Author: Harvard Law School

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Advocating data-driven Judicial Reform in India

I have worked this summer with The Takshashila Institution, a public policy think-tank in India. Part of my work included co-authoring a policy brief on judicial reforms. The brief is under review for publication, but the subject has become very topical: the Supreme Court recently turned down the idea of operating “Fast Track Courts” to resolve cases against elected Parliamentarians against whom criminal cases are pending, preferring instead to place the burden on the Executive to not elevate such persons to important Ministerial assignments.

Fast Track Courts were initiated, originally, as an experimental solution to the considerable (and growing) backlog of unresolved cases pending before all levels of the judiciary in India. Constituted with funding from the central government, they have proved a qualified success, demonstrating a disposal rate considerably higher than ordinary courts at the same level. Since they are only a procedural innovation, working with the same personnel and no new facts on record, this has prompted concerns that such cases are at higher risk for wrongful conviction and miscarriage of justice. Nowhere is this criticism more pronounced than in the resort to Fast Track Courts for tackling crimes against women.

That move, in turn, is part of a broader set of measures taken to counter growing outrage against rape. Another recent measure was the revision of the Juvenile Justice (Care and Prevention) Act of 2000, to allow for the criminal trial and prosecution of a person above the age of 16 who is accused of rape. Prior to this amendment, such an accused would be treated as a minor, and could not be tried or sentenced under the Indian Penal Code, a condition that had come in for widespread condemnation when it came to light that one of the accused in the December 2012 New Delhi gang-rape-assault-and-murder was 17 years of age and hence liable for prosecution only as a juvenile.

What has been largely overlooked in this outcry, however, is that instances of rape by minors are – contrary to what some political leaders were reported as suggesting – only a small proportion of the total reported rape cases in the country (1,175 of 33,707 cases reported in 2013, to be precise). In fact, as Rukmini Shrinivasan and Mrinal Satish reported in The Hindu, less than 600 cases actually came to trial in New Delhi in 2013, and over 170 of those cases involved consensual sex with a minor girl.

Typically, these are cases where the girl’s family disapproves of the relationship, and files a charge of rape against the man involved. These are typically cases of elopement, the First Information Report (FIR) filed in such cases follows a script prepared by the police and the complainant family to enable a charge of rape while discounting any possibility of consent. Unfortunately, since these scripted FIR’s coincide with the facts only seldom, only 10 of these alleged rape cases have resulted in conviction.

These are troubling indications – the sample may not be large enough to call conclusions drawn therefrom “evidence” – that most alleged cases of rape involving minors are not as straightforward as they appear. Under these circumstances, the amendment to the Juvenile Justice Act takes away the discretion of the courts to have the accused tried as a minor, or to award a lesser sentence to account for the possibility of consent. It is also, in its own way, illustrative of two major problems in dealing with judicial reform in India: the absence of any statistics on the basis of which to target or evaluate such reforms, and the broader systemic concerns (beyond mere judicial efficiency) which lead to sub-optimal outcomes in court.

The National Crime Records Bureau or Court Registrar’s statistics reflect only such crimes as are reported, and such civil offences as actually led to the institution of a lawsuit. There is general consensus that, in a variety of arenas (ranging from sexual and gender based violence, to corruption, to property disputes), the number of reported cases is an under-representation of the true incidence of the problem. In the aftermath of the 2012 New Delhi case, the Government had convened a Committee under Justice J S Verma to receive public inputs and prepare recommendations on how to better tackle such crimes. Takshashila had submitted a policy advisory, suggesting that India institute an annual Crime Victimisation Survey. This is in keeping with a broader orientation towards evidence-driven public policy.

In our latest brief, my colleagues and I explore the judicial concommitants to such a survey, which include the National Judicial Statistics Bill (which has languished before Parliament for years), and the compiling of an electronic database of court performance statistics under the Government of India’s e-Courts Mission. All of these are moves that will enable more accurate identification of areas of concern, and thereby the targeting of reforms – even Fast Track Courts – at areas that deserve the highest priority.

At the same time, we explore also the systemic environment which has led to the current scenario of judicial backlog. In particular, two areas of concern stand out: the absence of proper investigation, and the lack of skilled manpower in the judiciary. The former has long been decried by judges themselves, who point out that they cannot hand out convictions on the basis of slipshod investigations that fail to establish any material facts; thus, improving the disposal and conviction rates (without compromising on the integrity of the courts) will require training and equipping police to properly elicit, gather, catalogue and present evidence.

The lack of trained judges is an even more serious problem in the long-run: India has only 14 judges for every million people, with as many as 30% of judicial positions remaining vacant. At current population trends, even a judiciary operating at fully-sanctioned strength would have only 10-12 judges per million Indian citizens – a ratio that makes discussion of operating efficiency moot. Thus, the creation of a National Judicial Service, or some other form of drastically increasing judicial manpower is de rigeur.

After almost seven decades of Independence, India is entering the mature phase of its institutional democracy. This means that all the cheap, easy and short-run solutions to its structural problems have already been adopted and exhausted. India must now rally support for the more difficult, expensive and long-run institutional reforms that will enable to face these challenges as it moves into the post-2015 world.

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The Freedom of Information, Development, and LIDS Global’s 2014-2015 Research Project

Transparency is a foundational element of development—without it, the citizens of emerging economies cannot participate in keeping their governments and markets fair and accountable. Of course, governments and market participants are also entitled to a measure of privacy. The trick is in finding the balance, both in substantive law and in fact. In 2014-2015, LIDS Global is going to organize an international research effort to explore this balance.

LIDS Global, as was noted in this blog just a few weeks ago, is this organization’s effort to build partnerships with like-minded student groups all around the world. Our 2013-2014 pilot project was highly successful; LIDS Global coordinated teams from around the world as they explored the link between corruption and development. The finished work will be published later this month.

Building on this success, our 2014-2015 research will focus on the Freedom of Information and its role in development; specifically, how can citizens all around the world use Freedom of Information laws to deter corruption in government officials? In fact, our idea to explore this topic is partly a result of the 2013-2014 research: students from the Centre for the Study of Human Rights at the University of Colombo in Sri Lanka identified the Freedom of Information as a top development priority in the Asian region.

Here at Harvard, others were also focused on this key element. Professor Matthew Stephenson’s Global Anticorruption Blog published several posts that called for using the Freedom of Information to deter corruption on the “demand” side (meaning the government officials that demand bribes in the first place, as opposed to the “supply” of the businesses that pay for them).

One post, written by Argentine legal scholar Ignacio Boulin-Victoria (LLM ’14), provocatively proposed using Freedom of Information laws in developed countries to extract information about corrupt “demand-side” officials that could be used to shame or prosecute them in their home countries. The rationale here is simple: prosecuting agencies in the United States, for instance, come to possess information in the course of a corruption prosecution that could also be used to clean up government and markets in developing countries. Why not get that information to people who can use it, such as civil society and prosecutors in those developing countries?

Imagine, for instance, that the Department of Justice has successfully prosecuted a major multinational telecom company for bribes paid in several Eastern European nations. The telecom company has already settled with the DOJ and paid its fine; presumably it and its peers are now deterred from making future bribes in those countries. But what happened to the corrupt officials that demanded the bribes in the first place? Oftentimes, nothing happens to them—they simply continue demanding bribes until another MNC pays them.

Why aren’t the corrupt officials punished for their actions? Mr. Boulin-Victoria believes that one big reason is that, even though the DOJ may pass information off to the prosecuting agency in the “demand-side” country, there is simply not enough pressure on that agency to bring a case against government officials in its own country. Mr. Boulin-Victoria argues that, if only civil society in that country were empowered with the same information that the DOJ has, then the citizens of that country could be empowered to hold their own government officials accountable—and their prosecutors.

If a lack of information to civil society in the “demand-side” country is the problem, then civil society in developed nations can help by extracting the key information and then simply passing it off to their foreign counterparts. Seems simple, right?

As Mr. Boulin-Victoria and others on the Global Anticorruption Blog acknowledge, however, this plan is not without potential flaws. Most obviously, if prosecutors in a “demand-side” country do not respond to public pressure, or if public pressure does not materialize, then nothing new will come of this plan. For instance, using the example of the DOJ’s prosecution of an telecom-MNC in Eastern Europe, it is not immediately obvious that passing information about corrupt officials to civil society in those countries will actually yield high-level prosecutions—citizens in those countries may already be aware that their government officials are corrupt, journalists and private attorneys may be easily intimidated by defamation laws, and prosecutors may be completely captured in any case. Another problem: what if the DOJ doesn’t give up the information, citing an exception to the Freedom of Information Act?

LIDS Global, now coming into its second year, is perfectly suited to explore this proposal. Our network of student groups in several nations around the world enables us to understand legal and social conditions “on the ground.” Here in the U.S., our LIDS Global team will research Freedom of Information Act implications of this plan, and potentially develop a “tool-kit” for U.S. attorneys to use if they actually wanted to test this plan out.

It’s going to be an exciting year for LIDS Global and its partners!

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South Sudan’s Three Year Anniversary: No Cause for Celebration

This week South Sudan celebrated its three year independence anniversary after voting to secede from Sudan on July 9, 2011. Though 99 percent of the population voted for secession, South Sudan’s transition to independence has been far from smooth. Struggling with economic collapse, civil war, and famine, South Sudan has faced a slow development trajectory and, in fact, has topped Foreign Policy’s 2014 Fragile States Index (http://www.foreignpolicy.com/fragile-states-2014), passing long-time number one Somalia.

Before secession the region of South Sudan contained almost seventy-five percent of Sudan’s oil reserves and prior to independence South Sudan was producing 350,000 barrels of oil per day. Following independence oil was expected to comprise almost 98% of the country’s economy. However, South Sudan, which under Sudan had never developed significant infrastructure, did not have the requisite pipelines or refineries to independently produce and sell their oil. Sudan charged exorbitant fees for use of these facilities attempting to preserve the scheme, which occurred when the countries were united, under which the north and south equally split the profits from the oil. To combat this price gauging South Sudan halted oil production in January 2012. Though this eventually led to negotiations with Sudan, it also resulted in enormous inflation and poverty within the country. South Sudan’s story is a classic example of a resource curse. While it does have oil, which sustained the region prior to secession, this reliance on oil halted the diversification of the economy which in turn led to extreme economic consequences when oil production was halted. Though South Sudan has begun producing oil again, the recent civil war threatens oil production. However, even if South Sudan is able to continue producing at the current rate despite the unrest, the oil reserves are not expected to last more than a few years. South Sudan is currently looking to diversity its economy, particularly by delving into the agricultural industry, but this remains an unattainable goal while civil war continues to plague the nation.

After gaining independence from Sudan in 2011, South Sudan began to face tribal factions and ethnic divisions within the country. In December 2013 violence erupted between South Sudan’s two largest ethnic groups, the Dinkas and the Nuers, when Dinka president Salva Kiir accused his Nuer vice president, Riek Machar, of plotting a coup. Government troops split roughly along ethnic lines with Dinka soldiers supporting Kiir and the ruling party, the Sudan Peoples’ Liberation Movement, and Nuer soldiers joining Machar and the Sudanese Peoples’ Liberation Army. Since then human rights abuses have been committed by both sides as the death toll mounts. The pattern of violence occurs in cycles of revenge killings as government and non-government forces alternate between control of large towns and while in power engage in ethnically motivated violence. Thousands of civilians have been senselessly murdered, one million citizens are internally displaced, and 400,000 people have fled to neighboring countries for refuge. The conflict is spreading across the country and is reaching major oil producing states, Unity and Upper Nile, where consequences could be dire if either party seizes control of the resource. The international community is urging South Sudan’s neighbors, Kenya, Ethiopia, and Uganda, to negotiate a deal between the warring factions in an attempt to bring peace to the region.

To make the situation worse South Sudan is facing food shortages as forecasters are predicting below-average rainfall across the country. This is particularly problematic for displaced persons and poor communities in rebel-controlled areas.

South Sudan’s independence anniversary is sadly devoid of celebration. Instead of lauding the past the country needs to look ahead and implement plans for a stable future. For the international community South Sudan offers a lesson in the importance of a country’s establishing de facto governance before voting for succession – after all, simply adding another failed state to the mix does little to promote global development.

Sources: http://www.amnesty.org/en/news/qa-three-years-south-sudan-locked-cycle-violence-2014-07-08; http://www.bbc.com/news/business-28225098; http://www.economist.com/blogs/baobab/2013/12/south-sudan

CONTACT E-MAIL: ikala@jd16.law.harvard.edu

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Access to justice for women and engaging informal justice mechanisms

In the U.S., approximately one in four women will experience domestic violence in her lifetime. The statistic is similar around the world, but the legal and institutional infrastructure to adequately prevent such violence and provide sufficient redress to victims is often completely absent in many developing countries.

In rural Sierra Leone, for instance, I witnessed a woman run to the nearest police station immediately after being beaten by her husband, and with a large open wound on her head.  Despite the clear evidence of assault, the police took little action to investigate the crime.  In part, this was because they lacked training, capacity and even the resources to attempt to locate the accused, who had fled by then to a nearby city. Because they lack the funding and resources (including an adequate salary), police sometimes ask complainants for bribes to continue the investigation or money for travel and equipment – which means that victims are essentially funding the police, rather than the government.  Clearly, cost is a huge barrier for victims who come from poor families or rural regions who live on under $2 a day. Beyond this, the police continued to entertain patriarchal beliefs and norms about keeping families together despite abuse and violence.

These are just some of the barriers faced by women in accessing justice from law enforcement in many developing countries.  In addition, there is often a tremendous cultural stigma that prevents women from pursuing prosecution or leaving an abusive spouse; women who are divorced, living alone, or who have chosen to leave a relationship are often looked down upon and there is substantial social pressure to stay and bear the pain.  Further, poverty is an additional barrier.  In many countries, women simply may not be able to support themselves and their children if they leave their husband due to low salaries and sometimes, the traditional role of the wife in caring for the children and home.

Because of the problems with formal law enforcement, victims often turn to informal (also known as customary  or traditional systems) justice systems to resolve their ‘family disputes.’  These systems, such as the shalish in Bangladesh, employ methods of mediation or arbitration to resolve a range of community disputes, including those involving family law and often domestic violence.  Often, village leaders, elders, or religious leaders preside over these local councils or informal mechanisms, or make the ultimate decisions. However, these mechanisms have been frequently criticized for their flouting of international human rights law and norms, and their incorporation of patriarchal customs.  These systems do regularly lead to discriminatory outcomes, such as forcing a rape victim to marry her rapist, or forcing a victim of domestic violence to continue living with her abuser.  They do often condone practices such as bride sales, dowry, or forced and child marriage.  Frequently, decisions also favor the more wealthy or powerful individuals in a community.

Despite this, it is important for NGOs and the international community to engage with informal justice systems because they are frequently the most affordable, accessible, easy to use, and culturally familiar methods of dispute resolution used by victims.  The judgments of village elders or community leaders are often respected and valued, and contribute to a sense of social cohesion in a community.  Especially in rural areas or poor urban areas, informal justice systems may be the only source of dispute resolution or ‘legal aid’ for women and girls who are victims of violence.  Thus, any programs aiming to increase women’s access to justice, or to reduce violence against women, must seriously engage with and consider informal justice systems.

Many programs work to improve informal systems by, for instance, involving women leaders in the decision-making process, providing g training and support for the mediators and community leaders, codifying informal legal norms to comply with human rights laws, or ensuring some type of accountability of informal justice systems to the formal justice system.  At the same time, as an excellent IDLO report, “Accessing Justice: Models, Strategies, and Best Practices on Women’s Empowerment,” describes, various approaches “risk being unsuccessful if they fail to consider the underlying reasons for which local norms do not align with international human rights standards. Some argue that these approaches do not encourage a holistic understanding of the context in which discriminatory practices are embedded, and as a result, prevent the development of comprehensive solutions” (p. 21).

The IDLO report cites a prime example: the practice of forcing rape victims to marry their rapists is often grounded on not only patriarchal attitudes but also the reality that if this marriage does not occur, the victim is likely to be ostracized by the community and may lack the ability to support herself.  Beyond simply outlawing such practices, consideration must be given to methods to address the underlying economic, social and cultural reasons for their continuation.  Ultimately, organizations hoping to truly improve women’s access to justice and to reduce violence against women must take a more holistic perspective, considering all the diverse needs of women and girls subject to violence, rather than simply a piecemeal approach to reforming informal systems.

 

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LIDS Global: An Update on Our Pilot Program Year & Ways to Get Involved

 

The LIDS family is growing and going global!

During the 2013-2014 school year, LIDS launched LIDS Global, a pilot program aimed at growing the LIDS family and the opportunities that come from being a part of the LIDS community. As described in more detail on our LIDS Global page, this past year, six universities collaborated on a research project built off the previous year’s LIDS white paper project focusing on corruption.  Students in Singapore, Kyrgyzstan, Tanzania, the Philippines, India and Sri Lanka have created LIDS-like student organizations that, while separate entities from Harvard LIDS, all researched the issue of corruption in their own countries or regions with the ultimate goal of sharing this information with each other on a LIDS-provided platform.

As 2013-2014 Co-Vice Presidents of Collaboration, Maryum Jordan and I have been working with these groups since Fall 2013. Often we started by speaking with one student we were put in contact with by acquaintances. That person would then gather other interested students, work with their school’s administration, and create a student organization and a research plan. Thanks to the wonders of Skype and the amazing motivation of these students, we have been able to coordinate meetings with these groups despite 11+ hour time differences and continents between us.

There has been amazing progress from all of the student groups. In Tanzania, students have been collecting data about strategies for combating corruption. In the Philippines, students wrote a proposal for an all-in-one remedy for victims of corruption based on existing and available remedies under Philippine laws. In Sri Lanka, Master’s students from around the region worked on a research project on corruption as part of their academic program.

Liz Loftus and Chris Crawford, Co-VPs of Global Collaborations for 2014-2015 school year, have jumped on board and together with Maryum and I, are finalizing a single document that will share the findings and suggestions made by the LIDS Global groups around the world. Stay tuned for this exciting and informative document to be shared on the LIDS website in soon!

Liz and Chris are also recruiting and preparing the LIDS Global team of university students for the upcoming school year. Students involved in LIDS Global are able to share their findings and start a larger global conversation on important issues, such as corruption, on a local, regional, and international scale. In the future we hope to maintain these connections and grow LIDS Global to even more countries!

 

If you have any questions about LIDS Global or would like to be a part of LIDS Global in the 2014-2015 school year, feel free to contact Co-Vice Presidents of Collaboration, Chris Crawford (ccrawford@jd16.law.harvard.edu) or Liz Loftus (eloftus@jd16.law.harvard.edu).

 

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Does Legalized Prostitution Increase Human Trafficking?

Human trafficking leaves no land untouched. In 2013 the U.S. State Department estimated that there are 27 million victims worldwide trafficked for forced labor or commercial sex exploitation. A 2011 report from the Department of Justice found that of more than 2,500 federal trafficking cases from 2008 to 2010, 82% concerned sex trafficking and nearly half of those involved victims under the age of 18. Scholars note that the phenomenon represents a serious health issue for women and girls worldwide. Beyond the human cost, trafficking may also compromise international security, weaken the rule of law and undermine health systems.

Since the United Nations adopted the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children in 2000, global efforts have been made by the international community to address the growing problem. Challenges remain significant, however, in particular because of its profitability: According to the International Labor Organization, human trafficking is a $32 billion industry, second only to illicit drugs. A 2011 paper in Human Rights Review found that sex slaves cost on average $1,895 each while generating $29,210 annually, leading to “stark predictions about the likely growth in commercial sex slavery in the future.”

A 2012 study published in World Development, “Does Legalized Prostitution Increase Human Trafficking?” investigates the effect of legalized prostitution on human trafficking inflows into high-income countries. The researchers — Seo-Yeong Cho of the German Institute for Economic Research, Axel Dreher of the University of Heidelberg and Eric Neumayer of the London School of Economics and Political Science — analyzed cross-sectional data of 116 countries to determine the effect of legalized prostitution on human trafficking inflows. In addition, they reviewed case studies of Denmark, Germany and Switzerland to examine the longitudinal effects of legalizing or criminalizing prostitution.

The study’s findings include:

  • Countries with legalized prostitution are associated with higher human trafficking inflows than countries where prostitution is prohibited. The scale effect of legalizing prostitution, i.e. expansion of the market, outweighs the substitution effect, where legal sex workers are favored over illegal workers. On average, countries with legalized prostitution report a greater incidence of human trafficking inflows.
  • The effect of legal prostitution on human trafficking inflows is stronger in high-income countries than middle-income countries. Because trafficking for the purpose of sexual exploitation requires that clients in a potential destination country have sufficient purchasing power, domestic supply acts as a constraint.
  • Criminalization of prostitution in Sweden resulted in the shrinking of the prostitution market and the decline of human trafficking inflows. Cross-country comparisons of Sweden with Denmark (where prostitution is decriminalized) and Germany (expanded legalization of prostitution) are consistent with the quantitative analysis, showing that trafficking inflows decreased with criminalization and increased with legalization.
  • The type of legalization of prostitution does not matter — it only matters whether prostitution is legal or not. Whether third-party involvement (persons who facilitate the prostitution businesses, i.e, “pimps”) is allowed or not does not have an effect on human trafficking inflows into a country. Legalization of prostitution itself is more important in explaining human trafficking than the type of legalization.
  • Democracies have a higher probability of increased human-trafficking inflows than non-democratic countries. There is a 13.4% higher probability of receiving higher inflows in a democratic country than otherwise.

While trafficking inflows may be lower where prostitution is criminalized, there may be severe repercussions for those working in the industry. For example, criminalizing prostitution penalizes sex workers rather than the people who earn most of the profits (pimps and traffickers).

“The likely negative consequences of legalised prostitution on a country’s inflows of human trafficking might be seen to support those who argue in favour of banning prostitution, thereby reducing the flows of trafficking,” the researchers state. “However, such a line of argumentation overlooks potential benefits that the legalisation of prostitution might have on those employed in the industry. Working conditions could be substantially improved for prostitutes — at least those legally employed — if prostitution is legalised. Prohibiting prostitution also raises tricky ‘freedom of choice’ issues concerning both the potential suppliers and clients of prostitution services.”

 

Source: Journalist Resource

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