Legal systems, like ecological systems, can be destroyed by adverse conditions

Basil Fernando, Executive Director, Asian Human Rights Commission & Asian Legal Resource Centre, Hong Kong

When a legal system is exposed to adverse conditions for a length of time its very existence may be endangered. In this respect, legal systems have much in common with ecological ones. However, whereas there is a global awakening to the threats now posed to our natural resources, no such awareness exists concerning our collective heritage of law and justice.

The decline in water resources throughout the world is a good metaphor for the problems of our legal systems. A number of inland seas, including the Dead Sea and Aral Sea, are now on the verge of disappearing due to human activities that have over time steadily reduced the flow of water into their basins, and polluted their remaining reserves. Similarly, where a legal system constantly suffers interruptions in flow due to military coups, suspending and alteration of constitutions, and reductions of civil liberties by emergency decrees and state security laws then that legal system also may be reduced to nothing more than a polluted pool instead of a vibrant, living sea.

One of the most serious ways of interrupting the flow of a legal system is by constantly replacing or amending its written constitution. Where the constitution is subjected to repeated meddling, and particularly where it is changed every time a new government comes to power by force, it is very difficult for a sound legal tradition to be established. If constitutional life is characterised by constant changes over a long period of time then people fail to obtain the knowledge and habits associated with genuine constitutional government. This is particularly the case where changes are made to the constitution at the behest of military rulers who are intent upon restricting the powers of the judiciary and legislature. Ultimately, they may succeed in causing widespread disillusionment and all but cease attempts at recourse through the parliament and redress through the judiciary.

Displacement of constitutional law affects public law. Citizens’ rights to challenge government actions depend upon constitutional protections. Where these are removed, restrained or subjected to repeated alterations, the practical activities of lawyers and human rights defenders in using the courts to defend human rights also are undermined. Judicial review of government actions may be tightly controlled or altogether eliminated. Restraints may be imposed on the use of writs or their equivalents. As the constitutional law on what constitutes abuse of power is shifting and confused, people steadily lose confidence and interest in the capacity of the courts to protect their interests as against those of the executive. Ultimately, notions of abuse of power may cease altogether, and confidence in the capacity of the courts to intervene in the interests of the public may be all but lost.

While a constitution is suspended or being altered and public law is being diminished, the military and other extant authorities will have many good opportunities to expand their powers through the introduction of state security laws, emergency laws, anti- terrorism laws and other measures and institutions to block the flow of the legal system. These all serve to remove whatever measures may have existed through the courts and other institutions to prevent or inhibit arbitrary arrest, detention, torture, extrajudicial killing and forced disappearance. Such laws may go so far as to remove the possibility of judicial inquiries into suspicious deaths, or render the inquiries pointless by granting impunity to the perpetrators, no matter what the findings of the courts. Thus, the authorities may keep some legal measures for defence of rights on the ordinary statute books for the sake of appearance, knowing full well that any complaints lodged under them will anyhow be futile. In this way, not only the flow of constitutional law, but ultimately that of the entire criminal justice system is reduced and polluted.

Another part of the legal system that is gravely affected under such conditions is that handling investigation: the police or other units responsible for criminal inquiries. When the military or another group takes power by force, and then expands its power by curtailing measures to protect citizens’ rights and introducing new laws to its advantage, civilian policing is perverted and damaged. There may initially be some conflicts between police and the group in power, but as those on top cement their authority the result is that the role of the police is either manipulated or reduced. If the military exercises control over police, the latter are sure to be obliged to behave more in conformity with the rules and instructions of the former. The civilian characteristics of policing, to the extent that they may have existed earlier, are thus minimised. This is likely to have particularly bad consequences where accompanied by many allegations of abuse of power and gross violations of human rights by the military and its agents. The police will have neither the legal nor institutional power to initiate investigations in these cases as they would in

other instances of similar crimes where the accused are ordinary civilians. Those personnel who try to do their jobs are bound to face serious threats.

Proper criminal investigation techniques can only be obtained and refined through years of training and hard work. Civilian police have to adopt methods and strategies to find evidence that will lead to arrests and convictions. This takes years of study and practice. Senior officers impart knowledge to their subordinates over generations. Over time, habits become entrenched. Both the superior officers and their subordinates learn how to maintain discipline and make the system of investigation effective. None of this happens where powers of criminal investigation are suspended or constantly changed due to interruptions in constitutional law and the subsequent effects that have been described here. Where police learn that they should not deal with all crimes equally and that criminal investigation is only to be applied selectively, or even worse, where they learn that their role is not even so much to investigate as simply to maintain social order through use of force, and that this may also involve not the revealing of crime but its concealment, then the effects are long-lasting and drastic. Over time, such a police force becomes a caricature of what it should be, and it will be very difficult to make it even roughly resemble a proper functioning criminal investigation department. Even the revival of earlier powers under a new constitution and the removal of emergency laws will not be enough: the habits learnt throughout this period will have become ingrained, and it will take at least one or two generations to get them out again. It will take time to introduce or reintroduce a flow of professional thinking and habits throughout all phases of criminal investigation.

As with the ecological system, the consequences of a destroyed legal system are felt in all areas of life, not only within the legal system itself. As it is degraded it also contributes to the decline in political life. One of the enduring myths of recent times is that a vibrant parliament alone can sustain a healthy government. However, where no viable judiciary and criminal investigation exists to support and scrutinise the legislature, it too will be unable to function properly. Thus new authoritarian governments are most often characterised by the existence of bogus parliaments, which either lack genuine power or which exercise power on behalf of outside persons and agencies. Where a strong and independent judiciary does not exist, supported by the other parts of the legal system described above, it is not available either to back up or sanction the legislature.

At this point, the danger posed to the legal system should be obvious to all, although as in the case of ecological systems under threat there will still be some naysayers insisting that everything is perfectly normal, or that things are not as bad as they appear. Some may say that this is all part of a natural cycle: hot then cold, coup then constitution. However, the reaction of ordinary

Displacement of constitutional law affects public law. Citizens’ rights to challenge government actions depend upon constitutional protections. Where these are removed, restrained or subjected to repeated alterations, the practical activities of lawyers and human rights defenders in using the courts to defend human rights also are undermined. Judicial review of government actions may be tightly controlled or altogether eliminated. Restraints may be imposed on the use of writs or their equivalents. As the constitutional law on what constitutes abuse of power is shifting and confused, people steadily lose confidence and interest in the capacity of the courts to protect their interests as against those of the executive. Ultimately, notions of abuse of power may cease altogether, and confidence in the capacity of the courts to intervene in the interests of the public may be all but lost.

While a constitution is suspended or being altered and public law is being diminished, the military and other extant authorities will have many good opportunities to expand their powers through the introduction of state security laws, emergency laws, anti- terrorism laws and other measures and institutions to block the flow of the legal system. These all serve to remove whatever measures may have existed through the courts and other institutions to prevent or inhibit arbitrary arrest, detention, torture, extrajudicial killing and forced disappearance. Such laws may go so far as to remove the possibility of judicial inquiries into suspicious deaths, or render the inquiries pointless by granting impunity to the perpetrators, no matter what the findings of the courts. Thus, the authorities may keep some legal measures for defence of rights on the ordinary statute books for the sake of appearance, knowing full well that any complaints lodged under them will anyhow be futile. In this way, not only the flow of constitutional law, but ultimately that of the entire criminal justice system is reduced and polluted.

Another part of the legal system that is gravely affected under such conditions is that handling investigation: the police or other units responsible for criminal inquiries. When the military or another group takes power by force, and then expands its power by curtailing measures to protect citizens’ rights and introducing new laws to its advantage, civilian policing is perverted and damaged. There may initially be some conflicts between police and the group in power, but as those on top cement their authority the result is that the role of the police is either manipulated or reduced. If the military exercises control over police, the latter are sure to be obliged to behave more in conformity with the rules and instructions of the former. The civilian characteristics of policing, to the extent that they may have existed earlier, are thus minimised. This is likely to have particularly bad consequences where accompanied by many allegations of abuse of power and gross violations of human rights by the military and its agents. The police will have neither the legal nor institutional power to initiate investigations in these cases as they would in

other instances of similar crimes where the accused are ordinary civilians. Those personnel who try to do their jobs are bound to face serious threats.

Proper criminal investigation techniques can only be obtained and refined through years of training and hard work. Civilian police have to adopt methods and strategies to find evidence that will lead to arrests and convictions. This takes years of study and practice. Senior officers impart knowledge to their subordinates over generations. Over time, habits become entrenched. Both the superior officers and their subordinates learn how to maintain discipline and make the system of investigation effective. None of this happens where powers of criminal investigation are suspended or constantly changed due to interruptions in constitutional law and the subsequent effects that have been described here. Where police learn that they should not deal with all crimes equally and that criminal investigation is only to be applied selectively, or even worse, where they learn that their role is not even so much to investigate as simply to maintain social order through use of force, and that this may also involve not the revealing of crime but its concealment, then the effects are long-lasting and drastic. Over time, such a police force becomes a caricature of what it should be, and it will be very difficult to make it even roughly resemble a proper functioning criminal investigation department. Even the revival of earlier powers under a new constitution and the removal of emergency laws will not be enough: the habits learnt throughout this period will have become ingrained, and it will take at least one or two generations to get them out again. It will take time to introduce or reintroduce a flow of professional thinking and habits throughout all phases of criminal investigation.

As with the ecological system, the consequences of a destroyed legal system are felt in all areas of life, not only within the legal system itself. As it is degraded it also contributes to the decline in political life. One of the enduring myths of recent times is that a vibrant parliament alone can sustain a healthy government. However, where no viable judiciary and criminal investigation exists to support and scrutinise the legislature, it too will be unable to function properly. Thus new authoritarian governments are most often characterised by the existence of bogus parliaments, which either lack genuine power or which exercise power on behalf of outside persons and agencies. Where a strong and independent judiciary does not exist, supported by the other parts of the legal system described above, it is not available either to back up or sanction the legislature.

At this point, the danger posed to the legal system should be obvious to all, although as in the case of ecological systems under threat there will still be some naysayers insisting that everything is perfectly normal, or that things are not as bad as they appear. Some may say that this is all part of a natural cycle: hot then cold, coup then constitution. However, the reaction of ordinary

victims of abuse will show otherwise. From observation and experience, people will come to realise that lawyers, courts and even members of parliament cannot guarantee their rights. As life is now under the control of other agencies, the only way to obtain some redress is by appealing to them directly, even where they are the same ones responsible for wrongdoing. Thus a person whose son has been killed by the police may go to a senior police officer to request justice, instead of the courts. A person who has been tortured by soldiers may be taken to another agency or authority within the army to request some compensation and disciplinary action against the alleged perpetrators. Not only the legal system as a whole, but also the persons associated with it—judges, lawyers, public prosecutors and other judicial officers— are thus reduced in value in the eyes of the public. They may have the same titles and sit on the same chairs in the same buildings as before, but over time it becomes public knowledge that they too are powerless. In their stead we see the re- emergence of feudal behaviour, as the sophisticated legal system needed for survival of a healthy and functioning modern society is steadily reduced in size and capacity: even where its external appearances remain, below the surface its life is gone. Once at this point, talk about defence of human rights through institutions of justice is meaningless. Redress depends not upon order and rationality but upon circumstance and dumb luck.

Ultimately, the notion of a constitution being replaced by military force is, from a legal perspective, an absurdity. While government propaganda may try to give the appearance of a decent and harmless coup, the effect of removing the paramount law of a country by force is to make clear that the country is lawless. The final arbiters in any conflict are not the courts but those with the firepower. The constitution, whatever constitution, has no real value. By implication, all the laws of the country, which are established under the constitution, are of limited worth, compared to that authority obtained by the barrel of the gun. Thus the country has devolved to an extremely primitive condition that will have lasting bad effects for generations, which, as in the case of ecological systems, can be reversed only through deliberate systematic measures to mitigate the damage already caused and prevent further harm from occurring.

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