'We must not make a scarecrow of the law'

An interview with

Kevin Maguire

Rule of Law Development Advisor

The 'Rule of Law' as a concept is fundamental to governance in a civil society. Yet, there are great differences at times in how the process of justice is implemented. In this wide-ranging interview Kevin Maguire takes us on a fascinating journey through his experience in legal development work in some of the most challenging conflict and post-conflict regions of the world. He talks about the historical importance of alternative dispute resolution in some societies as well as the need for greater support from legal professionals of the developed world towards the developing world.

Kevin Maguire is a lawyer from Melbourne, Australia. He practised law at the Melbourne Bar and Legal Aid before focusing on international development work in the field of 'rule of law' in the late 1990s. He has worked in a number of countries in Asia, the Pacific, Africa and the Caribbean in his rule of law work including in Cambodia, Fiji Islands, Sierra Leone, Sudan and Bangladesh. His international development work has been in conjunction with international organisations such as the United Nations, AusAID, the Commonwealth of Nations and the Special Court for Sierra Leone (War Crimes Tribunal). 

TheLawMap: Having worked in Cambodia, Fiji, Sierra Leone, Sudan, Bangladesh and many other countries, are there noticeable similarities in the goal and focus of the legal profession across these nations?

In my work as a rule of law development adviser I worked mainly with the courts and the judiciary but necessarily became involved with the lawyers in these jurisdictions. The problems they face in these countries are significant. All these countries have at times been disrupted by conflict from the genocide in Cambodia to the series of coups in the Fiji Islands. Many of those who suffered as a result of these conflicts have been lawyers, for example, it is believed that no lawyers survived the rule of the Khmer Rouge in Cambodia.

In these circumstances the legal profession has faced considerable problems in trying to re-establish itself. Often the lawyers have been poorly trained and lack the skills necessary to be competent lawyers, and there has also been a serious shortage of lawyers in some of these countries.

In this environment of political upheaval resultant from conflicts, it has led to significant levels of corruption and the legal profession have not been immune from that. In the courts in many of these countries it is corruption that will decide the outcome of a court case. Unfortunately lawyers play a significant role in this process. I recall a discussion I had with the head of the Human Rights Commission in one of these countries who was also a law professor at the law school. He told me he came across a former student at the courts who was in tears and he asked what was causing him so much distress. The lawyer told his old law professor that his principal had sent him to court with money to pay a judge a bribe, and this was completely contrary to what he was taught by his law professor. The challenges these lawyers face are significant.

A particular challenge the legal profession faces in many of these countries is the lack of discipline of the lawyers. In some cases Bar or Law Societies do not exist, or if they do, they are ineffective and unable to control and discipline their lawyers. In some cases they are not able to ensure that the lawyers are in fact legally qualified. This is important as in one of these countries private “law schools” have emerged where it is generally accepted that students pay for a degree without even attending courses.

It is important to note however that there have been a number of committed and highly competent lawyers I have met in my work in these very same countries, who are aware of the problems and doing what they can in very difficult circumstances to perform as a lawyer and to develop the legal profession in their country.

I think it is important that lawyers from developed and disciplined legal professions should do what they can to assist these lawyers in their difficult task of developing their professions and ultimately the rule of law in their countries.

TheLawMap: Following on from the question above, does the legal process as a means to resolving conflict have exactly the same meaning everywhere in the world?

One of the most interesting features of my work has been identifying and examining different means of resolving disputes in the countries I have worked in. It should be remembered that the formal justice system as we know it is a relatively new process, and based upon dispute resolution systems that have been developed over many centuries.

A good example is Sudan and the region of Darfur. Dispute resolution systems have been developed over many years in the region and extend to deal with regional as well as individual disputes. At the regional level they have a system that deals with disputes amongst the regions of Darfur. At the tribal level they also have systems that deal with tribal disputes, and finally at the local level they have systems that deal with disputes within the tribes and amongst individuals.

This has all been severely fractured by the war that remains ongoing, but it does offer a good example that societies do draw on established dispute resolution systems without relying on the formal justice system as we know it. It is also interesting to note that the senior leaders in Darfur had told Kofi Annan in his report on the Darfur war, that they believed many of the problems could be solved by using these established dispute resolution systems.

Another interesting system of dispute resolution is the one I came across in Zambia where they have set up “local courts” which are informal dispute resolution hearing where three person panels conduct hearings without the presence of lawyers. They therefore combine elements of the formal justice system and more traditional dispute resolution. I am told that over 70 percent of the cases that come before the legal system in Zambia are resolved by these courts.

These are just two examples where dispute resolution is not dealt with by the formal justice system as we know it, but by more traditional means or a combination of the old and the new. I believe that countries like Sudan and Zambia do have a comparative advantage where they are able to draw upon traditional means of dispute resolution, whereas we in developed countries do not have that advantage. We could learn a lot from these countries and their manner of dispute resolution.

TheLawMap: What does your present role as a rule of law development adviser entail?
The question that is posed is a good one and the answer has only become apparent to me over time. I recall when I first started my work on an AusAID justice project in Cambodia I had little or no knowledge of what was required of me as an adviser. Yes, there were project documents and outcomes and activities and all the paraphernalia that comes with documented development work, but I really didn’t understand that ultimately it was about assisting what my counterparts wanted to achieve. That was assisting them to develop the rule of law in their country, which would ultimately lead to opportunity for all their citizens to resolve disputes in a fair legal system.

The countries I have worked in all have had different needs from the very basic issues that arise in a country like Cambodia to a well-established justice system like the Fiji Islands which needed just a little modernising in things such as case management.

My work is mainly with the courts, and as such the work has been with the judiciary and court staff. By necessity it also involves work with the police, prisons, legal profession and legal NGOs which all form part of the legal system in any country. This work could be anything from developing training departments so that my counterparts can develop and deliver effective training programmes for the judiciary and court staff, to providing some form of material support.

It has also involved an informal mentoring role. I have noticed over time that once my counterparts have become comfortable with me and trust me, they will come and seek advice on matters from court process to how I would approach a particular legal issue. I have also noted that once I have established trust with my counterparts that I have been able to achieve a great deal more in my development work.

Beyond the training, material support and mentoring/advice, I believe that my presence, and the presence of other advisers, has made it easier for the courts to do their work. I believe that the presence of advisers from other countries makes them feel that they have support in environments where it is very difficult to remain impartial and support the rule of law. I recall a conversation with a judge in Cambodia who told me that his work was a lot easier when I was around because he did not get as much interference in his work from those that tried to influence the outcomes of his cases.

So my work is much more than what is documented in project documents, it is as much about advice and support for the courts in the countries I have worked in. Ultimately, as I have already expressed, it is all about developing the rule of law to a point where all citizens whether wealthy or poor, weak or powerful, have a fair opportunity to have their disputes resolved according to law.
TheLawMap: If you could change something within the legal profession what would that be?

I am not sure that there is any major change to the legal profession I would advocate, but I do believe that we as a profession need to remind ourselves of our responsibilities as lawyers. I recall when I first began practising law one of our High Court justices, Harry Gibbs, expressed concern about the profession becoming a business, and reminding lawyers that it is a profession. Those words have remained with me as I see much of the work being done by many lawyers is regarded as “business”.
I also recall when I was doing the Bar Readers course in Melbourne, one of the participants said that as far as he was concerned his practice was a “business” and that is the way he intended to conduct himself.
It is of course not a “business” it is a profession, and lawyers need to be reminded of this. Being part of a profession comes responsibilities, for example to act as an officer of the court and not to engage in practices that undermine the integrity of the court system. As a profession I believe that we should also take a wider look at our practice to ensure that people do have access to the legal system, and have the advice that those who can afford legal advice have become used to.
This of course raises the on-going issue of legal aid and what role lawyers should take in its provision. Do we as lawyers volunteer our skills to ensure that all have access to competent legal advice? By volunteering our services do we enhance the rule of law and access to justice?
I don’t want to appear to be lecturing, but I believe lawyers should always be asking themselves these questions, and when it comes time to “hang up the wig and gown” will we be able to look back at our practice of the law and say, yes I contributed to access to justice and ultimately to the rule of law, and fulfilled my responsibility as a lawyer and officer of the court.

TheLawMap: Is there a personality from the past or present within the ranks of the legal profession or the judiciary who you admire the most?

There has not been any individual that I have particularly admired, but having said that, I was impressed with a lawyer from London by the name of Desmond de Silva QC (now Sir Desmond) who I worked with at the Special Court for Sierra Leone where I was the legal adviser to the Registrar. Desmond was the deputy prosecutor when I arrived and went on to become the Prosecutor when David Crane, the original prosecutor, left the court to return home to the USA. What impressed me in particular was Desmond’s commitment to seeing that justice was done for the people of Sierra Leone, and in doing so, sacrificed his practice as a senior barrister in London and the financial returns that came with that.
Desmond was particularly focused on ensuring that he did everything within his power to ensure that Charles Taylor was arrested and brought before the court to be tried. He travelled extensively and lobbied many, including political figures, to ensure that Taylor was arrested, which he ultimately was. There were many people who willingly (and not so willingly) contributed to the arrest of Taylor, but Desmond to my mind was instrumental in that process.
Desmond is now back in the UK and has resumed his practice, and to his credit, he continues to contribute to the rule of law at the international level having done work for the United Nations Human Rights Council to investigate Israel’s interception of the Gaza-bound flotilla, as well as more recently chairing an inquiry into the torture and execution of detainees in Syria.
I think we as lawyers would like to be able to say that we contributed to the development of the rule of law, whether nationally or internationally, at least in part, compared to the contributions that Desmond has made.

With special thanks to Kevin Maguire for his valuable time. He can be followed on Twitter and interacted with via Linkedin. The title of this interview is a line from William Shakespeare's play 'Measure for measure'.