Jun
16
By Gary Haugen and Victor Boutros
Reprinted by permission of FOREIGN AFFAIRS, (May/June 2010, Volume 3, Number 89). Copyright 2010 by the Council on Foreign Relations, Inc.
Excerpt:
……Efforts by the modern human rights movement over the last 60 years have contributed to the criminalization of such abuses in nearly every country. The problem for the poor, however, is that those laws are rarely enforced. Without functioning public justice systems to deliver the protections of the law to the poor, the legal reforms of the modern human rights movement rarely improve the lives of those who need them most. At the same time, this state of functional lawlessness allows corrupt officials and local criminals to block or steal many of the crucial goods and services provided by the international development community. These abuses are both a moral tragedy and wholly counter-productive to the foreign aid programs of countries in the developed world. Helping construct effective public justice systems in the developing world, therefore, must become the new mandate of the human rights movement in the twenty-first century.
……This problem is made worse by the simple scarcity of lawyers in the developing world. The average person in the developing world has never met a lawyer in his or her life. In the United States, there is approximately one lawyer for every 749 people. In Zambia, by contrast, there is only one lawyer for every 25,667 people; in Cambodia, there is one for every 22,402 people. There are more lawyers in the New York offices of some major law firms than there are in all of Zambia or Cambodia. Of this small class of lawyers, prosecutors represent an even tinier subset—and some of these are not even trained lawyers, and others, much like the police, extract bribes to drop cases. When cases are reported and referred for trial, there are frequently too few public prosecutors to handle the volume. This creates an enormous backlog, allowing cases to languish indefinitely on overloaded dockets.
……Some experts, for example, have estimated that at the current rate, it would take 350 years for the courts in Mumbai, India, to hear all the cases on their books. According to the U.N. Development Program, India has 11 judges for every one million people. There are currently more than 30 million cases pending in Indian courts, and cases remain unresolved for an average of 15 years.
……The modern human rights movement must enter into a new era, shifting its focus from legal reform to law enforcement. In other words, the time has come to move human rights from wholesale to retail— to take the human rights promises stored in the warehouses of national law and deliver them to the poor standing in line for justice. Admittedly, creating functioning public justice systems in the developing world will be difficult. It will require political will, steadfastness, and local knowledge and creativity. On the local level, approaches must focus on directly cultivating the political will and capacity of the police, prosecutors, and judges who are supposed to enforce the law on behalf of the poor. This could include providing financial assistance to build police and judicial units with salaries high enough to make petty corruption less likely; material resources that give police, prosecutors, social workers, and judges the basic tools of their trade; practical on-the-ground casework training; and legal aid and social services to the poor. These would be expensive investments, but they would represent a small fraction of the trillions of dollars that governments have spent on development aid—much of which has been of questionable long-term value given the absence of effective law enforcement systems for the poor. Indeed, rule-of-law aid and development aid are mutually reinforcing: as functioning public justice systems in the developing world mature, the poor will begin to fully reap the benefits of the enormous investments in development being made on their behalf.
……At the state level, aid must focus on developing both the political will and the capacity of government elites to enforce existing laws. This aid should target the diplomats, politicians, and policymakers who set the agendas for the large cadres of enforcement personnel under their authority. To push this along, developed-country governments should link their international development assistance to the willingness of developing-country governments to improve their public justice systems. One example of such a strategy is already working its way through the U.S. Congress: the Child Protection Compact Act would authorize U.S. government grants to developing countries that have demonstrated a commitment to combating child trafficking with effective tools, measured by concrete benchmarks. Likewise, the United States and other governments in the developed world should cut off or limit foreign aid to countries that are unwilling to improve their capacity to protect the poor from abuse and violence—especially since rampant lawlessness is likely to make any such assistance unproductive in the first place.
……To accomplish this goal, the human rights and development communities will have to restructure themselves to include those with the backgrounds and technical skills to diagnose and repair the ailments of broken public justice systems. Of course, these experts will not come with ready answers or quick solutions—but they will know where to start looking and will recognize what matters and what does not. And given even a small fraction of the time and money that have been devoted to fixing roads, improving health systems, providing clean water, and building schools in developing countries, they will begin to enable the poor to retain the benefits of such development assistance. On behalf of the billions of poor people in this world who are made small under the vast shadow of lawlessness, the time has come to construct a shelter of justice.
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