«The Anti-Corruption Court should have been created in 2016. But he will not become a panacea»

How to build a rule of law? Dmitry Romanovich’s Interview with Stanford University Law School Professor Eric Jensen

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Justice, rule of law, equality, effective anti-corruption policy are very actual and extremely painful issues of the present-day Ukraine.Almost no one could answer those questions in a constructive way. And this is a big problem, given the 2019 elections. Dmitry Romanovich, one of the Stanford Scholars, is looking for answers to these questions in a series of interviews with leading world scholars. Today’s interlocutor is Professor Eric Jensen, who has been studying legal systems and “justice” for over 30 years in 35 countries around the world. This big talk is a must-read for all those who actively support Ukraine in transforming it into a developed, democratic country. Romanovichs’ previous interview with Professor of Political Science Anna Grzhimal-Buss about the causes and consequences of the growth of populism in Eastern Europe can be found in the link.

– Let’s start without a warm-up. Have you as a practitioner in rule of law, seen the great successes in the anti-corruption struggle around a world? And in your opinion, what was the main reason of success?

– One was the example of the Indonesia counter-corruption commission, which was established due to IMF conditionality. This is very well-known example. The part of the story that many don’t know is that the IMF guy, who was behind this reform, he was completely plugged-in to the Indonesian reality. He did his doctorate on the Indonesian Supreme Court. He spoke fluent Bahasan. So, he knew what he was doing. He used his position as the vessel for the reform agenda of the civil society. And that’s an interesting example.

Another famous example is from Guatemala. UN delegation coming in with its counter-corruption experts and working with local actors and forming an institution that the president can’t get rid of. The president tried to kick the head of the UN delegation out of the country, and civil society rose up and said “You can’t do that”. And the chief justice with the support of civil society said “No, Mr. President, you can’t kick him out ”. So, those are two symbols…

– Was the president put into jail afterwards?

– No, not this president. But he couldn’t kick out the counter-corruption UN people that he wanted to kick out. Mostly due to civil society.

– When I was coming into this building, I was thinking about the role of international advisors in general. What is the best thing that international advisors – outsiders – can do in helping to establish rule of law inside the country? Because you probably can’t import the culture, the ethics, etc. And if you try to do so, it will not take a root in the country.

– I’ll start with an anecdote. Afghanistan, you know, has been through 35 years of essentially civil war. And I was asked to go to Afghanistan right after the Taliban fell to see what might be done by international actors in supporting rule of law. So, I went to Afghanistan, was mucking around for some time and met a head of the development agency. And he said “Eric, what is your idea in building rule of law?” And I said “You know, frankly, the formal legal system hasn’t worked for a decade here. All disputes are being handled outside the formal system. Let’s figure out what kind of disputes are arising, where people are going to resolve their disputes, and what the level of satisfaction is with the dispute fora that they access”. And he of course said that “That’s a fancy idea”, and I said “No, it’s very practical”. And he said “Well, a group of city bankers that has just been through. And this Afghanistan needs a commercial law”. And I said “Well, if any of these bankers had read a civil code of Afghanistan that has been on the books for decades, they would see that commercial law is attended to”. And the leader of this development agency said “Well, maybe you’re right, but we can have a commercial code written before the Afghans have their pencil sharpened”. And here you get into external actors. Writing laws is a deliverable. That’s why it’s so popular. The international development industry loves rewriting laws, rewriting constitutions because you’ve got it deliverable. Never mind whether it is enforced, never mind whether it is connected to conduct on the ground. It is a deliverable.

I think that the whole enterprise of building the rule of law is a matter of iterative adaptation. You know, experimenting with different things and receiving feedback and adjusting to the feedback. No five year blueprint. It’s because many of these things require political support, civil society support. You can’t put that sort of stuff in a blueprint. Economists carry those sorts of things in assumptions – let’s assume political support, let’s assume civil society’s support – but it’s central, it’s not peripheral. So, I think good ideas have been traveling across borders about rule of law since Roman times. And I have no problem with ideas crossing borders, but they have to adapt to and take root in the local environment.

These efforts bring a Bosnia classic case of just importing all of the so-called experts and having them turn the key and do all of the work irrespective of any political support. So, Bosnia is a failure of internationalization of justice. The internationals move out and Bosnia just went back to business as usual. And there is even some resentment in civil society in Bosnia of the international actors that are there. That’s my experience crossing a number of countries.

East Timor really didn’t like the hybrid court that was set up. Hybrid court had both internationals and some Timor East representation on the court. Cambodia has a hybrid court with internationals and Cambodians, and Hun Sen has played that like a violin. The Japanese had provided a lot of donor support to it, but it’s really gone in baby steps for many-many years.

– But now you are talking about the Supreme Court or highest courts. So, probably not the lower…

– Not the lower courts. But the lower courts are trans-outer, not so easy to reform either, because there is a whole tree that’s established to refer to a culture. We call it a legal culture, which is professionalized. But rule of law is really… It’s a strange beast. I was having dinner with Aubrey Sax, who is a prominent judge of the South African constitutional court (I think he might be retired now). I was having dinner with him and I said “Aubrey, why did you say that the judiciary moved seamlessly from apartheid to post-apartheid?” And he said “Eric, the judges were always well-trained, highly professional, and the argument for driving apartheid is that they were just upholding the law. In post-apartheid, they were still well-trained, highly professional, and they – said – they were just upholding the law.” So, that’s a transition that you can make with a highly qualified, highly professional judiciary, highly professional legal community. But if it’s not highly professional and doesn’t have that culture of rule of law in the first place, it’s very difficult to build a nice thumb 30 some years trying to do it across about 40 countries.

So, that’s a transition that you can make with a highly qualified, highly professional judiciary, highly professional legal community. But if it’s not highly professional and doesn’t have that culture of rule of law in the first place, it’s very difficult to build a nice thumb 30 some years trying to do it across about 40 countries.

– You know, one of the aid projects in Ukraine on the rule of law was dedicated to work with judges, to provide them best practice from the European Court, etc. It was during Yanukovych’s time. When the Euromaidan happened, our activists said that the same judges that were issuing really weird decisions, started to continue issuing weird decisions, but with the referral to the European court decisions. So, they professionalize themselves, but used it in a wrong way. This learning didn’t change their values, didn’t change the “telephone law”. It created only a good form of putting their really bad decisions onto paper and then issue them.  It looks like if you are not really changing the substance, you can make even more harm.

– Yes, there is definitely a possibility of doing more harm than good in all these efforts. That’s why any good development agency will be working extremely closely with the locals who understand context extremely well. And you’re working with the local actors to have genuine reform impulses, to try to figure out together what might be done. The best things that I have done in my career have always been done in close collaboration with local actors, and I would never separate myself from and say: “I did this”. I think to do this sort of work you have to have a high level of genuine humility to make sure that you are doing the best that you can and that you are being an effective advocate for genuine reform impulses on the ground.

– So, your job was, if I’m right, to find the champion locally and help him?

– Yes, but the champion can be misconstrued because it can imply that you come in with a preconceived reform agenda, with all this best practice rubbish, and that somehow you can make a descent into the country and it will take route and flourish. I don’t subscribe to best practices at all. I think there are some practices that might be better than others, but it’s all a question of adaptation to local circumstances and figuring out what might work and even starting a reform agenda requires starting with some insular things and developing credibility and then moving to more difficult issues.

– So, you’re like a gardener.

– Yes, yes, that’s well put. And trying to pick the wounds and water the roses to refer to another revolution – the rose revolution, and to water the orange trees.

– Unlike in math, in humanitarian science some definitions are really fuzzy. It is very dependent on who defined it and the definitions may even shift in time. How do you define the rule of law?

– So, there are as many definitions of rule of law as there are rule of law scholars writing about it. But let me give you a couple of definitions, and then tell you where I come out and in trying to describe rule of law to laypeople. So, one scholar says, rule of law exists where the government officials are bounded by and abide by the law. That implies that everyone whether the high official or low official, or common citizen are bounded by and abide by the law. Hans Kelsen, an Austrian legal scholar and the grandfather of the constitutional court as an institution, he installed the constitutional court in Austria in  1920 – the first constitutional court in the world. He defined rule of law as a normative system backed by the credible threat or physical force. So, that gets a bit Weberian – ability to monopolize violence. But it’s a definition people can hold on to. The other definitions created back in the 1960 – the law being publicly available, general in scope, applied equally, and the institutions enforce legal laws against citizens both high and low and officials high and low.

The other definitions created back in the 1960 – the law being publicly available, general in scope, applied equally, and the institutions enforce legal laws against citizens both high and low and officials high and low.

As I get older, I think that if you can achieve equal treatment under the law – whoever that might be that is equally treated –I think it is what the most difficult things to achieve in rule of law, and no system is perfect and certainly the American system is not perfect. We are horrified by some of the issues that we have in our criminal justice system. But if you can get to something that at least strives for the ideal of equal treatment under the law for everyone – that’s a huge accomplishment.

And I look back at former presidents of the US and it seems to me that a couple of them sort of captured what a common person would think about what’s rule of law. Teddy Roosevelt back in the early 1900 said “A square deal is really important in that people have access to services and benefits and opportunities on a level playing field”. And Obama talked about everyone getting a fair shake. It’s kind of like Teddy Roosevelt square deal Obama’s fair shake. That really boils down to the essence, I think something that’s really important in everyday life about rule of law.

– What to do if the law is bad?

– So, that is a problem. The law itself is neutral. It can either be a knife that cuts vegetables for all of us to enjoy or it can be something that kills you – that is the knife. And law is that discriminatory that create an unequal playing field, in my opinion, are illegal, not a part of rule of law because they don’t meet the basic test of what the rule of law is about.

– Because in Ukraine during Euromaidan, there was a very famous moment on January 16th, when the Parliament, controlled by Yanukovych, passed a law that basically forbade gathering, forbidade the movement in columns of several cars, you couldn’t hide your face or wear a helmet, etc. It was passed by Parliament, signed by the President, taken to adoption… But everybody understood that it’s nonsense, and it’s a violation of basic norms. Would you abide by this law?

– Let me add another qualification on rule of law. If you’re talking about democratic rule of law, that implies some participation by the people and implies a certain treatment of the people and the laws that are passed. So, what you describe as laws to staple the press, and to staple civil society and the like, would not meet any definition of democratic rule of law.

– So to violate this law was lawfull.

– Yes.

– But not breaking the rule of law.

– That’s right.

– Referencing to Fukuyama, he said that there are three pillars of modern effective states – bureaucracy, democracy, and the rule of law. You can try government services to understand whether bureaucracy is efficient or not. You can experience democracy: it’s elections – you can see the competition etc. How can you judge on the quality of the rule of law?

– There are many rule of law indexes and they have many-many indicators. I think that the rule of law is particularly hard to measure because of several reasons. One is that there is no clear separation of functions between bureaucracy and the judiciary. I know that that sounds iconoclastic, but let me give you an example. In Holland, many years ago, they required a judge to approve a divorce that wasn’t contested. No contest. Husband and wife said “We have nothing against the other person; we just want to end this relationship and split our property and live split up. We have nothing to argue about”. Still, a judge had to approve that. And the Dutch at some stage said “Why do we need judges to approve this? Why don’t they just file their papers and relevant bureaucracy?” And that’s what they did. They took something that was in the judiciary, out of the judiciary, and placed them into the bureaucracy.

– The bureaucracy handles many rule of law functions. If you are concerned about citizens’ daily lives, bureaucracy is much more influential on people’s daily lives than the judiciary and, admittedly, on a substantial scale. So that’s one part of the measurement problem is actually separating the judiciary out. Another is that a judiciary, or the rule of law, is a multi-institutional phenomenal. And what I mean by that – you have the judiciary, you have the prosecutor, you’ve got the police, you’ve got the judiciary interacting with various branches of the bureaucracy. So, it’s trying to capture an interaction. It isn’t a static institutional definition.

You have the judiciary, you have the prosecutor, you’ve got the police, you’ve got the judiciary interacting with various branches of the bureaucracy. So, it’s trying to capture an interaction. It isn’t a static institutional definition.

– Yes, you may also have some sort of appeal commission inside of government bodies in order to correct things internally. And probably the role of judges is just to fix the mistakes that appear on the lower levels. A judge is the last resort for you.

You’re right. There are administrative courts. There are all sorts of things that are embedded, institutions within other institutions. You’ve got professional standards committees within the medical profession. That a rule of law activity trying to make sure that there is adequate monitoring and standards setting within the profession. So, rule of law really slips into all sorts of institutional arrangements and all sorts of institutional performance.

Perhaps the best among the quantitative indexes is the Rule of Justice Project, a rule of law index. And it’s now become so bloody complicated, with so many indicators that are suggestive of the challenges of measurements of the rule of law.

– Then probably my next question is redundant, but I’ll still try. You’re travelling a lot and see different countries. Do you already have a skill to visually recognize which country has a better or worse rule of law, when you just arrive into the country, airport, and taking a taxi to your hotel? Is it something in the air or in people’s behavior?

– So, there’ve been many rule of law accounts that start with rules of the road and whether you obey traffic signals and the like. I’ve been in countries where traffic signals are obeyed because there is enforcement, but other things aren’t. I’ve been in countries where everyone wears a helmet on scooters because there is enforcement, even though they run through red lights because there isn’t enforcement. And one of the parts of the Weberian definition that really holds true, is that you’ve got to have enforcement capacity. And Kelsen’s definition – a normative system backed by the credible threat of physical force. That he’s talking about enforcement and that’s where we find rule of law – the gaps between laws on the books and conduct on the ground. The gap is there in every country even in the so-called strong rule of law countries. But the gap gets really wide in countries that have weak rule of law. So, you have a lot of laws on the books that are not enforced, that never been enforced, and there’s no expectation of enforcement. And that’s one of the keys in rule of law. The Chinese have a saying: “the police pick the rice, the prosecutors carry the rice, and the judges eat the rice”. So you get this food chain of how important the police are, the prosecutors are, and the judges are, simply given what the police and prosecutors usually choose to put before them.

– Sometime ago there was a viral video on YouTube where the judge acted with a great sympathy to the defendant. It was a minor thing, but he took into account the personal and financial situation and just waved the penalty for this lady. Just because it was hard time for her. How much is the rule of law interconnected with this feeling of justice? It’s not obvious because the sense of justice is very different for different people? Is it interconnected, and to what extent?

– I think that it’s a really important point. I think many judges and many lawyers miss that fundamental point that you have just named. Judges and lawyers at times can look at legal problems that people have in an extremely technical way irrespective of whether their technical approach gets them to the points of doing justice. And one thing that, if certainly I were a judge, I would be looking at the consequences of my decision. I have friends, similar judges around the world, with whom I’ve had conversations about what’s called consequentialism. You look at the consequences of decisions that you make as a judge. And you are informed by the consequences of that decision. And that is exactly what the judges did in this YouTube clip, with looking at the situation of this poor woman and looking at the potential consequences on her of what might be a technically justified decision, but it’s not a decision of doing justice in the bigger picture.

– So, again, lawfulness is not the only thing to talk.

– Yeah, there is a matter of following the law and there is a matter of doing justice. And this matter of doing justice can be tricky, because some people will say if you just look at doing justice then it is in the eye of the beholder. It’s very relativistic because justice itself is a very difficult concept to wrap your arms around. But there are ways, I think, and cases like you describe. Common people and doing justice given the circumstances of common people I don’t think that is so difficult to understand.

– Back in Ukraine. One of the key narratives of Euromaidan was the fight against corruption with these corrupted elites, against the humiliation that was made against people by these elites. To a bigger extent, Euromaidan was the response to this accumulated permanent neglect of people’s dignity. Four years after the revolution this claim for revenge on these elites is not yet fulfilled. One of the responses for this now is by a lot of people seen as the creation of the anti-corruption court that will be independent from previous and current elites.

– And it has been needed since 2016, I think.

– Yes, even earlier. If Ukraine will manage to create it, and it will start functioning, do you believe that this “show of the elite’s blood”, when someone from top officials put in jail, will cure the wound of Euromaidan? And can it help or maybe not help to rebuild the trust between people, between the people and the state.

– The answer is more complicated than just yes or no.

There are different techniques to get the judiciary under control. One is on the composition of court and purging. You had a purge that wasn’t so positive. You also saw a number of judges leaving their positions, that we can debate whether it’s positive or not. But it creates opportunities for the personnel within the judiciary. Another technique is expanding the size of the court. That, to my knowledge, is not happening in Ukraine. You can pass laws, you can intimidate judges, you can change career incentives. And so, these are methods, techniques of controlling the judiciary.

There are different techniques to get the judiciary under control. One is on the composition of court and purging. You had a purge that wasn’t so positive. You also saw a number of judges leaving their positions, that we can debate whether it’s positive or not. But it creates opportunities for the personnel within the judiciary.

And finally you can create special courts. And that is exactly what Ukraine is in the process of perhaps doing. With this high anti-corruption court, the problem that I find is that there is no silver bullet. So, I look at different proposals here on the high anti-corruption court. One of them was: three appointed by the president, three appointed by the parliament, three appointed by international donor committee.

I can see reasons here to be very skeptical of whether that appointment process, which is the way to control the judiciary, whether that appointment process is sufficiently robust and diverse and expresses the wishes of the people. The president has a really prominent role in this. You have a history of certain presidents taking measures to control the parliament in very-very direct ways. So, that is fragile and then, you know, the three appointed by the international committee, that can go in a variety of ways as well. And this is just one of draft laws that I’ve taken work at, I’m sure there have been other proposals since then. But I see potential problems in all of the proposals.

The one thing that can tie the hands of political actors is incredible support of civil society. Now what puzzles me about Ukraine is that it’s demonstrated some pretty amazing civil society activity, but it hasn’t sufficiently tied the hands of leaders. There is your history since 2014, it’s more hopeful than your history certainly between 2010 and 2014. But connecting all these thoughts, the only way that any formula like this could work, would be if civil society was completely pressuring the president and the parliament to do the right thing and appointing people of high integrity and professional capacity. And there is unfortunately no guarantee of that in any institutional design I am aware of.

– So, you believe that not the subsequent decisions made by this court are crucial, but the credible set-up process is that creates trust to the institution.

– I think that both are crucial. To have a really credible appointment or process, to have credible people actually appointed and then to have early decisions that show the independence and credibility of the institution. I think, you need that whole chain. You cannot neglect any stage and that is the limitation of what I would call technical institutional design. Is that we are talking about a credibility process that has high connections to the political economy to make sure that it is a credible process. You could say: “on paper this could be a credible process”, but how is it going to be implemented? Right? So, I think that whole chain from a law that establishes appointment process to in fact appointing credible people, to in fact having early decisions in particular that show the credibility of the people who are appointed.

To have a really credible appointment or process, to have credible people actually appointed and then to have early decisions that show the independence and credibility of the institution. I think, you need that whole chain.

– That is complicated.

– Yeah. Unfortunately it is and it really requires interdisciplinary insight. Pure lawyers don’t have the answers. They will have some ideas on technical requirements that should be listened to. Political scientists, sociologists, anthropologists, economists, understanding where the business community is – the independent business community – and dovetailing reforms to some of the demands of the independent business community is that oppose business community that is just dependent on the patrimonial state. Those actors tend to be very important in galvanizing process. So, it’s not just, you know, the common man on the street, but it’s important economic actors, who want, in fact, independent judiciary.

– Really complicated process.

– And just to talk briefly about that. The former dean of Stanford Law School Paul Brest and I, leading a project that we called “The Rule of Non-Law”. Our observation is that the formal legal institutions are not that important in the early stages of economic development, but that they become so later. The institutions that guarantee that important business actors cannot simply buy the decision that they want from the court. They need a level playing field. Otherwise they may pay something and another business actor may pay even more. And that goes on and on. And that’s when it really irritates the business community because then business becomes really uncertain.

– There is a funny proverb that the worse than bad rules and corruption is bad rules without corruption. You cannot fulfill it and you are stuck.

– Right and that’s why the basic technical requirement is there. And the technical requirement that does not violate the basic idea of equal treatment under the law, which is a big provision. I regard all these other things that violate that basic principle to be pivot, not laws. You know, not even worth a title of being a law.

– Despite of the progress that we have, Ukraine is still among the leaders of the claims to the European Court as a last resort court for the disputes. The other leaders are Russia, Turkey, and Romania. What does the situation, when the people are going so much to the European court about the Ukrainian judiciary, what does this in general situation tell you?

– It certainly suggests something about the credibility of domestic legal institutions, that the volume of cases at European Court of Human Rights is high. I think that it is positive that there is some respect for the decisions at the European Court of Human Rights and I think that that’s generally positive. I’m aware of cases more deeply in Georgia where independent media outlets would have been shut down and other things. So, I think some of this external pressure can be good, especially Ukraine is clearly in a transitional moment that can go either way. And you know that much better than I do. It can improve or it can go the other direction. And the reasons to be concerned about – it’s fragility. Usually a basic problem in the reform processes is that you have an installed base equilibrium, that’s really hard to upset because you’ve got a lot of actors who have a lot of self-interest and keeping this status quo the way it is, and not changing it, and not challenging the way it is. You have been through – because you went through the Orange Revolution and you went through Euromaidan, and post that, post 2013 I would have expected more things to fall in place. It is difficult because you’ve got some, you know, an external actor that is very influential. I think that if you didn’t have that particular external actor, that we don’t name, but we both know, that some of these reform processes would have taken traction much more quickly than they have. It’s like you’re fighting for every little piece of ground because certain actors within your own state are on the tape from an external actor that does not have the best intention of your state in mind.

I think some of this external pressure can be good, especially Ukraine is clearly in a transitional moment that can go either way. And you know that much better than I do. It can improve or it can go the other direction.

And that is really complicated on the comparative basis. I worked in countries that go through revolution or go through violent periods of transition, or go through unbelievable natural disasters, but the breaking of that equilibrium is the hardest thing. It seems to me that there is a lot of pent-up will in Ukraine to break that equilibrium and break it hard. But you’ve got an external actor, whose interests are going seriously in the other direction.

– Ukrainian big businesses in high-stake commercial agreements rely on the British law and the London court. Also, some time ago there was a discussion on using European courts with foreign judges in Ukraine for commercial things. On top of it, Kazakhstan announced that they will use this practice for the arbitrage. And there was a great inspiration in Ukraine among the companies – “oh, maybe finally we can have the same”. Do you believe that rule of law can be imported in some cases?

– So, let me comment first on arbitration as a technique to avoid bad local legal institutions and then comment on bringing in internationals to staff out commercial courts. So, two years ago I started writing an article on trickle down rule of law – does it work (the article is still in draft). And what I looked at was arbitration institutions. Within arbitral practice there is some elite group of lawyers and arbitrator, who staff out these institutions. You have, let’s say, Ukrainian lawyers, who spend a lot of time in these arbitral courts, they are highly trained and make a lot of money doing it. And I was interested in whether that elite practice had any connections to the more common practice of law. And I looked at it and unfortunately what I saw was a negative correlation of anything that trickled down didn’t happen at all.

– Is that because of competition for good (people/personnel)?

– It may have been  because of (funneling/stealing) good people from one another. Now on staffing out commercial court. There are really well-trained commercial lawyers in Ukraine, who could stuff out the commercial court. They might need to be paid more than the usual civil servants, but I would start with the Ukrainian lawyers who have a higher degree of integrity. And I would do that even if there are some reluctance to it, because I think that at the end of the day, there is a lot of political pressure on institutions to reform. And I worry that if Ukraine was to simply focus on staffing out of very highly qualified commercial court that these commercial actors will become reluctant to a broader reform agenda, where they are very important players too. They might just forget about the importance of the reform of other courts that common people might be using. So, that’s an issue that I have with it. I think that I’m aware of all sorts of experience with the foreign judges coming in and judge. And I think in the 21st century, in a country that has a human resource capacity of Ukraine, I think that is kind of an insulting suggestion. And I would rather go for highly qualified group not just to staff out the commercial court, but to staff out the general courts, to really have an examination of judges, make sure that they qualify, make sure that they are committed to independence or get rid of them, but to have some acid test of qualified judiciary. In the commercial courts and in general courts I think that is a useful thing to consider.

I worry that if Ukraine was to simply focus on staffing out of very highly qualified commercial court that these commercial actors will become reluctant to a broader reform agenda, where they are very important players too. They might just forget about the importance of the reform of other courts that common people might be using.

– Did I get it right that the invitation of the foreign judges of foreign systems will not help or will be bad for building own institutions?

– So, the judges might decide cases according to the law. These judges are not going to know the local circumstances nearly as well. They will not know of the underlying networks of people in businesses nearly like a Ukrainian one. They may not even speak the language, which should really be a serious barrier even at the beginning to understand what is going on. So, on many levels I resist the idea of installing foreigners. And even then if they make a decision, who is going to enforce the decision? An international police force? How far can this go? Are you going to hire a whole group of actors from the prosecutor’s office to the police to the… Where does it end? I think it ends at the doorstep of Ukraine to the extent that you are in charge of your own destiny.

– Actually you already answered my next question, but I will a rephrase it a little bit. So, even if you decided to do a quick fix on highest level and invited the foreign judges,  you still have a huge general justice system on the lower course, where you have so many small disputes that will never get to the Supreme Court. And people demand fair treatment and sense of justice. Where can you find these roots of the rule of law? Is it among the trusted people or small communities, or somewhere in the field of religious imperatives? How to build it on this lower level and where to find champions that will bring the trust and the justice? I’m now trying to refer you to your Afghanistan experience with a completely broken state.

– I think there is no way to answer this question. It is so dependent on local circumstances. You know, in our own country we talk about where is the morality of political activity in this stain age. And this morality can come from a lot of different sources. Frank [Fukuyama] has ideas about how rule of law emerged in Europe and that the church was very much involved in that not just the value formation, but respect for rules and the like. I think, these sorts of things can emerge from humanistic impulses, as well, to lead a moral and meaningful life. But it is a very imprecise science. Your destination is political support. I mean, as one involved in that, I always look at the coalitions. Where are the coalitions to do things in a different way and are all those coalitions sufficiently diverse?

That’s why I talk about business interests as well. Are they sufficiently diverse to be able to wield power in the political system? So, to me, it emerges from a very, I would say, in-depth analysis of coalitions that can be built. That may not solve all of Ukraine’s rule of law problems in one stroke of the pen, but you can start to build the foundations. And people don’t need any institution to believe it. You know, Georgian’s reformed their lower police. They didn’t reform the higher police, where they are doing serious investigations and the like, but the street cops. The street cops were always collecting bribes and the like. That reform was really popular. It related to constituencies. So, whatever reform is taken, just make sure that it has constituencies and prospects for building other constituencies.

The street cops were always collecting bribes and the like. That reform was really popular. It related to constituencies. So, whatever reform is taken, just make sure that it has constituencies and prospects for building other constituencies.

Now to make this complicated and talking more about Georgia (because I know Georgia much better than Ukraine) they reformed the lower police, they didn’t reform the more senior police, and they never got around to a reform in a judiciary. It didn’t connect up. And then we’re back to the discussion earlier about the problems in rule of law is that it is so interdependent with different institutions. So, we’ve got the street cops that are working pretty well, the higher cops that aren’t working well, and the judges who aren’t working well. And the prosecutor’s office basically untouched. There you have a classic unfinished reform agenda. And that sort of thing can happen not just in Georgia, but in any country. You lose the momentum for reform. And somehow it isn’t sufficiently built. And then you also have actors who have distinct interest and making sure that the reform agenda remains unfinished. It’s a tough fight.

– I’ll try to back you into Afghanistan one more time. There is no single nation or single state now; there are a lot of communities in Afghanistan. How is justice performed and enforced in the small communities? Is there a town mayor or some trusted person, maybe they’re not going to the formal institution, but solve it on their own?

– I was just in a classroom at American University of Afghanistan in late March. And it in this classroom – introduction to the laws of Afghanistan. They were discussing the “jirga”. A jirga is the traditional dispute resolution mechanism. One student said “Jirga is the perfect democratic institution to resolve disputes”. And the professor said “Well, who gets to select who is on the jirga?”. And of course it is a highly patriarchal society. So, only men would be deciding. And then she asked “So, who sits on jirgas?”. It’s a bunch of old men, a bunch of grey-bearded old men. And a woman at the back of the class said “I had a dispute before a jirga. And I could not even appear before the jirga. My father and my brother appeared for me. How democratic is the institution that I cannot even appear before?” But to connect to your story, there are traditional dispute resolution mechanisms across countries. I have found in Indonesia that many local disputes are resolved by the local mullah, the local religious leader. And people are fairly satisfied with the performance of this local religious leaders and balancing out interests in this very small disputes. So, you know, how do people in Ukraine resolve disputes outside the court? Are there mechanisms that they use? And are there popular mechanisms that show some promise for expansion?

– We have to find out… Right now one of the most trusted institutions in Ukraine is the church. But they never have been involved directly in public discourse. They were rather contained. And on top of it we have a long Soviet legacy of formal institutions and distrust in the officials, etc. In general, what could be the potential role for the church in Ukraine? Maybe in Muslim countries it works better, but in Christian countries it’s less effective. Can the priests become mediators? Because it’s kind of fair for the church to ask for the rule of law, for justice, for the fair treatment of the people.  It is kind of their natural function of all things around ethics, morals…

– So, maybe one of the reasons that the church enjoys such high levels of trust is that it hasn’t entered into the political fray. But it is an interesting idea thinking about the potential. Where do you find a moral authority in society? And if the church actually wields moral authority, and the church is advocating for justice, there might be something there. As a pre-existing historical institution it could really be helpful in building the rule of law. Justice is a central concept in Islam, and it is a central concept in Christianity, and also a central concept in Judaism. And how this manifests itself institutionally and politically in different countries?  We certainly have a lot of evidence of it going badly. With religious institutions getting involved in public life in ways that are really unhelpful to the development of the societies. So, it is a tricky two-edged sword. And let me drive a comparison between, you know, whether the church could be used as a purge of moral authority and the bad laws, that we were talking about before, being like a knife – that can either cut vegetables or it can kill you. Likewise, the church is being used as an institution to build a moral authority. It could be extraordinarily positive, but it could also go badly. So, there is no guarantee in this business. But I think it certainly would be worth conversations with religious leaders to talk about. But to talk about the future and mutual interests at a high level of dignity and respect for people. Which, you know, you would certainly think that there could be a common agenda forged at a certain level that would just manifest the church’s principles of faith.

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