An Institutional Infection

By Alicia Blimkie

It’s easy to love the Philippines. The country is a place of contrasts, with a mere handful of blocks separating towering glass skyscrapers from shacks with tin roofs that could fall over with a single gust of wind (and the country gets a lot of typhoons, so fall over they do). But one thing that stays constant is the people. Their friendliness crosses class divides and endures hardships. No matter where I walk, I’m always greeted with a smile and “Morning, po!” This spark in people’s eyes is even more spectacular when you realize the suffering that this country has experienced. Centuries of colonization (first under the Spanish, then the Americans), massive casualties during WWII, then a decade of dictatorship and martial law under the Marcos regime forced the country through seemingly endless suffering, in multiple forms. The true resilience of the Filipino people is demonstrated by the fact that all of this violence culminated in the peaceful EDSA People Power Revolution in 1986, which ushered in a transition to democracy.

View from the Makati courthouse

But the freedom that was found after the transition is now under threat. I’ve heard people say that the atmosphere today feels like it did in the 1980s, when fundamental freedoms were stamped out. Many journalists and other political activists are afraid to speak out against the government. (If you think the fake news issue was bad during the 2016 U.S. election, you should look at the fake news in the Philippines). Political opposition leaders have been attacked, some having been thrown in jail for yet-unproven drug offenses.

But I’d like to write about one particular event. While my tired body was being carried through the air, across the Pacific to Manila, the Justices of the Supreme Court of the Philippines were busy voting out their Chief Justice. Imagine, for a moment, that the Supreme Court of Canada voted to oust Wagner or dear Bev McLachlin from the court. Yes, this is just as crazy and unfathomable as it sounds. And it was unthinkable for many of the Filipino lawyers I work with, as well.

To put the incident in context, the Philippines has a government and judiciary modeled after the American system, including built-in checks and balances on power. Filipino lawyers and law students look up to their Supreme Court as upholding independence and rule of law as much as we do. This was a shock. Filipino law students are taught that the only way to remove a Chief Justice from office is through impeachment – they would get the question wrong on their exam if they wrote otherwise. Instead, Chief Justice Sereno was removed via a process called quo warranto, which essentially declares that the appointment was never valid in the first place. The court was able to justify its use of quo warranto by interpreting a phrase in the Constitution which states that the Chief Justice may be removed by impeachment to mean that she could also be removed through other means. This diverged from how the provision had previously been interpreted, thus, as some argue, contravening stare decisis.

What are the consequences of this? Chief Justice Sereno had opposed the current government multiple times in her judgments. It was the Solicitor General – representing the government – that submitted the petition for quo warranto. The worry is that the highest court is being influenced by political pressure. In a country where officials are constantly accused of involvement with drug trafficking, and where alleged traffickers are often killed without due process, this is a serious issue. And if government officials can now use quo warranto proceedings to remove members of the judiciary who oppose them then they also have the chance to fill these positions with those who are loyal to the regime. So much for a strong, independent institution.

Volunteering with AHRC staff to paint a local elementary school

A loss of judicial independence is not just an academic or legal issue, it has serious human rights implications. One issue is due process. For those officials who can be removed via quo warranto, there is a prescription period of one year. In its reasoning, the Supreme Court stated that this deadline did not apply to the government. But if that is the case, with what other offenses can the government charge people, regardless of prescription? The court that was supposed to protect individual rights could potentially rule in line with its political inclinations now, more than with the law. Freedom of expression may also be negatively impacted. The removal of someone in a high-ranking position who stood up against the government contributes to an atmosphere of fear. If the Chief Justice can be removed by a President who doesn’t like her, what about people with lower profiles whose stories will not end up in the news?

A courtyard in Intramuros: the old part of Manila

Ultimately, this event made me reflect on the fact that the institutions to which we cling so tightly are largely abstract, and often ephemeral. Even if the buildings and the people working in them are physical, much of an institution’s effectiveness depends on the trust of the public and the willingness of employees to do their work in good faith. These structures are fragile, and what can reduce them to rubble is simply people changing their minds. The question of how to build institutions that will withstand the test of time is a difficult one, but it is highly important, particularly for societies with violent pasts that are rebuilding for a brighter present and future.

 

Ag Shame! We Can Only Do Law Reform

By Kevin Lee Pinkoski

Law Reform and the Luxury of Legal Research:

“Ag shame!” Exclaimed one of the legal researchers who works with me at Namibia’s Law Reform and Development Commission (the LRDC). “ Wouldn’t it be nice to do legal research that wasn’t just about fixing the laws in a country.” Ag shame, the universal Namibian expression that serves as a useful response to absolutely anything, was this time employed in a negative sense. My co-worker was disappointed by the realization that necessity was ruling out luxury in legal research.

Downtown Windhoek shows how luxury may be sought after, but the colonial heritage has limited many to only necessity.

My co-worker was responding to a presentation by academics from the University of Cardiff during the first week of my internship at the LRDC. The presentation focused on what political biases may influence the decisions of members of the U.K.’s Supreme Court. When asked about the intention of the research, the academics explained that it was to “make it clear who our judges were.” It was clearly beneficial research; to know the biases of the judiciary could help both the public better scrutinize the judges and perhaps even force judges to better scrutinize themselves. But in the eyes of my co-worker, this research was a luxury to pursue. The thought that diversity in legal research is a luxury – that some countries and contexts are limited by necessity to only do legal research that evaluates whether or not the law achieves its intended outcome – is the most preponderant lesson I have learned while interning at Namibia’s LRDC.

The Necessity for Law Reform in Namibia:

Namibia is a young country. It was granted independence in 1990 from South Africa after a racially divided struggle, the consequence of years of apartheid that segregated black and coloured Namibians from the white ruling elite. In the year Namibia gained independence, the first democratic elections were held, a representative constituent assembly was elected, and a new constitution was implemented. The new constitution boldly stated the mandate for the new Namibian republic: “equal and inalienable rights of all members of the human family is indispensable for freedom, justice and peace… regardless of race, colour, ethnic origin, sex, religion, creed or social or economic status.” According to its new constitution, Namibia would never again treat its citizens unequally.

Independence, for Namibians, marked a new chance for a prosperous future that would benefit everyone – a stark contrast from the years of colonial administration.

Namibia’s colonial relationship with South Africa, the United Kingdom, and Germany have had a clear impact on the country’s legal framework. Colonized first by Germany at the end of the 19th Century, Namibia, then known as South West Africa, would come under the control of the United Kingdom during the First World War. After the war, a League of Nations mandate would then grant administration of South West Africa to South Africa. South African administration would continue, even after the United Nations and the International Court of Justice declared the governance illegal according to international law, until independence was won in 1990. The consequence of three separate colonial administrations was three distinct layers of law, each applied one over the top of the other – each layer retaining its applicability unless otherwise stated. Upon independence, Namibia chose to retain the validity of all previous laws unless the laws were otherwise repealed, modified, or replaced.

The colonial legacy of Namibia exposes the need for law reform. It is here where the luxury of doing diverse legal research is lost because of the urgent need for law reform. Not only do many of Namibia’s laws have a colonial legacy, and thus fail to treat all Namibians equally, but Namibia has transitioned since its independence, first attempting to consolidate the nation’s ethnic diversity through the law, then moving towards an attempt to modernize its laws to realize economic success for individuals that were otherwise limited during the years of apartheid. Law reform plays a key role in determining how laws can and should be modernized to promote the equality, prosperity, and peace ensured by the Namibian Constitution.

The Law Reform and Development Commission:

It is in this process of repeal, modification, and replacement that the Namibian LRDC plays its role; it is mandated to repeal obsolete laws, consolidate codification of the law, harmonize customary and statute law, recommend more effective laws, and enact laws to promote human rights. The LRDC exists as an office separate from any other part of the Namibian Government. This independence gives the office the ability to evaluate the potential impact and usefulness of any law from an apolitical perspective.

To achieve its mandate, the LRDC relies on its most useful tool – public consultations. The LRDC’s political independence gives it the ability to reach out to whoever it chooses. But this process hasn’t become limited to specific stakeholders or powerful groups; the LRDC fosters relationships with as much of Namibia’s population and as many distinct groups as it can, to determine the true impact and perception of the law.

Capana, Namibia’s most popular street food, involves a “farm to mouth” process, that connects farmers, meat buyers, butchers, and cooks, all to cook meat, in markets that are open from 8am to 10pm.

In many ways, Namibia is ideal for this type of an office. The country is only 2.3 million people, its small population means the government is interconnected. A large bureaucracy makes the government accessible. Political organizations are populous. People are proud of their heritage, both the places they come from and their own personal history, and as a result, communities are engaged, concerned for their wellbeing, and accountable for their achievements. Still, there are groups that are skeptical of the current political process, groups that struggle to see how their interests are being represented. It is, therefore, necessary to have government organizations, such as the LRDC, that accommodates all Namibians, regardless of their current engagement in the political process.

The LRDC seeks out and fosters relationships with stakeholders implicated by potential laws. The typical political process is reversed; instead of groups pursuing politicians and advocating for specific decisions, the LRDC reaches out to the variety of stakeholders that are needed to determine the effectiveness of the law. The LRDC develops these relationships, with close ties to the University of Namibia, traditional communities, political assemblies, municipal leaders, law reform commissions throughout the world, NGOs in Namibia, and, above all, Namibians themselves.

The LRDC’s Law Reform Process:

Headed by the dynamic Ms. Yvonne Dausab, who has had a career in private practice, in academia, and in government, the LRDC operates in consultation with the Office of the President. Appointed in 2015 directly by the President of Namibia, Dr. Hage Geingob, Ms. Dausab cooperates with the Commissioners, a select group of Namibia’s top legal professionals who, while employed elsewhere in Namibia, manage projects and provide advisory guidance. Projects are requested directly by the Office of the President, the Attorney General, and the Ombudsman. On each project, legal researchers are assigned from within the office to coordinate research and consultations. The final output of each project is an evaluation of a law’s effectiveness, its implications in Namibia, and any possible areas that could be perfected.

The Commission works like a legal consultancy, but because it is Namibian in its staffing and location, it provides a truly Namibian perspective on the law. This is necessary, especially in Africa, where legal recommendations that are deemed to be effective in another part of the world are often prescribed to African countries. While some of the most effective law firms in the world may be able to make recommendations to Namibia about the law should be, few of these recommendations can access how the law should be for Namibia. But by being in Namibia, staffed by Namibians, and connected to Namibia, the LRDC can consult within Namibia and recommend how the laws should be for Namibia.

The success of each project depends on the ability to find and include the necessary interested and implicated parties in Namibia. The New Equitable Economic Empowerment Framework project relied on country wide consultations with Namibia’s poorest citizens, marginalized business owners, and investors from all backgrounds. The Marriage Reform project relied on consultations with traditional communities whose marriage practices were the most divergent from civil marriages, as well as groups that provided support for any detrimental consequences from traditional marriages. The recommendations on Disability Law Reform synthesized the perspectives of Namibian’s with disabilities, organizations that support persons with disabilities, and institutions that struggle to assist persons with disabilities. Around the world, all of these laws exist in a functional way, but only the LRDC is able to determine how they can exist in a way that will work for Namibia and benefit Namibians.

My own work at the LRDC was directly involved in this process. Working with Ms. Dausab, the focus on my work was to prepare for stakeholder consultations, provide initial readings of proposed laws, conduct comparative legal research with other jurisdictions, and consolidate current Namibian court decisions. To support Ms. Dausab’s consultative network, my work included speech writing, analysis of stakeholder recommendations give to the office, and writing both articles and recommendations on behalf of the office. As an editor, I was tasked with editing The Law Reform and Development Commission At 25: A Quarter Century of Social Carpentry, a book on the potential of law reform in Namibia, along with numerous reports and publications. My work was diverse, reflective of the Law Reform Commission’s mandate to address all laws in Namibia.

The Chairperson of the LRDC, Ms. Dausab, addresses the Junior National Council on Child Marriages in Namibia and possible legal solutions, a catalyst moment in law reform.

Because of the Law Reform Commission’s proximity to both stakeholders and groups directly implicated by legal decisions, its influence is direct and consequential. The legislative response to child marriages in Namibia is a clear example. Ms. Dausab was asked to give a speech to the Junior National Council on the consequences of child marriages and what legal solution could be used to ending child marriages in Namibia. While only 7% of children are married before the age of 18, such marriages occur under an exemption within the law that allows children to marry with both parental consent and the approval of an officer of the Ministry of Home Affairs. After delivering the speech to the Youth Council, the Council passed a recommendation to the National Council to remove the exemption provisions. Even though the National Council was on recess, the Ministry of Gender Equality and Children announced in the following week that it would conduct both statistical research to determine where child marriages were occurring, consultations with implicated communities, and research into legal and institutional reform needed to end child marriage. As this example shows, the desire for law reform is evident across Namibia and Namibians are willing to act to ensure true equality.

Necessity over Luxury:

Legal research can be both a social necessity and an academic luxury. Since I started my studies in law, I’ve been exposed to legal research that is as diverse and complex as any academic discipline. There is research that, similar to the LRDC’s work, intends to influence the writing of the law and inform judicial decisions. But the scope of legal research is not limited to only reform. It expands to guidelines on how to support the convergence between law and other academic disciplines, it analyzes the pedagogy of teaching, and it criticizes how the discipline itself exists. This variety is a sign of a healthy academic discipline. But it is important to remember that this diversity and vitality is a luxury – one that can be afforded because of the functionality and success of the Canadian legal system.

In Namibia, the luxury of diverse legal research will only begin when the law itself has developed to a point where it exudes confidence in its own potential. Until then, the brightest legal minds in Namibia are nobly limited to the mission of law reform. Ag shame!

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