Within Asia, what we broadly term ‘promoting the rule of law’ embraces environmental governance in China; judicial reform in Vietnam; court buildings and computers in Mongolia; independent regulators for Indonesia and anti-corruption initiatives across the region — all supported through donor loans, grants in aid, budget supplementation and technical assistance.
This is a good news story if donors and their stakeholders remain confident that rule of law works as advertised: to reduce poverty, open markets, boost economic growth and provide for more legitimate and more effective domestic governance institutions. Some of this is visible, but it is less clear that it flows as a consequence of donor assistance. For a host of reasons the intended impact of donor interventions tend to be blunted.
‘Rule of law’, like earlier forms of donor assistance, developmentally uses some less than effective regulatory techniques. One is standardization. Donors tend to promote a set of institutions and attributes that aggregate to ‘rule of law’. A core example is the ‘independent’ judiciary — an ideal in the west, and an ambitious reform in places with no tradition of separation of powers and no economic or ideological incentives for powerful elites to cede authority to the courts. No surprise, then, many donor years on, Vietnam’s courts are not independent, technically competent or efficient. Another tendency is to ignore historical perspectives. We take late 20th century forms of law such as self-regulating bar associations, state-funded legal aid and ‘access to justice’, and comprehensive human rights norms and project these onto states that — by definition — have not developed these institutions. What took decades to evolve in the west is presented as a 3-year project in a development setting. So it is no coincidence that Indonesia’s under-resourced shari’a judges do a much better job of delivering justice at the local level than a Supreme Court which is saturated in donor funding but has not — and has not needed to — embrace a 21st century client-oriented mindset.
Against this background, key players are now seriously re-evaluating the investment in global legal and regulatory reform. Bilateral donors are increasingly subject to regulatory pressures: their programming is driven by shifting political priorities; their budgets and procurement are more subject to technocratic accountability; and their failures are reported more aggressively by the media in both donor and host countries.
Multilateral donors such as the World Bank recognize those pressures but also have an institutional stake in advancing their role. The World Bank’s 2011 World Development Report calls for greater attention to justice reform in fragile and conflict-affected states. In parallel, the Bank’s Directions in Justice Reform policy paper, currently in development, is likely to advocate for an expansion of its support for justice reform worldwide, with greater differentiation of middle-income, plural legal regime, fragile or conflict affected and authorization states.
The problem is that these are ambitious agendas that follow 20 years of post-Berlin Wall investment in promotion of the rule of law that has yielded mixed results. And the Bank’s clients seem underwhelmed: ‘[W] widespread acknowledgement of the need for justice reform does not, however, necessarily correspond with immediate demand form client countries for World Bank justice reform operations.’ In other words, the Bank views justice reform as crucial for the achievement of its plans in areas such as forestry, land, and private sector disputes within functioning markets, but client states and their agencies do not share the enthusiasm.
There are three reasons why donors are likely to encounter pushback in Asia.
Regulatory diversity: The template approaches of donors have not been particularly successful, on anyone’s terms, in a region characterized by regulatory diversity. The Bank codes countries in a binary style (middle-income OR plural legal regime OR fragile or conflict-affected OR authorization). Reality is more complex: China fits all categories. So celebrated models within the Bank such as ‘bottom up’ legal reform featuring legal aid workers who challenge local power structures in places like Sierra Leone are likely to be much less successful in Cambodia or rural Vietnam.
Counting the wrong chickens: Rule of law promotion — like other fields of development — is now subject to more intense quantitative evaluation. Donor and host governments use national audit systems to track expenditures and ‘impact’ from rule of law promotion. Third party tools such as the World Bank’s Doing Business indicators of regulatory reform and the World Justice Project’s Rule of Law Index™ are very much in vogue as indicators and benchmarks for national for rule of law results. Donors’ own project evaluations focus on the specific outcomes (or ‘deliverables’) for a short project timeline: ‘5 legal clinics in 5 provinces’, or ‘1500 subsidized cases over 3 years’ — arbitrary numerical targets that key to the available budget, but tell us very little about the quality of law — or regulation — or justice in the context of that particular host system. Paradoxically the metrics approach weakens sustainability, another key development mantra. Projects proceed as far as the cash trail, unless the target community and its government really value the reform goal. Signaling that what matters is a country’s rule of law ‘score’ or the number of computers delivered and police trained, rather than the quality of justice experienced by citizens is a short-cut to swift expenditures but seldom transforms institutions and the people who constitute them.
Affluence: From Beijing to Ubud to Ulaan Bator, Asia is becoming increasingly wealthy. That wealth is unevenly spread, the state is often predatory and local elites often benefit disproportionately. One effect of economic growth is reduced political traction for donor interventions — particularly in the governance and regulatory reform arena. What we see across China, Mongolia, Vietnam, and to some extent in Indonesia is tolerance for donor money, but a robust attitude toward either steering project interventions or subverting the donor policies to domestic priorities. Thus China is unlikely to prioritize legal aid for its own poor in civil disputes — donors favor legal ‘empowerment’, while Chinese political elites want to keep many kinds of disputes out of the courts. The key issue here is that China is both itself a donor and a recipient of rule of law promotion funding and has both capacity and means to capture, steer and reshape donor interventions.
What should donors do in response? One approach would be to de-emphasize attention to formal legal institutions in Asia and look instead at the regulatory dyamics of individual systems at natonal and local levels. Regulatory reform in industrialized and post-industrial states relies on co-regulation by state and non-state actors and mobilizing self regulation by understanding of what motivates regulatoryy actors. Donors would get better results in Asia from investing in a nuanced understanding of how indigenous regulation works — at all levels. So yjay requires less copying and pasting of competition legislation and more interdisciplinary understanding of the social, economic and political drivers for regulatory actors on the ground.
We could also correct the technocratic emphasis on form over substance. Body counts of judges are largely irrelevant indicators of legal ‘development’. Better measures would be rigourous, multi-method studies of how judges see their role, how their knowledge changes over time, and the personal costs and systemic constraints of, say, delivering accurate, appealable decisions.
A further dimension would be to take seriously the prospect that China may emerge as an intellectual force in the promotion of rule of law. It already stands as an alternative development model and there is no reason why Chinese adaptations of donor rule of law interventions cannot become suggestive models of practice elsewhere, regardless of whether they fit current donor orthodoxy. The indications seem to be that the donor era of ‘Do as I say, not as I do’ might be drawing to a close.
Veronica Taylor is Professor and Director-Designate of the School of Regulation, Justice and Diplomacy at the Australian National University.
This piece was originally published in the most recent edition of the East Asia Forum Quarterly, Asia’s Regulatory Awakening.