Legal Rights on the Books and in Practice

Emerging Voices features contributions from scholars and practitioners highlighting new research, thinking, and approaches to development challenges. This article from Juan Carlos Botero, executive director of the World Justice Project, is part of an ongoing Development Channel series on global justice and development.

About half of all countries today lack or have seriously outdated freedom of information legislation—a critical element of government accountability. Even countries that have passed freedom of information acts do not always enforce them or lack the requisite structures to facilitate information flow.

The Global Right to Information (RTI) Rating assesses the strengths and weaknesses of governments’ freedom of information legislation and legal framework . This rating offers crucial information about government accountability and citizens’ rights to information around the world. But RTI reports only how freedom of information laws are written, and not how they are enforced. To combat systematic problems such as police or judicial corruption, increase government accountability, or remove restrictions on freedom of speech and assembly, reformers also need reliable data on how rule of law and freedom of information legislation is experienced by citizens in practice.

To help fill this knowledge gap, the World Justice Project (WJP), where I serve as executive director, recently released its Rule of Law Index 2014, which among other issues measures the extent to which governments around the world provide information to their citizens. The report is based on 100,000 household and 2,400 expert surveys measuring over 500 variables on how the rule of law is experienced in everyday life in 99 countries.

The following chart shows a scatterplot of the WJP Rule of Law Index 2014 measurement of Open Government scores on the x-axis and the Global RTI Rating on the y-axis. The chart shows a negative correlation between the two datasets, highlighting the gap between the laws on the books and in practice.

Take Austria and Germany, for example. They are among the worst performing countries in the world according to the Global RTI Rating, signaling very weak rights to information in these countries. However, these two countries perform very well in effectively delivering an open government and guaranteeing the right to information in practice, according to the WJP Rule of Law Index. On the other hand, Liberia, El Salvador, and Sierra Leon excel in the Global RTI Rating, but their performance in delivering information rights in practice is below average, according to the WJP Rule of Law Index.

Both a clear understanding of the existing legal framework and institutional arrangements, and how these laws and institutions are function in practice, are critically important to effective reforms efforts.  Of course indicators are only tools, which must be used appropriately. The limits of such data must be taken into account and, to the extent possible, several different types of information (official and privately-produced; local and global; qualitative and quantitative) must be considered in the decision-making and reform process.

It is also important to acknowledge how non-legal issues can sideline reform. India, for example, dramatically improved its freedom of information legislation over the past decade, but bureaucratic barriers, lack of resources, and competing policy priorities, among other causes, have led to partial collapse of the system. This shows that effective reforms are not a one-time push for change but rather an ongoing process of changing institutions and agendas. Laws, regulations, procedures, practices, and customs must be aligned for reform to truly take hold.