Reinventing the Rules
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Common Misconceptions About Court Reform & How This Distorts Progress
Last year, I came across a presentation at the Wilson Center by a scholar, Sophia Wilson, who was presenting research from her dissertation. Since that time, she’s published a few summaries of her work on the nuances of judicial rulings in Azerbaijan, Tajikistan, and Ukraine. She points out that often times, courts are viewed as either supportive of state policies or anti-government, but these generalizations don’t take into account that court outcomes strongly follow local norms and may be more progressive in one area but less so in another. Her research shows that courts in the 3 countries are more likely to follow or bend the law in favor of press freedom, but public norms play a strong role in why courts and police bend the law to disfavor religious minorities and women’s rights because these issues are seen as an obstacle to national unity or a threat to maintaining the family unit. Check out excerpts below and read Sophia’s suggestions for rule of law practitioners working with courts and police in these countries.
Credit: Omer Gencal
The strongest arguments for judicial independence in authoritarian regimes and weak democracies do not distinguish between the areas of the policies that the courts administer. As a result, this limits the analysis of the conditions affecting the courts’ rulings since the courts are seen only as supporters or non-supporters of government policies in particular countries.
I argue that local norms, i.e. different levels of support for rights among the populace, have a vital role in determining judicial rulings. In other words, while press freedoms are viewed by the people as a necessary and vital part of a functioning democracy in these countries, religious minorities are often seen as an obstacle to national unity and, thus, the expansion of their rights are not supported by the majority.
Why Measuring Public Opinion is Critical to Understanding the Judicial Process
When public opinion was considered, it was seen as a variable that affects judicial independence overall. This tendency led the scholars to overlook the disparity between judicial rulings, which can be anti-governmental in some instances and supportive of state policies in others. I argue that an in-depth scrutiny of this disparity would provide us with a much better understanding of the judicial decisionmaking process.
Press Freedom and the Court’s Role in Ukraine, Azerbaijan, and Tajikstan
All three chosen cases, Ukraine, Azerbaijan and Tajikistan, reflect a phenomenon found throughout the countries of Eurasia: the courts are more likely to support journalistic freedoms rather than the rights of religious minorities. While the types of court rulings in favor of journalistic freedoms differ depending on the level of authoritarianism in a given country, judicial decisions nevertheless tend to support press freedoms either through developing a public figure doctrine (as in Ukraine) or limiting the punishment for libel (as in Azerbaijan and Tajikistan). The rights of religious groups, on the other hand, are continually restricted in these countries and are rarely supported by the courts.
Factors Enabling & Constricting Courts to Support Press Freedom
In my interviews with journalists and religious minorities in Tajikistan and Azerbaijan, and analyzing court documents, I was able to determine that, indeed, even in these more authoritarian regime types there have been a limited number of cases where the courts were able to support journalistic rights. This was possible when these cases involved low-ranking politicians and, thus, the courts did not have apparent pressure from the presidential administration. The high courts also seem to respond to international news coverage of the journalists’ imprisonment, however, again, the case did not involve high-ranking politicians. One of the interesting findings of my research was the importance of the Soviet legacy of prosecutors’ dominance (in addition to that of the presidential administration) over the courts, which constricts judges and their ability to support even those civil liberties which they may deem worthy.
Another constraining variable on the courts in Azerbaijan has appeared to be the growing independence of the state from international pressure due to the increase in oil prices, which seems to have resulted in the arrest of eight journalists during the last twelve months.
In the case of Ukraine, where the rights of journalists have significantly improved since the events of the Orange Revolution of 2004, the judges are similarly more supportive of press freedoms rather than the rights of religious minorities. In the past several years, Ukraine has witnessed considerable transformation in the arena of law suits concerning press freedom.
The Role of Courts on the Rights of Religious Minorities
While there were decisions in support of journalistic freedoms, there, indeed, has not been a single court case supporting the rights of religious minorities neither in Tajikistan nor in Azerbaijan. In these countries the courts often refused to allow registration (at times even contradicting state laws) and even jailing some members on false grounds. Additionally, there have been a number of police assaults on the members of Protestant groups, especially on the natives of these countries who have been converted to these religions, which only supports the thesis that cultural beliefs affect the conduct of state officials.
In Ukraine the rights of religious minorities have not improved since the liberalizing effects of the Orange Revolution, to the contrast of the rights of journalists. On the contrary, federal state agencies have continually aimed at restricting various religious groups’ right to freely proselyte; while local agencies often go as far as preventing the registration of the churches in their areas.
Interestingly, the minority religious groups which tend to be ethnically bound, such as Jews and Muslims, have not encountered as much suppression. This seems to be explained by the fact that ethnically bound religions are less likely to threaten a transformation of national identity, since they do not aim at affecting the religious and behavioral habits of the general populace.
Soviet Norms Play Role in Why Judges Favor Community Interests Over Individual Rights
My interviews with judges in Tajikistan and Azerbaijan displayed that they understand their role as those who pacify and maintain family units, rather than those who support individual rights. In other words, the police as well as the judges tend to discourage women from filing complaints against the brutality of their husbands. Judges, in fact, admitted in their interviews that they violate the procedural code and continually ‘consult’ women to rethink and withdraw petitions. The court cases involve only cases of severe damage to women’s health and aim at resolving other conflicts by convincing women against “destroying the family.” In Azerbaijan, the courts assign short prison terms when husband’s murder their wives on grounds of jealousy and do not penalize underage marriages, reflecting the dominating local norms.
The conduct of state officials and the cultural norms that have been preserved from the pre-Soviet era resulted in judicial preferences of some rights over others. These norms encompass rights on the level of family units over individuals. This results in the violation of individual rights from the point of view of the Western scholar, while the judges of these countries may genuinely believe that they act in the people’s best interests.
Family Law: Law Enforcement Disposed to Following Public Norms Rather than the Law
The collected data demonstrates that in the cases where legal provisions of family law contradict public attitudes, institutional behavior of law enforcement agents will reflect public norms rather than the law. A comparison of law enforcement conduct with divorce plaintiffs in these countries weakens the claim that institutional limitations are responsible for restricting judicial abilities to protect women’s rights. While operating on identical civil code provisions inherited from the Soviet era, Tajik and Azeri judges behave very differently from their Ukrainian colleagues. While most Ukrainian judges easily grant divorces, Tajik and Azeri judges indulge in extensive lectures ‘about life’ which result in ‘reconciliation’ among most divorce plaintiffs. This behavior of police and judges reflects a public norm of maintaining family units despite domestic violence. The Ukrainian case shows that when there is no disparity between the law and a public norm, law enforcement is more likely to promote women’s rights.
Judicial rulings to support women’s property rights after religious marriages in Tajikistan (even though the law does not envision such protection) also undermine institutionalist claims. This behavior is, however, in line with public norms, which value the authority of religious marriages.
Judicial Reliance on Community Dispute Resolution in Muslim-Majority Countries
A vital element of dispute resolution processes in Muslim-majority countries in the post-Soviet world is the role of local communities. In Uzbekistan, for example, such neighborhoods, or mahallas, have obtained institutional status, i.e. they are a required step for family claims prior to appeals to state law enforcement. While in Tajikistan it is not officially required, women often end up solving their disputes through such local communities. Thus, the records I collected during my field research from women’s crisis centers which offer legal help to women, demonstrate that some of these centers sign agreements with mahallas in order to promote collaboration between the two entities in improving women’s abilities to address their claims.
Moreover, Tajik judges at times consult with mahalla elders to solicit character references for defendants involved in a suit. The local practice of judicial reliance on community, which remained despite Soviet suppression, demonstrates the vitality of an Islamic principle of community-based references, which often affect judicial decisions.
How the Reformulation of National Identity Affects Judicial Outcomes
The discrepancy between the legal code and judicial/police behavior in post-Soviet countries exists because current institutional laws and operational codes were inherited from the Soviet era. These laws are perceived as being imposed by an occupying power, and not as reflecting native culture. The nation-building process is often seen as a revival of identities suppressed during Soviet rule, however, post-Soviet generations were raised and educated in the U.S.S.R. Therefore, the formation of national identity in these post-Soviet countries is often built on the perception of their historical legacy. In this setting, when ruling regarding human rights, judges are much more likely to rule based on their principles, taking into consideration the perceived needs of local communities. Thus, Azeri judges insist that they often play the role of community leaders who are needed to assure peaceful relations in the community. Attempts to influence protection of individual rights through legal reforms should be undertaken only when local norms and religious principles are taken into account. Legal reform in Muslim-majority countries can provide for individual rights protection; however, it is vital that it does not appear as an attack on Islam.
Recommendations for Rule of Law Practitioners
U.S.-led legal reform should focus on reducing (1) the role of police in resolving disputes over cases of family violence and (2) strict requirements for medical expertise. My research data indicates that strict legal requirements, which necessitate heavy involvement of police in cases of gender violence, significantly hinder women’s abilities to claim their rights in court. Medical expertise procedures are not only uncomfortable for women, but medical staff representatives are often resistant to acknowledge the injuries. Thus, any possible legal reductions in these requirements are likely to enable women to make their claim in cases of violence.
Western-led training programs for law enforcement agents from the former Soviet world need to focus on and emphasize that any pressure they impose on plaintiffs to withdraw divorce or gender violence cases is a violation of women’s rights (discussing relevant provisions of international human rights law and data showing damage resulting from such law enforcement behavior). As my interviews with judges in the Caucasus area demonstrate, judges take these international trainings into account when considering which provisions of international law should be followed (or could be avoided) to prevent potential litigation in international courts.
Most importantly, local lawyers (whose associations are often sponsored by the U.S.) should be advised to provide additional training for their clients, advising them on the nature of judicial conduct. Female defendants should be informed that judges will be providing a strong pressure to prevent women from divorcing, whether attempting to shame women or insist that retaining a marriage is the only responsible choice. Women (or their counselors) have to be prepared to defend their choices (i.e. providing counter-arguments on how a husband’s violent behavior demoralizes and damages their families, etc.)
As women’s lawyers associations in Central Asia and the Caucasus work closely with local communities, it would be helpful to encourage coming to agreement as to the conditions under which mahallas would encourage women to press charges rather than insisting on solving family disputes solely within the community.
Protection of individual rights is a concept, which evolves with public discourse; rather than a condition, which naturally evolves with institutional opportunities. Thus, legal reform must be accompanied by carefully designed informational programs for the general public, which would not only educate women about their rights, but also elaborate on how these legal provisions correspond with, rather than challenge their faith. In other words, it is vital that Western-led reform and promotion of women’s rights would not be interpreted as a threat to national identity.
To read the full summaries, you can find them here:
- The Role of Courts & Police in the Development & Suppression of Human Rights in the Post- Soviet World
- Women’s Rights and Law Enforcement in the Post-Soviet World
Reinventing the Rules 