Imperative to Realign the Rule of Law to Promote Justice

Transcription

1 A seminar on Exchanging experience of promoting justice: a role of lawyers in Bangladesh? Organized by Bangladesh Legal Aid and Services Trust (BLAST) and Law faculty, University of Dhaka RC Majumder auditorium Lecture Theater university of Dhaka 25 February pm Imperative to Realign the Rule of Law to Promote Justice Dr Livingston Armytage Director, Centre for Judicial Studies Adjunct Professor of Law, University of Sydney 1

2 REFORMING JUSTICE exchanging experience 1. Judicial reform in international development 2. How can promoting the rule of law become more effective? 3. Can lessons from global experience apply in Bangladesh? 4. Can Bangladeshi experience contribute globally? 2

3 Challenge Justice is fundamental to society and human well being Courts are the key agency of state to protect and promote justice But courts are often non-responsive: inaccessible, inefficient, incompetent, corrupt, impunity... reforms blocked by power-holders Aid agencies spend billions to promote rule of law around world World Bank s courts project in Bangladesh 2001/8 ($25m) UNDP ($30m+) and other donor ($60 m+) projects... Results often disappointing, limited impact Asian Development Bank 2008: under competitive Promoting justice is important but very difficult Current imperative: to improve and refine approach A seminar on Exchanging experience of promoting justice : a role of lawyers in Bangladesh? 3

4 Global Context Massive growth: x100-fold over 20 years World Bank: 1,400 projects, $5.9 billion (Dañino R, 2005) The state, market and individual State-managed growth s Structural adjustment s Washington Consensus neo-liberal free-markets s Enabling and capable states: 9/ Prevailing justifications are instrumental: a) Economic - to promote growth b) Political - to promote good governance c) Social - to promote safety and security d) Humanistic to empower individual, and human rights A seminar on Exchanging experience of promoting justice : a role of lawyers in Bangladesh? 4

5 Bangladeshi Context Government recognises justice reform is core to poverty reduction (GoB: PRSP ) Criminal justice system anti-poor, most people excluded (UNDP: 2002) Formal justice system corrupted and politicized to an extraordinary degree, informal system inadequate, causing a crisis of confidence (EC: 2007) Inadequate public access to justice services (TAF: 2007) Chronic barriers in accessing justice notably for women and minorities (WB and UNDP: 2012) Justice system is broken (UNDP: 2010) Backlog estimated of 2.2m +/- cases (UNDP: 2011 and 2013).

6 RANKING - WORLD JUSTICE PROJECT,2013

7 RATING - WORLD GOVERNANCE INDICATORS, 2012

8 RATING RULE OF LAW INDEX, 2013

9 Critique of Global Experience Problems of theory, knowledge, method, results: a) Confusion over purpose: b) Torch-beams in the night: some evidence justice correlates with growth, but empirical evidence of justification is incomplete, ambiguous, contested Dollar/Kraay, La Porta, Rajan, Rodrik, Stiglitz, Sachs, Easterly, Collier c) Traditional top-down focus on thin procedural reforms to mainly improve court efficiency is insufficient: WDR 2006: equity gap critique; Woolcock/Sage... d) Difficulties in measuring success Few results: mounting chorus of disappointment Trubek/Galanter, Blair/Hansen, Carothers, Messick, Hammergren, Jensen A seminar on Exchanging experience of promoting justice : a role of lawyers in Bangladesh? 9

10 Two key questions 1. Purpose what is the goal of reform? What is justice, why is it important, how is it promoted? 2. Evaluation how is success to be measured? What does a more just society look like?

11 Purpose Consensus: judicial reform is important - but why? Role of state: supply of public goods inc. justice Historically, economic growth justification has primacy Re-invention: a) Empowering the poor, pluralism and non-state justice (eg. WB s J4P) b) Convergence with human rights discourse (eg. UN s A2J, and ICJ) c) Political economy, constitutionalism and distribution (eg. DFID s drivers of change ) Discourse riven by contest over theory Instrumental role new institutional economics, rules of the game (Weber, North) Constitutive role fairness, rights, capability and opportunity (Rawls, Dworkin, Sen) 11

12 New evidence from Asia a. Asian Development Bank: b. AusAID in Papua New Guinea: c. Practitioners across Asia/Pacific: New evidence: Risk of failure of existing approach - ADB Initial successes promoting substantive rights South Asia Formative capacity to demonstrate success PNG 12

13 Lessons Judicial reform should promote justice constitutive human-centred justification Justice is concerned with fairness and equity Evaluation is normative: frameworks of law create rights international, domestic, customary Improving justice and wellbeing - is measurable improving access to and use of rights.

14 14