[Easttimorstudies] From 'Asian Currents' bulletin Issue #24
Michael Patrick Leach
michael.leach at deakin.edu.au
Thu Apr 20 12:02:53 EST 2006
RESTORING THE RULE OF LAW IN FRAGILE STATES
by Carolyn Bull, School of Humanities and Social Sciences, University
of New South Wales at ADFA
<mailto:carolynandrob at optusnet.com.au>carolynandrob at optusnet.com.au
In fragile states across the Asia-Pacific, Australia has pursued
increasingly ambitious initiatives to promote regional stability,
good governance and sustainable development. The environment in which
it is working is complex and sometimes hostile. Fragile states
typically struggle to safeguard their citizens from internal or
external threats to security. Political relationships are often
personalised and unpredictable. Non-state actors may exercise
informal political authority in competition with the state. Criminal
justice institutions are almost always weak. Society may be
fragmented and characterised by unreconciled grievances,
psychological or physical trauma, and disruption to everyday life. In
extreme cases, complex emergencies may erupt, marked by public health
catastrophes, large-scale people displacement and the threat of
extinction to minority cultures.
In such environments, it may be extremely difficult to establish
democratic institutions. This demands not only elections, parliaments
and effective public administration, but the confidence of all
members of society in their own safety and in fair and equal
treatment by the state. In turn, this rests on the 'rule of law,' a
principle of governance in which all persons and entities, including
the state, are accountable to public laws that are equally enforced
and independently adjudicated, and which are consistent with
international human rights norms and standards. By safeguarding
citizens against abuse, including by the state, and by moving
conflict into a non-violent and predictable institutional framework,
the rule of law helps create a climate of stability and trust in
which citizens may participate in democratic processes without fear
of reprisal.
Beyond the complicated and resource-intensive tasks of reforming
laws, judiciaries and police systems, embedding the rule of law in
fragile states involves transforming attitudes from acceptance of
violence, inequality and impunity to support for peaceful conflict
management, a culture of moderation and an expectation of equal
treatment by the state. While a well-enforced legal system may help
ensure compliance, adherence to any rules-based system ultimately
relies on the extent to which people commit voluntarily to it.
In fragile states, national government and donor strategies have
sometimes underestimated the magnitude of these challenges. They have
tended to equate building the rule of law directly with enacting new
legislation and establishing judicial, police and prison services
according to models found in donor states. While such institutions
are crucial, they are unlikely to take root unless relevant actors
believe they will provide real solutions to real problems, and are
willing to engage in political processes of transformation that may
be complex, largely domestic, and time consuming. To be effective,
strategies need to confront the difficult questions of how state
institutions are to be legitimated, how they will interact with
pre-existing indigenous institutions, such as customary law, and how
they will intertwine with a range of political, social and cultural influences.
Links:
The Fragile States Group (www.oecd.org/dac/fragilestates) is a forum
of the OECD's Development Assistance Committee. It brings together
experts on governance, conflict prevention and reconstruction from
bilateral and multilateral development co-operation agencies to
facilitate co-ordination and share good practice to enhance
development effectiveness in 'fragile states'. Australia is a member
of the forum. The Carnegie Endowment has material on the rule of law
and promotion of democracy:
<http://www.carnegieendowment.org/programs/global/index.cfm?fa=proj&id=101>http://www.carnegieendowment.org/programs/global/index.cfm?fa=proj&id=101
See also the Judicial Systems Monitoring Program site on East Timor
<http://www.jsmp.minihub.org/index.htm>http://www.jsmp.minihub.org/index.htm
----------
Dr. Michael Leach
Research Fellow
Institute for Citizenship and Globalisation
Faculty of Arts, Deakin University
221 Burwood Hwy, Burwood, VIC 3125 Australia
Ph.:(61-3) 9244 3923 Fax: (61-3) 9244 6755
Email: michael.leach at deakin.edu.au
www.deakin.edu.au/icg
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