Vol. 7 No. 1

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Fostering Justice
in Fragile Countries

by Peter McKinnon

“Our legal system is far from perfect, of course, but it’s the gold standard compared with developing countries. That standard won’t be achieved in Jamaica for many years, but in the meantime, we can help them move toward a bronze or silver standard.”

Although small in population, Canada enjoys a relatively large international reputation.

Two factors help account for this: Canada exports a significant percentage of the goods and services it produces; and this country also exports its expertise in justice, good governance and the rule of law.

A Department of Justice program combines elements of both factors for the benefit of all nations.

ILPS strives to strengthen the justice systems of fragile and developing states. Founded two decades ago, ILPS refocused its efforts three years ago, when the Government of Canada overhauled aspects of its foreign policy and re-emphasized a whole-of-government approach to international engagement.

“Our goal is to bring justice to the people by helping build more robust, functioning and effective democracies,” says Mark L. Berlin, Director General of ILPS.

International Legal Programs Section

ILPS projects typically involve long-term justice sector technical assistance programs, which can include posting departmental law­yers abroad. Currently, ILPS lawyers work in Bangladesh and Jamaica, while a contractor provides legal assistance to the Ministry of Justice in Sudan under the direction of ILPS lawyer Aly Alibhai.

Previous projects have involved missions in Argentina, Ukraine, the Czech and Slovak Republics, Hungary, the West Bank and Gaza.

Each project is tailored to meet a country’s particular needs. The program is a solid example of Canadian government departments working together to strengthen democracy around the world. The Canadian International Development Agency (CIDA) or the Department of Foreign Affairs and International Trade (DFAIT) usually provide project funds while Justice Canada supplies the legal expertise.

In fact, CIDA and Justice Canada recently concluded a long-term agreement under which the two organizations will work together more closely to deliver the government’s legal technical assistance projects abroad.

To qualify for CIDA or DFAIT funding, proposals must include comprehensive project plans, clear terms of reference and reliable performance measures.

Project design that is respectful of specific country conditions is the key to success, according to Berlin.

“We don’t impose Canadian values
on other countries”

“We don’t impose Canadian values on other countries,” he says. “Instead, we make Canadian legal expertise and experience available to justice systems with traditions of their own.

“To be effective, justice systems have to be organic. In many of the countries we work in, though, corruption is rampant and the courts aren’t functional. Our role is to advise local officials on how to make strategic, sustainable improve­ments that honour domestic legal traditions. We’re always careful not to cross that line.”

Building legal capacity in Jamaica

Zaluski has walked that fine line every working day since he was posted to Jamaica.

Previously a Senior Counsel in the Deputy Minister’s office in Ottawa, Zaluski is now embedded at a similar level with the Ministry of Justice in Kingston.

He helps officials formulate policy proposals, draft effective legislation, re-think institutional structures, design and implement practices that promote the rule of law, and develop a vision for sustainable, long-term justice reform.

“Fostering sound decision-making is a big part of my role,” he says. “Since Jamaica gained its independence from Britain in 1962, the country’s justice system has atrophied.

“Their system is similar to Canada’s in many ways, but it remains less developed. Instead of a unified criminal code, for instance, there’s a hodge-podge of some 80 statutes. And institutions such as a law commission, department of public prosecutions, and justices of the peace are either non-existent or ineffective.”

Tapping into Canada’s legal roots

Both lawyers agree that Canada is perfectly suited to the role of building the legal capacity of developing countries.

“The roots of our legal system lie in both the civil and common-law traditions,” says Berlin.

“Our ability to blend these traditions is greatly appreciated in other countries – it certainly came in handy during a recent initiative in the Middle East. There, they try to meld no fewer than five legal traditions, including sharia law.”

“The bonds between Jamaica and Canada are strong,” says Zaluski. “We’re both members of the Commonwealth, we’re good trading partners, many Jamaicans have emigrated to Canada and many Canadians vacation here. In general, Jamaicans respect Canadians as a peaceful, law-abiding lot.”

Like many other countries that seek legal assistance from Canada, Jamaica struggles to enforce the rule of law.

“In Jamaica, people don’t necessarily receive the same measure of justice from the police or the courts,” says Zaluski. “Here, a form of street justice exists. It’s not the same back home. I think respect for the rule of law is in the DNA of most Canadians.”

“The roots of our legal system lie in both the civil and common-law traditions”

An international mandate for the Department

Besides the work of ILPS, there are numerous legal services units and sections at the Department’s headquarters also engaged in the provision of legal expertise abroad.

The Criminal Law Policy Section, for example, is involved in numerous projects and provides advice on international treaties, conventions and protocols. Legal services units at CIDA, DFAIT, Environment Canada and Agriculture and Agri-Food Canada, among others, are also heavily involved internationally, as are various units within the Public Law portfolio. The Human Rights Law Section, for example, provides legal advice to government departments on international human rights law, primarily the domestic implications of treaty obligations.

“Canada’s foreign-policy goals have changed in recent years,” says Berlin. “The Government now recognizes that sustainable develop­ment doesn’t stand much of a chance unless the legal infrastructure is in place to support the rule of law.

“I believe that Canada – one of the safest, most diverse, stable and prosperous nations in the world – has a responsibility to help countries move toward democratic, accountable systems of governance.”

For Berlin, building the legal capacity of fragile states makes the world a better place.

“The bottom line is that fostering efficient, effective and accountable justice systems fights terrorism and international criminality. That makes everyone safer – including people living here in Canada.”