SU­SAN HIRSCH

‘When laws don’t ap­ply equally to ev­ery­one, it is a clas­sic case of tyranny’

The Malta Independent on Sunday - - FRONT PAGE -

SU­SAN HIRSCH, Pro­fes­sor of Con­flict Res­o­lu­tion and An­thro­pol­ogy at the Ge­orge Ma­son Uni­ver­sity in the USA, is in­ter­viewed by Kevin Schem­bri Or­land about her views on the rule of law in gen­eral, the ef­fects of far-right groups, and what ci­ti­zens should do if the rule of law starts be­ing ig­nored in their coun­try. She teaches once a year at the Uni­ver­sity of Malta; her uni­ver­sity part­ners with UOM in an in­ter­na­tional Mas­ter’s de­gree in con­flict res­o­lu­tion and Mediter­ranean se­cu­rity. She will de­liver a lec­ture en­ti­tled “The Call for Rule of Law: A Fem­i­nist Ap­proach to Peace and So­cial In­clu­sion through Jus­tice”. The lec­ture is be­ing held on 17 May at San An­ton Palace and is be­ing or­gan­ised by the Pres­i­dent’s Foun­da­tion for the Well­be­ing of So­ci­ety

What will your talk be about?

I have been study­ing rule of law for around a decade. What peo­ple do in the name of the rule of law has been an in­ter­est of mine for quite a long time. I am a cul­tural an­thro­pol­o­gist, trained in the area of le­gal an­thro­pol­ogy, and I also work on con­flict res­o­lu­tion. In the midst of con­flict, law breaks down. It can break down in very vi­o­lent and de­struc­tive ways.

One area I am in­ter­ested in is how you re-es­tab­lish rule of law in sit­u­a­tions of vi­o­lent con­flict and I have con­ducted stud­ies in East Africa, specif­i­cally Kenya and Tan­za­nia.

Rule of law is a ques­tion in a lot of places, and my talk will not only deal with sit­u­a­tions where it breaks down com­pletely, but it will also deal with sit­u­a­tions where there is a call for rule of law, where peo­ple are con­cerned about it, and that can hap­pen in func­tion­ing democ­ra­cies and in our own con­tem­po­rary so­ci­ety. I have been hear­ing this a bit more, think­ing of my own coun­try; my talk will deal with what one can do where there are calls for rule of law, what it means, and how it re­lates to con­cerns about rule of law else­where in the world.

In a coun­try where rule of law does break down be­cause of con­flict, how do you go about re­build­ing it?

There are a num­ber of dif­fer­ent ways to achieve this, and this is some­thing the con­flict res­o­lu­tion field works on. We some­times call it tran­si­tional jus­tice, mov­ing from a stage of break­down to­wards a more peace­ful so­ci­ety. You first have to get peo­ple to talk to each other and think about what hap­pened, un­der­stand the harm done. Part of get­ting peo­ple to talk to each other means get­ting them to trust each other again, which is a ma­jor step. Trust is hard to build, es­pe­cially where there was violence or when the state has been vi­o­lent.

You can bring peo­ple to­gether through dia­logue, or fol­low South Africa through truth and rec­on­cil­i­a­tion – and there are a num­ber of mod­els sim­i­lar to this. Some­times there has to be le­gal reme­dies, pos­si­bly tri­als to hold peo­ple ac­count­able in some way. You need to re­build the le­gal sys­tem, and if there are con­cerns as to who is con­trol­ling the le­gal sys­tem you might need to vet judges, en­sur­ing the peo­ple in power now were not part of the prob­lem.

There are many other as­pects which then also come into play, such as re­build­ing in­fra­struc­ture, tak­ing care of trau­ma­tised vic­tims and so on. But you need to get peo­ple think­ing dif­fer­ently, as to how they are to­gether as a com­mu­nity, and re­build their re­la­tion­ships. It can take a while and the ed­u­ca­tion sys­tem is im­por­tant.

In Europe, far-right groups are gain­ing more power. Can that even­tu­ally lead to hav­ing an ef­fect on the rule of law?

There can be con­cerns about democ­racy with the rise of ex­treme groups, groups that hold ex­treme views or de­monise oth­ers they do not want to form part of so­ci­ety. Ex­treme views that de­monise oth­ers are the most wor­ri­some, as this can lead to marginal­iza­tion and de­hu­man­iza­tion in so­cial and po­lit­i­cal life. When you have ex­treme po­lar­i­sa­tion, it is a recipe for peo­ple no longer trust­ing each other, no longer col­lab­o­rat­ing in the project of democ­racy. There’s a great new book called How democ­ra­cies

die, and ex­treme po­lar­i­sa­tion and ex­treme par­ti­san­ship is a warn­ing sign...

Could there be an ef­fect even in the case of nonex­trem­ist move­ments, where in a demo­cratic state for ex­am­ple there would be heavy par­ti­san­ship be­tween two par­ties?

It might have an ef­fect as it means that col­lab­o­ra­tive de­ci­sion­mak­ing, col­lab­o­ra­tive so­lu­tions that would be use­ful for ev­ery­one could be more dif­fi­cult to achieve. Par­ti­san­ship par­tic­u­larly if there is ma­nip­u­la­tion of votes then it can be very dif­fi­cult, as it means that peo­ple can be cut out from their demo­cratic right.

I have the US in mind now and some of the things that hap­pened in terms of lim­it­ing the peo­ple’s right to vote, or ma­nip­u­la­tions that shape peo­ple’s views aimed at mak­ing them more ex­treme and more likely to hold onto a party view. That can re­sult in peo­ple no longer be­ing in­ter­ested in col­lab­o­rat­ing in the wider scheme of things. It be­comes dif­fi­cult to find com­mon so­lu­tions and democ­racy can get stuck, which can erode the rule of law as well.

What are the warn­ing signs that rule of law is un­der threat in a democ­racy?

In the very ba­sic sense, the rule of law is a com­mit­ment to en­sure that laws are fair, pub­li­cised, clear, and ap­ply equally to ev­ery­one. There is also ac­cess to jus­tice, so ev­ery­body should be able to have some say in those laws and use the jus­tice sys­tem in a fair and equal way. If there are prob­lems with any of those, then you know you have a rule of law prob­lem.

A clas­sic warn­ing sign is when peo­ple who have great power are above the law, when the laws do not ap­ply to them. That is a clas­sic sit­u­a­tion of tyranny and peo­ple call that a vi­o­la­tion of rule of law. When laws or the law-mak­ing process are not trans­par­ent, when courts don’t func­tion ef­fi­ciently, when peo­ple don’t trust the po­lice, these are all ar­eas where there would be a prob­lem with the rule of law.

When peo­ple are not treated equally un­der the law, that can raise ques­tions about the rule of law. It only works if we all feel like we have a stake in the le­gal sys­tem, and that we can get jus­tice through the le­gal sys­tem. As soon as you see some peo­ple be­ing counted out, then the le­gal sys­tem could be­gin to lose le­git­i­macy or peo­ple could lose in­ter­est in it.

What hap­pens if a sec­tion of so­ci­ety be­lieves the rule of law is in trou­ble, while the other side says there is no prob­lem? How do you re­pair that bond?

In those cases, you are look­ing for pub­lic spaces for con­ver­sa­tion, and you are try­ing to un­earth the is­sue and en­sure it is brought to at­ten­tion and can’t go away. The me­dia is very im­por­tant there as they are of­ten the site for pub­lic dis­course. You don’t just want peo­ple to keep say­ing that there’s a prob­lem; you need some kind of mech­a­nism to take ac­count of the claims and be able to ad­dress them. We hope to turn to leg­is­la­tures or re­spected pub­lic of­fi­cials to hear the plea, and some­times we turn to the courts. Well-func­tion­ing courts are a bet­ter place to make those kinds of claims.

If there can be healthy dis­course where there is trade-off and com­pro­mise, then I be­lieve there is still a healthy func­tion­ing democ­racy. But when there is a shut­down, when one side can­not be heard in the me­dia or where one side is so in­tim­i­dated that they do not put for­ward their views self­cen­sor­ing out of fear, or when a group is so­cially ex­cluded and can­not make their points heard, there is a prob­lem.

In the USA and parts of Europe, we have very vul­ner­a­ble pop­u­la­tions of mi­grants for ex­am­ple, who have many claims that would be good to be heard, about their treat­ment and be­cause of the pre­car­i­ous­ness of their lives can­not have a voice.

There has been a clash in Malta over the rule of law; do you have an opin­ion on what has been go­ing on?

It is dif­fi­cult for some­one com­ing from out­side Malta to ex­press an opin­ion about the right or wrong of one side or the other. Some out­siders who have done that re­cently came in for a lot of crit­i­cism so I’m go­ing to stay away from that.

The only thing I will say is that when you hear a call for the rule of law, when you lit­er­ally hear that phrase which I think is rel­a­tively re­cent in both your coun­try and mine, it is im­por­tant to pay at­ten­tion and know that maybe there is some­thing that needs to be done.

It prob­a­bly isn’t a sim­ple fix,

and is not just about chang­ing a gov­ern­ment or a per­son. If it gets to the point where there’s a call for the rule of law then it’s a good time, an op­por­tu­nity to look at the sys­tem as a whole and iden­tify any gaps. Do peo­ple feel like they are be­ing treated equally across the board? Do laws ap­ply equally for all? Do they feel they are be­ing heard and is there space for in­put for laws? Is there space to do some­thing if you feel you’ve been wronged? Is there trust in the au­thor­i­ties?

It is a good op­por­tu­nity not to think of there be­ing a quick fix, but to look at whole el­e­ments of the sys­tem and see if there are any gaps.

In Malta, the voices of refugees are not of­ten heard, and there is an­timi­grant back­lash from sec­tions of the pub­lic. How do you rec­on­cile that sit­u­a­tion?

Some­times we hear ex­treme voices in so­cial me­dia, from peo­ple who are mo­ti­vated to put for­ward some­what threat­en­ing lan­guage to si­lence those who are marginalised, yet I don’t think they speak for ev­ery­one. There are other voices out there and I think there is a lot of good­will. We have a lot of in­ter­ac­tion in schools. Of course, mi­grants are such a di­verse group in Malta. I think there is more and more in­ter­ac­tion among peo­ple and there is po­ten­tial for bar­ri­ers to break down.

A re­ally pos­i­tive sign is the ex­is­tence of mi­grant-led or­gan­i­sa­tions, and they are find­ing their voices. A lot of it has to do how peo­ple con­nect with one an­other, how new­com­ers to Malta deepen their abil­ity to con­trib­ute to Mal­tese so­ci­ety, through learn­ing the lan­guage and through em­ploy­ment.

The in­sti­tu­tions of civil so­ci­ety might be the space for in­te­gra­tion to hap­pen through dia­logue. In ad­di­tion, young peo­ple tend to reach out across lines of dif­fer­ence.

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