Methodologies in the Methodologies in the Promotion of the Rule Promotion of the Rule of Lawof Law

Lessons from Reform Projects Lessons from Reform Projects in New or Restored in New or Restored Democracies Democracies

OverviewOverview

1.1. General Observations General Observations

2.2. History of the Promotion History of the Promotion movementmovement

3.3. The Problem of DefinitionThe Problem of Definition

4.4. What has been tried ?What has been tried ?

5.5. Problems identified Problems identified

6.6. What could have been learned What could have been learned

Rule of Law World Rule of Law World MapMap World BankWorld Bankgreen: top quartile orange: middle lowgreen: top quartile orange: middle low

yellow: middle high red: bottom quartileyellow: middle high red: bottom quartile

ROL: ROL: A new/modern/western A new/modern/western concept ?concept ? People should have “certainty of People should have “certainty of

being governed legally in being governed legally in accordance with known rules” accordance with known rules” ( Solon)( Solon)

The right of the citizen is to “be The right of the citizen is to “be guided and governed by the certain guided and governed by the certain ROL ….and not by any uncertain and ROL ….and not by any uncertain and arbitrary forms of government“… arbitrary forms of government“… (1610)(1610)

RULE OF LAW is ABOUT RULE OF LAW is ABOUT POWERPOWER

The ROL is about both The ROL is about both limiting the power of the state limiting the power of the state empowering it to protect the rights of the empowering it to protect the rights of the

citizens against law breakerscitizens against law breakers

Methodology/Methodology/Promotion - History Promotion - History 1960s-early 1970s 1960s-early 1970s Law and Development Law and Development

PhasePhase– US endeavor (i.a.USAID)/ethnocentricUS endeavor (i.a.USAID)/ethnocentric– Strategy: judicial and legal system reformStrategy: judicial and legal system reform– End goal: economic developmentEnd goal: economic development– Assumption: Spillover: legal change/ social Assumption: Spillover: legal change/ social

change ;economic growth/democracy and change ;economic growth/democracy and HRHR

– Countries: i.a. El Salvador, Guatemala, Countries: i.a. El Salvador, Guatemala,

AfricaAfrica

From 1980s From 1980s Rule of Law Promotion Phase Rule of Law Promotion Phase - intergov. org (i.a. UN,EC,OSCE )intergov. org (i.a. UN,EC,OSCE ), , developm. developm.

banks (i.a. WB), bilater. actors (i.a. USAID, banks (i.a. WB), bilater. actors (i.a. USAID, CIDA,DIFID)CIDA,DIFID)

NGOs (HR Org, Unis, Policy TT, Inter.Dev. NGOs (HR Org, Unis, Policy TT, Inter.Dev. NGO)NGO)

- Strategy: variousStrategy: various- End goal: Democracy, Peace, Good End goal: Democracy, Peace, Good

governance, Econom.Devel.governance, Econom.Devel.- CountriesCountries: : i.a. East Timor,i.a. East Timor, Ex Jugosl., Ex Jugosl.,

Afganisthan, IraqueAfganisthan, Iraque- Money spent in the last 20 years: 1 Billon Money spent in the last 20 years: 1 Billon

dollars+ dollars+

1993:UN “ROL is an essential 1993:UN “ROL is an essential factor in the protection of HR”factor in the protection of HR”

2004:1.UN report on “ROL and 2004:1.UN report on “ROL and trans.justice in conflict and post trans.justice in conflict and post conflict societies”conflict societies”

2004: EU welcomes the Report 2004: EU welcomes the Report and urges all countries to and urges all countries to implement the recommendations implement the recommendations

DocsDocs

Rule of Law Rule of Law

Source: Secr.Gen. Report on Rule of Law 2004 Source: Secr.Gen. Report on Rule of Law 2004

a a principle of governanceprinciple of governance in which all in which all a)       persons, a)       persons, b)       institutions and b)       institutions and c)       entities , c)       entities ,   publicpublic and and privateprivate , including the , including the statestate itself , are itself , are   accountable toaccountable to lawslaws that are that are a)       publicly promulgated , a)       publicly promulgated , b)       equally enforced  b)       equally enforced  c)       independently adjudicated  c)       independently adjudicated  d)       consistent with international human rights norms d)       consistent with international human rights norms and standards  and standards 

Rule of Law Rule of Law

It requires , as wellIt requires , as well, , – measures to ensure adherence to the principles of measures to ensure adherence to the principles of

supremacy of lawsupremacy of law, , – equalityequality before the law, before the law, – accountabilityaccountability to the law, to the law, – fairness fairness in the application of the law , in the application of the law , – separation of powersseparation of powers, , – participationparticipation in the decision- making, in the decision- making, – legallegal certainty certainty,,– avoidance of avoidance of arbitrarinessarbitrariness and and – procedural and legal procedural and legal transparencytransparency. .

What has been tried ?What has been tried ?Was it successful?Was it successful? Exclusive Focus on Legal change ( i.a.Eastern Europe) Exclusive Focus on Legal change ( i.a.Eastern Europe)

Institutional support Institutional support – (Reform (Reform inin institutions) institutions)

Exclusive focus on criminal law and justice ( East Timor,)Exclusive focus on criminal law and justice ( East Timor,)

Exclusive support of police (i.a.Haiti, Panama)Exclusive support of police (i.a.Haiti, Panama)

ROL Support in states without functioning basic democratic institutions : Afganistan, Iraque,ROL Support in states without functioning basic democratic institutions : Afganistan, Iraque, Case of KosovoCase of Kosovo

International tribunals International tribunals

. .

ProblemsProblems

Lack of knowledge (ROL is an area of great Lack of knowledge (ROL is an area of great conceptual and practical complexity( how does conceptual and practical complexity( how does law function in a society, traditional law function in a society, traditional mechanisms, what role does it play, how can it mechanisms, what role does it play, how can it change)change)

Lack of Strategy ( What is ROL reform?)Lack of Strategy ( What is ROL reform?)

Lack of coordination, sequencing, prioritizationLack of coordination, sequencing, prioritization

Focus on short term support instead of long Focus on short term support instead of long term planning and capacity buildingterm planning and capacity building

Lessons are not learned Lessons are not learned A prevailing formalistic view of A prevailing formalistic view of

legal change: form over functionlegal change: form over function Local ownership ( of process / Local ownership ( of process /

outcome)outcome) Poorly designed training and Poorly designed training and

Legal Education programsLegal Education programs

What could have been What could have been learned ? learned ?

Confusion between definitions of ROL by end Confusion between definitions of ROL by end goals (purposes it is to serve in society) on goals (purposes it is to serve in society) on one hand and definition through its “ one hand and definition through its “ institutional attributes” on the other hand institutional attributes” on the other hand leads to insufficient ,ill focused strategyleads to insufficient ,ill focused strategy

End goals need to be identified as a End goals need to be identified as a precondition for strategic planningprecondition for strategic planning

They need to be balancedThey need to be balanced Techniques: Reform Techniques: Reform across across institutionsinstitutions Political and cultural change is needed and Political and cultural change is needed and

inherent :Ultimately the ROL is enforced by the inherent :Ultimately the ROL is enforced by the expectations of the people under its dominionexpectations of the people under its dominion

Reform efforts have to be coordinated Reform efforts have to be coordinated Measure the right things when evaluating Measure the right things when evaluating

success success Some assumptions are Myths and motifs are Some assumptions are Myths and motifs are

questionablequestionable

““ROL” through ROL” through “imperfect” “imperfect” bodies ?????bodies ????? Informal Justice SystemsInformal Justice Systems Justice vacuumJustice vacuum The Healing PotentialThe Healing Potential ShortcomingsShortcomings Role of Informal systems in Role of Informal systems in

(re) construction of ROL (Burundi, (re) construction of ROL (Burundi, Ruanda,Somalia etc)Ruanda,Somalia etc)

Pal.Basic Law Art 6 Pal.Basic Law Art 6

The principle of the ROL shall be The principle of the ROL shall be the basis of governing in the basis of governing in Palestine . All authorities, powers, Palestine . All authorities, powers, agencies,agencies,

institutions and individuals shall institutions and individuals shall

be subject to law.be subject to law.

Accountability Accountability mechanisms +mechanisms + Vertical accountability ( elections, Vertical accountability ( elections,

media, civ.society)media, civ.society) Horizontal accountability (system Horizontal accountability (system

of checks and balances between of checks and balances between the govern. branches : courts, the govern. branches : courts, investigation commissions )investigation commissions )