When the UN comes calling

When the UN comes calling

BRONWYN CHESTER | It's not every day that a newborn country comes knocking, looking for help in writing its laws. And Patrick Healy is acutely aware of how privileged he was to be asked by the Eritrean government to help write its criminal code and its code of criminal procedure.

Professor Patrick Healy PHOTO: OWEN EGAN

It was three years ago when the law professor received a call from the United Nations Development Program. At first, he thought they'd made a mistake. "I was sure they wanted Patrick Glenn," said Healy.

While he is a specialist in criminal law, including comparative criminal law, and has much experience in Canadian law reform, Healy had never worked on the law reforms of another country. Glenn, former director of the Institute of Comparative Law, has been involved in the ongoing reform of the Russian Civil Code.

Nevertheless, it was Healy the UN wanted and after a moment's hesitation he jumped at this rare and unexpected opportunity.

"It was the first time I had been asked to do such a thing. It's a great privilege and a great challenge," says Healy, explaining that "after independence in 1991, much had to be done to put the country [Eritrea] on its own two feet. In 1996-97, the government undertook to give the country a new civil code, maritime code, commercial code, code of criminal law and code of criminal procedure. The new country needed and wanted its own laws as part of its identity."

Healy, Richard Rosen, from the Faculty of Law at the University of North Carolina, and Washington lawyer Martin Ganzglass, were invited to draft the criminal code and the code of criminal procedure. The latter concerns such matters as police powers, trial procedure and principles of evidence.

The trio went initially to the nascent country in August 1997 to be briefed by the minister of justice and a number of legal and governmental people. "We were struck by the insistence on the need for the codes to be 'modern and forward-looking,'" recalls Healy, adding that in a country of 3.5 million people, there are only 60 lawyers. With little but their wits and the Eritrean Constitution to guide them, the three began preparing different sections of the draft, meeting in each other's cities to put the document together.

Looking at the criminal law of such countries as Greece, Israel, France, Germany, the United States and the Commonwealth countries, as well as writing some original laws, such as one concerning bribery in the private sector, Healy and his colleagues custom-designed a "unique" code for the State of Eritrea. It was an exercise in codification which "forces you to call upon everything you know about the criminal law," he notes. "But to be done properly it also requires profound sensitivity to the concerns of the people for whom it is done."

Two years ago, the group sent the final draft of the criminal code after several revisions. Consultation on the document was delayed by renewed fighting between Eritrea and Ethiopia. Healy emphasizes that the document was a draft for consideration by the Eritreans. "This code, even though we were asked to prepare it, is to be their code and they must decide whether its content meets their needs and aspirations.

"I can't imagine anything more arrogant than a foreigner claiming to have written a country's criminal code," says Healy, noting that the draft is now being prepared for introduction as legislation.

While the draft criminal code was well appreciated when the three lawyers again visited Eritrea in October 1998, it wasn't easy for Healy to bend on some of the revisions they proposed. When asked why the drafters had removed the law on abduction, which states that abduction of a woman is defendable if the victim freely contracts marriage with the offender, Healy "couldn't figure out what this was all about." After all, if men and women were equal under the Constitution, why should there be a special law concerning the abduction of women when a law on kidnapping covered both sexes?

"For the code to be consistent with the Constitution there was no place for this old offence," says Healy, noting that this particular law "produced a lively debate of 45 minutes," during which he had to defend the proposal before 28 men and two women, one of whom was the justice minister Fawzia Hashim, a former fighter.

Healy explains that the past 30 years of war have changed the role of men and women. The latter comprised 40 per cent of the soldiers in the last years of the war and 25 per cent of the commanders. "Men and women have shared equality even on the battlefield."

Nevertheless, some customs die hard, particularly in the rural areas. "I thought it was a sure thing that we'd lose this but they agreed to eliminate the old offence of abduction," says Healy.

The question of female circumcision, however, which came up 20 minutes later, was another matter. Again, using the argument of the equality of the sexes and offences such as torture, Healy made the case for making the practice illegal. This time, after 10 minutes of defence and a swift kick under the table from Richard Rosen, who hissed "Stop; it's cultural," Healy gave up. "It was a moment of reckoning, of realizing that we had to defer to their choice in this matter."

He also came to respect the Eritreans' approach to changing behaviour. For them, educating people over time is considered more effective than criminalizing a traditional practice. Healy too is of the opinion that "criminal law should be used sparingly; the criminalization of conduct by a new rule of law is a blunt and uncertain instrument for encouraging changes in behaviour."

On the other hand, Healy found that the Eritreans would change a law, if the country's social structure were insufficient to tend to all its peoples' needs. Initially, "bug-eyed" by the government's plan to change the age of responsibility from 12 to nine, Healy and his colleagues' disbelief turned to surprise when they realized the move was only to look after the hundreds of orphans and children born out of wedlock as a result of the war.

Normally, he explains, the community looks after its children but, due to the war, there was no such support available in some communities. By extending the age of responsibility, the state could assume wider authority over the welfare of children. "It was a gesture of consideration for how best to deal with the children whose families and communities had been shattered. I thought that was just remarkable."

When Healy and his colleagues finish the code of criminal procedure, it will not mean an end to McGill's connection to the East African country. Currently, there are three Eritrean graduate students at the Faculty of Law. Upon completion of their studies, they will return to Eritrea to teach at the University of Asmara and to contribute to the public service.

In fact, the faculty has an old connection with Ethiopia, which formerly included Eritrea. Haile Selassie, emperor of Ethiopia from 1930 to 1974, sent students to McGill in the 1950s in order to learn civil law, also known as continental (European) law; McGill, teaching in both the civil and common law traditions, has the only English-language law faculty in the world with that capability.

By chance, Healy met one of those early graduates who is now a prominent lawyer in Eritrea. Having been given the name of Mr. Berhane by Justice Morris Fish before leaving for Eritrea, Healy had made a few efforts to meet Fish's McGill classmate but to no avail. Finally, while having a drink in the hotel bar with his colleagues, Healy was approached by a tall, distinguished-looking man asking for Patrick Healy.

When the latter extended his hand and said he'd recently seen Morris Fish, Berhane "broke into tears," recalls Healy. "Morris Fish had been [Berhane's] closest friend in Canada. He considered him like a brother. We quickly became involved in a deep conversation."

Like many of the Ethiopian/Eritrean law graduates, Berhane suffered in the political upheaval following the death of Selassie and was forced to leave Addis Ababa. "At one point, the authorities destroyed his McGill degree," says Healy. "I'd like to replace it for him."