Citizen's Experiences of the Legal System 2009

The survey focuses upon citizens' experiences of civil wrongs and criminal offences and their use of formal and informal dispute resolution mechanisms to obtain redress.

BACKGROUND

The World Bank began its engagement on legal and judicial reform in Bangladesh with the Legal and Judicial Capacity Building Project (the project commenced in 2001 and has been extended until December 2008), a Government strategy supporting the reform agenda in this package was adopted in 2000. The project was a product of its time, and focused on a series of technocratic reforms to the civil justice system (improving the commercial legal framework, increasing court efficiency (strengthening court administration, improving case management, strengthening judicial training), upgrading infrastructure and facilities, establishing capacity in law reform and legal drafting, and attempting to establish and support a legal aid framework.).

The last decade has seen a significant evolution in the Bank's approach to the overall governance agenda in its client countries. It has also witnessed a broadening of the Bank's agenda to “demand side” interventions and pro-poor justice, and a new interpretation of the Articles of Agreement which comprehends that working on criminal justice and human rights is within the Bank's mandate. Since the 2000/2001 World Development Report, the Bank has adopted a definition of poverty that incorporates vulnerability, exposure to risk, voicelessness and powerlessness, seeing poverty as multi-dimensional -- the absence of “fundamental freedoms of action and choice”. So, the poverty reduction aspiration is logically also one which incorporates the notion of increasing human security and individual dignity/reducing vulnerability. The Articles of Association were interpreted to comprehend criminal justice and human rights issues as within the Bank's mandate in separate legal opinions of the General Counsel in early 2006.

At the same time, there has been a shift in the Government's stated policy priorities to reform of the criminal justice sector and enhancing affordable justice for the poor. The PRSP of 2005-8 proposes a number of institutional reforms in the justice sector (embracing the judiciary, police, public prosecution system and prison reform) as well as initiatives to increase access to justice, develop informal mechanisms of dispute resolution, and meaningful progress on the separation of the judiciary from the executive. Only the last of these matters has been the subject of significant progress, one of the governance reforms introduced by the Caretaker Government during 2007.

Other donors in Bangladesh have shifted their attention to a number of interventions relating to access to justice for the poor, after limited success with the formal institutions involved in the administration of justice. In fact, reform of legal institutions has met with scant success anywhere in the world. A World Bank assessment concluded that “less overall progress has been made in judicial reform and strengthening than in almost any other area of policy or institutional reform: James H. Anderson, David S. Bernstein and Cheryl W. Gray, Judicial Systems in Transition Economies: Assessing the Past, Looking to the Future (Washington DC, World Bank, 2005).

When the existing project concludes at the end of 2008, the Bank is interested in designing a new intervention in this field. However, there needs to be a greater evidence base about the existing state of play before preparatory work on a new project can begin. While a literature review reveals a multitude of analyses of Bangladesh's legal system, much of this material is doctrinal, with little empirical work and practically no work which engages with the political economy of institutional reform. Few initiatives have been informed by hard analysis of the day to day experiences of citizens in dealing with civil and criminal wrongs on the one hand and the embedded political, economic and cultural incentives that surround institutional change on the other.

What is proposed is a set of empirical investigations that is closely tailored to the initial literature review's findings. A survey would provide insights into the dispute resolution experiences and needs of the bulk of citizens in the country. Qualitative work would probe the current institutional responses (both formal and informal) - how the institutions operate and why, the incentive structures within, the dynamics of institutional change. Through the results of this work, the Bank will be better equipped to put the two parts of the puzzle together (basic institutional reform and ensuring that the poor are benefited) in planning any future interventions.

RATIONALE

The rationale for the survey lies in the paucity of robust data regarding citizens' experience of civil wrongs and crime and about their experiences and perceptions of formal and informal institutions involved in dispute resolution (including NGO service-providers). As is the case in many developing countries, official statistics cannot be relied upon, due to the chronic under-reporting of crime - in fact, some countries undertake or use crime victimisation surveys in the absence of any other reliable basis upon which to develop public policy in this area. The existing record-keeping practices of NGO service-providers often catalogue numbers of cases processed but fail to disaggregate this data or to collect meaningful statistics about the incidence of crimes and civil wrongs more generally. Thus, this survey could establish a baseline for monitoring purposes that could be repeated in coming years.

After sifting through the existing empirical work, several recent surveys stand out as worthwhile background. Survey work on dispute resolution and legal systems tends to be folded into larger “high-end” governance surveys. This genre of surveys usefully outlines the dimensions of governance problems in Bangladesh including, at a general level, the relationship of institutions that enforce laws and resolve disputes. Three surveys more specifically probe law and order and human security issues, one of which is being finalized at the present time. Another survey draws on the data bases of four prominent legal aid NGOs to provide a profile of perceptions of beneficiaries of the services of those NGOs. And another probes public opinion more broadly with respect to alternative dispute resolution mechanisms.

Collectively, the existing surveys are useful; they provide glimpses into the institutional pathologies of law enforcement and dispute resolution from a citizen's perspective and potential policy prescriptions and programmatic interventions. But they have certain limitations for the purposes of examining very broadly the contours of dispute resolution at informal and formal levels, the enforcement of norms, and citizens' behaviour in response to the civil and criminal wrongs that increase their vulnerability and reduce control and predictability over their lives:
(i) a narrow topical focus;
(ii) the sample size is insufficient to show regional differentiation, that could be expected to be substantial;
(iii) the sample pool is bounded geographically and by beneficiaries of on-going NGO programs;
(iv) the surveys potentially have a bias toward empirically justifying an on-going activity; and/or
(v) donor pressure in terms of time frame and methodology employed.

Finally, a lot of the social change in Bangladesh over the last three decades is not adequately documented in the scholarship on the justice-poverty nexus. It thus does not capture the effects of increased urbanization, the breakdown in the authority of traditional mediators (and thus presumably compliance with the outcomes of traditional dispute resolution) as well as the penetration of partisan political patronage into the fabric of collective social life down to the village level in the period since 1991. Recent years have also witnessed the growth in the variety of dispute resolution fora available to parts of the population, especially with the rise of community legal service providers. The latter term refers to NGOs, which in the Bangladesh context provide a variety of dispute resolution services in addition to assisting clients with legal advice and representation in the courts where appropriate.

OBJECTIVES

The broad objectives of the survey have been identified through the literature review and are designed to supplement existing knowledge:

A. To provide a national and regionally representative profile of civil disputes and crimes and their impacts, by gathering data on:
i. Reported personal and household experience of civil disputes and crimes: type, frequency, severity
ii. Community security and social cohesion profile: knowledge of civil disputes and crimes in the locality (type, frequency, severity) as well as social harmony (trust, confidence, collective action, feeling of safety etc.)
iii. Which legal violations (criminal actions, human rights violations and civil wrongs) are the most serious for the average citizen (viz. that reduce to the greatest extent feelings of control over, and predictability in planning, one's life or for which redress is difficult/impossible to obtain.).
iv. Self-help strategies, routine practices for avoiding exposure to civil and criminal wrongs, and the impacts on individual citizens of institutional failure. This includes assessing the impact of chronic conditions of crime and violence on coping strategies and pre-emptive behaviour which may have negative consequences for economic and social well-being. These include risk-averse economic behaviour, incorporation into exploitative social networks or patron-client relationships, violent and other forms of vigilante or retaliatory behaviour. This will enable a fuller assessment of the extent of 'unmet need'.
v. Variations on (a-c) by gender, socioeconomic status, social networks (including patron-client relationships, membership of organizations such as microcredit organizations, exposure to work of legal aid NGOs) and location (division; rural/urban/peri-urban; ecologically fragile/flood-prone).

B. To map the full range of behaviours through which citizens seek redress for perceived wrongs, and their determinants, by gathering data on:
i. Knowledge of various legal institutions and dispute resolution fora.
ii. The civil disputes or crimes for which an institutional response is sought: strategies and patterns of sequencing behaviour to obtain redress.
iii. Determinants of demand: motivations for seeking/avoiding resolution through different fora; which features of a dispute resolution system are valued and by whom?
iv. User experiences of legal institutions and dispute fora: citizens' views on substantive fairness, procedural fairness and enforcement capability.
v. Whether citizens perceive any role for the state in dispute resolution. If so, which are the areas that are perceived as important for state involvement?
vi. Forum shopping (going from one dispute resolution mechanism to another in the absence of a favourable verdict): Variations according to socio-economic and other status will be mapped. For those who choose to use the formal system, the survey will probe the number of fora through which a case has typically passed before it comes before the courts.

C. To assess perceptions of law enforcement, incidence of crime, accountability and rule of law over time, using the recall method. The focus on a two year time frame is to track whether any of the changes in law enforcement and the political environment during the period of the Caretaker Government (ie. a change in the formal rules of the game at national level, post January 2007) have resulted in any meaningful changes to citizens' experiences with the justice system in their daily lives.
i. Experiences of civil disputes and crimes within last two years and at least two years ago
ii. Experiences of formal and informal dispute resolution mechanisms within the last two years and at least two years ago.
iii. Changing patterns of patronage and their impact on informal and extra-legal behaviour of local people of influence (including mastaans, politically sponsored criminal networks etc) within the last two years and atleast 2 years ago.
iv. Perceptions of law and order, accountability, rule of law within the last two years and before.