1. Methodologies in the Promotion of the Rule of Law Lessons from Reform Projects in New or Restored Democracies

2. Overview 1. General Observations 2. History of the Promotion movement 3. The Problem of Definition 4. What has been tried ? 5. Problems identified 6. What could have been learned

3. Rule of Law World Map World Bank Rule of Law World Map World Bank green: top quartile orange: middle low yellow: middle high red: bottom quartile

4. ROL: A new/modern/western concept ? People should have “certainty of being governed legally in accordance with known rules” ( Solon) People should have “certainty of being governed legally in accordance with known rules” ( Solon) The right of the citizen is to “be guided and governed by the certain ROL ….and not by any uncertain and arbitrary forms of government“… (1610) The right of the citizen is to “be guided and governed by the certain ROL ….and not by any uncertain and arbitrary forms of government“… (1610)

6. RULE OF LAW is ABOUT POWER 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 citizens against law breakers empowering it to protect the rights of the citizens against law breakers

7. Methodology/Promotion - History 1960s-early 1970s Law and Development Phase 1960s-early 1970s Law and Development Phase –US endeavor (i.a.USAID)/ethnocentric –Strategy: judicial and legal system reform –End goal: economic development –Assumption: Spillover: legal change/ social change ;economic growth/democracy and HR –Countries: i.a. El Salvador, Guatemala, Africa

8. From 1980s Rule of Law Promotion Phase -intergov. org (i.a. UN,EC,OSCE ), developm. banks (i.a. WB), bilater. actors (i.a. USAID, CIDA,DIFID) NGOs (HR Org, Unis, Policy TT, Inter.Dev. NGO) NGOs (HR Org, Unis, Policy TT, Inter.Dev. NGO) -Strategy: various -End goal: Democracy, Peace, Good governance, Econom.Devel. -Countries: i.a. East Timor, Ex Jugosl., Afganisthan, Iraque -Money spent in the last 20 years: 1 Billon dollars+

9. 1993:UN “ROL is an essential factor in the protection of HR” 1993:UN “ROL is an essential factor in the protection of HR” 2004:1.UN report on “ROL and trans.justice in conflict and post conflict societies” 2004:1.UN report on “ROL and trans.justice in conflict and post conflict societies” 2004: EU welcomes the Report and urges all countries to implement the recommendations 2004: EU welcomes the Report and urges all countries to implement the recommendations Docs

10. Rule of Law Source: Secr.Gen. Report on Rule of Law 2004 a principle of governance in which all a) persons, a) persons, b) institutions and b) institutions and c) entities, c) entities, public and private, including the state itself, are accountable to laws 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

11. Rule of Law It requires, as well, It requires, as well, –measures to ensure adherence to the principles of supremacy of law, –equality before the law, –accountability to the law, –fairness in the application of the law, –separation of powers, –participation in the decision- making, –legal certainty, –avoidance of arbitrariness and –procedural and legal transparency.

12. What has been tried ? 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 in 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 Kosovo Case of Kosovo International tribunals International tribunals.

13. Problems Lack of knowledge (ROL is an area of great conceptual and practical complexity( how does law function in a society, traditional mechanisms, what role does it play, how can it change) Lack of knowledge (ROL is an area of great conceptual and practical complexity( how does law function in a society, traditional mechanisms, what role does it play, how can it change) Lack of Strategy ( What is ROL reform?) Lack of Strategy ( What is ROL reform?) Lack of coordination, sequencing, prioritization Lack of coordination, sequencing, prioritization Focus on short term support instead of long term planning and capacity building Focus on short term support instead of long term planning and capacity building

14. Lessons are not learned Lessons are not learned A prevailing formalistic view of legal change: form over function A prevailing formalistic view of legal change: form over function Local ownership ( of process / outcome) Local ownership ( of process / outcome) Poorly designed training and Legal Education programs Poorly designed training and Legal Education programs

15. What could have been learned ? Confusion between definitions of ROL by end goals (purposes it is to serve in society) on one hand and definition through its “ institutional attributes” on the other hand leads to insufficient,ill focused strategy Confusion between definitions of ROL by end goals (purposes it is to serve in society) on one hand and definition through its “ institutional attributes” on the other hand leads to insufficient,ill focused strategy End goals need to be identified as a precondition for strategic planning End goals need to be identified as a precondition for strategic planning

16. They need to be balanced They need to be balanced Techniques: Reform across institutions Techniques: Reform across institutions Political and cultural change is needed and inherent :Ultimately the ROL is enforced by the expectations of the people under its dominion Political and cultural change is needed and inherent :Ultimately the ROL is enforced by the expectations of the people under its dominion Reform efforts have to be coordinated Reform efforts have to be coordinated Measure the right things when evaluating success Measure the right things when evaluating success Some assumptions are Myths and motifs are questionable Some assumptions are Myths and motifs are questionable

17. “ROL” through “imperfect” bodies ????? Informal Justice Systems Informal Justice Systems Justice vacuum Justice vacuum The Healing Potential The Healing Potential Shortcomings Shortcomings Role of Informal systems in Role of Informal systems in (re) construction of ROL (Burundi, Ruanda,Somalia etc) (re) construction of ROL (Burundi, Ruanda,Somalia etc)

19. Pal.Basic Law Art 6 The principle of the ROL shall be the basis of governing in Palestine. All authorities, powers, agencies, The principle of the ROL shall be the basis of governing in Palestine. All authorities, powers, agencies, institutions and individuals shall institutions and individuals shall be subject to law. be subject to law.

20. Accountability mechanisms + Vertical accountability ( elections, media, civ.society) Vertical accountability ( elections, media, civ.society) Horizontal accountability (system of checks and balances between the govern. branches : courts, investigation commissions ) Horizontal accountability (system of checks and balances between the govern. branches : courts, investigation commissions )