sacrificed or delayed for the sake of peace, or should be promoted even if it is in the short term destabilising. In many countries emerging from conflict processes of accountability, or transitional justice processes, operate almost simultaneously alongside processes of peace-building such as disarmament, demobilisation and reintegration of ex-combatants, reform of the security sector and rule of law promotion, in the immediate aftermath of conflict. These can include domestic processes of truth-telling, prosecution, reparation and amnesty, or internationally promoted processes such as international criminal tribunals. They can also include internationalised criminal tribunals, which have mixed national–international staff. While scholarship has increasingly focused on the engagement between transitional justice and peace-building processes in the relatively near term, far less has examined the role of processes of accountability that follow conflict termination by a significant period of time, justice delayed. Drawing on recent fieldwork, the authors examine three internationalised criminal tribunals developed some 15 years after the termination of conflict in countries that experienced three very different types of conflict, conflict resolution and peace-building or reconstruction in Bosnia, Lebanon and Cambodia. They find that despite claims made by advocates for such institutions, such tribunals may only have limited impact on longer term peace-building and that the effects of flawed peace-building activities affect the operating environment of the tribunals.     

Fighting for the rule of law: civil resistance and the lawyers' movement in Pakistan

Pakistan, sometimes referred to as ‘the most dangerous place on earth’, is not typically thought of as a place where popular nonviolent resistance could take root, much less succeed. Citizen apathy, poor governance, and fear of regime repression and terrorist violence are barriers to effective civic activism inside Pakistan. Yet, over the past two years, Pakistan's authoritarian ruler was ousted and its independent judiciary restored following a massive grassroots campaign led by lawyers. The ‘men in black’, whose insistence on the rule of law and embrace of nonviolent struggle captured the hearts and minds of millions of Pakistanis, helped transform the country's political landscape in unexpected ways. The successes tallied by this nonviolent movement, this article will argue, can be attributed to the large-scale non-cooperation and civil disobedience that pressured two successive Pakistani regimes – one authoritarian and one democratic – to yield to its demands. Unity and mass participation, nonviolent discipline, and the creative use of nonviolent tactics were three key ingredients of success. While instability and Islamist extremism continue to plague Pakistan, the lawyers' movement highlights the steadily growing strength of Pakistani civil society have a potential to influence democratic change in the country.     

On our terms! How domestic elites localised the International Commission Against Impunity in Guatemala

Abstract

In summer 2004, an UN-sponsored international rule of law commission based on an initiative of the Guatemalan human rights community was rejected by Guatemalan political elites. In 2007, a new version, the International Commission against Impunity (CICIG), was approved by the Guatemalan Congress and has since been active in the country, supporting the modernisation of the Guatemalan judicial system and the investigation and prosecution of criminal networks. The CICIG has been hailed as part of a new generation of rule of law promotion that addresses the problems of post-conflict states. How did this change in elite support come about? Neither increased pressure from the international community nor changes in the elite groups in power can fully explain this shift. Rather, Guatemalan elites actively reshaped the commission; in addition, the human rights community reframed it to better fit the risk perceptions of the general public.