Fadel Abdulghany
The success of a political transition can’t be guaranteed by the mere collapse of an authoritarian regime, or the formation of a new government, or the adoption of new constitutional arrangements. For the sustainability of this transition depends on the extent to which citizens feel that there is a credible break with the institutions of the past, its practices, and its moral logic.
Therefore, transitional justice ought to be understood as a political and institutional project oriented toward the future as much as it is a response to historical violations. For the question at hand relates to how public authority is exercised in the present as much as it relates to the acknowledgment of the crimes of the past.
Legitimacy isn’t an abstract credit held by the political leaders, rather it is reshaped, or weakened, or lost through the repeated interactions between institutions and the persons subject to their authority. As for the citizens who have suffered arbitrary arrest, torture, corruption, and bureaucratic humiliation, they assess the new system through their daily dealings with the state: can documents be obtained without paying bribes? Can a family learn the fate of a relative who has been detained? Is a former detainee forced to return to the very same security institution seeking redress? Do the officials of the agencies implicated in the violations still exercise power without oversight? Are the laws designed to concentrate power still in force? These are the practical tests through which citizens determine whether the transition is real.
For this reason, the gravest threat to the transitional authority, and what most undermines it, isn’t criticism, but rather the entrenchment of the belief that the new era is reproducing the practices of the era that preceded it. Thus a single image of torture, or a credible allegation of bribery, or an unexplained death in detention, or a degrading administrative procedure, may acquire a symbolic force that goes beyond the incident itself, thereby reactivating the collective memory. Citizens may look at these incidents as an indicator that the former regime is still standing under a new administration. And when the citizen remains compelled to go back to the security agencies time after time, or to appoint lawyers in order to lift unlawful restrictions, or to rely on intermediaries to secure basic rights, it becomes reasonable for him to conclude that power is still exercised arbitrarily, and at that point the transition loses what distinguishes it from the former regime.
Institutional reform isn’t a technical appendix to political change, but rather a pivotal element of the guarantees of non-repetition, that is, the measures aimed at preventing the recurrence of gross violations through changing the conditions that allowed them to occur. And the UN Basic Principles and Guidelines on the Right to a Remedy and Reparation, contained in Resolution 60/147, place the guarantees of non-repetition alongside restitution, compensation, rehabilitation, and satisfaction, as part of the obligation to provide reparation owed to victims. Hence, reform is part of the remedies, for recognition alone doesn’t ensure the full protection of a victim of torture, or of enforced disappearance, or of discriminatory treatment; protection also requires a credible assurance that the responsible institution won’t be able to inflict a similar harm again.
Reform must address individuals and structures together. For the removal of the individuals implicated in the violations, while retaining the very same legal powers, the same chains of command, and the same mechanisms of impunity, does nothing but change the faces of repression. Likewise, the repeal of arbitrary laws without addressing those responsible for them, and the institutional cultures that allowed their enforcement, leaves citizens exposed to the same practices under new labels. Priority ought to be given to the institutions that exercised coercive power or facilitated impunity, foremost among them the security and intelligence agencies, the police, and the armed forces, so that they become subject to a clear civilian authority and to specified legal constraints; and a judicial authority whose independence rests on the transparency of appointments, the guarantee of security of tenure, and protection from political interference, not on the constitutional provisions alone; and detention regimes subject to prompt judicial review and independent inspection; and administrative procedures that don’t force citizens to resort to intermediaries or to pay informal fees in order to exercise their ordinary rights.
Vetting has an important role, albeit a limited one, and particularly so in the security and justice sectors. It isn’t, in and of itself, a collective punishment or a political purge. And when it is properly designed, it rests on individual assessment, clear criteria, reliable information, fair procedural guarantees, reasoned decisions, and the possibility of review. The operational framework issued by the Office of the United Nations High Commissioner for Human Rights (OHCHR) in 2006 distinguishes between the review process, in which serving personnel are examined in order to determine their eligibility to continue in service, and the reappointment process, in which the institution is dissolved and personnel compete for positions in a restructured body. The choice of the appropriate approach depends on the extent to which the institution’s structure and culture were implicated in the violations. And vetting can’t substitute for criminal accountability, rather it must be linked to truth-seeking, reparation, and the redesign of institutions, instead of being treated as a stand-alone solution.
Long-term reform can’t be the entirety of the agenda of the transitional phase. For constitutional renewal, the restructuring of the judiciary, and the professionalization of the security sector are all tracks that take a long time, but the transitional phase isn’t permitted to defer tangible change until they are complete. Therefore, there is a need for early measures, among them the publication of a list of the repressive regulations that have been suspended, repealed, or placed under review; the reissuance of civil documents through facilitated mechanisms; a requirement that administrative decisions be written and reasoned, with channels provided for challenging them; a prohibition on informal fees; the disclosure of the legal basis of every instance of detention and of its duration; and the establishment of independent bodies to receive the allegations relating to torture, corruption, and ill-treatment. These measures show that citizens are no longer compelled to rely on money, or connections, or intermediaries in order to exercise their basic rights, and they also reduce the financial, psychological, and procedural cost entailed in the exercise of citizenship. As for reform that is imposed without explanation, it may appear selective or formalistic; therefore, participation and transparency are two indispensable elements. And victims must be treated as rights-holders who possess direct knowledge of how institutions caused the harm, not as mere sources of testimony consulted after the decisions have been taken.
The fundamental distinction lies between a state that moves in a tangible manner toward the rule of law and equal citizenship, and a state that continues to normalize arbitrariness. For legitimacy after authoritarian rule is built through a visible transformation in how power is exercised. Citizens must be able, in their ordinary dealings with the state, to perceive that coercion is constrained, that corruption is punished, that dignity is preserved, and that rights can be claimed without fear and without the need for personal connections. The transitional phase must make access to justice easier than the endurance of injustice. The new political system isn’t required to promise immediate prosperity or ideal institutions, but rather to demonstrate that it has abandoned the logic of rule that prevailed in the former era. And where torture, arbitrary arrest, impunity, discriminatory laws, and degrading bureaucracy remain evident features of public life, the state risks inheriting, alongside the institutions of the former regime, its crisis of legitimacy.
