In a fascinating new book that has just been published, What Should We Be Worried About?, John Naughton expresses his big worry:
[W]e are increasingly enmeshed in incompetent systems – that is, systems that exhibit pathological behavior but can’t fix themselves (…) because solving the problem would require coordinated action by significant components of the system, but engaging in such action is not in the short-term interest of any individual component (…). So in the end, pathological system behavior continues until catastrophe ensues.
Legal systems can be like that: incompetent and unable to change. In this column I reflect on one aspect of change: leadership. The leadership of Nelson Mandela and the leaders he in turn empowered, helped bring about major justice change in South Africa. On the contrary, the Indonesian Chief Justice Mochtar, who was recently found to have more than 16 million US dollars in assets including 33 cars, showed a profound lack of ability to lead positive justice change. But can we go beyond this very obvious contradiction between good and bad?
In February we brought together a group of seven justice leaders from different parts of the world for two days; men and women who are leading or who have led impressive justice change in their countries, against many odds (the final report of that meeting is being finalized as I write). Their shared experiences drove home a number of important insights about the specific challenges of leadership in the justice sector.
Firstly, there is no CEO in the justice sector. It is a system of silos (some of which have a rule of law purpose) and many stakeholders. This means that an effective justice leader needs to constantly build constituencies, both internal and external, and across silos. Building constituencies within government (towards heads of state/government and fellow ministers), across sectors like the judiciary, the prosecution, the bar association and civil society organisations, and towards other power actors like business organisations. From this it follows that an effective justice leader is a navigator, who is able to find compromises between groups and who can get to the end result by being pragmatic, but without sacrificing bottom lines.
A justice leader works in a power environment but also has to stand for principles. Rule of law itself is about mitigating power. And power is an important factor in the inner circles of government. Rule of law is inherently political. This can be very challenging, particularly in some environments like, for example, post-revolutionary states. Justice change can threaten power structures. Illegally obtained riches. Economic interests. The leader needs to constantly gauge his/her moral compass against the realities that are being faced and decide which compromise is acceptable to get to the desired result.
Justice leadership takes place in a very dynamic environment, in which there is always something happening and in which strong emotions can suddenly surface. Decisions taken or not taken by a predecessor, a sudden event, and unrest around a certain issue; these are the types of drivers that require responses and that provide the environment for decision and strategy making.
Trust is key. It comes on foot and leaves on horseback. The dynamic justice environment is a bit like a seesaw: you have trust one day, you loose it the next. This is closely connected with the fact that there is a low tolerance for failure in the justice sector. That is problematic, because learning from controlled failure is a critical component of innovation.
Loneliness is also an important factor of justice leadership. You are always ‘in the middle’. You can’t always share with one party what you hear form the other. It is not always easy to know who can be trusted. There are always hidden cartels. It is not always possible to communicate back when accusations are levelled.
It is also important to know what challenges are out there and how your organization is going about meeting them. That ‘knowing’ needs to go beyond intuition and assumptions. Data is a very powerful tool to use to communicate with and focus your team and stakeholders. This point was driven home in an interview I did with the Minister K. Shanmugam, the Minister of Foreign Affairs and the Minister of Law of Singapore in an interview I recently did with him:
We cannot know the future. There are many unknown unknowns. For those you cannot prepare. What you can do is make sure you identify broad trends and have well-educated and trained people who can deal adequately with these unknowns when they present themselves.
Justice leadership is just as important as it is tough. Most importantly: it can improve the lives of millions of people in the world and give huge impetus to economic growth. But it can save money; large funds are being spent every year on rule of law development and on maintaining justice systems also. It is important that those founds provide the best value for money.
I welcome any further reflections from the readership on justice leadership. It’s high time we seriously start understanding it, developing it, and nurturing it.
By Sam Muller, Slaw magazine
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