Section 2.2 Transplant Evaluation: Developing an evaluative test for the ICPC and the CNL
2.2.3 An evaluative test for the ICPC and the CNL
What yardsticks should, then, be adopted for evaluating the ICPC and the CNL? As noted, what emerges from evaluative studies of legal transplants in general and from the experience of criminal law reform involving legal transplantation is that local
129 Nelken, note 81, p.37-39 130 ibid, p. 48 131
Grazl, et al The Choice in the Lawmaking Process: Legal Transplants vs. Indigenous Law (2008) available at http://ssrn.com/abstract+1130124; p.5
132
58 environment matters. Success or failure is connected to local contextual concerns such as local ownership, participation and commitment to reform. Evaluations of legal transplants in post-intervention states must therefore be responsive to the idiosyncratic legal requirements of the country concerned at the time of its introduction and during the course of the evaluation, placed in the wider context of its legal traditions, cultural considerations and social, economic and political concerns. These issues, then, must be addressed in the context of Afghanistan and its criminal justice system at the time of the enactment of the ICPC and the CNL and during the period of their application for the purposes of evaluating the success of these laws.133
While these wider issues must be borne in mind, I suggest that two fundamental questions should also be addressed. Firstly, has the legislation established by way of legal transplant been accepted by the local population of the recipient post-conflict country? And secondly, has it achieved the objectives for which it was enacted in the context of the post-conflict situation in which it was introduced?
The issue of a laws ‘acceptance’ is connected first and foremost to the manner in which it is applied. The choice of appropriate performance indicators for assessing the application of a law will depend on the institutional capacity and infrastructure available to enable data collection. Objective performance indicators such as offending levels, detention rates, prison populations, trial length data, human rights abuses conviction and acquittal rates can be important for assessing the manner in which criminal legislation is being applied.134 These quantitative variables are certainly informative. Nevertheless, they are dependent on the availability of reliable data and data collection systems which may not be available or which may make take considerable time to establish in post-interventionist states such as Afghanistan, where the implementation of criminal law has been conditioned by severely damaged infrastructure and institutional capacity.135 A key factor, however, in assessing the application of law is gauging the manner in which a law is being applied by local practitioners. Beckstrom’s study in Ethiopia noted that ‘judges and lawyers practicing new laws are in the front line
133
These matters will be addressed in Chapter 3
134
Vogler, note 41
135 UNODC reported that ‘it is difficult to accurately measure progress [of programmes aimed at
strengthening counter-narcotic law enforcement capabilities] because record-keeping and data collection procedures do not always meet acceptable standards and are, in some instances, superficial;’ UNODC,
Thematic Evaluation of the Technical Assistance Provided To Afghanistan By The United Nations Office On Drugs And Crime, (2008) Vol 3, Law Enforcement Programme, available at
www.unodc.org/documents/evaluation/2007-afghanistan.pdf, p.12; UNODC, Afghanistan. Implementing
Alternatives to Imprisonment, in line with International Standards and National Legislation, (2008) available
at www.unodc.org/documents/justice-and-prison-
59 of the confrontation between new laws and the nation. The acceptance and effectiveness of the entire legal order depend in the first instance and for the most part on these men.’136 The acceptance of transplanted criminal law in conflict states will, it is
proposed, be fundamentally linked to the way in which it is being applied by local police, prosecutors, defence lawyers and Judges.
A law is more likely to be applied, and therefore accepted, if it is valued and considered meaningful and appropriate by its local users. Berkowitz suggests that for law to be effective ‘it must be meaningful in the context in which it is applied so citizens have an incentive to use the law.’137 The more familiar that the legal authorities of the receiving
country are with the transplanted legal concepts, the more likely it is that they will be successfully adopted. This resonates with Dezalay’s argument that the success of a transplant is tied up in the extent to which the local society will deem it worthy of investment.138 It also connects with the work of Brooks on ‘norm-change’ promotion in rule-of-law projects. Brooks argues that ‘formal law will be most successful when its rituals are widely acknowledged as meaningful and appropriate.’139
This strand of the proposed evaluative test for legal transplants advocates contemplation about justice being acceptable to the local population. In line with Beckstrom’s views on the value of local legal practitioners to legal transplantation, a transplanted law will have an improved prospect of being successful if it is considered meaningful and appropriate by the citizens it affects and the legal actors and law enforcement agents who are applying it. This includes the police, prosecutors, judges and defence lawyers. The more meaningful and appropriate a law is considered to be by this cohort of the local population the easier it will be for them to understand and enforce, improving the prospects of it being successfully transplanted. In evaluating the ICPC and the CNL it will be important therefore, to guage as far as possible the extent to which this section of the local population consider them meaningful and appropriate in the context counter-narcotics and criminal justice in Afghanistan. It is likely that this will be largely conditioned by the degree to which these two laws are considered to be compatible with the country’s established legal order as regards criminal procedure and counter-narcotics. The more compatible a transplanted law is with the established legal order of the host country, the more likely it is to acquire meaning by the local population
136 Beckstrom, note 3, p. 561 137 Berkowitz, note 51, p.167 138 Dezalay, note 106, p. 253
139 Brooks, note 117. Brooks uses the term ‘norms’ to mean ‘widely shared attitudes and their associated
60 and be considered appropriate for use by them, to the extent that it is accepted and successfully absorbed into the legislative framework for the country.140 This resonates with the findings of both Berkowitz and De Lisle’s studies that advocate close approximation between the legal traditions of an adopting country and a legal transplant in order to ensure the transplantation of effective laws. It is essential, then, to consider these laws closely within the context of the plural legal traditions that make up Afghanistan’s criminal justice system.
Assessing the acceptance by the local population of a law transplanted to reform the criminal law framework of a post-conflict country does not in itself provide sufficient information to evaluate whether it has failed or succeeded. It is also necessary to consider a law’s objectives and the extent to which they have been achieved. The objectives may be discerned from the reasons behind the development of the law or articulated within its provisions or by those involved in drafting it. If law reformers choose to rely on legal transplants as mechanisms for legal reform it is reasonable to assume that they do so for a reason with specific objectives in mind which they believe the transplanted law can fulfil. An assessment of these identifiable objectives and the extent to which they have been fulfilled allows for consideration of the particular country-specific, post-intervention complexities with which law reformers are faced when drafting new law.
This proposed test urges that transplanted is evaluated within its socio-legal context. Its acknowledges, therefore, that the legal history and traditions of a country will inform the extent to which a transplanted law may be regarded as meaningful and appropriate and that variables such as available infrastructure, development and capacity building can impact on its application and potential for achieving its objectives.141
This test also insists that the motivations for relying on borrowed foreign law, and the identity of the motivators, require analysis because they can affect both the process of transplantation and transplant success. As previously noted, transplants may be employed by law reformers for reasons of expediency and efficiency or to save costs. Grazl has recommended that it is more cost-efficient to ‘free-ride on the investments of other jurisdictions’ and adopt transplants than to develop laws indigenously.142 This
140 Belton, note 29, chapter 1, who maintains that ‘while customs without material institutions can manage
to uphold some rule-of-law ends…institutions without customs are weak and easily circumvented by raw power’; p.22
141
Krygier, note 94, chapter 1, p.9
142
61 supports positive Watsonian theory that law is autonomous and can develop by transplantation without recourse to the local context of recipient jurisdictions. More than this, in terms of the efficiency of lawmaking, Grazl maintains that ‘a transplant, even if externally-driven and a poor match to local reality, may be better for society than pursuit of home grown legal solutions.’143
This runs against the grain of arguments that lawmaking and in particular that connected to the reform of criminal justice systems is always a cultural endeavour that should be critically attuned to local conditions. However, what is ‘better’ for a society in terms of efficiency, does not necessarily ensure successful legal reform. As Miller points out, ‘cost-savings hardly guarantee success.’144 Furthermore, law-making that is motivated purely by speed and finances
can be associated with negative connotations of ‘lazy’ lawmaking and legislative reform strategies geared towards quick-fix. According to Miller transplantation of this nature ‘involves a drafter who when confronted with a new problem pulls a solution from elsewhere off the shelf of the library to save having to think up an original solution.’145
Motivations of expediency can result in reduced consideration of local context and needs which may impact negatively on potential transplant success.
I have noted in chapter 1 that post-intervention rule of law reform programmes have been motivated to adopt transplants to modernise criminal justice systems in order to install international human rights standards. Similar modernisation programmes undertaken in Japan in the 19th century and Turkey in the 1920’s were nationally-led, whereas recent criminal justice reforms in post-intervention states, including that undertaken in Afghanistan, of which the ICPC and the CNL are examples, have been driven by agents, countries and bodies external to the countries receiving them. Modernising transplanted reform driven by external agents and motivated by international concepts without the endorsement of nationalism may lack legitimacy and, as a consequence, struggle to be accepted by local populations.146
Modernising legal reform that is ‘externally-dictated,’147 and which involves legal
transplantation can either be received with gratitude or regarded as an imposition, depending on the circumstances of reform. Imposed legal transplants can certainly result in legal change. The 19th and early 20th century witnessed extensive transplantation of legal systems from European nation states such as England, France,
143 ibid, p.31 144 Miller, note 4, p.846 145 ibid, p.845 146 ibid 147
62 Germany, Spain and Holland to various recipient countries through processes of colonisation and imperialism.148 The spread of trial by jury is largely the result of British imperialism.149 The common law jury system was transplanted from Britain to North America in the seventeenth century150 and was introduced into India in the late eighteenth century.151 British expansionism also led to the adoption of the criminal trial jury in South Africa in 1828 and Australia in 1832.152 More recently, legislation required to introduce a new criminal procedural code, criminal code and laws on witness protection had to be imposed by Bosnia’s high representative in 2002 because the Bosnian Parliament was unable to gain sufficient votes to promulgate these necessary reforms.153 International rule of law initiatives, while seeking to benefit the populations of the societies involved are certainly valuable and worthy. Nevertheless, they can also reflect western and more particularly US motivations of promoting stability and combating concerns such as terrorism and international drug trafficking. This can be translated into legislative reform which, on the one hand appears to augment national development, while on the other hand serves western and US foreign-policy stabilisation interests. The requirement for rule of law reform can motivate US legal intervention and indeed hegemony, which has been articulated through agencies such as the United States Agency for International Development (USAID) and CEELI that actively promote US interests by dominating criminal procedure reform. The motivation to extend influence on legislative rule of law and criminal justice reform can result in the transplantation of US-based and western legal models which, as the ICPC and the CNL demonstrate, has been relevant to the Afghan experience following 2001.154
There is, furthermore, a better prospect of imposed foreign laws promoting the desired technical and societal changes to the receiving countries if a large proportion of the population accepts, understands and implements them.155 The prospects of them doing so are reduced in situations where they are regarded negatively by local populations and politicised as tools of imperialism and expansion. This is more likely to be the case when the capacity of the receiving states is so weak that they have little choice but to accept the transplanted reforms. The perception of a transplanted law being imposed in
148 Berkowitz, note 51 149 Vogler, note 7, p.125 150 ibid, p.126 151 ibid, p.129 152 ibid, p.226 153
Call, note 3, chapter 1, p.250
154
In addition to the ICPC and the CNL, a Juvenile Justice Code was introduced in March 2005, and a Law on prisons and Detention Centres in May 2005, both of which were drafted by a team coordinated by the Italian Justice Project Office (IJPO). See UNAMA, Justice Sector Overview (April 2007), held on file, p.6
155
63 the interests of foreign colonialism can be increased when law reform is backed by military force, which is often the case during rule of law promotion programmes in post- conflict countries, such as that undertaken in Afghanistan. Visible foreign armies can provide coercive authority for lawmaking, but at the cost of local scepticism and, worse, contempt, which can undermine the effectiveness of transplanted law and ultimately, efforts to promote rule of law. Brooks warns that ‘in Afghanistan claims to represent and advance the rule of law will inevitably be contrasted with our often ham-handed use of coercion.’156
There is perhaps a greater risk of new modernising positive criminal law transplanted to reform state law in a country with plural influences on its criminal justice system being regarded as a foreign imposition when the procedures it introduces are perceived as threatening to non-state legal influences, such as religious or customary practices. Transplanted law may serve only to highlight and increase the differences between the competing systems of justice resulting in greater polarisation between the adherents to them.157 Perhaps some prior account needs to be taken, therefore, of the extent of the impact that transplanted state criminal law, such as the ICPC and the CNL, will have on other legal traditions affecting criminal justice. If not, according to Suhrke this form of modernisation risks amounting to ‘a form of Western dominance that leaves the recipients little genuine choice and delivers destructive forms of development.’158
The motivations for relying on legal transplantation can, then, have implications for the process of making law by transplantation and on transplant reception. The need for urgent and expedient legal reform can motivate legal transplanted solutions but at the risk of limited consideration for local context and legal traditions. The requirement for modernisation can also motivate legal transplantations, but at the risk of creating law perceived locally as an imposition, particularly when combined with a foreign military presence. Moreover, if reformers are motivated to rely on legal transplants to develop law in countries with plural legal traditions greater sensitivity towards the complexity of the relationship between the various sources of law may be required. Without any consideration of these consequences, legal transplants risk developing into ‘lethal’ transplants that can promote injustices as opposed to justice. These issues also demand analysis in the context of my proposed evaluative test.
156
Brooks, note 117, p.2328.
157 Weinbaum, M.G. ‘Legal Elites in Afghan Society’ International Journal of Middle Eastern Studies,
(1980) 12(1), 39-57; p.24
158
64 This is an original test designed to achieve a balance between the positivist position of Watson, which emphasizes the practical utility of legal transplants as means for developing logically applied legal rules, and socio-legal viewpoints, espoused by commentators such as Kahn-Freund, Kanda and Milhaupt and Berkowitz, which highlight the impact of legal traditions, legal culture, local participation, economy and politics on transplant success.
It brings both of these positions together. Those limbs of the test that consider a law’s application relative to objective performance indicators and the extent to which it has achieved its objectives require positivist examinations of the law’s provisions as logically applicable rules and the collection of quantitative data to measure its application performance. The other limbs of the test which explore the extent to which a law is considered meaningful and appropriate to the legal actors responsible for enforcing it and the manner in which it is being applied by them require socio-legal inquiries into variables such as compatibility with legal tradition, local interpretation, capacity, training, commitment to the law and social, political and economic concerns. The success of a transplanted law can be gauged by taking an overall perspective following assessments of all limbs of the test. The greater the extent to which a law has been accepted and achieved its objectives the more successful it will have been.
Conclusion
The number and variety of motivational forces for legal transplantation underlines the practical significance of legal transplants for criminal law reformers and their importance as a form of legal development.159 Moreover, the overwhelming historical evidence that legal transplants have been responsible for the development of new criminal law for a considerable period of time in many of the world’s criminal justice systems demonstrates that it is, as Damaska has observed, ‘natural’ for legislators to rely on them, particularly when engaged in the reform of criminal law frameworks of post-intervention states. Indeed, the ubiquity of legal transplants in the field of criminal law implies that it would be bad practice not to consider them as vehicles for developing new law. As Jhering cautions ‘no one bothers to fetch a thing from afar when he has a good or better at home, but only a fool would refuse quinine because it didn’t grow in his back garden.’160 While academic literature on legal transplantation
159
Kanda, note 3, p.889
160
65 reveals fundamental disagreement over transplant existence and feasibility, which reflect differences of opinion on the wider relationship between law and society, the