The Impact of Situational Factors on Forum Choice and Criminal Justice System Development in Bangladesh

• Citation: Vol. 29 No. 2
• Publication year: 2014
• topic: Criminal Law

The Impact of Situational Factors on Forum Choice and Criminal Justice System Development in Bangladesh

Kristina Lugo

Elizabeth A.M. Searing

THE IMPACT OF SITUATIONAL FACTORS ON FORUM CHOICE AND CRIMINAL JUSTICE SYSTEM DEVELOPMENT IN BANGLADESH

Kristina Lugo^* Elizabeth A.M. Searing^**

Abstract

Using a survey by the World Bank's Justice and Development Initiative, Bangladesh Citizen's Experiences of the Legal System 2009, this paper examines whether crime victims' choice of dispute resolution forum is constrained more by social factors, such as socioeconomic status, or by event-specific factors, such as direct economic loss caused by the crime itself. In Bangladesh's pluralist legal environment of competing traditional and state venues, neoinstitutionalist-inspired development strategies may overlook important factors in play and strategies that could improve access to justice for those most hurt by crime. This study finds that crime victims who suffer greater economic harm resulting directly from the crime, as well as victims of violent crime, tend to engage with the state criminal justice system versus the traditional system alone. After undertaking a subsequent historical comparison in order to identify possible omitted structural variables, this result highlights the need to look at crime-event-specific factors, and not just social-level problems, when designing rule-of-law programs in developing countries.

Introduction

In countries with pluralistic legal systems where state, NGO-sponsored, and international financial institution (IFI)-sponsored reformist criminal justice systems compete with local, traditional mechanisms, the right choice of venue for redress is not necessarily clear to the average crime victim. Further, many IFIs and international nongovernmental organizations (INGOs) that implement needed justice reforms do not necessarily apply culturally-appropriate

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remedies. Many, especially those charged with promoting democracy, prefer to simply impose western models as the solution for justice system problems.¹ Ewa Wojkowska, writing for the United Nations Development Program (UNDP), states that while "justice sector reform is a rapidly expanding area" and these issues are beginning to be addressed, "informal justice systems still remain largely neglected" by most multi-lateral and bi-lateral development assistance programs even though, for the majority of people around the world, "informal justice systems usually resolve between eighty and ninety percent of disputes."² Yet this is in line with how much of the rest of "development" is approached, particularly since converting people to the state legal system eases private property rights enforcement.

One case of a pluralistic legal system where these disconnects are evident is that of Bangladesh. The World Bank and the United States Agency for International Development (USAID) have been working for a number of years to strengthen Bangladesh's criminal justice system based on the idea that a well-functioning judiciary that enforces laws uniformly is a "necessary precedent to economic development and poverty alleviation."³ But, they admit that few returns have been achieved so far from these investments in both civil and criminal institutions. Local, long-standing social customs override newer constitutional or governmental protections for marginalized groups and women.⁴

Political economy literature emphasizes the importance of context and buy-in from local populations and interest groups for success,⁵ but there is often a gap between theory and practice when real-life politics enter into play. We hypothesize that if citizens do not feel physically safe and protected, they are less likely to take measures to improve their economic situations at home—thus taking a more ground-up view of the question compared to more macro-level studies.⁶ Indeed, other studies from comparative politics and new agency

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studies are finding that reforming informal, native institutions is far more effective than trying to install foreign ones.⁷

In this study, we specifically test whether the severity of economic harm caused by the crime event itself shapes individual choices independently of socioeconomic factors, citizen expectations, and the fees and/or bribes associated with obtaining justice. We predict that the greater the economic harm, the more likely a person will be take action, and also the less likely he/she will be to use the criminal justice system because the economic harm suffered reduces his/her ability to pay the costs associated—both financial and social. We focus on measures of individuals' perceptions and interactions with the system for the insight they provide into the processes behind the trends, as a complement to several studies of national-level data in this area.⁸ If our hypothesis is correct, the implications are that at the moment when an individual who has suffered a crime needs help the most, the system(s) in place to provide that help are not performing in a way that satisfies that victim regardless of his/her position in Bangladeshi society, that institutional-replacement strategies may be based on some false assumptions, and that procedures might be introduced that can address these specific event-related needs.

This study proceeds in two major parts with several sections in each. in the first part, which contains the quantitative study, we begin with a brief synopsis of relevant literature from the disciplines of law, political science, and international relations, followed by an overview of the legal system in Bangladesh. We then outline our research methodology. Next we present and discuss the results of our analysis, which show even stronger evidence in support of an independent effect for the economic harm of the crime event than anticipated, and also some important revelations about when the state criminal justice system is preferred.

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In the second major part of this work, we attempt to place these revelations in a more historical context by comparing judiciary institutional evolution in Bangladesh to a similar process in the Philippines that identifies potential structural variables that may also impact the menu of choices available to crime victims. We end by discussing implications and outlining opportunities for future research.

I. BACKGROUND

A. The Rule-of-Law Movement

There has been quite a bit of motion in the international sphere over the last couple of decades to accelerate the "rule-of-law" movement.⁹ Beginning after World War II, international development efforts sought to reform weak and/or corrupt institutions to support economic growth and foreign investment;¹⁰ and while some efforts focus on state-centric established legal systems,¹¹ others focus on context-specific and informal norms and rules.¹² Still others fall in the middle of that continuum. Helmke and Levitski discuss how a coherent definition of the formality of what constitutes institutions is not shared by all economists.¹³ While many political scientists define norms as being institutions in and of themselves,¹⁴ this policy-oriented paper takes a more narrow view defining formal state-affiliated entities as formal institutions, local and traditional enforcement bodies as informal institutions, and rights and socially shared rules as norms.

Regardless of definitions, neoinstitutional logic lies behind much of modern international development activity and also behind the theories of Haugen and Boutros,¹⁵ Dam,¹⁶ and the more general theory of Dani Rodrik et

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al. in their seminal 2004 article, "Institutions Rule."¹⁷ In that article, Rodrik and colleagues maintain that once institutions (and norms, by our definition) are controlled for, factors such as geography and trade have limited impact on development.¹⁸ North elaborates on how ineffectiveness of institutions and political and macroeconomic instability lead to decreased flow of capital and decreased economic development, primarily due to capital being diverted to transaction costs.¹⁹ Further, when combined with concomitant reforms in other types of institutions, rule-of-law reforms can remove roadblocks to economic development, and quality of life for the citizenry will improve—although Rodrik et al. admittedly offer no prescriptions for how this is to be achieved.²⁰ While they make strong arguments about the importance of context and about the flexibility possible in institutional form and definition as long as certain functions are met (such as providing market legitimacy and stabilization),²¹ practitioners have sometimes used this idea to specifically support "Westernization" of institutions.²²

But many disagree with Rodrik and colleagues. Jeffrey Sachs, in his 2004 response article Institutions Don't Rule, denounces this theory and says that the most powerful causal influences on development are geography and natural resource endowment.²³ Schiller²⁴ posits that additional determinants of development include effective welfare provision (generally speaking) and lower levels of ethnic discrimination.²⁵ Adherents to Sachs' and Schiller's positions within the development and legal communities argue that deficiencies in these areas constrain the development of legitimate legal institutions and economic development, and thus the poor's ability to pay up-front fees associated with legal assistance or the often-required bribes is also constrained, which hinders access to justice.²⁶ Acemoglu and Johnson refute

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Sachs' argument by pointing to Botswana, which has similar resource endowment to many other African countries, but better economic development because of stronger precolonial participatory institutions.²⁷

The problem with these arguments is that primary causality is difficult to tease out: many of these aspects of development are endogenous and correlated with one another. But, regardless of which factor(s) may actually be at the root of poor economic...