17th October 2012
I’ve been thinking this week about one of the hardest tasks for a young democracy: building a justice system people can trust.
This is partly because I was back in the UK last week, meeting with British businesses who are interested in working in Armenia and the wider region. Near the top of the list for any business thinking about a transition or emerging economy is: if it all goes wrong, can I trust the courts to review my complaint objectively and speedily? Or will it be a question of ‘whoever pays, wins’?
On my return to Yerevan I also had the pleasure of meeting representatives of the Chamber of Advocates, who told me about their plans to better support defence lawyers working in the regions. They see improving the skills, confidence and knowledge of European human rights law of these hard-working but often badly paid lawyers as an essential way of driving change in regional courts – an ongoing process of change from an old-style inquisitorial system to an adversarial system where upholding the rights of the defendant is at its heart.
But how do you build trust in a system? A justice system which provides equality before the law for everyone – rich and poor, powerful and weak – has to be made up of several separate, strong and independent institutions: the police (to investigate and find evidence); the prosecutors (to decide whether a case is strong enough and in the public interest); the defence lawyers (to protect the interests of the defendant), and the judges (to uphold the process of law). Building these institutions is challenging in any small economy where salaries for state employees remain relatively low.
I think that is one of the reasons why we in the UK believe strongly in the jury system – the addition of twelve ordinary men and women into the courts as a final bulwark against corrupt institutions. A justice system should in fact be a system of checks and balances. If one part of the system – or the individuals working within it – are weak or corrupt, the other parts should be able to expose this weakness. But even in the most mature systems, it can sometimes take some time for mistakes to be exposed and rectified. I can think of several examples in the UK over the last forty years where flawed court judgements – often based on forced confessions and/or a failure by the prosecution to disclose all evidence to the defence – took many years to resolve. Institutions instinctively protect themselves – and find it difficult to admit to their mistakes. In another example from the UK which has come out over the last month, an independent review has finally shown – more than twenty years on – that police officers changed their statements and tried to cover up evidence of their failures following the UK’s worst crowd crush disaster at Hillsborough stadium, where 96 Liverpool football fans died.
Perhaps the hardest task for state-funded institutions in a country moving to democracy is to demonstrate that the decisions they take are indeed independent of immediate government political interests. There have been a few recent cases which have raised eyebrows – and questions – not just among European/US officials, but amongst a wider public too (e.g. the case with ANC activists) . The most recent of these is the case of the former Foreign Minister, Vartan Oskanian. For the person on the street, it is impossible to say whether Mr Oskanian has, or hasn’t, a genuine criminal case to answer. But what we can understand is that Prosperous Armenia, Mr Oskanian’s party, announced on 24 May it would not rejoin the ruling party coalition. And on 25 May an investigation into Mr Oskanian’s finances was launched.
Of course, the timing could be coincidental. But the fact that people are even asking the question about a potentially politically motivated prosecution demonstrates the mountain these institutions of state power still have to climb to gain people’s trust that they are truly acting in the public interest, not the government interest.
Does this lack of public trust matter? I would argue it does. A lack of trust and support from the wider public impacts enormously on how effective a criminal justice institution can be. Therefore, at these crucial moments of transition, taking care over the form – as well as the substance – of the way institutions of state power do their jobs is, it seems to me, vitally important.
As we say in English: to preserve public confidence in a legal system, ‘Justice must be done – and it must be seen to be done’. Timing matters. Transparency matters. A demonstration of fairness matters. As a recent Transparency International report has shown, public disclosure of the financial assets and interests of senior officials and MPs in Armenia remains patchy and inadequate. A commitment to financial transparency for all senior officials and a demonstration of will to enforce it would send an important and powerful public message that everyone really is equal before the law.