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Paying for Justice [2005] ADBLPRes 14 (1 May 2005)

Paying for Justice

ADB Review [ May 2005 ]

Three justice experts discuss the importance of the connection between judicial reforms and the progress of development in Asia and the Pacific

By Eric Van Zant, (evanzant@adb.org)
Consultant Writer

A majority of people jailed in India are so-called “undertrials,” that is, people incarcerated to ensure their appearance in court. Because many of them are poor, they cannot furnish bail, and a great many are held for petty crimes. Yet, because of court congestion, thousands languish in jails for much longer than they would if tried and convicted.

The experience of India’s poor—a common one in many developing Asian countries —illustrates well the substantial connection between poverty and injustice. Many development professionals assert that access to a fair justice system does not just help poor people, such as those trapped in India’s jails: it helps directly reduce poverty in the first place. Spending on good governance and on justice reform is an investment in future economic development.

“A balanced, swift, affordable, and fair justice delivery system, besides promoting law and order, aids in the development of markets, investment (including foreign direct investment), economic growth and, therefore, in poverty reduction,” says Arnab Kumar Hazra, a Fellow of the Rajiv Gandhi Institute for Contemporary Studies in New Delhi, India.

Some would even say justice reform is essential to long-lasting development. According to Kamal Hossain, a prominent Bangladeshi lawyer and chairman of the advisory board of the nongovernment organization Transparency International, it is a “precondition” to improving governance and, thus, economic and social development.

Governance Linked to Growth

Both men made their comments in a discussion, alongside Philippine Ombudsman and former Solicitor General, Simeon Marcelo, at a recent Asian Development Bank (ADB)-sponsored justice symposium.

Mr. Marcelo couched his own remarks in the specific experience of the corruption courts in his country: “A massively funded anticorruption campaign should be seen as an investment and not as an expense, where the primary beneficiaries are the poor… the immediate effect is the alleviation of poverty in our country.”

As Ombudsman, Mr. Marcelo heads the panel of government lawyers prosecuting major graft cases before the Sandiganbayan, the Philippines’ antigraft court. He emphasized that reforms to the courts handling corruption cases are indispensable to any effective campaign against corruption.

Mr. Hazra outlined the evidence for the positive link between good governance and economic growth. As one of the three pillars of governance, the judiciary “is in a unique position to support sustainable development by holding the other two branches (the executive and legislative) accountable for their decisions and underpinning the credibility of the overall business and political environment,” he said.

Citing the study Governance Matters, by Kaufmann, Kraay, and Zoido-Lobatón, Mr. Hazra said it is almost a truism now to say that the “rule of law” is causally linked to economic development.

Disempowerment Halts Development

All forms of discrimination or disempowerment within governmental systems, including the judiciary, whether based on race, caste, religion, or otherwise, create a “disabling environment” for development, Mr. Hossain said.

“The overall level of confidence in institutions like the judicial system correlates positively with the level of investment and measures of economic performance,” Mr. Hazra added. Inadequate legal systems may not be a decisive factor in attracting foreign investment to a country, he noted, quoting the study Foreign Direct Investment: Does the Rule of Law Matter?” by John Hewko. But a lack of legislative and institutional reform is a significant barrier to keeping such investment, he said.

udicial reforms fall into two general categories—material assistance and procedural reform, Mr. Hazra pointed out. Material assistance can range from management training to computer technology and forms a significant part of funding expenditures in judicial reform projects worldwide.

Procedural reform focuses on the law itself to promote efficient case management to reduce or eliminate redundant or inefficient rules or practice. Such reforms contribute to the overall quality and accessibility of the judiciary.

Congestion and Delay in India

In India, civil and criminal courts are pervaded by congestion and delay. About 20 million cases are pending before the lower courts and another 3.2 million before the high courts, Mr. Hazra noted. A termination dispute contested all the way can take up to 20 years to resolve.

“Large backlogs of cases and delays may affect both the fairness and the efficiency of the judicial system which, in turn, weakens democracy, the rule of law, and the ability to enforce human rights.”

India has launched reforms to try to solve the problem, but a lack of data and solid empirical analysis has hampered progress. “Except for the Supreme Court, where arrears have decreased significantly, the other tiers of justice have only been strained further.”

A lack of judges is generally cited as the main cause of congestion in India, he said. The number of judges per 100,000 people in the year 2000 averaged 2.7, according to a World Bank study, putting it well behind an average of 6.38 in 30 selected countries.

However, quoting other reports, Mr. Hazra noted that improving judicial efficiency is also important to reducing court congestion. Simply raising the number of judges may not entirely solve the problem.

Reforming Courts in the Philippines

“The Philippines recognizes and agrees with the reform concerns and initiatives outlined by Mr. Hazra,” said Mr. Marcelo. “Any effort to promote development in country is deeply rooted in governance. This is like a fruit-bearing tree with governance as the roots and development as the fruit. To harvest bountiful fruits of good quality, the tree must be cared for at the roots,” he said, quoting the Philippine Supreme Court Justice Hilario Davide.

The Philippines’ Sandiganbayan also suffers congestion problems: It has only 15 justices sitting in five divisions (three per division) and oversees an operational budget of just more than Philippine peso (P)114 million ($2.1 million). According to studies by the Office of the Ombudsman, cases resolved in 2003 took 6 years and 10 months on average.

Some cases involving high-ranking government officials take more than 10 years to solve. In many, there is an alarmingly long interval between case hearings. Cases “fall out of the sphere of public interest” and the deterrent effect and effectiveness of the courts are put in serious doubt, Mr. Marcelo said. The ideal solution would be to quadruple the number of justices and/or court divisions, but that would require an additional P400 million ($7.3 million), a tall order in the fiscally strapped Philippines.

Instead, based on studies conducted by the Office of the Ombudsman, Mr. Marcelo suggests numerous solutions, including focusing attention on cases involving large amounts of money and high-ranking officials. The office has proposed legislation that would move lowerlevel cases to regional trial courts.

Mr. Marcelo has also suggested that five more divisions be added to the Sandiganbayan at a less-prohibitive cost of P115 million ($2.09 million).

While such measures make their way through legislation, he said an interim measure could include a radical and temporary suspension of proceedings in all cases in the Sandiganbayan—with the exception of the 40 most-important, high-profile cases. Those cases could then be tried continuously, on a weekly basis.

“If we intend to make significant progress in our fight against graft and corruption… the speedy disposition of highprofile cases involving higher government officials and bigger amounts of money should be made a priority in the trial schedule of our courts,” Mr. Marcelo said.

Setting Limits

The move toward democracy and constitutional order essentially seeks to subject law to the “discipline of limits” of accountability, Mr. Hossain said. Putting that into the context of justice reforms, the makers of the constitution or political reforms have sought to provide a framework in which limits are set and accountability of those in power is provided for.

When looking at access to justice and the changes that are being implemented— not just to make justice more accessible to the poor, but to everyone, equally—it must be asked whether the changes are doing just that, said Mr. Hossain.

“If all persons are empowered in a society, this means they are entitled to equal protection of the law, to equally assert claims, and have those claims recognized and enforced. Whether one is rich or poor, man or woman, or belongs to one caste or another caste, one religion or another. All forms of discrimination and disempowerment create a disabling environment for development.”