ASIA
26 March 2014
Rule of Law in Asia
The rule of law is fundamental to achieving communities of opportunity and equity - communities that offer sustainable economic development, accountable government, and respect for fundamental rights.
The rule of law is fundamental to achieving communities of opportunity and equity - communities that offer sustainable economic development, accountable government, and respect for fundamental rights. Without the rule of law, medicines do not reach health facilities due to corruption; women in rural areas remain unaware of their rights; people are killed in criminal violence; and firms' costs increase because of expropriation risk.
So how do Asia's fast emerging economies stack up in terms of rule of law?
As is well known, these past several decades have witnessed unprecedented economic development in Asia. But the region has seen much less progress in democratization, and it is widely regarded as having great deficits in terms of the "rule of law".
In this context, the World Justice Project's (WJP) Rule of Law Index is of great interest, as it is an excellent attempt to quantify the rule of law in some 97 countries worldwide, representing over 90 percent of the world’s population. It offers a comprehensive picture of the extent to which countries adhere to the rule of law in practice.
First things first, what is the rule of law?
The WJP defines the rule of law as a system in which four universal principles are upheld: (i) the government and its officials and agents are accountable under the law; (ii) the laws are clear, publicized, stable, and fair, and protect fundamental rights, including the security of persons and property; (iii) the process by which the laws are enacted, administered, and enforced is accessible, fair, and efficient; and (iv) justice is delivered by competent, ethical, and independent representatives and neutrals who are of sufficient number, have adequate resources, and reflect the makeup of the communities they serve.
"Nine conceptual dimensions" are used by the WJP to assess these principles, and estimate its rule of law index. These are: limited government powers; absence of corruption; order and security; fundamental rights; open government; regulatory enforcement; civil justice; criminal justice; and informal justice.
How do the leading western countries stack up? Denmark, Finland, the Netherlands, Norway and Sweden are at the top of the global pack for most of these dimensions of the rule of law. They are generally well ahead of the US and the UK, those eternal promoters of the rule of law and democracy, who would regard these continental European countries as socialist!
Overall, countries in Western Europe and North America outperform most other countries in all dimensions. They have relatively low levels of corruption, open and accountable governments, and effective criminal justice systems. Their greatest weakness relates to the accessibility of the civil justice system, especially for marginalized segments of the population. While protection of fundamental rights in this region is the highest in the world, police discrimination against foreigners and ethnic minorities is an issue of concern in most countries.
What about the Asia-Pacific? The advanced Asia-Pacific nations of Australia, New Zealand and Japan rank highly in nearly all categories, but lag behind in guaranteeing equal treatment to disadvantaged groups.
On several criteria, the pro-business city-states of Hong Kong and Singapore also rate very highly, and ahead of most western countries. But they lag behind in guaranteeing fundamental rights and freedoms to their peoples.
In contrast, many emerging economies in the region face challenges in combating corruption, strengthening accountability, improving how effectively and efficiently government agencies and courts function, and respecting for fundamental rights, including labor rights, freedom of assembly, and freedom of opinion and expression. Accessibility of official information in East Asia and Pacific countries is lower than in other regions of the world.
China scores well on public safety. Its criminal justice system is relatively effective, but compromised by political interference and violations of due process of law. Administrative agencies are lax in enforcing regulations and vulnerable to improper influence. The civil court system is relatively speedy and accessible, but judicial independence is a concern. Effective checks on the executive are limited. Indicators of fundamental rights are weak, which chiefly reflects substantial limitations on freedom of speech and freedom of assembly.
India has a robust system of checks and balances, an independent judiciary, strong protections for freedom of speech, and a relatively open government. Administrative agencies do not perform well, and the civil court system ranks poorly, mainly because of deficiencies in the areas of court congestion, enforcement, and delays in processing cases. Corruption is a significant problem, and police discrimination and abuses are not unusual. Order and security — including crime, civil conflict, and political violence — is a serious concern.
Indonesia is in the top half of the rankings among lower-middle income countries in most dimensions. The country ranks first among lower middle income countries for checks on government power and open government. Indonesians enjoy higher degrees of participation in the administration of the laws than individuals in other East Asia and Pacific region countries.
On the other hand, the country faces challenges in the functioning of government agencies and courts. Corruption is pervasive, ranking last in the region. The courts are perceived to be independent of government control, but affected by powerful private interests and corruption. The civil justice system remains underdeveloped, attributable in part to the lack of affordable legal services, deficient enforcement mechanisms, and the lengthy duration of cases. Police abuses and harsh conditions at correctional facilities are also significant problems.
The case of Cambodia highlights the challenges that many of the region's poorer countries face. Indeed, it is ranked lower than most other countries in the region on all dimensions. The overall legal and institutional environment remains quite weak, which is highlighted by the low scores in key areas, including effective limits on government powers; regulatory enforcement; access to civil justice; and absence of corruption. Property rights are very weak, and police abuses remain a significant problem. On the other hand, Cambodia has lower crime rates than most countries in the low income group.
The WJP rule of law index captures very well many of the challenges that Asia faces in terms of the rule of law. For advanced countries, which see a growing gap between rich and poor, and more diverse and multi-ethnic societies, there is a growing challenge of ensuring that all segments of the population, including foreigners and ethnic minorities, can enjoy the rule of law.
For rapidly emerging economies, it is time to ensure that not only the business sector, but also citizens more generally enjoy the rule of law. This will also be important to the economy, as further economic progress will depend increasingly on innovation and creativity.
The Chinese government sometimes says that it would like to create some Chinese "Steve Jobs", without fully appreciating that it is only through an open and free society that people like Steve Jobs will appear on the scene. Many would look to India as a more open and free society, but India suffers even more than China from deep corruption and widespread insecurity. Poorer countries like Cambodia have a daunting list of rule of law challenges.
Overall, Asia has a vast array of challenges in terms of improving the rule of law. While no one country has a perfect system, Asia has not been making sufficient progress in recent years, and in many respects has been falling backwards. Ultimately, the prospects for successfully realizing the Asian Century will depend on the rule of law.
Executive Director
Asian Century Institute
www.asiancenturyinstitute.com
So how do Asia's fast emerging economies stack up in terms of rule of law?
As is well known, these past several decades have witnessed unprecedented economic development in Asia. But the region has seen much less progress in democratization, and it is widely regarded as having great deficits in terms of the "rule of law".
In this context, the World Justice Project's (WJP) Rule of Law Index is of great interest, as it is an excellent attempt to quantify the rule of law in some 97 countries worldwide, representing over 90 percent of the world’s population. It offers a comprehensive picture of the extent to which countries adhere to the rule of law in practice.
First things first, what is the rule of law?
The WJP defines the rule of law as a system in which four universal principles are upheld: (i) the government and its officials and agents are accountable under the law; (ii) the laws are clear, publicized, stable, and fair, and protect fundamental rights, including the security of persons and property; (iii) the process by which the laws are enacted, administered, and enforced is accessible, fair, and efficient; and (iv) justice is delivered by competent, ethical, and independent representatives and neutrals who are of sufficient number, have adequate resources, and reflect the makeup of the communities they serve.
"Nine conceptual dimensions" are used by the WJP to assess these principles, and estimate its rule of law index. These are: limited government powers; absence of corruption; order and security; fundamental rights; open government; regulatory enforcement; civil justice; criminal justice; and informal justice.
How do the leading western countries stack up? Denmark, Finland, the Netherlands, Norway and Sweden are at the top of the global pack for most of these dimensions of the rule of law. They are generally well ahead of the US and the UK, those eternal promoters of the rule of law and democracy, who would regard these continental European countries as socialist!
Overall, countries in Western Europe and North America outperform most other countries in all dimensions. They have relatively low levels of corruption, open and accountable governments, and effective criminal justice systems. Their greatest weakness relates to the accessibility of the civil justice system, especially for marginalized segments of the population. While protection of fundamental rights in this region is the highest in the world, police discrimination against foreigners and ethnic minorities is an issue of concern in most countries.
What about the Asia-Pacific? The advanced Asia-Pacific nations of Australia, New Zealand and Japan rank highly in nearly all categories, but lag behind in guaranteeing equal treatment to disadvantaged groups.
On several criteria, the pro-business city-states of Hong Kong and Singapore also rate very highly, and ahead of most western countries. But they lag behind in guaranteeing fundamental rights and freedoms to their peoples.
In contrast, many emerging economies in the region face challenges in combating corruption, strengthening accountability, improving how effectively and efficiently government agencies and courts function, and respecting for fundamental rights, including labor rights, freedom of assembly, and freedom of opinion and expression. Accessibility of official information in East Asia and Pacific countries is lower than in other regions of the world.
China scores well on public safety. Its criminal justice system is relatively effective, but compromised by political interference and violations of due process of law. Administrative agencies are lax in enforcing regulations and vulnerable to improper influence. The civil court system is relatively speedy and accessible, but judicial independence is a concern. Effective checks on the executive are limited. Indicators of fundamental rights are weak, which chiefly reflects substantial limitations on freedom of speech and freedom of assembly.
India has a robust system of checks and balances, an independent judiciary, strong protections for freedom of speech, and a relatively open government. Administrative agencies do not perform well, and the civil court system ranks poorly, mainly because of deficiencies in the areas of court congestion, enforcement, and delays in processing cases. Corruption is a significant problem, and police discrimination and abuses are not unusual. Order and security — including crime, civil conflict, and political violence — is a serious concern.
Indonesia is in the top half of the rankings among lower-middle income countries in most dimensions. The country ranks first among lower middle income countries for checks on government power and open government. Indonesians enjoy higher degrees of participation in the administration of the laws than individuals in other East Asia and Pacific region countries.
On the other hand, the country faces challenges in the functioning of government agencies and courts. Corruption is pervasive, ranking last in the region. The courts are perceived to be independent of government control, but affected by powerful private interests and corruption. The civil justice system remains underdeveloped, attributable in part to the lack of affordable legal services, deficient enforcement mechanisms, and the lengthy duration of cases. Police abuses and harsh conditions at correctional facilities are also significant problems.
The case of Cambodia highlights the challenges that many of the region's poorer countries face. Indeed, it is ranked lower than most other countries in the region on all dimensions. The overall legal and institutional environment remains quite weak, which is highlighted by the low scores in key areas, including effective limits on government powers; regulatory enforcement; access to civil justice; and absence of corruption. Property rights are very weak, and police abuses remain a significant problem. On the other hand, Cambodia has lower crime rates than most countries in the low income group.
The WJP rule of law index captures very well many of the challenges that Asia faces in terms of the rule of law. For advanced countries, which see a growing gap between rich and poor, and more diverse and multi-ethnic societies, there is a growing challenge of ensuring that all segments of the population, including foreigners and ethnic minorities, can enjoy the rule of law.
For rapidly emerging economies, it is time to ensure that not only the business sector, but also citizens more generally enjoy the rule of law. This will also be important to the economy, as further economic progress will depend increasingly on innovation and creativity.
The Chinese government sometimes says that it would like to create some Chinese "Steve Jobs", without fully appreciating that it is only through an open and free society that people like Steve Jobs will appear on the scene. Many would look to India as a more open and free society, but India suffers even more than China from deep corruption and widespread insecurity. Poorer countries like Cambodia have a daunting list of rule of law challenges.
Overall, Asia has a vast array of challenges in terms of improving the rule of law. While no one country has a perfect system, Asia has not been making sufficient progress in recent years, and in many respects has been falling backwards. Ultimately, the prospects for successfully realizing the Asian Century will depend on the rule of law.
Author
John WestExecutive Director
Asian Century Institute
www.asiancenturyinstitute.com