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There isn’t too much disagreement on just what is meant by “independent judiciary,” but what follows is one of the core components of an independent judiciary as defined by freedom house:

Is there independence, impartiality, and nondiscrimination in the administration of justice, including from economic, political or religious influences?

I’ve always found this question a bit fishy for us to ask, given my opinions of the US legal system. Certainly judges should be free from political pressures but it seems absurd to think anyone capable of being impartial regardless of political or religious beliefs, yet we assume precisely that on a daily basis as if somehow judges are more than human.  The issue of judicial impartiality in the states is one of constant debate among scholars.   This most recent national issue brings the question of an independent judiciary to the forefront of national debate.

Often on either side of the political fence, when a ruling is made that one doesn’t approve of the first reaction is to rail against the dangers of “activist judges” and how they’re dismantling our democratic system.  Unfortunately in most cases this attitude only seems to come up when one disagrees with whatever argument is made.  On the other hand when some judge makes a ruling ultimately aiming to shape the nature of US legislation in a manner one agrees with, said judge is typically seen as “defending democracy”.  A valuable question is just where this line should be drawn?

The responsibilities of legislators and judges certainly seem distinct but often in the States and other nations these lines are muddied.  After all, the constitution is hardly an easy document to draw hard and fast conclusions on, regardless of what politicians on either side of the aisle might argue.  Typically I’m quick to blame legislators for just about any failure in government, but in this instance it’s hard to do so, US legislators approved a bill (however sloppily) only to have it contested by judges across the country with a very disturbing tendency to be contested along political lines.

With the growing attitude of “strict constructionism” as a valid approach to the law, and the seemingly accepted idea that some judges are capable of seeing into the minds of our founding fathers, it’s helpful to remember some of the words etched on the Jefferson Memorial.

“I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors.”

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The best news is the headline figure: total D&G funding is up 25% from FY 2010, rising from $2.6 billion to $3.3 billion. The troubling aspect of this is that programs in Afghanistan account for just a bit over 100% of the increase. Thus, excluding Afghanistan (which accounts for 42% of the total D&G budget), there is a small decrease in total D&G funding. Given the skepticism I have shown about US policy towards Afghanistan, I do not believe this is a good use of scarce D&G funds.

Outside of Afghanistan, however, I am reasonably pleased with the allocation of D&G funds. The bad news continues to be that D&G funding remains concentrated in a very small number of countries. Five countries account for 60% of D&G funds in the FY 2011 request: Afghanistan, Mexico, Pakistan, Iraq, and Sudan. The good news is that, excluding Afghanistan, these are countries where D&G funding could do some good. While I was skeptical about funds for Iraq, Pakistan, and Sudan last year, in retrospect this was a good use of D&G funds as each of these countries has made major progress towards improved governance in the past year. Iraq and Sudan held elections. Even if the results of the former are still disputed and the latter were highly flawed, they represent progress compared to the status quo ante. Moreover, in Iraq, the key figures are using its existing electoral institutions to resolve the election dispute, not going around them. In addition, Pakistan seems to finally be taking the threat the Taliban poses seriously. I also think the funds for Mexico make sense. Most of the money is going towards human security and rule of law programs, designed primarily to defeat the influence of drug gangs. Mexico is a democracy, wants to solve this problem, and is our neighbor. Helping Mexico get a handle on fighting drug cartels thus seems like a good use of D&G money.

I have also changed my opinion on what the overall picture of US D&G funding suggests about how the US Government views these programs. In the past I have talked a lot about the militarization of aid. I don’t think that’s quite accurate, however. Rather, what the budget demonstrates is that the US Government is increasingly prioritizing governance and rule of law programs (especially human security) over democracy ones, such as working with civil society and political parties. This is no surprise as the Obama Administration has made clear that improved governance in weak states is central to current US foreign policy (although I have my doubts about whether the administration can achieve this ambitious objective). It’s also not a bad idea because without security, nothing is sustainable. In addition, while I do not like the idea of US D&G funding going increasingly to security, aligning with the Defense Department’s priorities is probably a good idea from a budgetary point of view because the military tends to get what it wants much more than other parts of the US Government. While this probably will result in a loss of autonomy for USAID and the State Department in D&G programs, budget protection from the Defense Department is a reasonable trade-off, from a bureaucratic politics point of view.

Overall, as I said, I am pleased. My main concern remains Afghanistan. The US will spend $1.3 billion in FY 2011 in D&G programs in Afghanistan, like the massively wasteful RAMP-UP. My fear is that one day Congress will ask the administration to account for these flawed, corruption-inducing programs as part of the broader “who lost Afghanistan” debate and that the blowback will be severe.

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The progression of an independent rule of law in China through changes in judicial practice will be enhanced through international instruments in the broader multilnational community. As China assumes broader responsibilities as a stakeholder in the international system, an independent rule of law will be fostered.

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MacGillis starts with the standard discussion of poverty in Haiti:

Development efforts have failed there, decade after decade, leaving Haitians with a dysfunctional government, high crime and incomes averaging a dollar a day.

MacGillis then talks a bit about how the crisis gives Haiti a chance to start over with a new and improved set of policies and institutions:

“It’s terrible to look at it this way, but out of crisis often comes real change,” said Ross Anthony, the Rand Corporation’s global health director. “The people and the institutions take on the crisis and bring forth things they weren’t able to do in the past.”

The early thinking encompasses a broad swath of issues. Policymakers in Washington are considering whether to expand controversial trade provisions for Haiti and how to help fund the reconstruction for years into the future. The rule of law needs to be strengthened…

the recovery effort must build up…the Haitian government and civil society…

“National disasters, as awful as they are, you want to seize those moments…said Jordan Ryan, the assistant administrator of the United Nations Development Program.”

OK, I got it. Things were really bad in Haiti. The silver lining in the crisis is that it presents an opportunity to get a new and improved Haiti. MacGillis then seems to lose the thread of the story:

There is, to an extent, a development framework in place from efforts underway before the earthquake involving the Obama administration, the United Nations, a huge network of international aid groups and a Haitian government that, despite corruption, was viewed as more reliable than any in years…the Haitian economy actually grew by 2.5 percent in 2009, despite the global recession.

“We were really making progress,” Secretary of State Hillary Rodham Clinton said Friday, before visiting the devastated capital on Saturday. “We had a good plan that was a Haitian plan. The Haitian government created the plan. It was realistic. It was focused. We worked with them…And it was certainly on track to be, in my view, a very positive effort.”

Now I am confused. If the country was making progress, why not stay with what was working? MacGillis doesn’t say. He doesn’t even acknowledge he wrote the exact opposite in previous paragraphs. Instead, he moves to the role of the Haitian government in reconstruction:

… some development veterans say a full rethinking is now in order. Gerald Zarr, who was the U.S. Agency for International Development’s director in Haiti between 1986 and 1990, said even more must be done to involve the Haitian government…

Others aren’t so sure. Putting more faith in Haitian authorities can only be done if there is a crackdown on corruption, said Stuart W. Bowen Jr.,… inspector general for the Iraq reconstruction.

Right. So the experts say we need to involve the government more. They also say the government should have less of a role. MacGillis never addresses this contradiction, either. Instead, the article moves to a few random policy areas that might be important for Haiti’s recovery:

William Loris, director general of the International Development Law Institute in Rome, points to another lesson from the tsunami: the role of the rule of law…

The international community is already wrestling with one major factor hanging over Haiti’s economic future, its crushing foreign debt…

Here, too, some progress had been made, with the International Monetary Fund announcing in July that the country’s reforms had qualified it for $1.2 billion in debt relief of the more than $1.9 billion it owed. On Friday, France contacted the so-called Paris Club, the informal group of financial officials representing the world’s wealthiest nations, to discuss speeding up relief.

OK. The international community has to get serious about reducing Haiti’s crushing foreign debt…even though they have already reduced it by two-thirds and promised to do more. Does MacGillis know he has stopped making sense? Does he care? Does the Washington Post have editors?

MacGillis then moves on to foreign aid:

Meanwhile, Peter Yeo, vice president for public policy at the United Nations Foundation, said the Obama administration needs to develop its strategy for appealing to Congress for additional aid for Haiti, beyond the $100 million in emergency aid Obama announced last week.

The use of meanwhile suggests that MacGillis isn’t even trying to make this coherent, but let’s get back to the policies:

But creating a new economy will rest on more than sacks of food and aid dollars, which is why others say the United States should revisit trade policies with Haiti…

James Roberts, a former foreign service officer in Haiti now at the Heritage Foundation, argues for liberalizing the fabric rules further, to lower Haitians’ costs. He also called for revisiting the “really destructive” U.S. tariffs on sugar to encourage growers in Haiti. Others say the United States should make it easier for Haiti to export its mangoes, which are prized by many American consumers but have faced hurdles with U.S. food safety rules

Some experts say that the answer is a rice revival.

OK.  So what do we learn from this article about what can help Haiti recover?

1. Things were bad in Haiti before the crisis.
2. Things were good in Haiti before the crisis.
3. The Haitian government needs to have big role in the recovery.
4. The Haitian government needs to have small role in the recovery.
5. Haiti needs to improve the rule of law.
6. Creditors need to write down Haiti’s debt.
7. Creditors reduced Haiti’s debt burden by two-thirds before the crisis and have already promised to do more.
8. Haiti needs more aid.
9. Encouraging the following exports may be helpful to Haiti’s economic recovery: textiles, sugar, and mangoes.
10. Haiti should grow more rice.

As I wrote earlier, I hope that MacGillis just randomly called a bunch of people who know something about Haiti and that the Washington Post has no editors, because if this is the type of advice the Haitian government is getting, it will only recover by luck.

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Today I may have a chance to explore that. The police are deployed throughout the city in anticipation of political protests sparked by the decision to keep the CBS radio station closed. The government shut down the station last year – along with several other media outlets – as part of its response to the riots that shook the capital and left 27 dead. The coalition of opposition parties, which is organizing the attempted political actions today, will also be protesting the continuation of the leadership of the highly controversial Electoral Commission.

Since I have been in Uganda I have seen cartoons in the press that have characterized the police as out of control and inclined towards violence. One of them depicted a voter about to grab a helmet to participate in the 2011 elections. Certainly Uganda has many challenges with regard to the rule of law, police discipline being one to which Ugandans are frequently exposed. The police also have a reputation among them of being highly corrupt. Moreover, the police are often irrelevant: mob justice is common here, and foreigners are even advised not to stop if they cause an accident on the road…for their own safety. Up in the region where my team works, Karamoja, crimes as serious as murder are often still dealt with through local elders and traditions (usually involving reimbursement of a certain number of cows) rather than through the Ugandan criminal justice system.

The rule of law is flouted at higher levels too: official corruption, tales of exorbitant spending, and stories of “ghost” soldiers, workers, and even clinics (with “ghost” budgets) routinely make the headlines here in the non-government sponsored papers. The fact that these stories and cartoons are a regular facet of life here is certainly indicative of a level of press freedom and independence. But the decision to keep CBS closed and other tales of media harassment demonstrate that this freedom has limits.

For example: I cannot speak intelligently about Uganda’s experience with freedom, rule of law, etc. in comparison to Rwanda, but Ugandan journalist Andrew Mwenda can, and did in an article in his Independent magazine.  It is one of the most scathing and interesting articles I have read since I have been here. He writes in response to a letter from a Ugandan politician that criticizes him for taking a positive stance on the “authoritarian” regime in Rwanda. “Colin,” he answers, “democracies do not rob their own citizens the way we are witnessing in Uganda.”

After reading his opinion piece I instinctively googled, “Andrew Mwenda death threat.” This lead me to an article in which I learned that Mwenda has been held at gunpoint by government agents, charged with 20 criminal violations including sedition, and has purportedly already survived several plots against him. Still, Mwenda says in the article, “If Museveni were like Idi Amin (the infamous Ugandan dictator), I’d already be dead.”

Now there’s the power of positive thinking. I’m off to see what the papers and the police are up to on the streets of Kampala.

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The answer lies in considerable disagreement concerning the nature of the problem.  Some argue that Zelaya’s removal was an illegal coup and hence the only way to restore democracy is to place him back in power.  Others suggest that Zelaya is to blame for his removal because he repeatedly violated the country’s constitution. Since the constitution does not allow for impeachment, it thus lacks a legal mechanism for solving the political crisis he created.  Accordingly, removing Zelaya was the only way to restore the rule of law.  Those who take the first view see the election as legitimizing the coup.  Those who take the second view see the election as a return to democracy.

For someone whose main concern is democracy, neither view seems reasonable.  On the one hand, restoring Zelaya without an enforceable mechanism for sanctioning him if he violates the Constitution again hardly seems prudent.  On the other hand, holding an election under a questionably legal government that is illegally silencing its opponents doesn’t seem sensible either.  To me, the democratic solution has to address the roots of the crisis: the Constitution’s silence on impeachment.  It’s a messy solution to be sure, but neatness is not one of democracy’s virtues.  (Interestingly, most Hondurans support constitutional reform as well.)  The instrumental path the US has chosen, condemning the coup but supporting the election, seems unlikely to solve the crisis.  Stay tuned…

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