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Launch of the ANU Law, Governance and Development Initiative

Professor the Hon Gareth Evans AC QC, Chancellor, Australian National University, University House, Canberra, 26 July 2012

In all the years that I spent as Foreign Minister, and then President of the International Crisis Group – for nearly two decades wrestling in practice with problems of development, state fragility, and especially the prevention and resolution of deadly conflict – I don’t think there is any conclusion I came to more clearly than the absolutely central importance of getting right law, justice and governance issues: all those at the heart of this tremendously significant new ANU initiative we are launching this evening. So I am delighted that, wearing my new hat as Chancellor, I can be at least a small part of this new action.

Reduced to its basic conceptual essentials, respect for the rule of law means the non-arbitrary exercise of state power, in accordance with laws that are clear and non-retrospective; the subjection of the institutions of the state themselves to law; and the application of the law to all persons equally. These are the essential ingredients, irrespective of the system of government a country has and the particular policy content of its laws.

In too many countries, as most of us here know all too unhappily well, the law is systematically abused, ignored, or manipulated, no more than an instrument of power and oppression in the hands of ruling groups, with access to justice for most people a sham.  Over and again we find a crying need to protect the integrity and independence of the judiciary, promote honesty and accountability in law enforcement, and strengthen local institutions and organizations, including the legal profession, that are working for improvement.

The essential practical needs are for adequately resourced courts with effective administrations; well-trained, honest, and independent judges and legal professions;  procedural systems that allow matters to be dealt with quickly, fairly and justly; access to and affordability of basic legal remedies; clear and reasonable legal rules, not least those governing commercial transactions; and properly working penal systems.

I first became really acutely conscious of the centrality of these needs not just for long-term development, but in the context of  the aftermath of national trauma, when I was closely involved in the formulation and implementation of the Cambodian peace plan in the early 1990s. We got many things right, but developing institutions and processes to generate real respect for the rule of law was badly underdone, and the impact of that failure is still evident to this day. 

At the International Crisis Group we learned very early on that in these transition situations there were multiple objectives that had to be pursued simultaneously. Physical security might always have to be the first priority, but it certainly can’t be the only one, and in particular creating, or re-creating, a viable justice system and respect for the rule of law, and the governance conditions for economic development, with really effective anti-corruption measures, deserve higher priority than they have usually been given.  Afghanistan is one of the clearest examples of the last decade, with the international efforts to help create an effective police and court system having been, at least until very recently, hopelessly and lamentably inadequate.

Certainly we argued at Crisis Group, building on our experience in the Balkans in particular, that in post-conflict and crisis situations it was wrongheaded to privilege early elections over more fundamental law and governance strengthening, whatever the temptation would always be to get apparently- legitimate local ownership of decision-making as soon as possible. ANU’s own Bill Maley put the argument very well, based on his observations of East Timor, Angola, Namibia, Cambodia, Afghanistan and Iraq, in a 2006 paper of his that I often used to cite when I was in Brussels:

Elections should be preceded by concerted steps to restore a functioning judiciary and a culture of legality, and a functioning police and a culture of law enforcement … The rule of law is central to democratic civility, and without it there can be little in the way of meaningful democratic choice. Meaningful choice is free choice, and without a framework that protects citizens’ freedoms, the ‘choices’ people make should be seen as a form of theatre rather than as an exercise in popular decision making.

All this has become much more understood and accepted by policymakers in recent years. A growing convergence between security and development agendas has been apparent in the post 9/11 period with increased emphasis among donors and international agencies on the need to strengthen legal, judicial and law enforcement capacities in fragile and post-conflict states.

At the global and regional level, the World Bank and regional development banks, along with bilateral donor agencies and international agencies such as the European Union and United Nations Development Programme (UNDP), have become increasingly involved in legal and judicial reform in developing, post-conflict and transitional national contexts. Today, virtually every developing country is the recipient of one or more internationally sponsored projects or programs designed to strengthen their legal systems and institutions.

So far as our own Australian Overseas Aid Program is concerned, there has been again in recent years a marked increase in funding allocated to the law and justice sector against a broader background of mounting concern relating to political instability, disappointing economic growth, law and order problems, corruption, and the manifest weakness of many of the states in Australia’s immediate neighbourhood. Australia presently has major law and justice and/or policing engagements in Papua New Guinea, Solomon Islands and Timor-Leste. It is also involved, on a lesser scale, in Indonesia, the Philippines, Jordan, Nauru, Fiji, Tonga, Samoa, and Vanuatu.

But for all the increased activity, and all the improved understanding of why it is important, I don’t think there is anyone who believes that we have it all right, and that there is no real need in Australia or internationally for more research as to what works best, for more training for those crafting and implementing these programs, and for better collaborative outreach between those working in this field. On the contrary, all these things are critical, and this is exactly where this new ANU law, governance and development initiative fits in.

A collaborative endeavour between the Colleges of Law and the Asia-Pacific, the initiative is intended to focus on the Asia-Pacific region, bringing together cross-disciplinary expertise for teaching, research and outreach activities. Partners within the College of Asia and the Pacific include the Regulatory Institutions Network (RegNet) and the State, Society and Governance in Melanesia Project (SSGM).

Four substantial initial activities are involved in the initiative:

First, is today’s inaugural conference on Law, Governance and Development in the Asia-Pacific, with its excellent discussions on the themes of local justice institutions, and fragility and conflict – as most of you hardly need me to tell you, since you have been sitting through it.

Second, there are the postgraduate programs in law, governance and development (LLM and Grad Dip), which commenced in 2011, covering  regions such as the South Pacific, Southeast Asia and East Asia, and addressing highly topical issues such as climate change and displacement, law, order and state-building, human rights, humanitarian and refugee law and anti-corruption.

Third, there is the about to be launched website/resource hub on ANU law, governance and development expertise, which will showcase cross-College expertise for the purposes of teaching, research and outreach. The website’s research networks will embrace the areas of state fragility and conflict, access to justice and legal empowerment of the poor, environmental law and sustainable development, international law and rule of law reform.

Finally, there is the establishment of an annual law, governance and development visiting fellowship, designed to strengthen collaborative research and training links with other universities in the Asia-Pacific, starting with the University of the South Pacific.

The new ANU initiative views the concept of 'law, governance and development' in a broad sense, encompassing all the institutions and mechanisms which support developing countries (including international trade and investment regimes, and international financial institutions). But, as will be apparent, it  has a particular focus on law enforcement, policing, strengthening the rule of law, governance, human rights, integrity and anti-corruption measures, security, judicial training, court systems, access to justice, electoral reform and constitutional reform.

The initiative builds on the huge experience and expertise of ANU staff in legal assistance programs, and derives huge benefit – as does everything we do with practical and policy implications – from the proximity of ANU to Federal government agencies such as AusAid, DFAT, the AFP and Defence. 

It is an outstanding example of this Australian National University of ours living up to its national name, identity and location, and a foretaste of the many more things we plan to do – some of them outlined in last week’s program of intense activities sponsored by the new Crawford School and Institute of Public Policy – as we develop to a whole new level this University’s longstanding commitment to excellence not only in teaching and learning, and in traditional research, but in public policy outreach.

So I am very pleased and proud, with all the baptismal authority vested in me as Chancellor, to declare this new baby – The ANU Law, Governance and Development Initiative – duly launched upon the world.