22 April 2013

Distortions and misrepresentations by The Asia Foundation in Timor-Leste

ETLJB 22 April 2014 - In its Terms of Reference for its 2013 Law and Justice Survey, The Asia Foundation makes some extraordinary statements about what it has put out as the object of the survey.

The survey is basically conducted by teams of investigators who go out into various communities and get members of the public to complete or answer a set of questions about their perceptions of law and justice in the country. It thereby "elicits public views towards law and justice" that are supposed to "inform a broader Foundation initiative that aims to support public policy development, good governance and the rule of law within the country."

The TOR then makes the outrageous claim that this upcoming survey, along with the previous ones, "will provide for a strong evidence base and longitudinal comparisons of the establishment and evolution of the rule of law in Timor-Leste." This statement is, of course, a sheer nonsense and should not go unchallenged because there is no causative correlation between what people perceive of law and justice and the rule of law and what empirically, is, in fact, the reality of the condition of the rule of law. It is a complete misrepresentation and a despicable distortion to make such a claim and observers - as well as the Government of East Timor and civil society - should be extremely wary of the claims that The Asia Foundation has made in this regard.

The opinions of a sample of members of the community are not evidence of anything other than their perceptions of the rule of law; provided that notion itself can be properly articulated to participants. The opinions of individuals who are not accredited experts in matters of evidence in legal issue are not admissible for any purpose whatsoever. Similarly, nor should the results of this or any of the other surveys by The Asia Foundation be admissible as evidence of the central question of whether and to what extent the rule of law has been established and has evolved in East Timor. Nor would the results of such a survey be a rational basis to inform any initiative to support "public policy development, good governance and the rule of law within the country."

The TOR also states that "the research findings will capture the state of law and justice in Timor-Leste" - another utter nonsense!

These claims by The Asia Foundation about its law and justice surveys reflect a profound arrogance or ignorance - or both - of what empirical evidence gathering and analysis of the rule of law should be based on; what the real indicators of the condition of the rule of law is and how they are ascertained.

In discussing the rule of law indicators, the United Nations Rule of Law Indicators* states that the rule of law "refers to a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency."

How, one might ask, does a survey of a sample number of citizens, provide any evidence of any of those indicators? These theoretically complex, philosophical and socio-political ideas are not measurable by the opinions of members of the general community but require a scholarly and intellectually-sound investigation of the operations of state institutions - of the Parliament, the Courts and the Executive in all their various manifestations; an examination and assessment of the behavior of those institutions, of the decisions of the courts, of the relations between the arms of the state, of how laws are enacted and implemented. Empirical case studies of all of these indicators are the only way to measure the "establishment and evolution of the rule of law" in a democratic society

It is preposterous of The Asia Foundation to make the assertions that is has in the Terms of Reference for this survey. 

* The United Nations Rule of Law Indicators - Implementation Guide and Project Tools at http://www.un.org/en/events/peacekeepersday/2011/publications/un_rule_of_law_indicators.pdf Accessed 22/04/2013.

Author: Warren L. Wright
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