1 Rule of Law, Peace and Security, Development and Human Rights

Rule of law, peace and security, development and human rights Asma Jahangir Asma Jahangir is a Pakistani human rights lawyer who served two terms as chair of the Human Rights Commission of Pakistan and was the first woman president of the Supreme Court Bar Association of Pakistan. Ms. Jahangir served as UN Special Rapporteur on Extrajudicial, Arbitrary or Summary Executions (1998-2004) and UN Special Rapporteur on Freedom of Religion or Belief for the UN Human Rights Council (2004-2010). A number of countries are suffering from a culture of impunity, lack of transparency and weak governance. In the conventional sense, these countries qualify as democratic societies, where Parliaments are voted in and the electoral process is by and large considered free and fair. However, in actual fact, they have only reached the minimum threshold of a democratic state. Electoral process is only a beginning to democracy. The deepening of democracy carries even more challenges than the struggle in transition. Often new born democracies suffer a setback because of serious lapses in upholding the rule of law and an inability or unwillingness to tackle a culture of impunity. Today, citizens of almost all countries have heightened expectations of governments. They want a voice in policy making and assume a right to good governance. As such, they want a democratic system of decision making which converts into effective policies and is implemented with transparency as well as efficiency. Distributive justice in political, economic and social terms is central to the principles of the rule of law. A number of examples can be quoted in which disparity, discrimination and persecution of minorities has led to conflicts. In South Asia, East Pakistan separated from Pakistan after a bloody war because of a systematic policy by the Federal Government of political, economic and cultural discrimination against Bengalis. Denial of linguistic rights was the very first step. In Sri Lanka, ignoring Tamil language and ethnic identity lead to civil war. In India, absence of rule of law for religious minorities has often erupted in localized conflicts and mob violence. In Nepal, denial of economic rights to the under privileged in the rural areas gave rise to a formidable but militant Maoist movement. Concentration of political power within a few has led to a political crisis in Maldives. Governments alone cannot be the driving force in raising awareness for respecting the principles of rule of law as a government’s principles are mainly shaped by national, regional and international judiciaries. Woefully, the judicial system as a whole has not been able to convey coherent and comprehensive principles of the rule of law that can be implemented in the area of economic and social rights. In some areas there are also variations that give room for misapplication of the values of rule of law. For example, trends on the doctrine of “margin of appreciation” leave too much discretion with individual states to determine the behaviour pattern of women which is often sacrificed to the so-called collective “social values” of a society. At the national level several examples can be quoted where rule of law is often misapplied by governments and then sanctified by the judiciary. In Iran and Saudi Arabia a woman can be penalized for not covering her head, but in some European jurisprudence covering of heads for 1 women in certain spaces and professions is denied by law. The use of religious symbols varies from country to country. Post September 11 the rule of law was undermined even by mature democracies and racial profiling was indirectly permitted by law. The rights of religious, ethnic minorities and migrants are protected at varying degrees throughout the world. Rule of law has also taken different shapes in the same region, where otherwise ethnicity and cultural mores across borders have been historically similar to each other. The concept of the rule of law requires governments to set priorities in policy making that are accountable and transparent. It leads to better governance and deepens the democratic process. While respecting the separation of powers theory, courts and other accountability mechanisms should play an effective watch-dog role on behalf of the people so that developmental policies promote the cause of the disadvantaged. However their approach must remain balanced. They should not extend impunity to decision makers and implementers of poor policies, but at the same time they should not become an obstacle to progress itself. Pakistan is a prime example, where prior to 2007, the judiciary fully backed all development policies and methods adopted for its implementation by the government. In its later stage, the Supreme Court of Pakistan intervened by fixing prices of commodities and canceling vital development projects in response to allegations of corrupt practices. The government machinery virtually came to a stand still and its planning authority was taken over by the judiciary. This resulted in heavy loses of revenue to the country and no benefit to society. So far, few accountability mechanisms, including the judiciary, have acquired the sensitive skills to mainstream principles of the rule of law in the development sector without being overly intrusive. Development based on the “trickle down” effect has not thrived in a number of developing countries. In some it has widened the gap between the rich and the poor. Feminization of poverty is apparent in many rapidly developing countries. Human development has often been sacrificed to the building of infrastructure and expenditure on security. Social sectors are poorly neglected in South Asia. Development of areas inhabited by the disadvantaged and human development of minorities and those living below the poverty level must be carried out alongside other development undertakings. Rule of law includes policies that look at affirmative action in the development sector too. The concept of rule of law is vague in societies where other norms acquire supremacy. Often rule of law is undermined in societies where religious and social values are raised on a pedestal. In South East Asia in the 1990s, autocratic governments justified undermining human rights on the plea that these were contrary to their social values. Religious laws in some countries are perceived as divine sanctions and often conflict with the values of the rule of law. In such societies, governments and judiciaries are hesitant to take up the challenge and use the concept of the rule of law in building harmony and upholding individual rights. Politicians and the judiciary should lead public opinion in recognizing the true concept of the rule of law. The media too has an important role but its effectiveness can be reduced in the face of retrogressive rhetoric of politicians and judgments of courts that fall short of the principles of the rule of law. This challenge is compounded during democratic transitions. Post transition the 2 “old order” of politics is often replaced by democratic spirited politicians and civil society. However, the judiciary that such transitions inherit retains the old mindset and is reluctant to fully promote a democratic culture. They lack the capacity to complement a transition and this judicial baggage of the past has resulted in the reversal of transitions as well. A number of politicians that emerged in democratic transitions were persecuted through judicial intervention. Prime Ministers received death penalties, politicians suffered arrests, torture, exile and bankruptcy through judicial verdicts as well as arbitrary actions of dictators. The irony is that the very institution that must act as the guardian of the principles of the rule of law has itself a poor record of respecting the values of rule of law when under pressure. Other important players in linking rule of law to peace and security, development and human rights, are lawyers, bar associations and legal experts. They form the first contact in providing access to justice. A legal fraternity that remains exclusive for the affluent isolates victims of injustice who are financially at a disadvantage. Bar associations are important instruments of soft accountability of judicial prejudices and challenge the conservativeness of the judiciary. It is vital that bar associations be strengthened and that legal aid is adequately resourced by governments and inter-governmental organizations. Lawyers and legal experts have to be creative so that they can meet the complex challenges of governance without sacrificing the importance of the rule of law. The militant role of non-state actors, rising crime, emergence of new technology, cross-border corruption, linkages of international criminal groups and the creation of lethal forms of destructive weapons are posing a huge challenge to peace at every level. Governments are swift in seeking immediate remedies and very often undermine human rights standards to restore stability even though such measures may prove to be counter-productive in the longer term. Effective and new legal frameworks have to be explored that counter impunity, allow governments to tackle conflict or violence and yet respect universally accepted human rights standards. New and creative mechanisms must be devised that can cope with emerging challenges without disturbing basic human rights values. Rule of law can be effectively used as a tool to bring in peace and security, complement development and promote the values of human rights. At the judicial level, national, regional and international judicial mechanisms require better coordination and interaction so that consensus on the rule of law can have a binding force. People from both developing and developed nations have greater aspirations and awareness. They expect governments to respond in a more egalitarian fashion to their political, economic and cultural needs. It is important therefore not only that governments pay heed to these calls but that civil society carries a popular voice in favour of the rule of law to the policy makers.

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