rule of law

Judicial reform in China is moving apace to make courts independent of the local government, The New York Times' Ian Johnson reports: "Currently, lower-level courts in China are overseen by the county government, whose party boss runs the courts as a wing of the government, like the police force or sanitation services." Under the reform effort, courts would be under provincial administration.

Dockets also are being made public for the first time, and there are pilot projects to establish circuit courts to have judges from one province to hear cases from another province.

But Johnson notes that the reforms are really more making the courts efficient, rather than independent. In a prior reform effort in the early 2000s, most of the people involved in the "Rights' Defenders" movement have since been arrested or silenced, Johnson reports. 

Robert Edward Precht, opining in The Washington Post, said that China is posing a moral dilemma for the American Bar Association because of its recent crackdown on human rights lawyers. He criticizes the ABA for not impugning a recent crackdown on lawyers in China and for its vote against making a statement at the annual meeting in August against the crackdown. Opponents argued that Beijing might close the ABA office in China if the organization officially criticized the treatment of human rights lawyers. Precht says the ABA can change course and call "on the authorities to immediately release the wrongfully arrested activists and to make clear that they are not at risk of torture and other ill treatment. China’s beleaguered civil rights lawyers deserve no less."

Robert Edward Precht, opining in The Washington Post, said that China is posing a moral dilemma for the American Bar Association because of its recent crackdown on human rights lawyers. He criticizes the ABA for not impugning a recent crackdown on lawyers in China and for its vote against making a statement at the annual meeting in August against the crackdown. Opponents argued that Beijing might close the ABA office in China if the organization officially criticized the treatment of human rights lawyers. Precht says the ABA can change course and call "on the authorities to immediately release the wrongfully arrested activists and to make clear that they are not at risk of torture and other ill treatment. China’s beleaguered civil rights lawyers deserve no less."

Andrew F. March and Mara Revkin have a fascinating analysis in Foreign Affairs of the legal underpinnings of the Islamic State (ISIS)'s efforts to build an Islamic Caliphate state. They note that ISIS is governing millions of people and sees itself as building an authentic legal order based upon a "social contract with the Muslim population it aspires to govern." For example, ISIS has issued administrative guidelines for groups wishing to pledge allegiance to the caliphate, set up courts and has criminalized threats against the state and public order, crimes against religion or public morality and crimes or torts against particular individuals.

Here's a good excerpt on ISIS' theory of governance: "The caliph is seen as a custodian of divine law. His power is not portrayed as absolute, but he does have plenty of room to issue laws and policies. The system follows a classical Islamic theory of statecraft known as siyasa sharʿiyya. The term means “religiously legitimate governance,” but it implies more than just the application of formal sharia. Instead, it sets up a kind a dualistic model of law and governance. On the one hand, the system requires sharia courts for the application of Islamic legal rules in routine matters for which specific rules exist. But it recognizes that rules do not exist for every conceivable matter. And so the 'siyasa sharʿiyya' theory posits that there are legitimate authorities—from market inspectors to military commanders and governors up to the caliph himself—that have the right to make lawlike decisions as long as those decisions are issued solely with the welfare (maslaha) of the Muslim community in mind and do not violate known laws."

According to the United Nations, the court system in Afghanistan is failing women who are victims of violence, leading them to turn to mediation instead, the Los Angeles Times' Ali M. Latifi reports. Women interviewed by UN investigators reported they have to pay bribes to move the judicial process along, that they don't know how the law applies to their cases, and they fear imprisoning the men who are often the sole breadwinners for their households. Orzala Ashraf Nemat, a women’s rights activist, told the L.A. Times that mediation can be a long-term solution to domestic violence, but, on the other hand, "'in the past, we have had judges telling victims of gang rapes to marry their rapists. Clearly, there has to be a certain level of corruption in the formal systems for people to prefer mediation.'”

After dozens of schoolkids were killed by the Taliban, Pakistan has changed its constitution to allow military courts to try militants, the New York Times reports: "Among analysts and legal experts, the military courts have raised a slew of worries about the erosion of fundamental rights, the sidelining of the civilian judiciary and the prospect of soldiers’ wielding untrammeled power in a country with a long history of military takeovers." The courts, however, had wide support, even among opponents to military rule.  "Legal, political and militancy experts warn that these courts are not a panacea for terrorism, and that Pakistanis may be making a grave mistake in treating the rule of law as a negotiable commodity," especially considering the support for militancy in Pakistani society.

Rebecca Liao, writing in Foreign Affairs, reports on how China has proposed several legal reforms to provide "a stronger, more independent, and more professionalized judiciary," including separation of the courts from party interference and ensuring judges are chosen from the legal profession. The reforms are needed because, even though many mechanisms have been created for citizens to seek redress with the government, corruption also has exploded, Liao says. However, the legal reforms are not being undertaken to expand democracy in China, but to provide an outlet for democratic desires in the country without undermining party control, Lia reports: "Unable to champion true judicial independence, the ruling party’s solution is to make sure that the courts are hyper-competent and have enough structural integrity to carry out the law. China’s legal reforms are really an expansion of the state to include an organ more responsive to the people but still sheltered from the destabilizing forces of democracy."

Jeff John Roberts, writing in GigaOM, writes about how we don't have rules yet to govern the Internet connections that have been brought to physical devices--the so-called "internet of things": "The first murder through the internet of things will likely take place in 2014, police service Europol warned this month. The crime could be carried out by a pacemaker, an insulin dosage device, a hacked brake pedal or myriad others objects that control life-and-death functions and are now connected to the internet." He notes that there are completely open questions on whether manufacturers of Internet-connected devices are going to face liability for privacy breaches: "In the future, judges may start asking if the concept of 'privacy by design' should become a safety standard, and even require internet companies to adopt the same pre-cautions as auto makers or playground designers."

Marshall Erwin, writing in Just Security this week, makes the case that technology should thwart government access to user data just as it has been facilitating government surveillance until Apple and Google decided to start encrypting user data when devices are locked. "The arguments made by critics of Apple and Google assert that these changes will result in damage to the public interest by protecting criminals and those who want to do us harm. More importantly, they suggest that warrant protections are necessary and sufficient to safeguard the public interest and to adjudicate the circumstances under which the government may access data," Erwin writes. He says it's wrong to suggest that only legal mechanisms, not technical mechanisms, should restrict government access to user data.

The digital divide isn't just about access to the Internet.

The Guardian reports that most Internet traffic on the cloud comes from the developed world: "an estimated 60% of such cloud traffic came from Europe and North America, followed by the Asia-Pacific region (33%). Latin America, the Middle East and Africa together accounted for only 5%." Similarly, the rule of law to protect privacy is more advanced in the developed world than in the developing world (albeit with the caveat that the National Security Agency is engaged in massive surveillance that undermines that rule of law): as of this year, 101 countries had data privacy laws or bills in place, but only 40 developing economies have such laws or bills, according to The Guardian.

The Guardian also reports: "The Information Economy Report 2013, released on Tuesday by Unctad, the UN trade and development body, warns that the global shift towards cloud computing, which allows users to store and access data remotely, brings a range of legal as well as technological and infrastructure challenges for poor countries."