Good Governance - Justice in full capacity

Good Governance - Justice in full capacity

Governance failures are a fundamental problem of our time. Failed, inadequate, incompetent,or abusive national authority structures have sabotaged the economic well being, violated the basic human rights, and undermined the physical security of their populations. The problems generated by inadequate governance cannot be adequately addressed within the confines of conventional sovereignty which stipulates that all states should enjoy both autonomy and international recognition. Alternative institutional arrangements, need to be developed including de facto if not de jure global trusteeships arrangements that engage external international institutions in judicial and rights based aspects of domestic governance on a quasi permanent basis. The fundamental rules of conventional sovereignty -- recognize juridically independent territorial entities and do not intervene in the internal affairs of other states -- although frequently violated in practice have rarely been challenged in principle. But these rules no longer work, and their inadequacies have had harmful consequences for the strong as well as the weak. The policy tools that powerful well governed states have available to fix badly governed or occupied polities . Development programs for assisting good governance carried out by the United Nations, World Bank or IMF or other institutions are inadequate in their outcomes to institutionalize democracy and social justice. Better domestic governance in badly governed or occupied polities will require transcending accepted rules in specific issue areas and possibly some new form of trusteeship as well. There is a conspicuous gap between the analytical emphasis on international institutions’ decision-making processes to initiate or intervene during a conflict, and violation of human rights. While there is a great and growing literature on humanitarian intervention during a conflict, there is little corresponding study of international policies to address exploitive authorities involved with widespread and systematic violations of human rights. Deciding whether and how to deal with suspected atrocity perpetrators is of critical importance to policymaking and judiciary system.



Key words: Justice, judiciary, governance, human rights, corruption, transparency



Exploitative Political Leaders

The state has a role to play in providing public goods such as educating the youth of the country as well as in reflecting the political and social values, such as throwing out parties who turn a blind eye to corrupt privatisation. Yet, “capacities to govern” must be developed – capacities related to setting strategic direction, building capacity to implement policy, and building new ways of financing public goods and services.

Weak governed countries globally are confronting endemic violence, exploitative political leaders, falling life expectancy, declining per capita income, and even state sponsored genocide. In Colombia much of the territory is controlled by the Revolutionary Armed Forces of Colombia, a Marxist rebel group. In Rwanda more than 700,000 people were slaughtered in a matter of weeks in 1994. The consequences of failed and inadequate governance have not been limited to the societies directly affected. Poorly governed societies can generate conflicts that flow across international borders. Trans-national criminal and terrorist networks, human and drug traffickers can operate in territories that are not controlled by the internationally recognized government. Humanitarian disasters not only prick the conscience of political leaders in advanced democratic societies but also leave them with no good political choices.

In conflicts beside the real human cost of misery, injury and death, there is also the economic cost of the loss of human life, destruction of property, and economic activity foregone. The persistent misuse of arms by law enforcement agencies, particularly the police and paramilitaries, encouraged by the ability to secure further supplies of arms, can itself be a significant contributing factor in undermining development, because economic actors lose confidence in the justice sector. Where small arms are widely misused, potential business investors may well look elsewhere for a more secure environment in which to invest their capital. States that experience failure or poor governance more generally are beset by many problems. In such states infrastructure deteriorates; corruption is widespread; borders are unregulated; GNP is declining or stagnant; crime is rampant; and the national currency is not widely accepted. Armed groups operate within the state’s boundaries but outside the control of the government.

Political leaders who are operating in an environment in which material and institutional resources are limited have often themselves chosen policies that make things worse. For some leaders disorder and uncertainty are more attractive than order and stability. In a more chaotic environment they are better able to extract resources from the society. Decisions affecting the distribution of wealth are based on personal connections rather than bureaucratic regulations or the rule of law. Leaders create multiple armed units that can be played off against each other.

Factors around governance are crucial in order to assess the level of responsibility of the government in terms of the way the imported arms may be used. There is a clear relationship between governance standards and military spending. At a meeting in 1997, donors formally recognised that the defence-spending decision-making process pursued by a government influences its spending priorities. Research, as well as government statements, suggest that transparent, accountable, and participatory processes for defence-spending decision making are more likely to produce .appropriate. spending policies that take into account development needs.160 Such processes are also likely to apply to appropriate spending on law enforcement.

The denial of people's right to influence decision makers has been a central cause of suffering in the world. Systematic denial of people's right to participate erodes the accountability and effectiveness of organisations, and governments, making these institutions much more prone to the corruption, malpractice, and malfeasance that exacerbate poverty. In 1989 one of the most damaging flaw undermining the UNHCR’s Comprehensive Plan of Action CPA, was the extent of corruption among immigration officials, most notably, in the Philippines and Indonesia. Under the CPA, the UNHCR was tasked with overseeing the screening process and ensuring that it would comply with international standards. However, there was little the UNHCR could do about violations. Its mandate power to overturn negative decisions on the grounds of gross injustice was used in only exceptional circumstances (Brook 2001: 48).

Organised crime is also potentially subversive of democracy and inhibits inward investment, whilst relationships of connivance between organised crime and some politicians forms a ‘parallel’ state that undermine the quality of, democracy. Although organised crime and corruption are analytically separate phenomena, where the former is deep rooted, the latter finds particularly fertile soil and vice versa. Corruption involves the suspension of normatively defined criteria for the allocation of resources, in favour of market exchanges – whose distributive consequences in turn depend on the arbitrary and unequal distribution of money and other resources. By undermining principles of equality and transparency, corruption is subversive of rules of democracy. It inflates the costs of public services and perpetuates administrative inefficiency besides being self-generating. Corruption becomes systematic and routine when the places of the official actors and administrators are gradually taken by lower moral calibre supported by the monopolizing system of governance. The organized crime and corruption can accelerate by factors such as universal suffrage, weak governance, and absence of strong international institution to bring abusers to justice. Therefore, politicians should not be able to provide protection from judicial investigation to over rule social and moral agenda. What incentives then do politicians have to tackle corruption and organised crime when public indifference mean that the status quo is the preferred option of all concerned? Corruption is self perpetuating in a context with a strong or predominant executive, weak legislatures, public indifference, and exemption from prosecution, each of which require discrete solutions. Transparency is held to be central to contemporary discussions of democratic governance, since open access to information and elimination of secrecy is taken to be a condition for the prevention of corruption and promoting public accountability.

Of the most striking aspects of the contemporary world is the extent to which domestic sovereignty has faltered so badly in states which still enjoy international legal and other legitimated and accepted institutional forms. Conventional sovereignty is now the only fully legitimated institutional form but, unfortunately, conventional sovereignty is abused by local authoritarian rulers. Some leaders will find exploitation of their own populations more advantageous than the introduction of reforms. The leverage of external actors will usually be constrained.

Transitional administration is difficult: the demands are high; advance planning which must prejudge outcomes is complicated, especially for the UN; and resources -- economic, institutional, military, often limited. The responsibilities of transitional administration must include more severely human rights monitoring, election assistance, disarmament and demobilization of armed forces, and protection of humanitarian relief workers.

Alternatively, local leaders who become dependent on external actors during a transitional administration, but who lack support within their own country, do not have an incentive to invest in the development of new institutional arrangements that would allow their external benefactors to leave at an earlier date. The endorsement of a new institutional arrangement would provide a new option, a new choice.

Human Rights Crises

Humanitarian crises and deeply felt human rights issues have engaged electorates in advanced democracies and created no win situations for political leaders who are damned if they intervene or damned if they do not. And, attempts by stronger countries to interfere in the human rights abuse cases, they are confronted with the governments justifications such as national sovereignty. The availability of small and heavy weapons, ease of movement across borders for traffickers in human and drugs, and terrorist networks have generated capability for criminals to kill large numbers of people. Non state actors, such as anarchist groups in the 19th century could throw bombs that might kill 50 or even several hundred people, but not more. Irresponsible states with limited means can procure chemical and biological weapons. Nuclear weapons demand more resources, but they are not out of reach of radicals. Humanitarian disasters, widespread migrations, slavery and forced labour are pressurizing decision makers in democratic countries to face with serious global issues. Weapons deployed by radical tempered, and trans-national terrorists networks that might operate from failed and failing states can kill ten of thousands or even millions of citizens in other states. If external actors intervene militarily, either because of security threats or a breakdown of internal order, they cannot ignore the question of how new domestic authority structures will be constituted.


Transitional Justice

In some parts of the world disorder, including civil war, has become endemic. For the period 1955 to 1998 more than 136 state-failure events in countries were identified with populations above 500,000. State failure was operationalized as one of four kinds of internal political crisis: revolutionary wars, ethnic wars, adverse regime change, and genocides. In 1955 less than 6 percent of the countries were in failure. In the early 1990s the figure had risen to almost 30 percent.

Options, rarely used, considered for dealing with suspected war criminals are narrow such as: prosecutions through an international criminal tribunal (ict), executions on sight, executions en masse later, show trials and then executions, exile, concentration camps, amnesty, and, as Franklin Roosevelt and Winston Churchill suggested for suspected atrocity perpetrators in World War II, castration.

Recent events have reinforced the salience of these issues. The International Criminal Court (icc), which was established by the Rome Statute on 17 July 1998 and which entered into force on 1 July 2002, recently announced that its first two investigations will concern mass violence in the Democratic Republic of Congo (particularly the northeast) and Uganda (particularly the north), where tens of thousands of people have suffered atrocities, including murder, summary executions, torture, mutilation, sexual violence, forcible displacement, and cannibalism. For the past two decades, Sudan (particularly the western region of Darfur) has been consumed by a civil war that, in 2003, erupted into mass atrocities, leading to the deaths of tens of thousands of individuals and the displacement of 1.5 million more. thorough investigation of transitional justice options and the issues surrounding them is crucial for the process of evaluating responses to past atrocities and for developing appropriate and effective policy to address suspected atrocity perpetrators in the future.

Essentially a collective, extra-judicial punishment through presumed guilt by political association, lustration is often seen as a quick and relatively easy method of dealing with a large number of suspected atrocity perpetrators and their accomplices. Some argue that this process violates laws concerning discrimination based on political association, specifically international law, such as the Fourth Geneva Convention and the International Covenant on Civil and Political Rights, or domestic law.

Political authorities in badly governed countries must be held accountable to international institutions and have to be encouraged to use their international legal sovereignty, their right to commit to international agreements, to create shared sovereignty arrangements that compromise their lack of concern for establishing law and justice in their jurisdictions. International aids should be given to train judges, re-write criminal codes, increase transparency, fight corruption, professionalize the police, encourage an open media, strengthen political parties, and monitor election. Ignorance of rule of law and weak judiciary is not only misleading the effective legal process to establish justice but is also dangerous to prevail crime, corruption over the borders.

Transitional justice involves states and societies shifting from a situation of conflict to one of peace and, in the process, using judicial and/or non-judicial mechanisms to address past human rights violations. Recent efforts to bring to justice Osama bin Laden, Saddam Hussein, Slobodan Milošević, Radovan Karadžić, Ratko Mladić, Charles Taylor, Théoneste Bagasora, Augusto Pinochet, Hissène Habré, Luis Echeverría, and other suspected perpetrators of atrocities in the Balkans, Rwanda, Sudan, Sierra Leone, Liberia, the Democratic Republic of Congo, Uganda, Burundi, Chad, Chile, East Timor, Cambodia, Iraq, Mexico, demonstrate how relevant and crucial issues of effective justice system are today and, unfortunately, will be for the foreseeable future.

There is a conspicuous gap between the analytical emphasis on international institutions’ decision-making processes to initiate or intervene during a conflict, and violation of human rights. While there is a great and growing literature on humanitarian intervention during a conflict, there is little corresponding study of international policies to address exploitive authorities involved with widespread and systematic violations of human rights. Deciding whether and how to deal with suspected atrocity perpetrators is of critical importance to policymaking and judiciary system.



Re-organizing Good Governance and Justice institutions

In 1997 the World Bank’s World Development Report was sub-titled The State in a Changing World. The Report stated that the clamour for greater government effectiveness has reached crisis proportions in many developing countries where the state has failed to deliver even such fundamental public goods as property rights, roads, and basic health and education..

“THE passage from the state of nature to the civil state produces a very remarkable change in man, by substituting justice for instinct in his conduct, and giving his actions the morality they had formerly lacked. Then only, when the voice of duty takes the place of physical impulses and right of appetite, does man, who so far had considered only himself, find that he is forced to act on different principles, and to consult his reason before listening to his inclinations.”

Yet, the modern ideas of rationality and of free individual choice has become a new dogma of anti dogmatism era and is applied in just about all fields of social life: in the political and the economic, in the moral and the aesthetic, in the collective and the individual spheres, and in yet others. One of the most important of the aspects of its operation is that it tends in a decisive respect to deny the relevance of power to truth and that in an epoch of unprecedentedly advanced techniques of political and commercial mass manipulation!

Organisational sociology suggests that values can be imparted throughout an organisation, and individuals can internalise its values, so that what starts as social conditioning and emulation for acceptance may eventually turn into something which is practically indistinguishable from a developed ethical awareness, as long as the values are clearly and regularly signalled. Nevertheless, the problem remains that individuals will vary in their susceptibility to these processes.

Furthermore, codes of conducts were innovated in systems where boundaries are better maintained, as opposed to systems where influence is exercised by the political class over the judicial system. However, codes of conduct introduce new and potentially ambiguous criteria of performance judgement. In so far as they deal with issues that are not encapsulated in hard law, they introduce considerations into the employment relationship that expose public servants to controls and sanctions by either political masters or public managers that are at the least risky. As such, codes of conduct are expected to be adopted for both elected representatives and appointed officials, with the accountability mechanism concerns about governance that include constitutional or quasi-constitutional relationships especially between officials and elected representatives, impartiality, efficiency, institutional repute, and service delivery.

Looking at democratic values of both Western and Eastern society, Michiel de
Vries offers a dynamic analysis of value change at the local level in Lithuania, Belarus, Russia, Sweden and the Netherlands. By using policymaker surveys to look at attitudes toward leadership, minorities in decision making processes, participation, conflict resolution, parochialism, central-local relations, and income policies, he finds that “period-effects seem to be most important for explaining value change and that values are especially characteristic for periods and less for generations and age-groups.”

Democratic values and processes range of projects in human rights in UK have initiated the inclusion of issues in prison and police training on behalf of the Foreign and Commonwealth Office, university courses on human rights, and theatre projects in prisons to raise awareness of human rights. The question is raised whether improved management of public institutions, such as the police and prison service, reduce corruption and abuses? What are the political and institutional problems facing would-be reformers? These are important themes to learn from one another’s experiences as to what works in the areas of: police reform; prison system reform, alternatives to custody and human rights within prison; and the interlinked problems of corruption and organised crime and the role of judicial institutions in tackling these issues.

Good governance contributes to the protection of human rights through promotion of the rule of law. Accountability and transparency in the justice institutions, and encouragement of governmental responsibility for civil liberties. The argument is that human rights need to be grounded in good practices, with professionalism, procedures, and stable, accountable institutions replacing arbitrariness. For this to happen, human rights need to be made relevant to the day-to-day operation of the justice system, including those who work within it.

The Act of Human Rights requires a re-evaluation of the relationship between government and citizen. In placing the language of rights at the centre of our legal and political systems, it also presents an opportunity to further the protection of a wide range of rights, such as social rights.

In this context new arrangements such as the concept of community police are regarded as more police, helpful and less violent and corrupt. However, they are also regarded as ‘less efficient’, a measure that for many is the bottom line. Confidence in the police and lower levels of fear are present where community police are formed and, crucially, the local populace are acquainted with them. Community policing works but only when it is sufficiently visible and understood to inspire greater support from population and police alike.

Where coercive power is paramount, citizen security needs to be separated from other issues, whilst legitimacy needs to be restored on several levels, for political parties, civil society and for institutions. With community policing, arbitrary justice is quick whilst restoring the rule of law is slow. Moving from policing by fear to policing by consent in El Salvador has been hampered by low social capital, high political polarization, and low institutionality. Given the continuing politicisation of the judiciary, and the fact that 80 per cent of homicides are due to social violence in the community, home and street, not to acquisitive crime, the police can only function with the backing of political and civil society. Tolerance and negotiation need to be built around the police force and responsibility for human rights and reducing crime shared by everyone.

It is true that responsibility for protecting human rights must be shared between state and civil society. Whilst reform of the criminal justice institutions is crucial, they need to be supported by changed societal attitudes as well in relation to crime and human rights. To expand democratic governance, protect human rights; and to reduce international threats and improve the right of civilians in badly governed polities, alternative institutional arrangements supported by external actors should be added to the policy toolkit. Such new institutional arrangements may also be critical for establishing decent and effective governance in post conflict situations, whether caused by civil, ethnic, tribal wars or by invasion and occupation by more powerful states.


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Taking the widely-quoted Transparency Corruption Perceptions Index, the UK stands highest (for probity). The UK ranks 11th in the global rating; These widely-reported rankings have been fairly stable over time.