Helen Clark: ‘Rule of Law and Development: Times of Challenge and Opportunity’
Helen Clark, UNDP Administrator
‘Rule of Law and Development: Times of Challenge and Opportunity’
Inaugural Distinguished Visitor Programme
College of Law, Qatar University
3:30pm, Thursday 6 December 2012
My thanks go to the College of Law at Qatar University for inviting me to deliver this inaugural lecture at the University’s newly established Distinguished Speaker Programme.
Qatar University has earned a reputation for high quality scholarship and for attracting talented students from Qatar, from across the region and beyond. I am especially pleased to see women comprising a significant proportion of the student population here.
The title of my lecture today is: ‘Rule of Law and Development: Times of Challenge and Opportunity.’ I will focus on the importance of the rule of law to development progress globally, and discuss the implications of that for the Arab States region at this critical time of on-going transition.
Before I begin, let me say a word about UNDP, the UN’s largest development organisation. We have programmes in some 177 countries and territories in support of national development efforts and priorities. We work with government authorities, civil society partners, and local communities on a range of issues from recovering from and preventing crisis, to fighting poverty, to protecting the environment, empowering women, and supporting countries to make their institutions and governance systems more inclusive, effective, and accountable.
At the core of our work is the human development paradigm, which seeks to enlarge people’s choices and freedoms, and enable all to live longer and healthier lives, be educated, and enjoy a decent standard of living.
The United Nations General Assembly itself has affirmed in recent months that human rights, the rule of law, and democracy are interlinked and mutually reinforcing, and that they belong to the universal and indivisible core values and principles of the United Nations. For UNDP, supporting efforts to strengthen the rule of law underpins our work to sustain human development progress, as it expands people’s ability to determine their own destinies and to participate in the decisions that shape their lives.
In response to Member State requests, UNDP works on rule of law-related programming in more than 100 countries. We draw on the wealth of lessons learned from our experience in very diverse settings. In my remarks today I will refer to initiatives we are supporting in the Arab States region.
As I myself am not a legal scholar, my remarks will focus less on sources of the law, while recognizing that there are significant debates about that, and more on why the rule of law is essential for achieving inclusive and sustainable development. I will draw on UN agreements and declarations, as well as on the rich scholarship of the Arab Human Development Reports, commissioned by UNDP since 2002. The Reports are independently authored by intellectuals from this region.
I am particularly pleased to be delivering this lecture in Doha. Qatar is acknowledged for its advocacy on anti-corruption and the rule of law in the region, and UNDP is proud to be associated with these principles. Last year, we began working with the Attorney-General of Qatar, His Excellency Dr Ali Bin Mohsen, to help Qatar establish and support a regional hub in Doha for training and research on the rule of law and on anti-corruption issues. Today, I am glad also to be able to engage with students – future leaders on rule of law – and scholars, as UNDP and Qatar move to strengthen their partnership.
Rule of Law and Development
In recent years the United Nations has made several pronouncements on the rule of law and its definition.
- In 2004, the Report of the Secretary-General on the Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies stated that: “For the United Nations, the rule of law refers to a principle of governance in which all persons, institutions, and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced, and independently adjudicated, and which are consistent with international human rights norms and standards.”
- In 2005, at the United Nations World Summit, Member States unanimously recognised the need for universal adherence to and implementation of the rule of law at both the national and the international levels.
- This year, in September, the UN General Assembly held its first ever dedicated High-Level Meeting on the Rule of Law at the National and International Levels. There, Member States adopted a landmark Declaration which noted that: “all persons, institutions and entities, public and private, including the state itself, are accountable to just, fair and equitable laws and are entitled without any discrimination to equal protection of the law”.
The term ‘rule of law’ needs to be distinguished from the narrower concept of ‘law and order’ under which a state’s criminal justice and security organs are deployed. It is also distinct from ‘rule by law’ or ‘rule by force’, where the law and institutions are used to protect the interests of the powerful, and to deny significant parts of society the chance to participate on fair terms.
Most societies use multiple sources of law and norms to guide societal behavior and rules, and draw on their own traditions to define their legal frameworks. A recently published report by UNDP, UN Women, and UNICEF found that quasi-formal, traditional, and religious justice systems often resolve a large proportion of the disputes and claims which impact on people’s lives.
The Declaration from the UN High-Level Meeting this September recognised that “there are common features founded on international norms and standards, which are reflected in a broad diversity of national experiences in the area of the rule of law.”
In this region, for example, the rule of law in many states is founded on concepts of justice whose threads have been woven through diverse socio-religious and cultural norms and traditions - including being derived from deep roots in Islam.
UNDP acknowledges the great variety of legal systems across the countries we work in. We work to support societies to find their own way to establish the rule of law around the common principles established by the United Nations.
A nation’s constitutional arrangements set out the powers of organs of the state and the rights of the people. UNDP advocates for open processes to formulate constitutions when new ones are being written, so that citizens can have direct input into the writing of the rules around how they are governed, and into the definition of their own rights.
Fine words on paper, however, need to be reflected in the practice of the rule of law and in due process. For the rule of law to be firmly established, citizens need to see that the institutions of the state - and not least those of justice and security – are there to serve them. At a minimum, achieving that requires:
- The provision of legal protection and legal services which enable people to claim their rights and entitlements in all spheres – political, economic, and social - and to seek redress for grievances;
- courts providing efficient and impartial access to justice and legal redress, upholding the guarantees of fair trial and equality before the law;
- all public officials, including those in the security sector, not to engage in repression, corruption, and discrimination; and,
- prison systems – indeed all systems – adhering to human rights principles.
Where societies are emerging from conflict and/or social and political upheaval, strengthening the rule of law is particularly important for making a transition to a more peaceful and cohesive future. Accountability for past abuses and human rights violations of previous regimes will be a priority in many transitions. Dealing with the perpetrators is complex as justice needs to be seen to be done, and new systems of governance need to give assurance that human rights abuses will not be repeated.
Transitions are also a time to address particular gaps in rights and areas of exclusion, and ensure that there are equal opportunities under the law. Citizens need evidence that laws are fair and expand their opportunities, rather than restrict them.
At the September High-Level Meeting of the UN General Assembly, Member States stated their conviction that:
“the rule of law and development are strongly inter-related and mutually reinforcing; that the advancement of the rule of law at the national and international levels is essential for sustained and inclusive economic growth, sustainable development, the eradication of poverty and hunger, and the full realization of all human rights and fundamental freedoms, including the right to development, all of which in turn reinforce the rule of law...”
If we turn that statement around, we can see the absence of the rule of law as bearing a measure of responsibility for lack of traction on development.
Governance deficits and rule of law in the Arab region
The series of Arab Human Development Reports, commissioned by UNDP from 2002 identified poor governance and failures to uphold the rule of law as serious constraints on human development progress.
The first report in 2002, titled “Creating Opportunities for Future Generations”, highlighted what it called a “lag between Arab countries and other regions in terms of participatory governance,” arguing that this “freedom deficit” undermined human development progress in the region. It also identified gender inequality, high unemployment, and cronyism as obstacles to economic and human development.
In 2004, the Arab Human Development Report “Towards Freedom in the Arab World” argued that freedom, is about human dignity; for it to be sustained and guaranteed it: “requires a system of good governance that rests upon effective popular representation and is accountable to the people, and that upholds the rule of law and ensures that an independent judiciary applies the law impartially.”
The report identified foreign occupation and intervention as a particular threat to the region. It also commented on discrepancies within countries between “constitutions granting rights, and laws confiscating them.” It recommended increased pluralism and open dialogue, guaranteed fundamental rights and freedoms for all, reformed security services, and policies which enable women and minorities to contribute to all aspects of society.
The most recent Arab Human Development Report in 2009 examined human security in the region. It described the role of a “legitimate state” as one which:
“in its normative role, wins the acceptance of its citizens and upholds their rights to life and freedom. It protects them from aggression and lays down rules that guarantee them the exercise of their essential freedoms. It adheres to the rule of law, which serves the public interest, not that of a particular group.”
The Report went on to say that “The state which departs from these rules becomes a source of risk to life and freedom.”
It observed that the record of some states in the region “was mixed” in this respect, and identified serious constitutional failings – including in relation to women’s rights and the “considerable gap between constitutional texts and actual legal practice”, along with repression and restrictions on open political processes and civic dialogue, as serious barriers to progress.
This series of Human Development Reports suggested that major reforms were urgently needed to revive the legitimacy of the state vis-à-vis citizens, and to meet the emerging needs of the region’s peoples. The calls for reform, however, came not only from these reports and from activists.
As early as May 2004, the Arab Summit itself issued a “Declaration on the Process of Reform and Modernisation” calling for the deepening of “the foundations of democracy and consultation, and to broaden participation in political life and decision-making, in tandem with the rule of law, equality among citizens, respect for human rights, …, with a view to strengthening the roles played by all components of society, including non-governmental organisations, and participation by all social groups, men and women alike.”
Some states heeded this call for reform and modernisation. In others, reform was precipitated only when their citizens took to the streets to demand change.
Times of Challenge and Opportunity
In the tumultuous events associated with change in the Arab States region over the past two years, many people braved bullets and batons to express their opposition to the status quo. They came from across the social spectrum –young and old, women and men, professionals, workers, students, and the unemployed, to express their desire for fundamental changes in their societies and the way in which they were governed.
The call for change, expressed in various ways across the region, was propelled by many different factors – from economic stagnation to social exclusion and political marginalization. It stemmed also from an abhorrence of corruption, a rejection of repression, and a desire for empowerment, dignity, and rights.
Of particular relevance to our discussion today on the rule of law is that institutions like the judiciary, the police, security forces, and parliaments, which could have upheld the rule of law, were seen by many in several countries as variously corrupt, unaccountable, and/or illegitimate. In others, the laws themselves were viewed as at the least outdated and often as repressive and discriminatory.
The present moment presents both challenges and opportunities for countries in the region. Citizens have demanded change, and expect to see it materialise.
Important and often highly-contested political, economic, and social processes are underway across the region, in countries pursuing rapid transitions after the downfalls of regimes, and in others pursuing a more gradual pace of reform. While the road ahead is neither easy nor straightforward, strengthening the rule of law will help place countries on course for sustained human development in the broadest sense.
There are opportunities to do that in the writing of new constitutions, in strengthening institutions of governance, in tackling exclusion and discrimination, and in helping societies to face the legacy of authoritarian rule and past human rights abuses. Failing to take these opportunities poses risks to the transitions, as unaddressed grievances can fuel further discontent and violence, and lead to protracted instability.
The way in which the rule of law is strengthened must be led by the citizens of each country.
In countries undergoing significant political transitions, such as Libya, Egypt, Tunisia, and Yemen, and in others pursuing more gradual pathways to reform, strengthening the rule of law can help address the demands for political inclusion and human rights, and for the removal of inequitable social and economic policies.
In Somalia, where a political settlement is slowly being reached after years of fragility, the new government sees advancing the rule of law as central to getting traction on development.
Syria is still embroiled in a deadly conflict which has seen many thousands of men, women, and children, die and led to more than 400,000 Syrians fleeing to neighbouring countries. The establishment of peace and the rule of law there will be critical for Syria to resume development progress.
In UNDP we fully recognise that each of the countries in the region is engaged in its own distinct political process– with different time-frames, and different priorities. We aim to work alongside governments, civil society, and communities to support the transitions which are under way, so that they can lead to enhanced human development and human security. We see in the region so much human potential and capacity to build a better future for all who have suffered exclusion and repression.
Our programmes involve us working with formal and informal justice mechanisms, including the traditional and religion-based ones, and supporting institution building for inclusive and transparent governance. Examples of our work in the region, include the following:
- In Tunisia, the National Constituent Assembly, elected in late 2011, is drafting a new constitution. UNDP is supporting that effort, working with the government, and also with civil society groups to engage the broader public in discussion about what they want to see in the new constitution. We are also supporting the efforts of the Ministry of Justice to identify and pursue options for transitional justice to address past abuses.
- In Libya, recognising that youth are often excluded from political discourse, UNDP supported a number of youth activists in the lead-up to the recent elections to become trainers who could motivate other young people to participate. These peer educators reached out through radio and open days at ten universities to encourage youth to vote and inform them about voting procedures.
- In Yemen, which has embarked on a two-year transition timetable, UNDP and other parts of the UN are supporting rule of law, justice, and security sector programming which includes assistance to strengthen the national human rights architecture, transitional justice processes, and the national dialogue.
- In the Occupied Palestinian Territory, the Palestinian National Authority has committed to delivering responsive and accountable justice and security services. UNDP is supporting the Authority’s efforts to strengthen its capacity for this, including through reforms to the internal discipline and governance of the police.
- In Somalia, UNDP is working with the authorities to ensure the establishment of legal aid networks across communities, and the accessibility of these services to women and marginalised groups. By supporting these services, including by ensuring the presence of permanent and mobile courts across Somalia, UNDP is helping women, internally displaced persons, and prisoners, receive legal aid, and seek justice for previously unaddressed violations ranging from sexual violence, land disputes, and breaches of human rights.
- In Lebanon, UNDP helps strengthen the institutional capacities of the Ministry of Justice, improve state legal aid services, and promote access to justice and to legal information through information and communication technologies. An enhanced case management system in the law courts has facilitated their workflow. The Ministry of Justice’s website now offers more information, and the e-library helps judges and other court personnel.
- In both Jordan and Morocco, UNDP conducted studies on the role of women in public administration to inform initiatives to promote women’s leadership and empowerment. Support will be offered in 2013 to strengthen women’s networks, develop young women’s leadership initiatives, promote gender-sensitive legislative frameworks, and develop gender guidelines for public administration.
For UNDP issues of democratic governance, the rule of law, social justice, and decent work are inter-related. A report we launched last year on development challenges in this region noted that successful transitions would be contingent upon understanding and paying heed to the demands of citizens for political, economic, and social inclusion simultaneously.
In other words, as the UN General Assembly affirmed in September, establishing the rule of law and accelerating development must go hand in hand.
The UN Secretary-General has stated that “peace, security, and development are interdependent.” In this region, political transitions are offering new opportunities to establish the rule of law and respect for human rights. These transitions have the potential to place countries on inclusive and sustainable development pathways, if the rule of law is firmly established and adheres to international standards.
Transitions on the scale being experienced in this region take time, and, if past transitions elsewhere in the world are any guide, there were always bound to be bumps along the way. Yet there is also a lot to be hopeful for, and there are many experiences to be shared with those who have led such changes elsewhere. In June last year, UNDP sponsored a major conference in Cairo aimed at doing just that – bringing those engaged in transitions at the time, in Egypt and elsewhere in the region, together with counterparts from Latin America, South Africa, and Indonesia.
Many graduates from this College of Law will undoubtedly place themselves at the service of their societies – whether that be within government structures, legal or judicial service, or engagement in civil society organisations or the private sector. You will have the skills and knowledge to contribute to advancing the rule of law, and thereby to building the basis for sustainable and inclusive development. Through regional exchanges and fora for dialogue on justice, security, and development such as this one, we can all contribute ideas to support this process.
At the global level, debate has begun about how to define the global development agenda beyond the 2015 target date for achieving the Millennium Development Goals. The UN General Assembly High-Level meeting on the Rule of Law explicitly stated that the interrelationship between the rule of law and development should be considered in the post-2015 agenda.
Governments, civil society organisations, and individual citizens are all invited to have their say in developing that agenda. I encourage staff and students at this university to participate, including through the social media and ICT platforms which have been created.
Here, we must also not forget that human development cannot be divorced from sustainable development, as the advances made need to be sustained for future generations. Ensuring that, is very much at the heart of the challenges being addressed by the major international climate conference taking place in Doha right now.
In this city, known as a host of substantial international meetings, from the launch of the WTO Doha Round in 2001 to agreement on the Doha Declaration on Financing for Development (at the Follow-up International Conference on Financing for Development to Review the Implementation of the Monterrey Consensus) in 2008 I hope it will also be possible to take the world closer to a new set of rules and global agreement on tackling climate change. In this way, Doha can contribute to building an effective international order for our climate ecosystem based on the rule of law. For, as the UN General Assembly itself stated in September, the rule of law is of “fundamental importance for political dialogue and co-operation among all states, and for the further development of the three main pillars upon which the United Nations is build: international peace and security, human rights, and development.”