a role of lawyers in Bangladesh?

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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

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

RC Majumder auditorium Lecture Theater | university of Dhaka | 25 February 2014 | 4.00-6.00 pm

REFORMING JUSTICEexchanging 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?

25.02.2014 A seminar on Exchanging experience of promoting justice : a role of lawyers in Bangladesh? 2

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

3A seminar on Exchanging experience of promoting justice : a role of lawyers in Bangladesh?25.02.2014

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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 – 1950-60s

– Structural adjustment – 1970-80s

– ‘Washington Consensus’ neo-liberal free-markets 1989-2000s

– Enabling and capable states: 9/11+ ...

• 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?25.02.2014

Bangladeshi Context

• Government recognises justice reform is core to poverty reduction (GoB: PRSP 2011-15)

• 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).25.02.2014 A seminar on Exchanging experience of promoting justice : a role of lawyers in Bangladesh?

RANKING - WORLD JUSTICE PROJECT,2013

25.02.2014 A seminar on Exchanging experience of promoting justice : a role of lawyers in Bangladesh?

RATING - WORLD GOVERNANCE INDICATORS, 2012


RATING – RULE OF LAW INDEX, 2013


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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?25.02.2014

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?


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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)


New evidence from Asia

a. Asian Development Bank: 1990-2007

b. AusAID in Papua New Guinea: 2003-7

c. Practitioners across Asia/Pacific: 2000+

New evidence:

– Risk of failure of existing approach - ADB

– Initial successes promoting substantive rights – South Asia

– Formative capacity to demonstrate success – PNG


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.



Documents

a role of lawyers in Bangladesh?