Asian Development Bank Law and Policy Resources
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Honorable Chief Justice Davide, Associate Justices of the Philippine Supreme Court, Chief Justices of the Supreme Courts of participating countries, distinguished members of the Philippine Judiciary and judiciaries of participating countries, your Excellencies and members of the diplomatic corps, development partners, distinguished guests, ladies and gentlemen.
It is a pleasure to be here today to share some thoughts on the following matters:
Many of you have traveled from other regions of the world but you may be facing the challenges similar to those I will discuss today. I hope my messages will resonate beyond our borders.
Several countries of the region have been experiencing unparalleled economic progress. Last year, the average growth rate in developing Asia was 7.4%, a trend we expect to continue despite the known risks to global trade and commerce. However, in spite of that rapid growth, and the significant decline in poverty that accompanies it, disparities are still widening. In a fast growing region like Asia, competitiveness is crucial. The challenge is to find the keys to unlock the potentials of your economies so that everyone, the poor especially, can benefit from growth. Some of these are obvious, like high quality public service and facilities in return for the payment of taxes.
But one of those keys—perhaps the most important one, because it underlies all the others—is good governance. Not just effective or efficient governance, but good governance: that system of rules, rule-making, and rule-enforcement that regulates the behavior of people and norms of society, upholds the law, and delivers timely justice to all—equally and fairly.
Our various governance and private sector assessments, as well as those of other development partners and independent rating agencies, confirm that investors prefer to go where governance is good. It is no longer enough to offer tax incentives or exceptions to labor laws, or to carve out exceptional economic zones. In this highly competitive region, those inducements are only the first of many steps to successfully entice investors into your countries. More needs to be done to make foreign and local investors want to stay, and expand, in a country.
We all realize that before investors enter the market, they want to know what the rules are. After they enter the market, they want reasonable assurances the rules will either stay the same, or will be changed only in a transparent and participatory manner - with due regard to vested rights. It is clear in our minds that an important consideration for investors is the legality and reliability of executive and regulatory decisions, the soundness of laws, and the legal interpretation and enforcement of contractual and statutory obligations. Investors have, and will continue, to leave markets that are badly governed and that fail to provide a strong sense of predictability, reliability, transparency, and accountability. They will go to better governed economies where costs and risks can be better managed. They are also likely to share their bad experiences with other investors.
Many factors contribute to building and maintaining good governance. These include, among others, a Government that follows the rules and makes no exceptions; a legislature that focuses on its core mandate of adopting wise laws; regulators that are not swayed by special interests; independent auditors that properly review public accounts; a bureaucracy that proudly and professionally serves the public, and private sector that respects and obeys the law.
Of the many factors, a judiciary that holds the law above everything . . . and everyone . . . is indispensable. Good, consistent jurisprudence based on law, as well as predictable and time-efficient resolution procedures are necessary for that sense of predictability, transparency, and accountability. They teach the investors, Government, and government officials how to act and conduct their affairs. With these elements, investors can make long-term business plans and manage their risks in a more cost-efficient way.
As important as investors are to an economy and economic development, there is another group we also need to focus on. These are the individuals in society. It is for their benefit that economic development and social progress are sought and sustained. Just as good governance and a good judiciary are indispensable to investors, they are essential to the individual. They give people a chance to improve their own lives. They level the playing field and open opportunities for business, gainful employment, and fair competition with others in society.
At a very fundamental level, people need to know their individual rights will upheld even against the most powerful authorities. An independent judiciary with integrity can do this; apply the law fairly and dispassionately, without regard to the personalities or powers involved. A strong judiciary, with the power to review acts of Government, can protect the citizenry from unlawful acts of Government and hold government officials accountable for their graft, corruption, and abuse of power; and do so in a timely manner. For the poor and powerless, especially, procedures can spell the difference between 7 years of life lost to incarceration for a crime not committed, and 7 years of building a solid career or watching a child grow up. Thus, we need to approach reforms with an eye to improving access to justice for the poor.
We recognize that these challenges can be more effectively met when there are constitutional and operational guarantees of judicial
independence; when sufficient financial resources are predictably and transparently provided to the judiciary; when competent judges
are transparently appointed, assured security of tenure and provided a living wage; when judgments can be rendered, enforced, and
reviewed without danger to the person, family, or property of the judges; and when discipline within the bench itself is subject
to the rules of due process.
It helps to win the struggle for resources and commitment when judiciaries commit themselves to meeting the challenges, and have a plan of action to do so. A worthy example is the Action Program for Judicial Reform (APJR), adopted in 2000 by our host, the Philippine Supreme Court. It is founded on the vision of Chief Justice Davide and calls for “A judiciary that is independent, effective, efficient and worthy of public trust and confidence; and a legal profession that provides quality, ethical, accessible and cost-effective legal service to the people and is willing and able to answer the call to public service.” With this statement, the APJR strikes all the right cords on access to justice, rule of law, responsibility, and legitimacy. Its details and projects have found life through the steadfast and committed implementation of the Supreme Court. But the real inspiration engendered by the APJR is in the way it was championed, initially and all throughout by the Chief Justice, and now by many of those in the judiciary including the justices, judges, and court personnel who are here today. Over the past four years the APJR has delivered many successes, some of them on display at this conference. Many lessons can be learned from the Philippine experience. It is an example worth studying and, perhaps, replicating, particularly in terms of process, strategic thinking, advocacy, and support building.
Sufficient financial resources are of particular importance. The capacity of the judiciary to deliver justice is directly proportional
to the resources it has and spends on maintenance, operating expenses, and capital outlay. The judiciary’s share in the total
national budget, and the items for which it is expended, reveal the level of commitment of governments to justice in their country.
Although the development community can and often does extend assistance for the improvement of governance and justice, the responsibility for ensuring sufficient financing for the judiciary is primarily that of the government. We all recognize that justice competes with other important priorities, but the decision to move justice up on the list needs to come from government. As the regional development institution in Asia, we would support such decisions, and the long term reform agendas that necessarily accompany such commitments.
Such support would be fully aligned with and in pursuit of ADB’s twin policies of good governance and anti-corruption. Under those policies, ADB recognized the importance of governance structures to economic development, and the role of judiciaries in the fight against corruption. Since the adoption of those two policies in 1995 and 1998, respectively, ADB has undertaken a variety of legal and policy reform initiatives, many of which ADB’s General Counsel, Mr. Arthur Mitchell, will discuss later in the afternoon. There is one project, however, that I would like to mention.
It is with a great sense of satisfaction that ADB stands here today, as a partner of the Philippine Supreme Court in the implementation of the APJR. In 2001, almost immediately after its adoption, ADB agreed to finance core aspects of the reform program1 —these were the Philippine Judiciary’s search for (i) a framework that would support the Judiciary’s fiscal and administrative autonomy, (ii) a transparent and accountable process for selecting and appointing judges, and a (iii) conceptual framework for continuing judicial training. After repeated consultations and dialogue, the Supreme Court is prepared to pilot test certain key recommendations of the technical assistance prior to nationwide implementation.
In less than a month, Chief Justice Davide will retire from public life. I would like to take this opportunity to congratulate him for his many years of public service, particularly these latter ones during which he has championed judicial reform. His are big shoes to fill. It was his vision that set the Philippine Judiciary on its journey of transformation into a true servant of the people. We hope to see that journey continue with the same strong commitment of the Supreme Court and vigor from the rest of the Judiciary, and substantial support from Government. Although donor support for the APJR is strong, and will continue to match the Judiciary’s commitment, government sponsorship of judicial reform is even more crucial. Justice is a public good, the delivery of which is a primary responsibility of government.
Ladies and gentlemen, there is much to do in very limited time, and the effort necessary to initiate and sustain reform is enormous. Just getting up to speed in order to resolve centuries-old type disputes in a timely and fair manner will no longer be enough. It is the least that is expected in this, the 21st century. DNA evidence, transnational money laundering, and borderless cyber crimes are no longer unusual, and will soon become commonplace. Intellectual property rights used to consist of works of art and patents for new inventions. Today they include patents for genetic material. Environmental issues, like the equitable sharing of water resources or of liability for cross-border pollution, will need special judicial attention as global trade and competition for resources continue to increase.
We encourage you to learn from and support each other. This conference, and the APJR Network that will be discussed tomorrow, are good steps in the direction of regional cooperation and mutual assistance. It is heartwarming to note that the Philippines has learned much from the experiences of other countries and that those lessons have been tailored to the needs of this country. It would be useful for many to look at the ICT innovations of Mexico, the mobile courts of Venezuela, the family courts of Australia, the pre-trial arbitration and mediation processes of Canada, and the many innovations of other judiciaries in other countries. Perhaps some of these, with a few adaptations, will be useful in your countries. As the regional development and financial institution, ADB stands ready to assist you in this endeavor.
I would like to close by congratulating the Philippine Supreme Court for making the effort to initiate regional cooperation among judiciaries. And thank you for this rare privilege and opportunity to address such a distinguished delegation.