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Fischer, Eveline "Lessons Learned from Judicial Reform: The ADB Experience" [2006] ADBLPRes 6 (20 October 2006)

Eveline N. Fischer
Deputy General Counsel
Asian Development Bank

Ladies and gentlemen, distinguished guests, good afternoon.

It is my pleasure to speak to you today about the Asian Development Bank’s support for judicial reform and the lessons learned from such involvement.

Why judicial reform?

Since 1995, international donors have invested more than US$1.0 billion in legal and judicial reform work—for good reason. Strong rules-based institutions promote economic growth. A fair, independent and efficient judiciary supports equitable development. It also improves predictability in the market, and can increase the per capita income growth rate of a country by 1.9 percentage points. On the other hand, a weak judiciary leads to lower per capita income; higher poverty rates; lower private economic activity; poorer public infrastructure; higher crime rates; and more industrial riots.

The judiciary plays a key role in the development process. Issues involving development projects sometimes end up in court. As an example, many infrastructure projects encounter roadblocks when questions regarding land acquisition or right-of-way arise. When these issues are litigated, slow court proceedings affect thousands of potential beneficiaries, who are unable to enjoy the advantages expected from the project. They also result in financial losses to the government and project proponents.

Resources are needed to improve judicial services, increase the competence of judges and court personnel, and provide incentives to reduce corruption and discrimination. In the Philippines, only 0.8% of the government’s annual budget was allocated to the judiciary in 2005 and 2006. In larger economies, the ratio is even smaller. The judiciary’s budget is often less than that of any agency in the executive department of many countries. And in those countries where the judiciary’s budget is sufficient, the other branches of government control budget allocation and providing cash allotments. During the last three days, we have discussed how courts have tried to balance issues of individual liberties and community prosperity. But if judges and court personnel lack sufficient capacity and resources to deliver justice, these issues—which can facilitate or derail the development process—will not be adequately resolved.

For these reasons, ADB is supporting judicial reform in a number of Asian countries. Allow me to describe some of our judicial reform initiatives.

Strengthening the Independence and Accountability of the Philippine Judiciary

Soon after the Philippine Supreme Court adopted its Action Program for Judicial Reform in 2000, ADB provided a technical assistance grant to strengthen judicial independence and accountability. The technical assistance recommended improvements in the judiciary’s financial and human resource management, and in its administrative and organizational structure. The Philippine Supreme Court has accepted these recommendations. Key reforms relating to improving the judiciary’s fiscal autonomy will be piloted under the new Technical Assistance to Support Enhanced Judicial Autonomy, Accountability and Efficiency, and Improved Administration of Justice in the Philippines, which was launched yesterday.

Assistance to the Indonesian Supreme Court

ADB is also assisting the Supreme Court of Indonesia in improving the administration of justice; developing a case-tracking mechanism and case classification system; improving public dissemination of Supreme Court judgments; and building the capacity of administrative staff in the court system.

Apart from its involvement in the Philippines and Indonesia, ADB has assisted, and continues to assist, a number of countries in their judicial reform efforts.

Access to Justice Program in Pakistan

ADB’s largest justice sector investment is the Access to Justice Program. The program consists of a US$350 million loan; a $20 million TA loan; and a $25 million endowment fund called the Access to Justice Development Fund (AJDF). The AJP includes a wide range of reforms. It has components on caseload management, legal empowerment, reforming the prosecution service, administrative justice, fiscal reforms in the judiciary, and police reform. AJP projects have decreased backlogs in court dockets, such that there are no criminal or civil cases more than 2 to 3 years old in certain cities. AJP has also increased the budget outlays devoted to the judiciary by an average of 30%.

Improving the Administration of Justice in India

ADB has provided technical assistance to the Government of India to help reduce court congestion and develop improved access to speedy justice in Delhi. As a result of the TA, courts were able to increase their docket clearance rates. Through a proposed TA loan, ADB is helping enhance the capacity of public institutions to provide more effective access to justice for Delhi residents.

Supporting Judicial Reform in the People’s Republic of China

The People’s Republic of China (PRC) has embarked on a major law reform program to help it play a significant role in the world economy. ADB is involved in some 32 legal and judicial reform TAs totaling $19.4 million in PRC. One project reviewed, and planned for, the development of the legal and judicial system. Another assisted in improving the judicial system’s enforcement of World Trade Organization Rules.

Assessing the Justice Sector in the Kyrgyz Republic

In 2005, ADB completed its technical assistance to the Kyrgyz Republic on Strengthening Corporate Governance and Judicial Reforms. A successful component of the technical assistance was a diagnostic assessment of process-related constraints and systemic weaknesses in the justice sector. Political support for judicial reform facilitated the success of this component.

Lessons learned

Let me now share with you seven modest lessons we have learned from our engagement in judicial and justice reform.

1. Investments in justice reforms require a different approach

Investing in judicial reform is not quite the same as investing in infrastructure. Justice sector investments do not earn revenue or add immediate value in the way that the construction of a road can generate user fees and increase the price of real property. At best, fees collected directly by the judiciary will support its budget requirements.

The value created by judicial reform becomes apparent only in the long run. Among its many benefits are increased investor confidence in the market, and greater protection of basic rights and liberties. Not only is there a greater lead-time for the impacts of justice reforms to become clear, there is also a greater uncertainty upfront as to what will work and what not in a given environment. These two elements lead to the following conclusion: justice reform programs need time and flexibility. Sufficient time is needed to see the impacts and sufficient room for adjustment needs to be built in to respond to the results of evaluations of the program.

2. We need to approach justice sector investments creatively

Even the most well-meaning governments are often hard-pressed to fund justice sector reforms. Because the value produced by judicial reforms are achieved in the long-term, it is tempting to set them aside in favor of other priorities. But the delivery of justice is a public service that only the government can credibly provide. It will benefit society as a whole by improving the investment climate and increasing citizens’ access to institutions that protect their liberties. We need to find creative solutions to help governments fund the justice sector. As an example, some have suggested that it may be more useful to subsidize the delivery of justice rather than the usage of electricity or water. We need to study this and other similar proposals.

3. For judicial reform to be successful, countries must have ownership of the judicial reform program

A country needs to be willing to devote the necessary time and resources to implement judicial reform. Donors can encourage counterpart ownership and engagement by actively listening to the agenda of the counterpart government. A feature of strong counterpart ownership is effective and efficient donor and sector coordination by the partner government. Coordination is important in sorting out judicial reform priorities. Some sectors of society approach judicial reform from the perspective of improving investor confidence in governance institutions. Other sectors are more concerned with access to justice reforms that result in greater respect for civil liberties. Coordination should be encouraged as it has helped improve impact on the ground.

4. Strong leadership is needed for the successful implementation of judicial reform initiatives

Reforms are often painful. Unless there is a strong leader who is able to inspire individual members of the judiciary with his/her vision, enthusiasm and sense of urgency, reform initiatives tend to dissipate in the onslaught of day-to-day matters that need attention. Former Chief Justice Davide and, in his footsteps, Justice Panganiban, have displayed the leadership and tenacity needed to set the stage for reform of the Philippine judiciary.

5. Building consensus among other branches of government is integral to the success of judicial reform

The judiciary and Ministry of Law and Justice may have to persuade other branches of the need for judicial reform. Meaningful and sustainable judicial reform requires action by the executive and legislative branches of government. As an example, improving case management means more than just training judges and providing new technology. The incentive structure of court staff needs to be changed. But such change invites comparison between members of the judiciary and other civil servants. Why grant the judiciary special incentives? Coordination with other branches of government is needed to sort out the relevant issues. The legislature plays an important role in ensuring judicial independence and accountability. To support judicial independence, the budgetary process needs to assure adequate resources for the judiciary.

Communicating the benefits of judicial reform mobilizes support for the reform process. We need to build consensus on the need for judicial reform among the branches and key departments of government to ensure the success of our efforts.

6. Judicial reform is a process of change that needs to be managed

Judicial reform is an ongoing process. It aims to reform institutional culture and create new capabilities within the judiciary. This requires change management. Professionals skilled in managing court reforms will help institutionalize new practices. Their recruitment, deployment and retention needs to receive greater attention and investment. Placing experts in implementing agencies and twinning arrangements have been useful in consolidating judicial reforms. Compared to standalone project teams, they are more accessible to the courts and have the opportunity to obtain personal knowledge of the complex issues that stand in the way of reform. They also help preserve institutional memory.

7. There is growing demand for a sector-wide approach to justice reform

In the beginning, judicial reform consisted of training judges, building court-related infrastructure, and introducing case management strategies and equipment. Today, judicial reform programs include components on police reform, the public attorney’s office, and legal aid. Demand for justice sector reforms is growing in countries such as the Philippines. Last year, the Supreme Court asked donors for assistance to develop a sector-wide approach to justice reforms.

I would like to share with you how ADB’s Access to Justice Program (AJP) in Pakistan responded to a similar demand. AJP was initially concerned with core reforms in legal and judicial institutions. But it eventually supported reforms targeting the police, the prosecution service, the legal profession, and legal education. It supported citizens’ legal empowerment and the enactment of a freedom of information law. It helped establish family courts, grievance procedures and ombudsman systems. The key insight behind the shift was this: Judicial reforms are unlikely to benefit the poorest and most vulnerable sectors if other pillars of justice are ignored.

Although engaging in judicial reform is often justified by the improvements it is expected to make in the market, current trends recognize the important role it plays in protecting the rights of the poor. Could it be, then, that there really is no debate between prosperity and liberty, that both are two sides of the same coin? To paraphrase Nobel Laureate Amartya Sen, the market, the judiciary, and other institutions play specific and related roles in a country’s development. We should not “end up seeing development in an artificially narrow way, focusing on one part of the interlinked structure and ignoring others.” A successful judicial system is a valuable part of the development process, not just in the way it may aid in obtaining economic prosperity, but also in the way it may protect civil liberties and freedom.

Thank you.