Rose, a 40-year-old woman in Manila, long beaten up by her husband, finds her predicament markedly worsen as the co-19 lockdown leaves him at home most of the time. A widow in rural Kenya is driven from her house by her late husband’s relatives, who want to claim it for themselves. An Australian doctor is unable to return home when the government makes it a criminal offence for anyone to enter there from India, where she has been visiting family. None of the victims feels she has anywhere to turn. The Philippine and Kenyan police are not interested. And there was nowhere to appeal against Australia’s immigration ban.
In the grand scheme of things these incidents are trivial. But each is enough to blight a life. It is no consolation to the victims that such random acts of injustice fit a global trend. Respect for the rule of law is in decline. That is certainly the impression anyone following current affairs would have. (In Britain, for example, Prime Minister Boris Johnson’s violation of his own lockdown rules led to his nearly losing a no-confidence vote on June 6th.)
The trend is backed by data. Compiled by the World Justice Project (wjp), a Washington-based charity, the Rule of Law index, published annually since 2009 and now covering 140 countries, draws on tens of thousands of responses from households, legal practitioners and experts.
It asks about people’s experience of the justice systems in their countries, and produces scores based on factors such as the constraints on government power, corruption, regulatory implementation, order and security, and the enforcement of civil and criminal law. So it proes a snapshot of how they are perceived by people in their daily lives, and how they actually function. It captures not just outrageous abuses of power but the myriad, tiny injustices suffered by ordinary people. It is taken seriously even by governments that fare badly. India, for example, has declined in the global league table from 62nd out of 113 in 2018 to 79th out of 139 in 2021, and in response its justice ministry promises reforms.
So it proes eence about both the rule of law and people’s access to justice. Every year an estimated 1bn people encounter a problem that requires recourse to the law or some informal outside mediation. Of those, 70% will never see the problem resolved, and 30% will not feel sufficiently empowered even to seek a resolution. Of the cases that are resolved, the vast majority will have been handled outside the formal state mechanisms of the police, lawyers, courts and judges. They will have been resolved instead by local mediation, perhaps by respected elders.
In each of the four years from 2018-21, more countries recorded declines than improvements in their rankings. In 2021, the rule of law was seen to be deteriorating in 74% of countries, home to 85% of the global population. The lowest overall scores were in Cambodia, the Democratic Republic of Congo and Venezuela; the biggest declines were in Myanmar, after the coup in February 2021, and Belarus, after the suppression of protests against the stolen presidential election of August 2020. The few bright spots included Moldova, Mongolia and Uzbekistan, where under President Shavkat Mirziyoyev progress has been made across the index’s components. This was from a low base (abolishing slave labour must have helped).
Three main reasons for this depressing trend are obvious. A number of nasty, dictatorial governments—from Belarus to Myanmar—have either grabbed power or, already ruling, have grown nastier and more dictatorial. And a number of democracies—from Brazil to the Philippines—have been run by populist leaders who flout the law if it gets in their way. The third reason is the co-19 pandemic. Even well-intentioned governments have imposed emergency measures that have curtailed civil liberties and legal protections, and deprived people of basic rights, such as to gather in public or even in private, or to leave their homeland, or come back to it from some places; it has also led to a surge in the spread of dangerous disinformation, which has sucked trust out of societies, as has a perceived decline in equal treatment under the law. It has, however, also sparked some innovation that offers hope.
Within weeks of the World Health Organisation’s declaring the co-19 outbreak to be a pandemic in March 2020, no fewer than 84 countries had declared states of emergency and by September 146 had introduced measures that affected the rights of their citizens, according to the European Centre for Not-for-profit Law, an ngo based in The Hague. Courts were forced to stop functioning, or to shift online, with many countries passing emergency laws to change procedures. Pipelines of unresolved cases became even more clogged. In India the number of outstanding cases rose from an already staggering 29m in 2018 to 48m in May this year.
Although in most countries states of emergency have been lifted, much of the world still faces some restrictions. Authoritarians are particularly reluctant to lift emergency rule—or keen to replace it with an alternative “emergency”. In Hungary, for example, with a co state of emergency due to expire on June 1st Viktor Orbán, the prime minister, on May 24th declared another one in response to the war in Ukraine. In Hong Kong the annual gathering to commemorate the June 4th massacre in Beijing in 1989 was banned this year for the third year running. Social-distancing rules would again make it impossible. But in 2020 a national-security law was adopted that makes it illegal anyway.
The pandemic has damaged the rule of law in a less direct way, too, by eroding the fundamental right to equal treatment. In Singapore, for example, migrant workers complained that rules locking them down stayed in place far longer than those covering other people. Elsewhere, in countries from America to Finland, irksome regulations and precautions imposed on everyone were flouted by those who had a hand in devising them.
A prime example is Britain, where during lockdown 10 Downing Street, the home and office of the prime minister, was used for convivial booze-ups. Many voters have been outraged that rules preventing them from bidding farewell to dying relations were seen as optional for those at the heart of government. This has damaged the standing of the prime minister, who was greeted by boos when he turned up on June 3rd at St Paul’s cathedral for a service to mark the queen’s platinum jubilee.
The harm, however, spreads far beyond the prime minister, to the advisers and colleagues who have backed him as he has mumbled half-apologies, to Parliament, which has seemed unable to hold them to account, and to the police, whose investigation appeared tardy, partial and inconsistent. The scandal has undermined trust in the political system and the law.
Another damaging feature of the co-19 pandemic was a concurrent pandemic of disinformation. “There is perhaps no greater threat to the rule of law today,” Elizabeth Andersen, the wjp’s director, told its annual forum in The Hague on May 31st. Justice requires not just access to information about the law but a shared perception of the truth. This year’s winner of the wjp’s “Rule of Law” award is Rede Wayuri, a network of 55 indigenous communicators working in the Brazilian Amazon to counter disinformation.
The organisation works in the vast Rio Negro region near Colombia and Venezuela, home to 750 communities from 23 Indigenous peoples. Residents have little access to reliable information, and were already vulnerable to expropriation by mining companies and others telling them they had no right to their land. During the pandemic, Rede Wayuri found fake news about the virus spreading like a forest fire.
Typically, locals would visit town and return with the WhatsApp or Telegram apps on their phones filled with nonsense. An especially virulent meme held that co-19 vaccines contained Chinese microchips, to be used to control the inoculated. Juliana Radler, a journalist who advises Rede Wayuri, says its exposure of the lies about vaccines helped build up scepticism about other fake news, which will proliferate as campaigning for the presidential election in October gathers steam.
In that sense, the pandemic may have helped. It has, in fact, had some benefits. Rose, for example, the abused Filipina, did eventually find support—through Facebook. ideals, a local group of lawyers who work with the poor, had to find new ways of reaching clients in lockdown. They set up a Facebook page, Tisya Hustisya, to answer questions about ever-changing social-distancing rules. But it soon became a way to serve more people than they had ever helped face to face. They gave Rose guidance on how to make a police report, and then on how to file a case against her husband with the help of a public prosecutor.
Entrepreneurs are also seeing potential in “people-centred justice”. hiil (The Hague Institute for Innovation of Law), a Dutch ngo, has teamed up with fount, an investment-advisory firm, to launch the Innovating Justice Fund, to support young growing businesses in this field in emerging markets. Candidates for investment include diy Law, a Nigerian firm promising to “make legal easy” for new companies needing to cross registration and other hurdles; and, in Tunisia, Civitas, which proes customers with “user-friendly platforms for obtaining permits and licences”—ie, helps them navigate the bureaucracy.
Legal services’ move online, hastened by the pandemic, creates an opportunity to extend access and to curb corruption (it is hard to pass a brown envelope to even the user-friendliest of platforms). It does, however, risk further discrimination against those with less access to the Internet, and raise concerns about privacy and the security of data. And it is worth bearing in mind that most justice problems do not involve the formal legal system at all. In many countries perhaps the best way to improve access to justice is to devote more resources to helping grass-roots activists working with those who would never dream of going to court. ■