Law Speak - When citizens push for justice

16 Mar 2016 / 20:38 H.

    AFTER five years of demands by Japanese citizens, the alleged culprits of the Fukushima nuclear disaster have been charged.
    Tepco, the company involved, knew of the meltdown of its three nuclear reactors after being hit by a tsunami caused by a magnitude-9 earthquake in March 2011.
    Yet it hid this fact from the unsuspecting public for a whole two months.
    Worse, Tepco admitted it knew this could happen three years earlier but chose to ignore this warning and take preventative measures.
    Scores died, tens of thousands lost their homes and livelihoods; many more are now at risk of radioactive-related diseases.
    From the outset there has been a conscious and ongoing effort to cover up the gross negligence of the company and the government, reports Global Research.
    The Japanese parliament's Independent Investigation Commission in 2012 stated that there was a "cozy relationship between the operators, regulators and academic scholars" that "prioritised the interests of their organisations over the public's safety".
    The prosecutor refused to press charges. The citizens formed a group to demand a review of the decision – as permitted under Japanese law. Its demands were rejected.
    Citizens pressed on with another Committee of Inquest for Prosecution which also concluded that charges must be pressed. None were filed.
    Yet another citizens' committee was established to demand indictments; while rare, its decision is binding on prosecutors.
    Finally three high-ranking Tepco executives were charged.
    The government consistently attempted to protect Tepco, which has a long history of covering up safety incidents.
    What is to be done?
    This episode raises a fundamental question: what to do when there is a loss of confidence in the institutions that are appointed to decide matters of grave concern to the country and its people?
    Then, says Professor Richard Falk of Princeton University: "I would side with those that believe that people are the ultimate source of legal authority, and have the right to act on their own when governmental procedures are so inhibited … that they fail to address severe violations of … law."
    This implies that people then create their own alternative adjudication systems; because they have lost faith in the legal administration of justice and state institutions.
    But how?
    A common recourse is to establish a People's Tribunal. Two such tribunals were set up in Malaysia in recent history. One prosecutorial and another inquisitorial.
    The KL War Crimes Tribunal prosecuted Bush and members of his cabinet and their lawyers for war crimes of torture in Guantanamo, Afghanistan and Iraq; and Bush and Blair for waging an illegal war against Iraq.
    The People's Tribunal on GE 13 set up by Bersih, a network of 83 NGOs to inquire into the conduct of the last general election.
    There have been tribunals elsewhere on diverse issues of concern, starting with the famous Bertrand Russel Tribunal of 1976 for US war crimes in the Vietnam War.
    There is also a Permanent Peoples Tribunal in Rome addressing such issues as human rights abuses under the Marcos dictatorship, the dispossession of indigenous communities in Brazil's Amazonia state and US intervention in Central America.
    But no sanctions, so what is the use?
    Well it's true the outcomes are not binding. Nonetheless it can collate and present complete and powerful documentary evidence and place this in the public domain. This can be the basis for the demand for prosecution.
    The tribunal must, of course, scrupulously follow judicial procedures and operate in a legally responsible manner – to endow its findings with a legal weight beyond mere moral condemnation of any wrong.
    Any adverse findings will have a "name and shame" effect – now a sanction in many international treaties. Those "convicted" or whose conduct is impugned cannot thereafter strut the world with heads held high. Some world leaders shun travel to "hazardous" destinations for fear of arrest – such as Henry Kissinger, Dick Cheney, and even Bush Jr.
    Notably the findings and proposals from these tribunals chart out potential reforms for systemic changes – for the establishment of "the democracy to come".
    The ultimate value of a People's Tribunal is the advancement of the central cause for which it is set up. Its role is educational, awareness-raising, promoting accountability and transparency and attaining symbolic justice.
    Can it go further? Perhaps. A wake-up call to arise from slumber and to end the injustice? History is replete with examples where such action has triggered widespread momentum for the desired change.
    Gurdial is professor at the Law Faculty, University of Malaya. Comments:

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