Wednesday, June 19, 2024

It’s the efficiency of the justice, stupid!

Nuno Azevedo Neves, DLA Piper ABBC Country Managing Partner 

There is much talk in Portugal about “justice” or rather its lack or its “incongruences”. However, there is very little talk about the “efficiency of justice”, what the lack of efficiency means and the essential role of justice to economic growth and as a core barometer for evaluating the level of our maturity as a democratic system.

Justice is one of the pillars of any democracy. However, this continues to be perceived by politicians and the operators of the justice system as an abstract conquest as if a place of leisure in the eternal discussion on the sterility of concepts. Or as the other might say, in the most mundane of jocularity… “they talk, talk, talk, but I don’t see them doing anything”.

Portugal has been extremely timid in promoting (and still more so in implementing) the necessary major structural reforms to the institutions that are absolutely essential to boost our productivity, to foster our growth and to achieve greater convergence with the most developed countries in the European Union.

In any mature democratic system, the judicial system constitutes an essential pillar for economic growth. And one of the areas where we have most shied away from the necessary structural reforms has been that of the judicial system.

Nothing happens by chance in life and we cannot be eternally awaiting miracles to resolve what exclusively depends upon ourselves. Whether in football, in the economy or in justice. If we don’t have a path, a defined route, a clear vision for the justice system, if we do not establish objectives, if we do not draft and implement objectives and detailed strategies, with quantifiable targets and with subsequent serious and objective analysis of the results, we shall remain awaiting that miracle and weeping in sorrow at our own lack of any miraculous saviour.

There are many studies demonstrating the direct impact of the efficiency of justice on various core factors of the economy, including foreign direct investment, company size, the concession of credit and innovation.

There are now studies emerging that put forward evidence that the efficiency of the judicial system plays an essential role in economic growth. Or, tailored more appropriately to our own reality, the inefficiencies of the judicial system constitute an unequivocal restraint on our economic growth.

A poorly efficient judicial system limits the necessary trust in the protection of private property, limits the necessary protection for investors and those who finance the economic and who enable growth, limits the necessary sentencing of those who comply neither with the law nor the contracts that they signed, limits the necessary support for growth of companies and compliance with their obligations, limits access to law and the trust of people in the justice system and also limits the establishing of the economic relationships essential to developing competition and innovative environments.

We have no doubts that a poorly efficient judicial system is an obstacle and a limitation on economic growth.

The efficiency of the justice system may be measured and evaluated by various different indicators, prominent among which are: the time taken for judicial decision-making, which measures the time necessary to resolve judicial cases; the number of judicial cases, which measures the average level of litigation per number of inhabitants; the number of pending cases in courts according to the number of inhabitants; the percentage of processes that the judicial system is able to decide upon within a particular timeframe.

In analysing any of the aforementioned indicators for Portugal, and in comparison with other European Union member states, we identify stark and incomprehensible inefficiencies in our judicial system.

In analysing any of the aforementioned indicators for Portugal, and in comparison with other European Union member states, we identify stark and incomprehensible inefficiencies in our judicial system.

In the last two decades, Portugal has implemented a substantial number of intended changes to the judicial system. Looking at their effects, we find that such were random changes, marked by the ephemeral nature of such initiatives. And not one has had any impact on the continued Portuguese ranking at the bottom of the European Union list as regards the efficiency of judicial systems.

Similar to the case for other “institutions” in our country, only an “institutional” revolution in justice will enable us to get on the path to judicial efficiency.

A change in the vision on justice, a change in the purpose that justice has to serve, a change as regards just who the justice system should serve, a change in the definition of the strategy and with clear and long term objectives. Furthermore, a strategy that focuses on efficiency and accepts with courage the quantifiable objectives that the indicators of an efficient justice system returns. It is essential to ensure the implementation of this strategy over the long term and bring about the objective analysis of the results.

We have had some opportunities to bring about this much needed revolution, including in the period under the Troika and now, once again, under the Restructuring and Resilience Plan.

With pity do I recognise that little has changed and with the certainty that it is not injecting money into an inefficient system that is going to make it efficient. And should we continue to await a miracle, we are going to continue waiting. Which is particularly regrettable as the miracle depends only upon ourselves.

Do not tell me that the focus on efficiency is an economic view of our justice system that should answer to higher principles. This represents nothing more than “papering over the cracks” because an inefficient system protects those who should not be protected and only reveals the lack of maturity prevailing in our democracy.

We have all already seen that “the king is without clothes”. And it is time to state “it’s the efficiency of justice, stupid!”.

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