Armytage: PNG Justice Study, 2010
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Armytage: PNG Justice Study, 2010 Armytage: PNG Justice Study, 2010 Presentation Transcript

  • PhD Thesis - USyd. 2010
    • LAW & JUSTICE REFORM
    • Case study
    • AusAID’s Experience in PNG 2003-7
    • L. Armytage
    • Centre for Judicial Studies
    • www.educatingjudges.com
  • OUTLINE
    • 11.00-11.30 Global law and justice reform (LJR) context
    • 11.30-11.45 Discussion and questions
    • 11.45-12.15 Significance of AusAID's PNG experience
    • 12.15- 1.00 Discussion and questions.
  • THIS PRESENTATION
    • LJR is really important to development
    • Practitioner – not theorist - Afghanistan, Cambodia, Haiti, Palestine, PNG …
    • Often disappointing results - sometimes none
    • There must be a better way … !
    • Creating space for critical reflection
    • Analysis of evidence of experience
    • How well are we addressing the core challenges?
    • Proposals for improving our practice
  • CONTEXT
    • Global experience of LJR disappointing over fifty years
    • This disappointment due to:
      • lack of coherent theory for reform causing confusion over purpose – ‘ what ’
      • Uncertainty how to evaluate success – ‘ how ’
    • AusAID’s experience in PNG contributes to evaluation of global LJR endeavours.
  • HISTORY
    • Recent rapid growth – x100-fold over 2 decades
      • World Bank: 1,400 projects = USD5.9billion (Dañino R, 2005)
    • AusAID: $5m projects to $150m programs
    • ‘ Five waves’ (Jensen), or ‘three moments’ (Trubek)
    • Standard packages of ‘thin’ procedural reforms in ‘rule or law,’ ‘law and justice’ or ‘access to justice.’
    • LJR endeavour is still experimental in searching for success.
  • PURPOSE
    • Purpose for LJR – there are multiple justifications: economic, political, social, humanistic
    • These often compete, sometimes collide, are often confused in practice
    • This confusion spreads to the challenge of evaluating success in LJR
  • A. JUSTIFICATION
    • Classical, enlightenment, modern philosophy:
      • Role of state: supply of public goods inc. justice
      • State and market: capable, small, enabling ...?
      • Constitutionalism, liberalism, enforcement of social contract
    • Consensus: reform is important, but why … ?
    • Practice is riven by contest over theory
      • Instrumental role; new institutional economics (Weber + North)
      • Constitutive role; fairness, rights, capability (Rawls, Dworkin, Sen)
    • LJR has been subordinated to development economics
    • LJR should promote justice as fairness and equity
  • EMPIRICAL EVIDENCE
    • Determinants of growth – what works?
    • Some evidence justice correlates with growth
      • ‘ New comparative economics’: Dollar + Kraay, Knack + Keefer, Djankov, Feld + Voigt, La Porta, North, Rajan, Rodrik …
    • But, substantial misgivings at failure to promote equitable growth; internally-contested
      • World Development Report 2006: poverty = equity; ‘equity gap.’
      • UNDP’s Human Development Reports ….
      • Stiglitz, Sachs, Easterly, Collier’s ‘bottom billion’ …
    • Prevailing instrumental theory is insufficient: ambiguous, incomplete, flawed - viz: equity gap
  • FINDINGS
    • Economic growth justification has primacy - instrumental
    • Reform theory is formative, experimental, evolving
    • Theory only partially validated empirically
    • No evidence poverty goals attained > widening equity gap
    • Performance gap (gap # 1)
    • Need to promote equitable dimension of justice > both constitutive and instrumental
    • Alternative modalities being explored: eg. WB’s J4P …
  • B. DEVELOPMENT EVALUATION
    • MDGs - poverty alleviation; but no RoL goal.
    • Paris Declaration of Aid Effectiveness , 2005
    • OECD-DAC professionalisation
    • MfDR: M&E to centre stage
    • Transitional challenges:
      • ‘ Paradigm war’: positivists v constructivists
      • Accountability v learning; efficiency v effectiveness; outputs v outcomes
      • Critique: developmental change not linear; monitoring means monitoring
      • Measuring impact difficult, costly, slow (WB estimate: USD3-500,000).
    • Evaluation gap (gap # 2).
  • EVALUATING LJR
    • Measuring what, how? – the ‘ what ’ question
    • Proliferation of monitoring frameworks
      • Justice Reform Index, Vera, IFES, CEPEJ, RechtspraaQ, Court Excellence, Berteslmann, Freedom House, Global Integrity, TI, WGI, WGA …
    • More data, but …
      • Mainly ‘thin’ efficiency-based reforms: delay reduction, IT …
      • Different approaches, measures, data, methodologies – no harmonisation
      • Unresolved debates, no orthodoxy
      • Scarcity of evaluations; lack of methodological rigor
      • Challenges of finding results: elapsed time, causality, attribution …
      • Investment in monitoring at expense of evaluation - USAID’s experience
    • No closer to evaluating / demonstrating success
  • FINDINGS
    • Evaluation of deficiency = x3 level gap:
      • Development performance: perceptions of disappointment
      • Evaluation gap between rhetoric and practice; no orthodoxy
      • Meta-evaluation of reform: rarely done, poorly done (gap # 3)
    • Success should be measured normatively
      • Justice requires ‘thick’ and ‘thin’ measures
        • eg. judgments enforcing rights to fresh water and air, clean environment, education, shelter, health, free legal aid, speedy trial ….
      • Convergence with IHRL discourse: economic, civil, political, social, cultural rights
      • MEF: a work in progress …
    • Success should be measured using normative framework of (international human) rights (law).
  • C. CASE STUDIES x3
    • AusAID-PNG: 2003-7
    • ADB : 1990-2007
        • UNDP: 2000-9 - Searching for Success in Judicial Reform: Voices of Asia / Pacific Experience (OUP, 2009).
    • (Ethno)-methodology
      • documentary evidence
      • qualitative induction
      • reflexive analysis of ‘ordinary, routine details’ of participation
      • counterfactual: professional evaluations.
  • AUSAID – PNG: 2003-7
    • AusAID’s longest engagement: 20 years+ - TA support to RPNGC since 1988
    • Largest sectoral investment - $161 million between 2003-7; ongoing
    • Concept paper 2002 – ‘best shot’ design approach: - ‘ serious, chronic and deteriorating law and order situation ’
    • PNG’s National Law and Justice Policy 2000-2005 - new focus on restorative justice and non-formal sector
    • Sectoral programmatic approach
    • Measuring impact > LJSP + JAG modality
  • FINDINGS - CHALLENGES
    • Journey to aid effectiveness
      • Ownership - but of what: budget management
      • Capacity-building policy: a locked black box
      • Advisor role: supporting or doing?
    • Managing for development results
      • Transition from audit to learning model
      • Planning: SSF + PMF; generality v detail
      • ECP: WoG, Wenge and the unplannable
      • Performance monitoring: groundbreaking investment
      • Est. cost 6% of program; $8.4m; 3 years to design/implement
      • Evaluation, impact, results - contribution analysis (2006)
    • Strategic approaches
      • Restorative justice policy mandate, but historic orientation to formal sector - 75% of activity funding to state actors in AP.2007.
      • Slowness: change management, political economy analysis, incentives
  • SIGNIFICANCE - PURPOSE
      • LJR practice is exploratory, dynamic, evolving
        • paradigm shift in AusAID’s approach from agency > sector based support
        • proactive, pre-empting Paris Declaration (2005)
        • investing in planning linked to performance monitoring from outset
      • Reform rationale
        • effective law and justice systems promote regional security, increase international confidence and attract foreign investment (AA: Governance , 2007) – ie. classic economic instrumentalism – but, tenuous in PNG practice
      • Eclectic, ‘thin’ procedural efficiency-based reform activities
        • diverse strategic focus > risk of being spread too thinly
      • Share many challenges of other case studies relating to:
        • promoting counterpart ownership and leadership,
        • adjusting from ‘top-down’ to ‘bottom-up’;
        • preference to engage with formal sector rather than community,
        • integrating change management strategies
  • SIGNIFICANCE - EVALUATION
      • Paradigm shift in AusAID’s approach to M+E:
        • from accountability (audit-model) towards effectiveness (learning-model);
        • from monitoring outputs towards monitoring impact
        • unprecedented investment: time + money
        • integrated PMF linked to SSF: system-level MEF to replace logframe?
        • baseline, annual surveys, evidence-based annual reporting, trend analysis
        • transitional – conflicted?
      • Established capacity to monitor/evaluate system-level performance
    • Globally ground-breaking, but …
      • contribution analysis identified changes, but no ‘real world impacts’ after 4 years
      • question whether performance or evaluative deficit not addressed.
    • Resources and timeframes required to demonstrate impact/results.
  • CONCLUSIONS
    • Major reform initiative
    • Evolution from ‘law + order’ to ‘law + justice’
    • World Bank ICP: - ‘ experimental, cutting edge … showcase worldwide. ’ (2010).
    • Challenges implementing restorative justice vision
    • Ongoing need to refine purpose – risk of spread too thin
    • Established capacity to measure performance change
    • Unprecedented investment in M&E: time, resources
    • Prelude to new era of impact monitoring and evaluation.
    • AusAID’s experience in PNG leads global learning on monitoring and evaluating LJR.