Saudi Arabia is reforming its justice system, but quick decisions must be just

“There is no crueler tyranny than that which is perpetuated under the shield of law and in the name of justice,” said the French philosopher Montesquieu, and that is why judicial reform, especially the digitization of legal processes in Saudi Arabia, has been an important component of the Kingdom’s Vision 2030. However, when examining key performance indicators (KPIs), the Vision’s overseers must be wary of transforming a system that was formerly slow at dispensing justice into one that rapidly dispenses injustice.

Many of the new KPIs are on the Ministry of Justice’s website, and they indicate clear progress in resolving cases more quickly: Saudi Arabian commercial courts resolved 11,000 cases in the last five months, and the same period witnessed a 40 percent increase in property notarizations compared to last year, due to enhanced e-services. Moreover, enforcement courts handled 114 foreign rulings, with a combined value in excess of $100 million, a noteworthy improvement for a country seeking greater integration with the global economy.

A judge’s job is not merely to take a decision, however; it is to take a just decision. This presents a challenge for the Vision described as the “multitasking problem” by Nobel-prize winning economist Bengt Holmstrom and his coauthor Paul Miglrom.

In particular, an expert judge requires weeks to evaluate a case. Thus, while assessing the quality of a chocolate bar or a taxi ride is both quick and cheap, assessing the quality of a judicial decision is time consuming and expensive.

Professors Holmstrom and Milgrom studied optimal incentive design in these multitasking environments. A key insight was that rewarding workers for the easily measurable dimensions of output often causes them to focus their effort on those dimensions, irresponsibly ignoring other important dimensions that are hard to measure and hence ignored by management.

A famous example is education in the US, whereby teachers are evaluated primarily based on the performance of their students in standardized tests. The result is teachers who “teach to the test,” churning out waves of students who are deficient in untested attributes, such as social skills, creativity, responsibility, and so on.

In the Saudi Arabian judicial system, fixating on KPIs may cause judges to accelerate decisions at the expense of quality. As an illustration, in Chile, when authorities started to compensate bus drivers using passengers transported rather than hours worked, drivers drove aggressively as they competed for passengers, increasing the rate of traffic accidents. In the UK’s National Health Service, bed throughput (the average number of patients treated per bed) was introduced as a KPI, creating a fear that doctors would discharge patients before completing treatment. Equivalently, a judge can resolve a case more quickly simply by considering the case material for a shorter amount of time, meaning an elevated likelihood of an unjust ruling.

Have faster Saudi Arabian judicial rulings come at the expense of quality? The available data are uninformative, and unlike the Chilean buses, it is extremely expensive to gather precise quality data, because it requires almost the same expense incurred in producing the original decision.

All legal systems struggle with data on the quality of judicial rulings. However, unlike Saudi Arabia, in most countries, while authorities do monitor indicators such as the speed at which court cases are resolved, the associated data do not feature prominently on the judicial authorities’ press releases. The current emphasis on such indicators in Saudi Arabia is the result of Vision 2030, a deep and comprehensive reform program that needs to be monitored at a higher rate than normal. Are there any additional, quality-centric indicators that can augment the quantity-centric selection?

This issue was tackled by the European Commission for the Efficiency of Justice in a 2016 paper entitled: “Measuring the quality of justice.” Despite the expertise procured in the paper’s preparation, the proposed quality measures were no more sophisticated than the indirect measures used in Saudi Arabia.

However, the paper did strongly recommend the complementary deployment of customer satisfaction surveys, which Saudi Arabian authorities should consider giving a significant weight in their quality assessments.

Further, authorities should drill down into the bureaucracy of court rulings to determine the reason for faster rulings. Are they the result of judges being more capricious, or is it due to a diminished incidence of papers sitting unattended on the desk of legal administrators? Perhaps judges have been allocated more assistants, or a smaller volume of paperwork that requires no jurisprudential expertise. The findings of such investigations should be announced as prominently as the improvements in the speed of judicial rulings, as public perceptions of justice are just as important as the reality. Or, to quote Marcus Aurelius, “Reject your sense of injury and the injury itself disappears.”

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Omar Al-Ubaydli (@omareconomics) is a researcher at Derasat, Bahrain.