annahazar anti corruption

Anti-Corruption Views - The challenges of measuring the rule of law by index

A Justice statue is pictured at the office of an Iranian lawyer in Tehran 10/05/2011 REUTERS/Morteza Nikoubazl.

In his keynote address to last month's World Justice Forum (WJF) in Barcelona, intrepid Premier Morgan Tsvangirai of Zimbabwe commended the WJF’s multi-disciplinary approach to the rule of law and the World Justice Project's Rule of Law Index.

The latter, he said, “has spurred some governments across the world to work harder to ensure that they do not occupy the bottom tier in the matrix of good governance and observance of the rule of law.”

However, the World Justice Project (WJP) does admit that there already is a “crowded field of indicators on different aspects of the rule of law”. But its index, it says, is different in that it is comprehensive, its data are fresh, it reflects the real world and looks at a number of separate elements of the rule of law simultaneously.

However, the well-funded rule of law industry does not have a good track record. More often than not the copious amounts of money spent on projects are not commensurate with the meagre results achieved.

In the candid words of the World Bank, “rule of law reform in fragile or post-conflict countries (and more generally in developing countries) aims to bring about highly complex and interdependent social goods, yet there is little clarity on how to best proceed.”

The Bank's 2006 report: 'Rule of Law Reform in Post-Conflict Countries - Operational Initiatives and Lessons Learnt', goes on to confirm that 71 percent of those countries that emerge from conflict become embroiled in it again within ten years.

The “situation,” it says, “is reinforced by the striking lack of coherent and systematic studies evaluating rule of law programming, especially independent, rigorous, cross-country evaluations, or comprehensive case studies of all the rule of law programmes in a country. There is also a lack of available institutionalised expertise.”

Thus, since many rule of law initiatives are ineffective through being disconnected from reality, any rule of law initiative on conventional lines rightly deserves to be taken with a pinch of salt, and the WJP Rule of Law Index is no exception. 

For the purposes of its index, the WJP has four “universal principles” to define its particular concept of the rule of law:

• legally accountable government
• laws that are fair, clear, publicised, stable and  protect fundamental rights; accessible, fair and efficient enactment
• administration and enforcement of laws
• access to justice provided by competent, independent and ethical adjudicators, attorneys or representatives, and judicial officers in sufficient numbers, adequately resourced and reflective of society as a whole

One is entitled to question what the adjectives such as “fair”, “efficient” and “competent” actually mean in this context, and whether it ought to be mentioned in the last of these principles that “advocates and representatives” should be affordable and able to properly relate to their clients' problems at all levels.

RULE OF LAW ELUSIVE

As with most definitions of the rule of law drawn up by the legal fraternity, open justice, legal system transparency and the engagement of civil society do not feature, which could be why the spread and strengthening of the rule of law is proving so elusive. 

Nevertheless, it is on its “universal principles” that Rule of Law Index, which uses nine factors to define the extent to which countries adhere to the rule of law, is based.

The data being collected via the polling of 1,000 persons from three cities per country regardless of state size and eliciting the views of, on average, 30 local legal experts in each nation.

This same modus operandi is used for states as small as Albania and Estonia, as it is for giants such as Russia, Brazil, Indonesia and the United States.

If one is looking for flaws (and one certainly should), then just one that immediately jumps out is that while the archipelagic nation of Indonesia consists of 17,508 islands, all three cities surveyed are situated on just one of those islands, namely Java.

The creators of the index claim that its “findings reflect the conditions experienced by the population, including marginalised sectors of society”,  yet Java, unlike the more peripheral islands, has no secessionist populations being kept in check by the military and, thus, cannot possibly be representative.

Furthermore, one must question the actual questions being asked of those being polled.

How does even a very well informed person gauge, for instance, factor 1 of the index: the extent to which constitutional and institutional means limit the powers of government and its officials and make them accountable under the law?

For the average person struggling to get by in a poor, developing country, such considerations must be of another world.

What is more, the views of the “practitioners and academics with expertise in civil and commercial law, criminal justice, labour law and public health” that the index also draws on, ought to be treated with a degree of scepticism as, by their very nature, they come from an unrepresentative and privileged coterie. 

It may be that such issues as the interpretation of the four adjective-laden principles and the likelihood of data distortion of this type have been addressed.

However, the selective filtering of questions – which were required in writing - at the World Justice Forum about the methodology of the index and the tediously dreary way in which less probing questions were answered, did not instil much confidence.

If the term “there are three kinds of lies: lies, damned lies, and statistics” is unwarranted here, the onus is on the WJP to rigorously demonstrate that it is.

Open debate, rather than the shielding of the academic, anodyne and unworldly, is the healthier option and more likely to produce meaningful results.