- Making the rule of law a reality
- By Frank Richardson
- 01/02/2019 Make a Comment
- Contributed by: Pikey ( 5 articles in 2019 )
“Not only must justice be done; it must also be seen to be done.” Gordon Hewart, 1st Viscount Hewart
Fact and perception
The rule of law is as much to do with fact, as it is perception. For civil society to respect the law, it must first be able to put its trust in it. Better run courts and better trained judges, police chiefs and prosecutors can advance justice; but, as the old adage goes, “Not only must justice be done; it must also be seen to be done.” Gordon Hewart, 1st Viscount Hewart.
Thus, it is not enough that the justice sector treats all with fairness and equality, it must also be perceived to do so by society in general. To do this the justice sector must expose itself to public scrutiny, accountability and inclusiveness, for not only does this help foster trust, but it also helps drive reform where legal systems are dysfunctional through being riddled with violence, corruption and human rights abuse, as many in the developing world, in particular, are.
The essence of the rule of law (a concept few agree on and even fewer properly comprehend) is fairness and equality before the law (very fundamental human rights), which is the bedrock of sustainable economic, social and political development. But, human rights to the majority in the world are not even an aspiration, let alone a reality. Conscientious lawyers may make a difference in individual cases of injustice; but their efforts are often a drop in the lawless ocean which some four billion people have the misfortune to inhabit.
Challenge and raison d’etre
Thus, getting the law to be open and socially inclusive is both OpenTrial's challenge and raison d’etre.
OpenTrial works toward this - pragmatically, by taking into account existing dynamics and harnessing those that can bring about change for the better. Indeed, over the last decade things have changed. Fairness and equality before the law are now recognised as essential for lifting peoples out of poverty and abuse. Big international players in rule-of-law building are acknowledging their failure. Legal system corruption and violence have been thoroughly investigated and reported on. Transparency leading to accountability and engagement by civil society is seen as a solution. The internet has become more interactive, more social, more engaging and more widespread. Power in the world is shifting and, with it, hegemonies are being dissolved while legal structures take their place.
Making a career v. making a difference
Unfortunately, mainstream rule of law programmes often fail. This unhappy state of affairs is acknowledged in the World Bank Report, ‘Rule of Law Reform in Post Conflict Countries - operational initiatives and lessons learnt’. The Report gives the reasons as: lack of coherent strategy and expertise; insufficient knowledge of how to bring about change; form over function; formal over informal and traditional mechanisms; tangible short term reforms over long term strategies; wholesale over incremental and context-determined change; the need for local ‘agents of change'; the paradox of local ownership; rushed and compromised constitution-making; poorly designed training and legal education programmes; and sequencing and prioritizing difficulties.
The legal systems of many developing countries are often little more than transplants from European former colonial countries (often with laws in a foreign language unintelligible to most of the populace), which were frequently commandeered by tyrannical post-independence regimes, to which judges, police and prosecutors are/were in thrall. Consequently, to many of these officials integrity, independence, diligence, equality and impartiality are encumbrances, not quintessential qualities. Thus, because these legal systems are culturally inappropriate and were a means of tyrannical oppression, in the transition to democracy they often transmute into serving a tyranny of the corrupt. As such they are not only often grossly dysfunctional, such that they are riddled with corruption and violence, but they are also entrenched and resistant to change.
Two prominent protagonists in this field, professors Michael Trebilcock and Ronald Daniels of Toronto University and the Johns Hopkins University, respectively, remain scathing of the “decades of both practical experience with and scholarly reflection upon legal reforms in developing countries”, which they say “at the end of the day.... are remarkably inconclusive”.
Similarly, in his book, 'Reforming Justice - A Journey to Fairness in Asia', Dr. Livingston Armytage opines that: "Over the past fifty years ....... overseas development assistance - foreign aid - has grappled with the challenge of improving 'the rule of law' with underwhelming and often dismal results around the world."
Thomas Carothers of the Carnegie Endowment for International Peace in Washington, confirms the malaise: “the rapidly growing field of rule-of-law assistance is operating from a disturbingly thin base of knowledge at every level.” Aid organisations are often more interested in the next project than learning lessons from their previous ones; participating lawyers are not particularly interested in development; and university professors are not much bothered with applied policy research.
Thus, despite the best of intentions, copious amounts of money (in 2009 alone, according to OECD data, $2.6 billion was spent on judicial and legal reform by the OECD's Development Assistance Committee) and, seemingly, the best advice available, top-down, rule of law building by prominent players in the field - such as the World Bank, the IMF, the regional banks and USAID – has seldom produced stable democracy, long-term economic growth and the rule of law.
Indeed, the WJP Rule of Law Index 2014, indicates that, despite these efforts, there has been a significant decline in criminal justice worldwide: 20 countries showed a significant decline in their score over last year, while none of the 99 countries in the Index demonstrated significant improvement. There has also been an overall decline shown in constraints on government, fundamental rights and civil justice.
OpenTrial believes the mistake the rule of law industry is making is its emphasis on (in the words of Caroline Sage and Michael Woolcock) 'top-down, technocratic solutions' to institutional deficiencies, rather than improvement of the law-society interface.
This dictum by John Maynard Keynes, alludes to the difficulty of bringing about change: “The difficulty lies not in the new ideas, but in escaping from the old ones.” Because both the law and the rule-of-law industry tend to be rather aloof and conservative, escaping from old ideas in the justice sector is more fraught with problems than in other sectors of society. Dialogue, both within the rule-of-law industry and between 'the law' and lay civil society is, thus, essential if greater objectivity and insight are to bring about change.
Changing 'the Law' – Society interface
Accordingly, OpenTrial works entrepreneurially and innovatively to expose legal systems to public scrutiny. Opacity and aloofness must go, the mystique must be lifted. The internet is the ideal medium to profile judicial, police and prosecution systems in order to aid them to become more functional. Organisational structures, codes of conduct, budgets, expenditure, recruitment and staff policies, and independent reports can all be made public – and in detail. Judges, police chiefs and senior prosecutors can be profiled online too. Wealth audits, salaries, political links, conflicts of interest, training, career paths, etc. can be placed under public scrutiny. Ultimately, entire case procedures can also go online, including videos of interrogations and hearings. Trials may also be monitored using a smartphone app. in order to pressure aberrant judges into complying with fair trial criteria.
OpenTrial role is to provide the tools to effect legal system reform, and, thus, to strengthen confidence in the justice sector.
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