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Rule of Law is one the imperatives for sustained growth and quality of life
This writer in this series of articles has been continuously emphasising on the need for improving the Rule of Law record of a country if it is to improve the quality of life of people and sustain economic growth efforts (see: http://www.ft.lk/2012/05/28/rule-of-law-or-rule-of-men-what-will-usher-prosperity-and-development/ ; http://www.ft.lk/ftadmin/wp-content/uploads/2013/03/DFT-19.jpg).
Economic growth which Sri Lanka at present target for achieving in the medium to long run, enhances the goods and services materially available to people. But those goods and services do not improve the quality of their life if they have to live in fear of crime against person and property, unequal treatment and discrimination and persecution on account of expressing free views or having different faiths. The final goal of a society – development – is to provide each and every member with opportunities for self-perfection and such self-perfection becomes an illusory goal if the Rule of Law is absent in society.
Rule of Law as perceived by ordinary people and not as projected by officials
WJP claims that it surveyed more than 100,000 households and experts to prepare the index. Thus, it depicts how the Rule of Law is perceived by ordinary people of the countries which have been included in the index. In the case of Sri Lanka, information at primary level has been gathered from several public officials, university academics and a number of anonymous contributors.
While the public officials may have subscribed to depict a better picture about the Rule of Law record of the country, university academics and anonymous contributors may have by and large moderated the positions presented by the public officials. Information has been collected by means of face to face interviews with information suppliers numbering 1020 individuals and organisations using a general population poll (a sample of 1013) and a qualified respondents’ questionnaire (7 identified practitioners and professionals in the field) in three cities, namely, Colombo, Negombo and Kandy in 2012.
Two limitations on Sri Lanka’s score
Two limitations could be observed with respect to the overall ranking given to Sri Lanka in the index. First, the survey has not been conducted in the more controversial regions, namely, the North and the East, with respect to the observance of the Rule of Law. Had these regions been included in the survey, the overall ranking given to the country could have been different from what it has been reported.
Second, the position depicts the situation in the country at the time the survey has been conducted in 2012 and therefore it cannot be used to make judgments about the country’s Rule of Law record in the recent past. Hence, a more accurate picture about the status of the Rule of Law in Sri Lanka could be obtained only in a future index which should have addressed these deficiencies effectively.
Rule of Law is vital for opportunities and equity
According to WJP, 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 risks. The rule of law is key to improving public health, safeguarding participation, ensuring security and fighting poverty.”
Hence, strengthening rule of law should be the major goal, says WJP, of governments, donors, businesses and civil society organisations.
Four universal principles of Rule of Law
WJP has worked on the basis of four internationally accepted universal principles of the Rule of Law. The first principle relates to accountability, under the law, of the government, its officials and agents, private sector entities and private individuals. The second principle says that laws which should clear, publicised, stable, and just should be applied evenly and should protect fundamental rights, including the security of persons and property.
The third principle calls for the accessibility, fairness and efficiency of the process by which laws that are enacted, administered and enforced. The fourth principle concerns itself with the machinery by which justice is administered. According to this principle, Justice should be delivered timely by competent, ethical, and independent representatives and neutrals who are of sufficient number, have adequate resources, and reflect the make-up of the communities they serve.
Eight key aspects of Rule of Law
For the compilation of the index, eight key aspects contributing to the Rule of Law of a country have been identified by WJP. They are the effective checks on misusing the government power, absence of corruption in public officials and politicians, openness in governmental activities, enjoyment of fundamental rights by people, maintenance of order and security in society, effectiveness of regulatory enforcement, administration of civil justice and administration of criminal justice. These broad eight aspects have been further broken into 47 detailed factors and each country has been ranked according to the survey results which depict the perception of ordinary citizens on the type of the Rule of Law they are facing in their respective countries.
Sri Lanka’s score in these broad factors has been mixed. In some cases, it has been ranked at medium-level, while in many aspects its score has been very low. Historically, except in corruption and order and security, its score has declined from the previous year.
Check on government is weak in Sri Lanka
With respect to the check on government powers, Sri Lanka has scored 0.53 out of 1. In the previous survey, it had scored a little higher at 0.56. The effective limitation on government powers by Parliament, judiciary and auditor general and peaceful transition of power has scored between 0.51 and 0.55, a situation much to be desired.
In the case of punishment of misconduct by officials, Sri Lanka’s score has been even below this level at 0.47. It is only in the case of the ability of the civil society in controlling the government where Sri Lanka has scored a little over its national average but even then, at 0.62 it is not the best. Hence, by and large, the control over the Sri Lanka government is not at an adequate level.
Corruption record is better except among Parliamentarians
The score which Sri Lanka has got for absence of corruption has also been at the same level as the previous aspect at 0.53 but a little improvement from the previous year’s score of 0.51. This means that Sri Lanka’s corruption level is not as high as that in India or Bangladesh which have scored 0.39 and 0.27, respectively. But it is not at a level about which Sri Lanka can be complacent.
In the detailed break-down, this covers the corruption in the executive branch, judiciary, military/police and among Parliamentarians. The corruption levels in Sri Lanka with respect to the first three are at a medium level scoring between 0.5 and 0.68. However, the corruption level among Parliamentarians, according to the Index, is very high and as a result, the country has scored in this aspect only 0.37, somewhat better than Bangladesh which has scored 0.27 or India which has scored 0.21.
With respect to corruption among Parliamentarians, Sri Lanka should be jealous of Hong Kong – though it is a part of mainland China – whose legislature is more or less corruption free enabling it to score as high as 0.81. Democracy is at peril in any country where Parliamentarians are perceived to be corrupt by ordinary people.
No openness in government
With respect to openness in government, Sri Lanka’s score at 0.48 (in the previous year, the score was 0.5) is even below its overall average. While the accessibility to and stability of laws is at a medium level between 0.51 and 0.57, the right to information by Sri Lankans is at a woefully low level scoring only 0.31 out of 1.
One reason for high corruption in Sri Lanka is this opacity of government activities. In this aspect, Sri Lanka is ranked among such opaque countries like China or Uganda and even India which passed a right to information law recently has scored 0.45, higher than Sri Lanka.
Fundamental rights marred by lack of right to life, security and privacy
With respect to fundamental rights, Sri Lanka has scored 0.56 out of 1, a medium level score. Again, there is deterioration from the previous year’s score of 0.6. While Sri Lanka’s labour rights, freedom of association, freedom of religion, freedom of expression, and absence of discrimination are at a relatively better level, its right to life and security scoring only 0.39, right to privacy scoring 0.38 and due process of law scoring 0.45 are at a woefully low level.
These three are important aspects since they are the main contributors for the protection of property rights of people. When the protection of property rights is low, it keeps the investors of worth, both local and foreign, away from the country.
Increased resort to violence to settle disputes
Sri Lanka has scored high for order and security at 0.72 out of 1, a significant improvement from 0.54 scored in the previous year. However, this has mainly been contributed by the absence of crime and absence of civil conflicts. In this category, resorting to violent means to settle disputes and gain redress has been very high in Sri Lanka and for this it has earned only 0.38 out of 1.
This is validated by the notoriety displayed by Sri Lankans using violence as the first resort to settle disputes and disagreements, whether it be religious, political, business or private, and often with total impunity. This is far from the way a civilised society should behave. What it means is that the absence of crime and civil conflicts has improved the quality of life of Sri Lankans. But that achievement has largely been negated by day to day violence which Sri Lankans have been subject to in the recent past.
The weak implementation of regulations
According to the Index, Sri Lanka’s regulatory enforcement has been very weak and it has scored only 0.44 out of 1, a decline from previous year’s score of 0.52. While the country has to improve its score in general, its performance has been at a very low level with respect to delays in regulatory enforcement (scoring 0.34), disregard of the need for following due processes (scoring 0.3) and the possibility of expropriating private property with or without compensation (scoring 0.49).
When the regulatory enforcement is weak, the country fails to ensure the protection of property rights and the rights of women, children, workers and religious and ethnic minorities. Such protections are key to ensuring competition and sustained growth on the one hand and empowering disadvantaged groups on the other.
Justice weakened by governmental influences and defective investigations
The administration of both civil justice and criminal justice are also very weak in Sri Lanka. Civil justice has scored only 0.41(2012-13: 0.52), while criminal justice has done little better by scoring 0.49 (2012-13: 0.62), but still below the medium score and what it had scored in the previous year.
While the corruption levels in the judiciary have not been a major problem for the administration of justice, discrimination (scoring 0.39-0.71), improper government influence (0.44-0.55), low accessibility and affordability (0.31), undue delays (0.29-0.4), lack of effective enforcement (0.35), weak investigations by Police authorities (0.25) and the absence of due process of law (0.45) have created major issues for the systems to become effective and efficient. According to the Index, this has been a major dent in Sri Lanka’s observance of the Rule of Law.
Daunting challenge of improving the Rule of Law
With respect to the Rule of Law, Sri Lanka outshines its peers in South Asia and many in the middle income group. However, this is not due to its superiority but due to the greater weaknesses shown by others in observing the Rule of Law in their respective countries. Hence, the medium level score which Sri Lanka has got should not make it complacent.
Its current objective is to become a rich country within another generation. However, this goal is thwarted if the Rule of Law is weak since it keeps everyone in fear of being persecuted, discriminated, and deprived of right to property or life. But its worst impact will be the failure to improve the quality of life of people along with the attainment of higher material growth as the country is vigorously pursuing today. Hence, it is of utmost importance for Sri Lanka’s authorities to take effective measures to improve its Rule of Law scorecard and at the same time, prevent it from slipping down from the current level. As such, though Sri Lanka has been ranked at mid-level and above its peers, its challenges are much more than the rest of the group.
(W.A. Wijewardena, a former Deputy Governor of the Central Bank of Sri Lanka, can be reached at [email protected].)
