Lauren Kitz, Director of Engagement at the World Justice Project, argues that data-driven solutions are needed to reverse the pandemic-era decline in access to justice
Amidst the COVID-19 pandemic, the rule of law has deteriorated in over half of the world. Nearly 85% of the world’s population – or 6.5 billion people – live in a country where the rule of law has weakened over the past year. This is part of a multi-year negative trend, with the rule of law declining in a majority of countries for the fourth year in a row. These are among the findings in the World Justice Project Rule of Law Index 2021, an annual report that measures people’s perceptions and experiences of rule of law in 139 countries and jurisdictions.
Overall rule of law performance
Data for the 2021 report were collected between October 2020 and May 2021, providing a unique snapshot of rule of law changes during the pandemic. The Index shows that during this period, 74% of surveyed countries experienced declines in their overall rule of law performance, while only 26% improved. More countries declined than improved in every single rule of law factor the Index measures, aside from the factor for order and security. These dramatic downturns were seen in every region and across every income group of countries.
The data has much to tell us about how issues related to justice, human rights, and democracy have fared globally during COVID-19 – and among these stories is the concerning trajectory of access to justice.
Over the past year, a staggering 94% of the countries evaluated in the Index experienced increased delays in administrative, civil, and criminal proceedings. The recession is particularly prevalent when it came to civil justice, with two-thirds of countries exhibiting increased civil justice delays. This decline in the timeliness of justice accounts for a significant portion of the overall backsliding on civil justice scores. Discrimination and a lack of accessible, impartial, and effective alternative dispute resolution mechanisms were additional factors that affected civil justice. This negative direction for civil justice is particularly troubling, as it had been the most-improved factor in the pre-pandemic 2020 edition of the Index.
Global gap in access to justice
The new data suggest a widening of an already serious global gap in access to justice. According to research WJP conducted in 2019, an estimated 5.1 billion people – or two-thirds of the world’s population – already had unmet justice needs before the pandemic. This included 2.1 billion people employed in the informal economy and 1.1 billion people without proof of legal identity. There were also approximately 253 million people living in extreme conditions of injustice such as statelessness and modern slavery. The burden of this justice gap has tended to disproportionately impact those already experiencing marginalisation, including women and girls, migrants, people with disabilities, LGBTI+ communities, indigenous peoples and racial and ethnic minorities.
Some of the justice challenges exacerbated by the pandemic can be interpreted as the unavoidable result of essential public health measures meant to slow virus transmission. Legal delays and inaccessibility of legal services, for example, may be reasonable during a period when these systems were forced to abruptly shut down in-person proceedings, limit their capacity to comply with social distancing regulations, and, in some cases, navigate an unanticipated shift to online operations. It is not unexpected that the data would reflect declines in legal timeliness, accessibility, and even effectiveness during this time.
Discrimination in the justice system
That these gaps in justice services would disproportionately affect marginalised communities is another matter. Discrimination in the justice system has no justifiable basis, pandemic-related or otherwise, and the overall data is deeply worrying. Over the past year, 70% of the countries evaluated in the Index declined in their fundamental rights score, which measures fulfilment of basic human rights protections. The data show fundamental rights are on a distressing course globally, as more countries have regressed on this score than any other rule of law factor over the last six years. On the specific measure of equal treatment and the absence of discrimination, 67% of countries saw declines this year. This supports accounts of how minority groups have been particularly impacted by fundamental freedom restrictions during the pandemic, which in some cases has served as a pretext for discriminatory government agendas.
If a function of the pandemic emergency alone, we should expect the deterioration in these aspects of justice delivery to be temporary, and for the data to detect improvement once public health guidelines are lifted. Perhaps the most worrisome aspect of these steep pandemic-era declines is the danger they will further entrench unjust practices and drag down the rule of law trends that were already heading in the wrong direction. This includes the risk that institutions will continue to divert resources away from essential justice services, reinforcing marginalisation of certain populations; that civic space to defend fundamental rights protections will shrink; that governments will use the pandemic as a pretext to permanently consolidate power; and that norms of transparency, accountability and responsiveness will further deteriorate.
COVID-19’s long-term impact on justice access
Ultimately, we may only attain a full understanding of COVID-19’s long-term impact on access to justice once post-pandemic data are available. For this reason, investing in disaggregated data will be essential for monitoring and interpreting rule of law developments in the coming years of pandemic recovery. Improving data infrastructure helps policymakers accurately diagnose rule of law problems and make more effective, equitable decisions, including on issues related to fundamental rights, non-discrimination and justice. We can look to recent research by the Institute for the Advancement of the American Legal System and Hague Institute for Innovation of Law on justice needs in the United States, and findings from Bloomberg Philanthropies’ multi-stakeholder What Works Cities initiative, as examples of the types of data collection efforts we need to assess public priorities.
While proper diagnosis is critical, it is equally important to move from diagnosis to solutions, and to use data to solve real human rights and governance problems. Convenings such as President Biden’s Summits for Democracy and the Open Government Partnership’s Global Summit offer decision-makers a platform for affirmative commitments and concrete action. Crucially, these reforms must be driven by citizen priorities and respond to the needs of impacted communities. Initiatives that direct resources to civil society groups, such as the recently-launched $100 million Legal Empowerment Fund for grassroots justice activists, are essential to building sustainable multi- level movements. To amplify such efforts, the World Justice Project will organise the World Justice Forum with its partners 30 May – 2 June, 2022, bringing together rule of law actors from around the world for agenda-setting, solutions-oriented learning, and action to ensure a just COVID-19 recovery.
The road to pandemic recovery
Equipped with data and given a platform to drive tangible reforms, the access to justice community has the opportunity to make a shared recommitment to accountability, integrity and inclusive, people-centred justice. The road to pandemic recovery will require both evidence and action to reverse negative justice trends and lift the global trajectory of the rule of law.
