Sunday, September 11, 2011

Planting The Arab Spring's Justice Garden

Wouldn't It Be Nice?

It should be relatively easy to conclude that the uprisings of the Arab Spring originated with economic corruption.  It might be just as easy to conclude that the conditions which inspired the moves to freedom would not have occurred in societies enjoying representative democracy.

However, the exact mechanism in a democratic state which would have prevented such conditions is too often left out of the picture.  Of course, autocrats intent on extracting the economic life blood from such a country would hesitate if they had to face an election, but the actual "nuts and bolts" of defending an egalitarian system falls to a judicial system.

The track from the insults and outrages of the Arab dictators to the intentions of the people in the streets is a straight line.  If that line is to be redirected through a new more democratic government, elections alone will not provide the sole incentive to usher in better times.  In fact, given the nature of the past players, elections would not even survive very long without a justice system to defend the process.

So, the daunting task of, more or less, spontaneously generating a democracy is further complicated by the adjacent task of creating a justice system to defend it.  The creation of a modern constitution is, obviously, one of the primary objectives of those who have paid such a great price to reclaim their country.  The creation of a justice system which will function within that new constitutional apparatus may be even more complicated.

Although the countries of Western Europe and the United States are eager to assist in this process, we see some serious obstacles even before the offer is made.  These are the logical products of our past and present records.

1.  Citizens in Arab Spring countries have seen their dictatorial tormentors in the close company of US and Euro "free market businessmen" for far too long.  These "associates" to the autocracies had operated in such countries with a very durable immunity from "business practices" which would have never been allowed in their states of origin.

What passed as a local justice system in these "overseas markets" amounted to little more than a few very beholding toadies with judicial titles, and in no time at all, the local citizens found themselves utterly without recourse of any kind.  In fact, these old Arab autocracies exhibited little hesitation in the further employment of violent, brutal retribution to ordinary citizens who might foolishly seek "their day in court."

2.  Just as piquant a caution derived from the observations of the failing judicial systems in the very states who were now so altruistic in their willingness to "export justice" to the new democracies, especially the case with the United States.  Although distant and foreign, the new citizens of the Arab Spring states were not only careful observers of possible examples for their own new system but also very discerning about questionable judicial mechanisms which were too similar to the farces they had just deposed.

Finally, Addressing "Wouldn't It Be Nice"

To get things off "on the right foot," (open in a new tab) execute the following You Tube link:

Now, with the Beach Boys joyously advertising their teen age optimism in the background, we can continue.

Wouldn't it be nice if the United States could offer some direct, effective counsel to these new democracies as they endeavored to set up their justice systems?

What MeanMesa envisions here might be described as the antithesis to the long running Institute of Fascism we call the School of the Americas.  Now, this little jewel is no longer called by this title because of serious reputation for human rights problems.  It is now called the The Western Hemisphere Institute for Security Cooperation (WHISC or WHINSEC).  It was established years ago to train at least temporarily loyal military enforcers for South and Central American dictators. (more here - WIKI)

Ironically, the mission of WHISC turns out to be horribly similar to exactly what the new citizens of the Arab Spring states hated most in the conduct of their old governments.

However, the new, antithetical form of this would be an institution with a mission highly relevant to the immediate needs of the Arab Spring states.  Quite aside from the political specifics of each case, a fundamental, general component of the dissatisfaction can be traced to those in the local judicial who were bare faced cronies at the beginning of their careers or sold out at some opportune moment along the way.

Understandably, as each instance of this series of revolutions -- after reaching critical mass -- slows to face the task of legitimate rule, the deficiency of the current state of the legal system will emerge almost immediately.  Again ironically, the fate of the captured ex-dictators and their erstwhile minions may present the first hard evidence of this.

The irony arises when these old thugs begin to demand a "fair trial," hoping desperately that the "new version of a fair trial" is not too similar to their "old version of a fair trial."

The Justice School of the Hemispheres

We can use the term "hemispheres" quite comfortably, if for no other reason, because the destructive, anti-democratic products of the School of the Americas and institutions similar to it have cursed victim countries well beyond the boundaries of Central and South America.  The nations of the Arab Spring have not been excluded, and their citizens know it.

So, if you find yourself unexpectedly burdened with handling the details of your country's journey to its new democracy, the prospect of enlisting some judicial appointments may prove daunting.  Wouldn't it be nice to recruit a few honorable new judicial appointments and send them away to learn all about it in the United States?

That educational service would not be non-controversial, either.  Not only the most sought after ideal aspects of the local justice system but also the sometimes unfamiliar responsibility of being objective in the rule of law would be necessary parts of the curriculum.  In any event, the graduates of such an institution must be prepared to return to their home countries bearing the cloak of a real judicial rather than another well paid hack serving only the dictator.

Building Legitimate Justice Systems

As we consider this aspect of what confronts both the United States as a "reparative" challenge and what confronts the new nations of the Arab Spring as a "first time" challenge, we see that Americans have an advantage.  Here, we have a cultural memory of a US justice system which, at one point in the past, seemed to function.

This idea of cultural memory is an important one.  For example, MeanMesa presumes to have an eye to current US economic events somewhat more resolved than younger folk because of the memory of participating in the incredibly more successful US economy and culture before the Reagan years.  Yet, we still have to ask ourselves if we remember a pre-Reagan justice system which functioned notably better than the current train wreck.

In the new nations of the Arab Spring, the population has no particular memory of a functional justice system, of police who might actually aid a complainant, of judges who made decisions based on settled law or powerful oligarchs who showed any "reluctance" when it came to snow barrelling over what was passing as the law whenever it was convenient or profitable.

Two Arab Spring examples of this are in the domestic "news" right now.  In Egypt, quite aside from all the oligarchic looting Mubarak enjoyed for decades, the issue at his trial is his complicity in the murders of Egyptian citizens.  In Syria, the clear stumbling block in Assad's intransigence is based on fear of the same outcome.

Further, in both cases the dilapidated state of the local justice system is horribly suspect whether it is the shattered remnants of what was there before or the extremely shaky infancy of what has replaced it.  The first of the two states presently describes the current condition of the domestic system.

There is a "tipping point" which emerges in a failed justice system, and it is starkly reflected in its credibility.  Once reached, the complaints stop, expectations plummet, interest lags and trust becomes a "ghost of the past."  The cloud of un-prosecuted domestic examples run the gambit: war crimes, corruption, insider trading, war profiteering,  influence peddling and political dirty tricks galore, all frosted, finally, with insults such as the Citizen United decision.

At one time -- perhaps in better days -- citizens' voices would have publicly and reasonably demanded convictions.  Now, stoic, disheartened citizens purposefully make themselves "too busy" to even be bothered by the absence of hearings and investigation.  So much for the crime fighting "G-Men" of the country's more believable justice systems of the past.

We see this state of affairs in contemporary American justice, and the citizens of the Arab Spring see it as one which began much earlier.  The same questions arise in both places. When did we begin our national habit of tolerating such things?  When will we end it?

This is a chilling similarity when we compare it to the conditions which inspired the Arab Spring, and that chill is not missed by the US domestic equivalent of the oligarchs who now find themselves in the dock in Arab courts.  Bad behavior either has consequences or it doesn't.  Reviewing history, MeanMesa suspects it almost always does have such consequences in the long haul.

Because wealth inequality is, ultimately, a consistent measure of "justice inequality," we can return to the chart of American wealth presented in MeanMesa's last posting. (An American Oligarch Watches the Arab Spring)
Wealth Inequality - Does It Also Measure "Justice Inequality?" (chart source)
When we strip away all the labels concerning wealth and replace them with corresponding labels measuring "justice equality," we see the chilling similarity.  Although direct examples of the US justice system simply "turning over" liquid cash based on this inequality are still infrequent, direct examples of widely varied "degrees of accountability" are not.

Naturally, when accountability falls prey to unequal justice, the possibilities for rapacious business practices which should have, otherwise, carried with them swift and powerful justice have become far more attractive.  The examples are like the topics of nightmares for American -- and Arab Spring -- oligarchs: the cost of criminal defense, the artificial limits of damages in class actions, the price of procuring judicial remedy beyond the possible resources of complainants.

Justice, No Longer An American Export

Returning to our "Wouldn't It Be Nice?" idea, the citizens of the new Arab Spring states probably already know more than enough about current American Justice to view graduates of such an institute as promising, much less even acceptable.  It seems that they know more about the failing American system than we do.

Their "oceans didn't protect them" from the US system.

The basic concept of an Institute might still be attractive to those in the new nations faced with constructing a justice system from scratch, but the ideals taught there will not be anything remotely similar to what one might find in practice here.

Such an Institute, if even possible, would offer a valuable educational opportunity to us just as it would to them.

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