0j The World Bank 22539 May 2001 COlMPREHENSIVE L E G A L ANDJ U D I C I A L DEVELOPMENT Toward an Agenda for a Just and Equitable Society in the 21 st Century EDITED BY Rudolf V. Van Puymbroeck Comprehensive Legal and Judicial Development Proceedings of a Global Conference Washington, D.C. June 5-7, 2000 Sponsored by: The World Bank in participation with: African Development Bank Asian Development Bank European Bank for Reconstruction and Development Inter-American Development Bank International Monetary Fund United Nations Development Programme Comprehensive Legal and Judicial Development Toward an Agenda for a Just and Equitable Society in the 21st Century Edited by Rudolf V. Van Puymbroeck The World Bank Washington, D.C. Copyright © 2001 The Intemational Bank fos Reconstruction and Development / The World Bank 1818 H Street, N.W. 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For further reference, please visit http://www.tandf.co.uk. Library of Congress Cataloging-in-Publication Data has been applied foL Contents Foreword ix Acknowledgments xi SESSION l: What Are the Elements for a Successful Legal and Judicial System? Selected Considerations Anchored in the Universal Declaration of Human Rights 3 Pierre Truche Rethinking the Processes and Criteria for Success 11 Bryant G. Garth SESSION II: What Alternatives Exist for Holding Governments Accountable? Principal Institutions and Mechanisms of Accountability 31 Denis Galligan The Role of the Ombudsman 43 Bience Gawanas SESSION III: Can Laws and Institutions Give Voice to the Poor? Barricades or Obstacles 53 The Challenges of Access to Justice Martin Abregui Engaging and Empowering Communities 71 Grizelda Mayo-Anda vi Contents Access to Justice 93 A Truncated View from Bangladesh Shahdeen Malik Women and Access to Justice 99 The Case of Ecuador Rocfo Salgado Carpio SESSION IV: What Informal Mechanisms Exist for Dispute Resolution and Contract Enforcement? Law, Relationships, and Private Enforcement 111 Transactional Strategies of Russian Enterprises Kathryn Hendley et al. SESSION V: What Conditions Are Necessary for the Judiciary to Curb Corruption? Role of the Rule of Law and Judiciary Independence in Combating Corruption and Protecting Development Programs 157 Maher Abdel Wahed S E S S I ON V I: How Do the Media Support the Reform Process? Freedom of Expression, Freedom of Information, and the Requirements of Justice 185 Hon. Geoffrey Robertson SESSION VII: What Conditions Are Necessary for an Independent yet Accountable Judiciary? Independence and Accountability 197 A Holistic View Hon. Omar Azzimnan Independence and Accountability 205 Issues of Power and Control Rogelio Perez-Perdomo Contents vii Independence and Accountability 219 An Asian Pacific Perspective Hon. David K. Malcolm, AC TheJudicial System of Pakistan 241 Measures for Maintaining Independence and Enforcing Accountability Hon. Irshad Hasan Khan SESSION VIII: How Does Legal Training Improve Participation in the Reform Process? The Many Facets of Training 273 Hon. Sandra E. Oxner Improving the Reform Process through Legal Training 299 Akua Kuenyehia Legal Training in a Transitional Democracy 307 The Georgian Experience Dr. Lado Chanturia Bringing Sub-Saharan African Lawyers into the Legal Reform Process 313 Experience and Lessons of the International Law Institute - Uganda Legal Centre for Excellence Swithin f. Munyantwali SESSI ON IX: How Does Global Knowledge Sharing Foster Civil Society Participation? Pending Challenges of Judicial Reform 341 The Role of Civil Society Cooperation Alfredo Fuentes Hemrnndez Legal Reform, Global Knowledge, and Civil Society 355 The Kenyan Experience Hon. S. Amos Wako viii Contents SESSION X: How Can Effective Strategies Be Developed for Law and Justice Programs? Are There Models for Legal Reform Programs? Legal Reform in Developing and Transition Countries 369 Making Haste Slowly Julio Faundez Making People the Focus 397 A Risk Worth Taking Hon. Luis Paulino Mora The Example of the Organization for the Harmonization of Business Law in Africa (OHADA) 413 Seydou Ba EPILOGUE Perceptions of the Rule of Law in Transitional Societies 429 Dr. Mamphela Ramphele APPENDIX Biographies of Authors 435 Foreword "I am glad there is now recognition that a solid foundation for economic and social progress requires the consolidation of democracy as well as respect for the rule of law and human rights: that the enabling environment for economic and social development lies in good governance, respect for the rule of law, the dictates of universal human rights, and the effective pursuit of democratic ideals. " I frequently speak on this topic, but the above statement is not mine: it was delivered by the Hon. S. Amos Wako, Attorney General of Kenya, one of the many presenters at a recent global conference on legal and judicial re- form who is personally engaged in a comprehensive law reform effort in his own country. Recognizing that the rule of law is the cornerstone to sustainable econom- ic development and enduring poverty alleviation, the very first decision I made upon joining the World Bank as General Counsel was to plan for this global conference. The conference was sponsored by the World Bank, in part- nership with the African Development Bank, the Asian Development Bank, the European Bank for Reconstruction and Development, the Inter-American Development Bank, the International Monetary Fund, and the United Na- tions Development Programme. It was held in Washington, D.C., on June 5-7, 2000, and provided a forum to over 600 scholars and practitioners of le- gal and judicial reform from over 80 countries to exchange views and to learn from each other. We are pleased to offer a selected, representative list of papers presented at the conference in this book. We wish to support legal and judicial reform ef- forts everywhere, regardless of whether the World Bank supports them finan- cially, and therefore are glad to share the available lessons of experience as widely as possible. ix x Foreword In organizing the conference, we put the emphasis on comprehensive reform. Respect for the rule of law demands incessant action and improve- ment on many fronts at the same time. Hence, the conference was organized around ten different themes, posed in the form of questions: What are the elements of a successful legal and judicial system? How can governments be held accountable? How to give voice to the poor? What informal mecha- nisms exist for dispute resolution and contract enforcement? What condi- tions are necessary for the judiciary to curb corruption? How can the media support the reform process? What are the conditions for an independent, yet accountable judiciary? How can legal training improve participation in the reform process? How does global knowledge sharing foster civil society participation? What are effective reform strategies, and are there models for them? These are the questions addressed in this book. There are no definitive, universal answers, nor can there be. Reform is a fluid process, shaped by con- text, individuals, and time. But the experiences recounted here are real. They offer insights into problems that might otherwise have remained unidenti- fied, and opportunities otherwise perhaps left unexplored. Nor is the search for answers over. In fact, for us in the World Bank, the June 2000 conference marked a new beginning: the start of a real, continuing dialogue with all stakeholders and partners in the reform process. We will continue to publish the ideas, outcomes and lessons learned as we travel to- gether along the road toward a just and equitable society in the 21st century. Ko-Yung Tung Vice President and General Counsel Acknowledgments The World Bank's Global Conference on Comprehensive Legal and Judicial Development in June 2000 brought together over 600 judges, government officials, academics, managers of economic assistance agencies, and repre- sentatives from nongovernmental organizations from all over the world. The event offered the participants (and others connected by Internet and videoconferencing) an unprecedented opportunity to exchange views on reform, to compare results achieved and lessons learned, and to discuss the need for revised agendas and new goals for the future. Participants listened to distinguished members of the legal and judicial community speak about their own experiences and engaged speakers in discussions about broader implications. While similar conferences have been held before, they tended to have a more limited regional or thematic focus. We believe this was the first time a truly global symposium united practitioners and experts in legal and judi- cial development in its multiple forms and in the broadest cross-disciplinary sense. This could only be achieved through the hard work and exemplary volun- teerism of many dedicated professionals. Thus it is only fitting that we express our heartfelt thanks to: * the staff members of the World Bank who assisted me in the organiza- tion of the conference, namely Hadi Abushakra, Lubomira Beardsley, Nicolette Dewitt, Maria Gonzalez de Asis, Hans Jurgen Gruss, Linn Hammergren, Natalie Lichtenstein, Waleed Malik, T. Mpoy-Kamulayi, Rick Messick, Friedrich Peloschek, Visu Sinnadurai, and David Varela; * all speakers, and especially those who could not receive the recogni- tion they deserve by the inclusion of their presentation in this book, namely the Hon. Jan Drognec, Former Justice, Constitutional Court, Slovak Republic; H.E. Hisashi Owada, President, Institute of Interna- tional Affairs, Japan, and Senior Advisor to the President of the World xi xii Acknowledgments Bank; Wang Shengming, Director, Civil Law Office, Legislative Affairs Committee, National People's Congress, People's Republic of China; the Hon. Nan Shuker, Associate Judge, Superior Court of the District of Columbia, Washington, D.C.; the Hon. Gherardo Colombo, Deputy Public Prosecutor, Milan, Italy; Daniel Kaufman, Manager, World Bank Institute, The World Bank; the Hon. Paul Magnuson, Chief Judge, U.S. District Court, District of Minnesota, and Chair, International Judicial Relations Committee of the U.S. Judicial Conference; Luis Moreno Ocampo, Head, Transparency International, Latin America; Sheila Coronel, Executive Director, Philippine Center for Investigative Jour- nalism; Bette Bao Lord, Chairperson, Freedom House, United States; Stephen Denning, former Program Director, Knowledge Management, The World Bank; Dominique Remy-Granger, Director, External Rela- tions Department, Constitutional Court, France; and the Hon. P.N. Bhagwati, former Chief Justice of India, and Chairman, Centre for the Independence of Judges and Lawyers; * the Hon. Associate Justices of the U.S. Supreme Court Sandra Day O' Connor, Anthony M. Kennedy, and Stephen Breyer, who honored the conference by participating in a special panel discussion; * the General Counsel and other high-ranking officials of multilateral development agencies who kindly agreed to participate in a special concluding panel discussion on the role of multilateral institutions in legal and judicial development, namely Francois P. Gianviti, General Counsel, International Monetary Fund; Emmanuel Maurice, General Counsel, European Bank for Reconstruction and Development; Francis M. Ssekandi, General Counsel, African Development Bank; G. Shabbir Cheema, Director, Management Development and Governance Divi- sion, U.N. Development Programme; Edmundo Jarquin, Chief of the State and Civil Society Division, Sustainable Development Department, Inter-American Development Bank; and Hamid L. Sharif, Senior Coun- sel, Asian Development Bank; and * the commentators and moderators for the sessions, as follows: Acknowledgments xiii Session I: Moderator: the Hon. Peter Messitte, Judge, U.S. District Court of Maryland; Session If: Commentator: Rolf Knieper, Professor, University of Bremen. Moderator: Richard Messick, Senior Public Sector Manage- ment Specialist, the World Bank. Session III: Commentator: George Minet, Senior Specialist, Depart- ment of Government and Labor Law and Administration, Interna- tional Labor Organization. Moderator: Linn Hammergren, Senior Public Sector Management Specialist, the World Bank. Session IV. Commentator: Tariq Hassan, Advisor to the Minister of Finance, Pakistan. Moderator: Cheryl Gray, Director, Poverty Reduc- tion, the World Bank. Session V. Moderator: Maria Gonzalez de Asis, Public Sector Special- ist, the World Bank. Session VI: Moderator: T. Mpoy-Kamulayi, Senior Counsel, the World Bank. Session VII: Moderator: the Hon. Visu Sinnadurai, former Judge, High Court of Malaysia, and Senior Judicial Specialist, the World Bank. Session VIII: Commentator: L. Michael Hager, former Director Gener- al, International Development Law Institute, Italy. Moderator: David F. Varela, Senior Counsel, the World Bank. Session IX: Commentator: the Hon. Louise Mailhot, Vice President, International Association of Judges, Canada. Moderator: Waleed H. Malik, Senior Public Sector Management Specialist, the World Bank. xiv Acknowledgments Session X: Moderator: Lloyd Cutler, Partner, Wilmer, Cutler and Pick- ering, Washington, D.C. Special Session with the Associate Justices of the U.S. Supreme Court: Moderator: Paul Gewirtz, Potter Stewart Professor of Constitutional Law and Director, The China Law Center, Yale Law School Special Session on the role of multilateral institutions: Moderator: Thomas Carothers, Vice President of Studies, Carnegie Endowment for International Peace. We also wish to recognize and give special thanks to Prof. Amartya Sen, who inspired the audience at the outset of the symposium with his remarks about the role of legal and judicial reform in the development process. As is apparent from the foregoing, we owe an enormous debt of gratitude to a great many people for making the conference the stimulating intellectu- al event that it was. But the person who deserves most credit of all is James D. Wolfensohn, President of the World Bank, whose vision and tireless personal commitment to the cause of justice for all, and especially for the poor and the most vulnerable, has become legendary in his own time. Under his lead- ership, the World Bank is moving forward with governments from around the world and with all other partners in the development effort to bring greater prosperity, justice, and dignity to all our brothers and sisters on this planet. Maria Dakolias Acting Chief Counsel, Legal and Judicial Reform, The World Bank Editor's Note Not all speakers provided papers, and not all papers received could be included in this publication. Nevertheless, there is at least one article for each session, and hence for each topic, and the selection was made so as to provide the reader with the best possible overview of the subject. Given the wide variety of nationalities, native languages, and writing styles of the contributors, all papers have been edited with a view to ensuring a measure of consistency of style and presentation. However, the editing has purposefully been kept light so as not to obstruct the tone and flavor of the remarks as delivered to the audience. xv SESSION I What Are the Elements for a Successful Legal and Judicial System? Selected Considerations Anchored in the Universal Declaration of Human Rights Pierre Truche* Honorary First Chairman Court of Cassation France All people who consider that their rights have been violated with respect to their persons, property or economic activities should be able to enforce those rights before a tribunal. All people involved in criminal proceedings, whether as defendants, victims or witnesses, should have the assurance that they will receive an impartial hearing, that their rights will be respected and that, if they must stand trial, they may participate effectively in critical examination of the evidence brought against them by the prosecution. While such legal disputes, whatever their nature, are always important for those involved in them, they may appear to have only a limited impact on public order, whether we are speaking of personal security or that of commer- cial transactions. But if disregard for the rule of law is allowed to go unpun- ished, and especially if it is repeated, a country risks serious disorder that can destroy confidence in its legal system on the part not only of its own citizens but also of those elsewhere who seek to provide it with aid or to invest in it. The law takes many forms: civil law protects persons and property; com- mercial law ensures the security of business dealings; social law protects workers; and criminal law punishes the perpetrators of more serious offenses. None of these excludes the others. The goal, by one means or another, is to enforce respect for the rule of law, which will be impossible unless transgres- sions can be effectively submitted, publicly and in the presence of both par- ties, before independent and impartial tribunals devoted to upholding hu- man rights. Translated into English from the original text in French and edited in English. 3 4 Pierre Truche Session I This presupposes a specific and demanding role for those who, by whatev- er right, participate in judicial proceedings, as well as strict rules of procedure to ensure justice and equality for all parties to the case. Article 10 Article 10 of the Universal Declaration of Human Rights requires the exis- tence of an independent and impartial tribunal. This means that neither judges nor their courts should have any vested in- terest in the proceedings. There should be no corruption and no corporatism. To guard against the first of these scourges, judges should not receive direct or indirect remuneration from any source other than the state. However, if their position in society is to be recognized and their dignity respected, their remu- neration must be at the highest levels afforded by the public service and be sufficient to maintain a decent standard of living. In order to reinforce its independence from the executive and legislative branches, it may be proper, at some stage in the history of justice, to allow the judiciary to manage itself in terms of recruitment, appointment, advance- ment and disciplinary actions. However, such a system need not necessarily be permanent. Corporatism is a risk for any institution when it is associated with the security of tenure essential for the proper functioning of the judicial system. Judges apply the law, and may interpret it, but they are not legisla- tors. The reform currently underway in France consists of amending the role and function of the Conseil superieur de la magistrature [Supreme Council of Justice], which is empowered to nominate and discipline all magistrates. Magistrates will now constitute only a minority of the Council, while unim- peachable personalities drawn from civil society will bring to it an impartial outsider's point of view. It is clear that public authorities have the obligation to ensure material working conditions that will allow the mission of justice to be properly carried out and, most important, will prevent interference in the course of judicial affairs. But the impartiality of judges, though affected by the introduction of these structures, also depends on judges themselves. Hence the impor- tance of monitoring recruitment, initial and continuous training, and responsibility. Universal Declaration of Human Rights 5 The system France has chosen combines recruitment through competi- tions in which candidates must demonstrate their legal knowledge and understanding of changes in society on the economic, social, and cultural fronts, with recruitment based on depth of professional experience. Negoti- ating this process successfully requires not only a lengthy period of initial preparation, but also the ability to keep up with change, through continu- ous and varied training in both modern techniques and broader social movements. All power presupposes responsibility and hence a disciplinary power, which, in France, is exercised by the Supreme Council of Justice. The Council must guard not only against dereliction of duty by a magistrate-for exam- ple, failure to perform the tasks assigned-but also, and especially, against failure to respect the ethical principles of dignity, loyalty, honor, and probity. The Council's duty is to show that this important function occupies a spe- cial place. But there can be no impartial tribunal if there are suspicions of bias on the part of those upstream from the judicial decision who provide input to it and those downstream who must execute it. A judicial system cannot be valid unless judges regulate all those who contribute to serving the public, whether they are investigators, officials or experts. Procedure works to that end. Article 11 Article 11 of the Universal Declaration of Human Rights requires guarantees of the right to defense and, in criminal cases, the presumption of innocence. The great rule of modem procedure, beyond the classical division into the ac- cusatorial and the inquisitorial, is that the adversarial nature of justice must be respected in all cases. French criminal procedure has for many years been, and still is, undergo- ing reform in order to ensure full observance of this principle. In criminal proceedings, French procedure may be characterized as follows: * The search for evidence against a person, leading potentially to pros- ecution, must be conducted before the hearing. It is up to the tri- bunal to decide whether the evidence produced constitutes sufficient 6 Pierre Truche Session I grounds. The case will not be referred to trial if the relevant evidence has not been produced: this occurs in 14 percent of complex cases submitted to trial judges, where a person has been placed under investigation. * This search for evidence is, without exception, covered by the rule of secrecy, so as not to prejudge guilt. This rule of secrecy applies, however, only to those seeking evidence and not to the persons on behalf of whom proceedings have been initiated. They may therefore appeal to public opinion if they believe that their rights have been compromised. * To ensure respect for the adversarial nature of justice, French procedure provides for the following: - The right of parties to be assisted by counsel, from the beginning of proceedings: the attorney may be of their own choice or one ap- pointed by the court. - The right to consult with the attorney while being held in deten- tion, a right that can be extended further. - The right to obtain a copy of the record of proceedings at any mo- ment. - The right to communicate these proceedings to third parties, in par- ticular an expert, to consider the technical relevance of the evidence produced. - The right to demand supplementary investigation and expert testi- mony. - The right of counsel to be informed in advance of any questioning to which his client is submitted, so as to prepare responses with that person in light of his knowledge of the case. - The right to demand that proceedings be stayed if rules of procedure are not respected. - The right to appeal all important decisions to a higher court. - The right, finally, to a public hearing before the court if the case pro- ceeds that far. Statistically, it has been found that four to five percent of cases that go to a hearing will result in a decision of nolle prosequi [refusal to proceed] or acquittal. Universal Declaration of Human Rights 7 All rights of defense are recognized not only for the person under inves- tigation, but also for the temoin assiste [assisted witness], whose rights must be guaranteed for the future in case the evidence found against him is still insufficient. The reform now underway reinforces guaran- tees for such witnesses. Victims also may turn to the criminal justice system, have access to the file and be assisted by an attorney, and this extends the adversarial nature of the proceedings to all persons concerned. * To ensure the integrity of adversarial proceedings, all elements of inves- tigation must be submitted in writing, so as to facilitate consideration and cross-examination. It is only during the hearing that arguments are presented orally. * Persons responsible for gathering evidence or for providing expert testi- mony are designated by the judge based on their competence. Experts are selected from lists prepared by the courts, on the basis of their repu- tation. They are remunerated by the state, and not by the parties to the case, guaranteeing their impartiality. But what is historically original about the French system is the role of the ministere public [public attorney or prosecutor]. To ensure their impartiality, judges cannot decide on their own to hear a case. This task falls to an inde- pendent service that represents the interface between society and victims, on the one hand, and judges on the otheL Magistrates, French prosecutors, are recruited in the same way as judges and are subject to the same professional requirements. The Supreme Council of Justice enforces disciplinary measures on them, meaning that the exercise of their function is subject to high ethical standards. They are the first to judge a case, and have the option of not trying the known perpetrator of a violation, but instead submitting the case to mediation, when this solution seems more appropriate. This may take place if the problem has been re- solved, the victim has been compensated, or the rehabilitation of the perpe- trator seems assured. Moreover, this role traditionally gives the ministere public the freedom to express during the hearing whatever he or she believes to be in the interest of 8 Pierre Truche Session I justice. While in the past the Minister of Justice could enjoin the ministere public from exercising his discretion, this possibility, already discarded in practice, should also be suppressed in law by the end of the current reform process. It will remain for the government, which is constitutionally respon- sible for law enforcement, to publish general directives and guidelines based on national crime trends. These directives cannot of course be binding on judges in their consideration of the case before them. The entire system, however, depends on the monitoring of each player: * Supervision and control of the judicial police by the prosecutor. * Control over simple procedures by the court, where charges are referred directly by the prosecutor. * Control by a judge responsible for investigation in complex proce- dures-that is, the trial judge-and control of the trial judge by a high- er court of appeal. In the current reform there will always be a judge of detention [custody/detention] distinct from the trial judge. Guarantees are no less important in civil and commercial litigation. To protect their rights, all people may bring a claim before a court, con- duct the proceedings themselves, and determine the object of litigation, sub- ject to the arguments of their adversaries. But they also has the duty to prove the facts on which their claim is based and, in order to preserve the adversar- ial nature of justice, to advise their adversaries, on a reciprocal basis, of the means of evidence that they intend to invoke. It is important, however, in order to ensure true equality between the par- ties, that the process be controlled by the judge preparing the investigation phase of the affair, and then by the court hearing the case. To ensure proper proceedings, judges may set time limits and order such measures as they deem necessary: they may demand explanations of the par- ties, they may order further investigation, and see to the communication of evidence. They may also attempt to reconcile the parties through mediation entrusted to a third party appointed by the judge, a possibility that is being used more and more frequently. A further guarantee is the parties' choice of a defense attorney or the possi- bility of obtaining one appointed by the court if the parties' resources are Universal Declaration of Human Rights 9 inadequate. Where would justice be if the poor had no access to it? A recent French law has further strengthened access to justice by creating the Maisons de la Justice to which citizens may turn. Another rule is that trials must be held in public. Finally, the minist&e public, by reason of his or her special role in the French judicial system, may express an opinion on points of law raised dur- ing proceedings. To this end, he or she must be aware of all procedures con- cerning the civil status of persons (filiation, guardianship over protected per- sons) or the difficulties of business enterprises. Within its inherited traditions, every country must now evolve in a con- text marked by the globalization of legislation (in particular on human rights) and by exchanges of individuals, goods, services and capital, but also by cross-border criminal activity. Justice is called upon to play an increasing role in this context and therefore demands of those who exercise it a high level of ethics to ensure impartiality within an organization that guarantees its independence, but which does not exclude controls over its functioning. It must at the same time ensure respect for the fundamental liberties of every person. Rethinking the Processes and Criteria for Success Bryant G. Garth Director, American Bar Foundation United States ofAmerica Discussions on the role and the importance of the rule of law and the judicial system are typically characterized by noble pronouncements-for example, about the independence of the judiciary, the need to improve access to jus- tice, and the like. These are rather abstract terms, however, and they hide the complicated social realities that lie beneath them and give them whatever meaning they have. Nonetheless it is very difficult to gather together lawyers and judges without hearing numerous discussions couched in these terms. They represent formal legal universals that cut across legal systems and con- texts, and lawyers are trained to argue in terms of universals. The argument seems almost to be that if enough key people could be made to believe in the independence of the judiciary, the judiciary would be independent. This ver- sion of legal idealism, however, has not yet brought much success.1 Proponents of better judicial systems and their requirements also are asso- ciated with efforts to measure what a successful legal and judicial system would be. The focus again is on specifying what is needed in the internal workings of the judicial system. The effort is to try to avoid generalities and get down to specific indicators of judicial performance. Ideally, this approach takes stock of the more technical aspects of the courts-for example, how ef- ficiently the courts operate, including the cost and duration of proceedings, whether there is corruption, and the quality of judicial training. Those seek- ing quantitative indicators can also seek to measure-even if only through opinion polls-other factors such as the independence and prestige of the ju- diciary. The hope riding on such efforts is that they will encourage key local actors to do whatever it takes to improve ratings. This is a form of external 1. Most of my observations and the data for this paper are drawn from Dezalay and Garth (forthcoming). 11 12 Bryant G. Garth Session I pressure on the actors who have power over the court system. While relative- ly subtle, it uses external criteria to suggest what must be done in a particular system. We have had many noble pronouncements about the judiciary and judi- cial reform from all over the world, and many efforts to improve efficiency, but we have not so far had much to celebrate in moving from judiciaries that are not deemed to be successful toward judiciaries that fit the bill-in other words, moving from lack of respect for the rule of law to respect. The reason for this lack of achievement is not because the major actors in these processes disagree on the legal universals or even the practical fundamen- tals.2 The level of agreement is in fact quite striking. It is also not because the development institutions have refused to invest in these programs. So far, however, the conclusion of almost all who have assessed these programs is essentially negative. Negative conclusions, interestingly, are combined with a pervasive opti- mism. The reformers seem to be in a cycle that begins with optimism about the wonderful possibilities for a new consensus that will lead to successful le- gal and judicial reform, and ends with great disappointment and finger- pointing to assess who or what went wrong. This article will try to get beyond the cycle of optimism and disappointment by suggesting areas in which so- cial science research might be more helpful. So far, social science has been used to justify the investment in the rule of law and to measure its achieve- ment in formal legal terms. What might be more useful is a new social sci- ence approach that examines the law more critically and situates it in the context of social scientific understandings of the state and the economy- and the processes of import and export of expertise. This essay will briefly describe the current situation, consider the lessons that we may have learned from the earlier law and development movement, and then move to the topic of the relationship between social structural ele- ments and the rule of law. 2. For evidence of the growing global industry promoting the import and export of the "rule of law," see Carothers (1996, 1998, and 1999); McClymont and Golub (2000); Metzger (1997); Pistor and Wellons (1998); Quigley (1997); and Rose (1998). Indeed, a burgeoning group of consultants, think tanks, philanthropic foundations, and national and transnational agencies has come to the conclusion that, whatever the problem, an essential part of the solution is an independent and relatively powerful judicial branch. Rethinking the Process and Crteria for Success 13 The Current Situation: Optimism Amidst Disappointing Results Thomas Carothers, perhaps the leading commentator on the rule of law, notes in his recent book that "the projects have fallen far short of their goals" (1999: 170).3 Similarly, the Lawyers Committee for Human Rights is turning out one report after another on the limitations of projects promoting judicial reform (Lawyers Committee for Human Rights 2000). It is difficult to account for these disappointing assessments. The explanations so far proffered by the advocates of reform include the lack of political will within the target coun- tries, the power of entrenched interests, and pervasive corruption (Carothers 1999: 165-77; Hammergren 1998: 270-80). Others suggest the need for more participation by local and global nongovernmental organizations (Lawyers Committee for Human Rights 1996). These criticisms and suggestions appear to be supported by many within the World Bank who have participated in these efforts (World Bank Seminar 1998). There is a search for "best practices" that will avoid the mistakes of the past. At the same time, there is a burgeoning literature in law and in social science suggesting that the key to success in building democratic states and efficient economies comes from enhancing the rule of law, and that enhance- ment can proceed through a focus on the courts and the reform of the judi- ciary. The general optimism is evident in recent writings even on China. For example, the Lawyers Committee highlights the Chinese legal system in its analysis of how U.S. foreign policy should address China: One area where it is necessary, feasible and productive for the United States to support internal reform is the legal system. Targeted support is necessary, because Chinese law generally falls well short of international human rights standards. It is feasible, because the Chinese government's interest in legal development dovetails with the US interest in promoting a legal system that is more predictable, transparent and respectful of human rights. And it is likely to be productive, because law is the medium, both intellectually and institutionally, through which Chinese engage in debate and experimenta- tion about human rights and the closely related issues of predictability, transparency and accountability of state action (Lawyers Committee for Human Rights 1998). 3. Juan Mendez agrees: "The judiciaries, and those who lead them, have been particu- larly resistant to change" (M6ndez 1999: 223). 14 Bryant G. Garth Session I Similarly, a recent review by the Ford Foundation of its programs to build "public interest law" highlights the achievements of those who have been the beneficiaries of grants from the foundation (McClymont and Golub 2000). As the Ford Foundation assessments suggest, there remains a kind of general optimism about the ability to export public interest law (Keck and Sikkink 1998; Santos 1995; Sarat and Scheingold 1998). Even if the courts are unsuccessful, perhaps public interest law firms will succeed in mobilizing the law on behalf of the disadvantaged. In short, whether we consider the courts or other legal institutions, the prevailing opinion today is that we need only to find the right people (and the right consultants), and to ensure that they are "committed," and the no- ble goals of the rule of law and judicial reform will somehow fall into place. From the perspective of my research, undertaken with Yves Dezalay, the mat- ter is more complex (Dezalay and Garth, forthcoming). The explanations for the failures to date avoid using the tools of social science to explore the struc- tural problems that court reform and efforts to export the rule of law in- evitably face. I will explain this definition of the problem in more detail. Lessons from the First Law and Development Movement We can learn some lessons by beginning with the "law and development" movement of the 1960s and 1970s, which was a similar effort to export a set of institutions and practices supposed to build the rule of law. The efforts to change the position of law were not very successful at the time. The promised reforms in legal education and legal research-the centerpieces of the ef- forts-did not take place. Law schools continued to be dominated by part- time professors active in politics, litigation, the judiciary, business, or else- where. As a result, the "failure" of the law and development effort was quite quickly conceded (Gardner 1980; Trubek and Galanter 1974). It became an axiom of developmental assistance that an effort to export U.S. models of law had failed. We can make several points that are often overlooked about this first law and development effort. First, the effort did not have the kind of backing that we find today. It was a relatively marginal effort to persuade those who were important in develop- ment assistance, namely economists, that lawyers had-or could have-some role to play in development rather than simply being obstacles. It will be Rethinking the Process and Criteria for Success is recalled that the model of development promoted by the economists was state-led development, and the legal establishment was thought to be too closely identified with the old landed elite. They used the "rule of law" to resist new programs. Second, the rhetoric used to kill the program was a bit too dramatic. It was as much a product of a switch in the United States from a focus on legal education to the legal activism of public interest law. Gardner's book, therefore, was as much a product of internal struggles in the Ford Foundation, where he had been a program officer, as it was a critique of "legal imperialism." It is important always to recognize that what is exported as the best technology tends to relate to the politics of the north as much as the needs of the south. Finally, the conclusion that the first law and development movement failed is too simplistic. From the perspective of a generation later, we can see, for example, that Brazilians who gained access to U.S. legal technologies, U.S. credentials, and U.S. contacts through the programs funded as part of the program were able to turn this investment abroad into impressive careers as brokers between their home countries and multinational business investors (Dezalay and Garth, forthcoming). There was a local interest in law and de- velopment, and over time it translated into local investment in U.S. laws and institutions-securities, anticorruption, intellectual property. The efforts to reform Brazilian laws according to the expertise that these individuals had ac- quired did not dramatically change the place of law in Brazil, but it did have an impact both on people and institutions. It also set the stage for the efforts that took place a generation after. In terms of academic discourse, critics were able to point out a certain naivete in the law and development movement. The proponents had opti- mistically promoted their own agendas without considering how those would interact with state power in the countries targeted for change. They therefore underestimated the difficulties they faced and could not see the im- pacts that did take place. The power of these criticisms helped in fact to build the academic movement to study "law in context"-for example, Twining 1997. Unfortunately, however, the lesson was not learned well. Despite this strong base for skepticism grounded in an awareness of the importance of so- cial context and the structure of the states in which legal institutions operate, the new wave of law and development-including many of the earlier 16 Bryant G. Garth Session I critics-pays very little attention to that context. Even the critics, it seems, are too busy promoting their own projects to reflect more generally on the processes in which they participate. We suggest that we need to revive the project of making sense of the context that leads to law and development and produces particular results. Structural Complications for the Business of Importing and Exporting the Rule of Law There are persuasive reasons to expect that the construction of effective judi- cial systems and stronger societal commitments to the rule of law will be ex- tremely difficult at best. We discuss these reasons in some length in our forth- coming book (Dezalay and Garth, forthcoming). For present purposes, it is perhaps more useful to limit the theory in favor of a set of practical proposi- tions that activists can assess on the basis of their own experience. This list of propositions about the new law and development philosophy is derived from recent research concentrating on Latin America, but it also draws on research in South and East Asia. The research draws on more than four hundred inter- views and uses the tools of structural sociology (see also Dezalay and Garth 1996). First, reforming legal institutions is far more difficult than, for example, re- forming central banks. The reason is relatively simple. Law and the institu- tions connected to it have long histories that associate them closely with the state and state politics. There is typically a close connection, for example, be- tween the faculties of law, the courts, and extended families that make up the political elite. Ambitious people leam to play by certain rules that are set by the patterns of behavior rewarded by those particular institutional structures, and the patterns are therefore extremely difficult to change. Investments of new ideas and new approaches can be absorbed into the old patterns. The law and development movement in Brazil, for example, was unable to dislodge the pattern of part-time professors holding multiple positions in business, government, and politics. There was an impact, as I have noted, but the im- pact did not change the basic pattern. The same story applies to courts as well as to legal education. In contrast, central banks could draw on a relatively new expertise, eco- nomics, that could be institutionalized in universities according to what had become internationally legitimate requirements. In Brazil, for example, new Rethinking the Process and Criteria for Success 17 departments were able to insist on full-time professors and high standards of scholarship. This possibility of setting up new institutions around-or even in opposition to-the more traditional legal ones made it much easier to use investment in internationally legitimate economics to produce major state reforms than comparable investments in legal expertise. Second, despite many protestations to the contrary, a careful analysis of the processes of import and export shows that the discussions of the rule of law and the role of the judiciary remain dominated by a U.S. image of what those terms mean institutionally. The notion of a strong and relatively inde- pendent judicial branch that is able to overrule the other branches of the govemment in constitutional matters has been picked up in many parts of the world, but the United States is the major proponent of this model of the law and the state. The more European model-now modified with relatively strong constitu- tional courts-of a strong state and legislative supremacy is found much more typically in the rest of the world. To be sure, we can say that there is a trend toward a stronger judicial role in the state today, but the trend owes much to the prestige and power of the U.S. model. Other aspects of the model more closely identified with civil law include the tendency of businesses to avoid the courts except for relatively routine debt collection, and the similar lack of any pattem of translating political is- sues into legal terms and entrusting them to judges (see, for example, Thome 2000). In terms of the specific patterns of behavior encouraged by the differ- ent systems, ambitious individuals in the United States invest in the law and in the ideals of the law and in doing so can be rewarded personally and pro- fessionally. They are honored within the profession for their commitments because the legitimacy of the legal profession depends on having lawyers committed not only to business clients, but also to the legal system and to the public interest. This "schizophrenic" aspect of the U.S. legal profession has been essential since the development of the Wall Street firms devoted to the "robber barons" at the turn of the twentieth century. In contrast, while there are important variations, the politically ambitious and idealistic law graduate in Latin America is more likely to invest not in the autonomy of the law but rather in politics, political parties, and the state. Instead of seeking to speak on behalf of underprivileged groups in courts and analogous institutions as a way of building professional stature 18 Bryant G. Garth Session I (and the legitimacy of the law), these individuals are far more likely to invest in representing underprivileged individuals or particular groups in politics. Part of the reason is that the focus of activity in Latin America is the state and politics, while the U.S. "state" includes a number of institutions located around the state-law firms and think tanks in particular Because of the cen- trality of the courts in the United States and the role of the law firms (and also public interest firms), individuals who invest in the law can keep their base of power in legal institutions. In contrast, the investment in the auton- omy of the law is much less central to Latin American political settings. The legitimacy of the law depends more on law graduates finding ways to repre- sent different groups in politics than on any commitment to the autonomy of the law-especially as implemented in the courts. The different patterns mean that it will be difficult to take a U.S. trans- plant and have it operate the same way in Latin America. The different pat- terns also suggest caution about insisting that U.S. practices and measures of legitimacy are the only acceptable ones. Another problem is that exporters and importers often tend to idealize the system that is afforded the highest prestige. It may be useful to remind readers that the U.S. system is often sub- jected to quite vigorous criticisms. Some of the features that are often over- looked about the U.S. legal system should therefore be mentioned. First, the fidelity to the rule of law is not inconsistent with using the law and its institutions for economic or political ends that have little or nothing to do with what the rule of law might require. The Microsoft antitrust suit, for example, originated out of competition between Silicon Valley compa- nies and Microsoft. There are many examples of business litigation em- ployed as a business strategy-for example, to delay the entry of a competi- tor into the market. Most of those who followed the battle between Kenneth Starr and Bill Clinton would not see it as evidence of commitment to the rule of law, but rather as examples of individuals seeking to manipu- late the law for their political advantage. Within the U.S. context these ex- amples make sense. They are consistent with the rule of law. But similar conduct in other institutional settings may have very different repercus- sions. In particular, one key to the United States is the importance of the intense scrutiny of academics-situated in numerous law schools compet- ing for attention and recognition-making sure that the strategic conduct of businesses or politicians does not damage the autonomy of the law and Rethiinking the Process and Criteria for Success 19 the law's legitimacy too much. But this educational system, as I have noted, is unique. Second, recent examinations of the Supreme Court-for example, Lazarus (1998)-show that the Court is similarly highly politicized, with each side ac- cusing the other of succumbing to political expediency or bad faith. Again, what saves the law in the United States is that the justices feel compelled to keep the public fight according to what can be plausibly justified-again un- der academic and other scrutiny-as consistent with law. They are con- strained to stay in their role through patterns of behavior and scrutiny that have long been in place. These patterns are difficult to reconstruct outside of the particular U.S. legal and institutional setting. A third point, which we have already mentioned, is that the practices of importing and exporting legal approaches and institutions are themselves embedded in local contexts-on both sides. Those who are involved in pro- moting reforms of legal institutions in particular countries, drawing on their international connections and credibility, should not therefore be labeled simply as "reformers" or "committed" to reform. They are local actors embed- ded in local struggles for power and influence. They use the prestige, legiti- macy, and resources of outsiders to build their own position at home. At times their interests and positions coincide precisely with the interests and positions of those promoting particular agendas for other countries, but at times they will diverge. A Mexican "reformer," for example, may be commit- ted both to judicial reform and to advancing in the PRI (the Institutional Rev- olutionary Party-Partido Revolucionario Institucional) hierarchy, and at some point the second priority could easily trump the first. A Brazilian re- former may use the international credibility to move into more traditional roles in multiple positions in and above the law. And an Argentine reformer may use the reform impetus to punish political rivals. These examples are a bit too simple, but the point is that on both sides of the reform dynamic everyone is a double agent promoting reform and his or her own position in a local context. In a similar example from the north, for example, U.S. proponents of alternative dispute resolution compete for influence in the United States in part by demonstrating their successes abroad. Academics can promote their theories locally by showing influence globally. The same is true for many of the promoters of constitutional reform or court reform. To return to the 20 Bryant G. Garth Session I contrast between law and economics, the relative successes of Chicago eco- nomics in Chile were quite important in building its legitimacy in Spain, the United Kingdom, and the United States. The situation, in other words, is far more contextual and local on both sides than is captured in such terms as "reformer" (or "activist," and so forth). And "successes" in making institutional changes can be traced to structural parallels or homologies that lead actors in the importing and exporting coun- tries to have interests and itineraries that match. This match is far more im- portant than what might be called intent or commitment-which always de- pends on what the position of the reformer is at a particular moment. These kinds of structural matches, as mentioned before, are more difficult to find in the law than in some areas that are not so embedded in local histo- ries and power arrangements distilled into social structures. As a result, the approaches identified with neo-liberal economics produced first in Chicago in the United States, for example, have been far more successfully imple- mented in Latin America than the approaches identified with the U.S. legal system. Similarly, for reasons that need not be explained in this essay, the corpo- rate law firm in the style-more or less-of the United States and the United Kingdom has also been far more successful in Latin America than has the public interest law firm. Businesses investing in or located in the south are therefore able to use the law and elite lawyers in ways that are unavailable to the poor or to disadvantaged groups more generally. Business law has histori- cally matched better with existing people and institutions than public inter- est law. Public interest law, interestingly, thrived in the form of the human rights movement in the 1980s, and the successes of that movement help to fuel the optimism that we see today. But today local human rights institu- tions are no longer very strong. Local activists have tended to follow one of two paths. One is to move into politics and the state, following the long- standing Latin American pattern. The other is to translate the investment in human rights law into the places where it is rewarded more-international institutions typically headquartered in the United States. This structural analysis is pessimistic as far as it goes. It suggests great dif- ficulty in building and institutionalizing the rule of law and even questions whether the U.S.-based model that is used as a basis for assessment is cor- rect. We might be tempted at this point to conclude that the exercise is too Rethinking the Process and Criteria for Success 21 difficult and paradoxical to justify the investment. It does not appear that a collection of best practices or strengthened political commitments or empir- ical tests will do much to advance the model of the rule of law that is being exported-strong courts occupying a central position in the state, deeply in- volved in regulating the state and the economy, and with a strong commit- ment to the autonomy of law. Rethinking Investment in the Autonomy of the Law The first problem with this pessimism is that it neglects an obvious social phenomenon. There happen to be numerous individuals and organizations investing substantial resources in reforming legal and judicial systems. Credi- bility for the economy and the state in international circles-and increasing- ly also domestic circles-is in fact being measured according to the imported criteria. On the basis of our own research into the importing and exporting countries, we do not expect this activity to stop just because observers suggest caution. It then becomes obvious as well that the accumulation of this in- vestment in the rule of law is going to make a difference. There are many reasons for this effort. A few can be mentioned to suggest the power of these trends. The international importance of U.S.-inspired law-trade, antitrust, contract, securities, environment, human rights-and U.S. legal practices, in the first place, have helped make an advanced law de- gree in the United States increasingly important to lawyers from around the world, including Latin America. The students become acquainted with U.S. approaches to the law, including the strong investment of law professors in the United States in the relative autonomy of the law and legal institutions. These students learn to be highly critical of weak reasoning in court decisions and of law that is out of date. They expect supreme courts in their own coun- tries to be important players in shaping political discourse and political agen- das. In short, these law graduates develop a stake in legal expertise, and that stake distinguishes them from many of their classmates who did not go abroad. They invest that expertise to add power and legitimacy to local groups- sometimes only a relatively marginal group of full-time academics or legal philosophers-that have long invested in legal expertise and the autonomy of the law. This investment can change the relative importance of law-for example, in Latin America where the legal world generally is still dominated 22 Bryant G. Garth Session I by gentlemen lawyers connected to extended families descended from an old elite. The investors in the autonomy of the law may even challenge the dom- inance of the gentlemen lawyers in certain sectors in the name of legal values made more legitimate by their connection to the prestige and credentials that come from the United States. The places of this enhanced investment in the law and legal expertise vary according to the historical and structural factors unique to each country. We find some of this investment in the courts and in legal education in all places, but owing to historical reasons that we have mentioned, the major places tend to be elsewhere. Business law and commercial arbitration are ar- eas in which there is such investment. Of course, as suggested above, we would naturally expect both areas in Latin America to still have quite strong family components consistent with the longstanding structures of law. In Brazil, according to our research, one key place for investment in the autono- my of the law has been the procuradors-public prosecutors. It is no longer possible for a member of the traditional elite simply to parachute to leader- ship without a requisite investment in the autonomy of law. In Mexico, we can trace these investments into, for example, quasi-state institutions such as the National Commission for Human Rights and the Electoral Commission. They are not autonomous courts, but they have gained some of the features of autonomous courts through this cumulative investment-and they are clearly making a difference in their local settings. Similarly, while there are so far not great successes in reforming the courts in Argentina, despite the World Bank's investment, we can trace intemational investment into the de- velopment of mediation outside the courts and the creation of some entities that-almost uniquely in Latin America-look very much like U.S.-style pub- lic interest law firms. All of these changes are significant. The local variations are a function of the strategies of local actors and the spaces that are open to this kind of investment. They both fit longstanding domestic patterns and modify them-without creating what the exporters imagine they will create. They have not replicated the conditions that are so essential to the U.S. approach as it has been institutionalized in the United States. In none of these settings, therefore, have the traditional law schools connected to the political elites been transformed. Educational reform has been quite limited and found mainly in private schools acting parallel to and competing with the traditional law schools. The courts, as we suggested, are not even close to Rethinking the Process and Criteria for Success 23 the model according to which they are increasingly being measured. But what is interesting is that the investment in the people connected to judicial reform contributes to the momentum for the rule of law that is translated into more indigenous patterns of reform. As suggested before, we cannot ascertain the impact of "legal reform pro- jects" without taking into account all the (perhaps) unintended and even paradoxical impacts of the investment. In this respect, therefore, the conclu- sion of the Lawyers Committee for Human Rights, repeated in several studies, is misleading: Government commitment should be assessed before the Bank agrees to finance a judicial reform proposal. This assessment should be one of the most important issues in the Bank's initial appraisal of the climate for reform in a given state. Judicial independence is the most important mea- sure of commitment-the willingness of the government to take concrete steps to reduce political influence in judicial appointments and court opera- tions.... (Lawyers Committee for Human Rights 1996, 2000) Certainly it is important to do all that can be done to protect the indepen- dence of the judiciary from political influence, but the conclusion of the Lawyers Committee that the effort in Peru was a waste of time and money does not necessarily follow. Before we can make such a determination, we need to know much more about those who were involved in the project, what they are doing, and whether there are any institutional outlets promot- ing the relative autonomy of the law that have been strengthened as a result. Indeed, if we consider the local context carefully, it is clear that we cannot expect the legislative and executive branches of the government to grant complete autonomy to the courts just because it is a good idea to have an in- dependent judiciary. The problem is the same one that comes from thinking that what is widely accepted in the United States is universally valid. We know what "judges" are in the United States-where they come from, what values they hold, and what institutional incentives they face because of the role of law in the United States. But someone labeled a "judge" in another country may be a very different kind of person. The label is not enough to separate those called judges from local politics, families, political feuds, or clientelism. And if there were such a separation, we might still question whether a government would really want to create a new ruling group in the guise of a completely independent judiciary unless it had gradually granted 24 Bryant G. Garth Session I that autonomy and observed the concomitant development of institutional constraints-faculties of law, for example, and pattems of behavior that come to define the operating rules of the courts. Practical Conclusions My conclusions, therefore, point in two seemingly opposite directions. One is that we need to be more modest in defining our prescriptions and assum- ing that we know what is best for any given country. We make mistakes both in the diagnosis and in the cure, even when we think that we have complete- ly taken into account the perspectives of local actors. The local actors are em- bedded in the same hierarchies that lead us to think our "universals" are in- deed universal. The second point, however, is that assessments of the results of legal investment need to be broadened. Local impacts that are typically ne- glected by those who can only imagine success as "independent" courts in- volved in major policy arenas must be considered. The general conclusion- which takes into account both these points-is simply that we need a much better understanding of the local contexts that produce importers and ex- porters of the rule of law on the one hand, and the processes themselves on the other. Rather than elaborate further on the more general point, however, I will conclude with some practical observations. First, even though reformers resist this characterization, there remains a strong tendency in the analyses of problems and the diagnosis of remedies to use the United States as the template. This problem is evident in general ap- proaches and in particular calls for precise features of U.S. law such as case management and alternative dispute resolution (defined precisely to corre- spond to U.S. taxonomies). At the very least, reformers should be sensitive about which "universals" they promote. The second problem, which is related, is that there are other potential models for legal legitimacy, including those that contemplate a stronger state with accountability through the legislative processes. Alternative mod- els, whether they come from civil law or elsewhere, are on the defensive, but it is not clear why they cannot also be consistent with the rule of law and democracy. The prestige of U.S. legal institutions, the attractiveness of ad- vanced degrees in the United States, and the power of U.S. actors on the world scene may be leading reformers to overlook virtues associated with other approaches. Rethinking the Process and Criteria for Success 25 Third, it is also important to see that there can be spaces outside of the courts and the traditional legal academies where local actors can invest in and build commitments to the autonomy of law and the importance of legal expertise as a language of governance. Those concerned with the rule of law should expand their gaze to consider other places where there can be major social impacts. They may not fit the U.S. or even the European ideal, but not even the U.S. always fits its ideal of, for example, independence from politics. Those who study the rule of law should be alert to transformations that do not seem to fit the U.S. rule-or are outside the realm of traditional courts and legal academic circles. Fourth, despite my argument that we need to consider other potential models, we still need to recognize that there are powerful pressures to con- verge around a U.S. model, and they will undoubtedly continue. I therefore would like more sensitivity to the limits of that approach and other possibili- ties, while at the same time taking into account these very strong pressures. It does not make sense for me to argue that the U.S. legal model (or U.S. junk food or U.S. blue jeans) should be rejected. Fifth, given this pressure to converge around a particular model, we have to be concerned with some problems that have tended to be neglected to date. In particular, a key ingredient of the U.S. model-often not well under- stood in the United States-is the role of legal education and especially aca- demic scholarship produced by full-time law professors. There is a huge pro- duction of legal scholarship in the United States that takes virtually any issue or group or expertise, translates it into legal terminology, and thus makes it available to keep the law in tune with academic, social, and politi- cal trends. At the same time, this academic production also keeps judges ac- countable to the basic canons of formal legal scholarship. Both sides-for- malizing inside and importing from outside-are necessary to maintain the position of law in the United States. This kind of scholarly investment is rare outside of the United States. In Latin America, in particular, most professors remain part-time. Without this investment, there is no one except the media to police the politics of the courts and to hold the courts accountable, but the media are limited and cannot by themselves adjust the law locally to keep it up to date. They can help avoid corruption, but that kind of policing is not enough. As noted before, in contrast to economics, which was relatively new, it has been 26 Bryant G. Garth Session I very difficult to transform legal education-hence the failure of the first law and development movement. Sixth, and finally, the various trends that put increasing pressure on the countries of the south to build the rule of law according to U.S. stan- dards raise questions of legitimacy that should be considered. The incom- pleteness of the U.S. model as imported means that it is not "indigenized" or made local. The ideas and approaches from abroad can be criticized by opponents of globalization, for example, as unsuited for local situations. The problem obviously relates to the difficulty of changing legal education or the courts, which then seem not to match the ideas that are coming in from the north. Furthermore, the relative success of business law firms as opposed to pub- lic interest law firms means that the institutions of legal representation in the south are far more asymmetrical than they are in the United States. To the ex- tent that the legitimacy of the business law firms depends on having counter- parts with un- or underrepresented clients, the legitimacy of law is bound to be further undermined. The situation is of course quite complex. Structural reasons make it more difficult to build public interest law than business law. It may be easier to build the legitimacy of imported law through such public interest institutions, however, than by concentrating too much energy on the courts and the legal academy-the two institutions most resistant to change. BIBLIOGRAPEHY Carothers, Thomas. 1991. In the Name of Democracy: U.S. Policy Toward Latin America in the Reagan Years. Berkeley: University of California Press. - 1996. Assessing Democracy Assistance: The Case of Romania. Washington, D.C.: Carnegie Endowment for International Peace. -. 1998. "The Rule of Law Revival." Foreign Affairs 77(2): 95-106. - 1999. Aiding Democracy Abroad: The Leaming Curve. Washington, D.C.: Carnegie Endowment for International Peace. Dezalay, Yves, and Bryant G. Garth. 1996. Dealing in Virtue: Intemational Com- mercial Arbitration and the Construction of a Transnational Legal Order. Chica- go: University of Chicago Press. Dezalay, Yves, and Bryant G. Garth. Forthcoming. The Intemationalization of Palace Wars: Lawyers, Economists, and the Intemational Reconstruction of Na- tional States. Rethinking the Process and Criteria for Success 27 Gardner, James. 1980. Legal Imperialism: American Lawyers and Foreign Aid in Latin America. Madison. Wis.: University of Wisconsin Press. Hammergren, Linn. 1998. The Politics of Justice and Justice Reform in Latin America: The Peruvian Case in Comparative Perspective. Boulder, Colo.: West- view Press. Keck, Margaret, and Kathryn Sikkink. 1998. Activists Beyond Borders: Advocacy Networks in Intemnational Politics. Ithaca, New York: Cornell University Press. Lawyers Committee for Human Rights/Venezuela Program for Human Rights Education and Action. 1996. Halfway to Reform: The World Bank and the Venezuelan Justice System. New York: Lawyers Committee for Human Rights. Lawyers Committee for Human Rights. 1998. Beyond Linkage and Engagement: A New Approach to US-China Policy. New York: Lawyers Committee for Human Rights. . 2000. Building on Quicksand: The Collapse of the World Bank's Juldicial Re- form Project in Peru. New York: Lawyers Committee for Human Rights. Lazarus, Edward. 1998. Closed Chambers: The Rise, Fall, and Future of the Modem Supreme Court. New York: Times Books. McClymont, Mary, and Stephen Golub, eds. 2000. Many Roads to Justice: The Law Related Work of Ford Foundation Grantees Around the World. New York: Ford Foundation. Mendez, Juan. 1999. "Institutional Reform, Including Access to Justice." In Juan E. Mendez, Guillermo O'Donnell, and Paulo Sergio Pinheiro, eds. The (Un)Rule of Law and the Underprivileged in Latin America. Notre Dame, Ind.: University of Notre Dame Press. Metzger, Barry. 1997. "Law and Development. An Essential Dimension of Governance." Proceedings of a Seminar in Fukuoka, Japan on Governtance: Promoting Sound Development Management. May 1997. http://www.asiade- vbank.org/law/proceedings/ 1997/governance/governance.htm Pistor, Katharina, and Philip A. Wellons. 1998. Revised. The Role of Law and Legal Institutions in Asian Economic Development 1960-1995. Final Compara- tive Report. Prepared for the Asian Development Bank, March 1998. Quigley, Kevin. 1997. For Democracy's Sake: Foundations and Democracy Assis- tance in Central Europe. Washington, D.C.: Woodrow Wilson Center Press. Rose, Carol V. 1998. "The 'New' Law and Development Movement in the Post- Cold War Era: A Vietnam Case Study." Law and Society Review 32: 93-140. Santos, Boaventura de Sousa. 1995. Toward a New Common Sense: Law, Science and Politics in the Paradigmatic Transition. New York: Routledge. Sarat, Austin, and Stuart Scheingold, eds. 1998. Cause Lawyering: Political Commitments and Professional Responsibilities. New York: Oxford University Press. 28 Bryant G. Garth Session I Thome, Joseph. 2000. "Heading South But Looking North: Globalization and Law Reform in Latin America." Paper for LASA Meeting, March 15-19, Miami. Trubek, David, and Marc Galanter. 1974. "Scholars in Self-Estrangement: Some Reflections on the Crisis in Law and Development Studies in the United States." Wisconsin Law Review 1974: 1062-1102. Twining, William. 1997. Law in Context. Enlarging a Discipline. Oxford: Oxford University Press. World Bank Seminar. 1998. Seminar on judicial reform: "Lessons of Experi- ence." May 12. SESSION II What Alternatives Exist for Holding Governments Accountable? Principal Institutions and Mechanisms of Accountability Denis Galligan Professor of Socio-Legal Studies and Director of the Centre for Socio-Legal Studies University of Oxford, Visiting Professor Central European University Budapest Introduction In making govemment and administration accountable, various institutions and mechanisms are available and commonly deployed in modern constitu- tional systems. These include the processes of courts and ombudsman bodies, inspectorates and auditors, special appeal tribunals that are extemal as well as complaints procedures that are internal, and others. What we mean by accountability is that one official or organization is required to explain and justify its actions to another body or authority, according to specified criteria, where the body or authority, to which account is given, normally has power to take remedial action when the criteria are not met. The main point of accountability is to ensure that the primary institutions of government per- form their functions properly according to legal and other relevant standards. The object of this paper is to give a brief overview of the different institutions and processes of accountability of government and administration. The Objectives of Accountability Although accountability may take many forms, I shall restrict the present analysis to those that have an express legal role and duty in that regard. Before examining the particular forms of accountability, it may be helpful to outline the objectives to be achieved through accountability. The first objective is to improve the quality of administration. Account- ability may advance this objective in several ways. First, the very fact that 31 32 Denis Galligan Session II accountability mechanisms exist may influence the behavior of officials to- ward better decision-making. Second, when an act or decision is brought un- der scrutiny by a court or ombudsman or other institution, it may be changed for the better. Third, scrutiny in a specific case may have conse- quences beyond that case. A court's decision, for instance, may contain a more general ruling about how some aspect of administration should be con- ducted; or an ombudsman's investigation in a particular case may lead to rec- ommendations about a more general practice. The second objective of accountability is to protect the rights of citizens who are affected by the administration. A feature of govemment and admin- istration that is easily overlooked is that their actions often have direct and serious consequences for the rights and interests of citizens. Citizens en- counter government and administration in many different contexts in which benefits are conferred or withheld, or in which burdens are imposed. Some- times the interests at stake are fairly minor, but often vital matters are left to the power and discretion of administrative bodies. The main consideration in such encounters between citizen and state is that the laws governing the mat- ter should be fairly and accurately applied, and that discretion should be ex- ercised in a fair and reasonable manner Accountability mechanisms are di- rected to ensuring that these standards are observed, and in particular that specific actions are taken legally, fairly, and reasonably. It may be suggested that the right of a citizen to seek recourse from an administrative decision, by way of appeal, review, or investigation, is an important constitutional right. The third objective of accountability is to increase the general legitimacy of government and administration. Legitimacy is a complex notion that we need not examine here beyond noting that it is variable depending on vari- ous factors. In relation to government and administration, the legitimacy of an institution is partly dependent on the two matters noted above, the quali- ty of decisions and the treatment of citizens. But legitimacy also depends on other factors, such as openness and transparency, on notions of fairness in matters of procedure and substance, and on being subject to outside scrutiny. Accordingly, accountability mechanisms may contribute to legitimacy in two general ways: one by examining such matters as openness and transparency to ensure that they are respected; the other by the very process of requiring the primary body to make account. In other words, the extent to which gov- ernment and administration are subject to accountability mechanisms is it- self an indicator of legitimacy. Of special importance here is the way that Principal Institutions and Mechanisms of Accountability 33 accountability can help to generate intermediate standards which in turn contribute to the general objectives. Such standards include openness and transparency, participatory procedures, independence and impartiality, and reasoned and reasonable decisions. A Common Model of Administrative Accountability While every country has its own history and traditions, among many a com- mon and broadly agreed concept of administrative accountability is emerg- ing. The common concept has developed to some extent in each country, al- though there appears to be a consensus that certain kinds of accountability are necessary features of a sound system of government and administration. The common concept draws on several sources: 1. The law and practice of the countries of Western Europe, a law and practice that has close parallels in countries such as Australia, Canada, New Zealand, and the United States; 2. The law and practice of the European Union, in particular the jurispru- dence of the European Court of Justice and the practices of the Com- mission and the Council; 3. The influence of the European Convention on Human Rights and its interpretation by the Commission, the Court, and the Council of Eu- rope; and 4. The writings and commentaries of jurists. The main features of the common concept are that accountability mecha- nisms should include a combination of the following: appeals to courts on is- sues of legality; appeals to internal and external bodies on the substantive merits of decisions; complaints to investigative bodies such as the ombuds- man's office conceming poor quality administration; general supervision by a range of audit bodies and inspectorates, including the very specific supervi- sion of public finances; and an extensive system of parliamentary commit- tees. Most Western European countries have made good progress toward a system of accountability based on these features, while the newer European democracies are working toward that end. Some of these institutions are more important than others; courts, ombudsman bodies, and audit commis- sions, for instance, are often embedded in constitutions, while others, such as internal appeals, are included in codes of administrative procedure. Other 34 Denis Galligan Session II institutions, such as special inspectorates or appeal tribunals are left for cre- ation by law. Principal Institutions and Mechanisms of Accountability I turn now to a brief analysis of the main institutions and mechanisms of ac- countability of govemment and administration. Judicial Supervision Judicial supervision of the administration is an essential feature of a system of government and administration based on the rule of law. By judicial supervi- sion we mean the process by which an independent court examines an ad- ministrative action to determine whether it complies with the principle of le- gality. And by the principle of legality we mean the legal rules deriving from the constitution, statutory legislation, international treaties, and judicial de- cisions that apply to the administration. Judicial scrutiny is normally initiat- ed by a person, organization, or interest group whose interests are affected in some tangible way by the administrative action. Most legal systems also make provision for a special public authority, such as the prosecutor, commissaire du government, or attorney general to bring the action before the courts. The procedures for bringing judicial review vary considerably, with the ad- versarial approach of Anglo-American courts at one end of the spectrum and the investigative approach of the French Conseil d'Etat at the other end. However, the essential character of judicial supervision is the same, namely, to determine whether an action of an administrative or executive body is in accordance with law. The court systems across Europe also vary greatly, with some countries such as France and Poland having separate administrative courts, while others, such as Hungary and Romania, have administrative re- view conducted by the ordinary courts. However they are organized, the main requirement is that the courts should be independent of the adminis- tration and executive in the performance of their functions. Independence does not depend on whether the court is classified as part of the administra- tive arm of government, as in the French system, or is entirely separate from it, as in Britain. The principles on which judicial scrutiny is based are that public adminis- tration should be conducted within a framework of laws and that the courts are responsible in the final resort for deciding whether particular actions are Principal Institutions and Mechanisms of Accountability 35 within those laws. The principle of legality, or the framework of laws, consists of different kinds of legal standards: laws defining the powers of administra- tive bodies and their limits; laws imposing standards on the manner in which decisions are made; and laws prescribing the procedures to be followed. The assumption behind the first set of legal standards is that the authority has only the powers conferred by law, and that actions not authorized by law are by definition outside the law and of no legal effect. The second group of legal standards is aimed at the decision process itself, imposing principles such as good faith, rationality, proportionality, reasonableness, fairness, and equality. The third category of standards is procedural in nature, and includes notions of procedural due process. It can be seen that the principle of legality has an open and dynamic character, and can be the vehicle for conveying a range of values to government and administration. Although accountability of the administration through judicial supervi- sion is essential in a society based on the rule of law, it should be recognized that this is a limited form of accountability. It is limited in several ways: (i) ju- dicial supervision is confined to the legality of specific administrative acts and decisions; (ii) it depends normally on a person or group affected by the action taking the initiative to challenge it and so is likely to be sporadic; (iii) it is a costly process, often for the party bringing it, and always for the public purse; (iv) the judicial process is often very slow in reaching a conclusion; and (v) there are functional limits on the courts' capacity to review adminis- trative actions. The strength of judicial scrutiny is that it protects rights in specific situations. Its limitation is that it is likely to have only marginal im- pact on the general practices of the administration. A successful action in the courts will mean that the particular act or decision is remedied, but the wider implications for the administration may be negligible. Some notable judicial rulings in the course of an action for judicial review may become general principles of law providing guidance for the future, but that is rare. Internal Mechanisms: Appeals and Complaints In the countries of Central and Eastern Europe, during the communist peri- od, the usual form of accountability of administrative bodies was to a superi- or authority within government and administration. There was little scope for external scrutiny, so that complaints and grievances were dealt with with- in the administrative system. We know little about how these accountability 36 Denis Galligan Session II systems worked in practice. They remain the principal form of recourse with- in those countries, although now an unsuccessful internal appeal may be fol- lowed by some form of external scrutiny by a court or ombudsman. While it is understandable that internal systems of accountability are somewhat discredited in Eastern Europe, they are in fact an important form of accountability and have considerable potential as an instrument for im- proving the quality of administrative decision-making. The recent trend in Western countries is to pay more attention to internal forms of supervision and accountability, partly because of that potential and partly because of the limited efficacy of external mechanisms. A standard approach is for a depart- ment or agency to create an internal appeal structure from the primary deci- sion to a superior or other body within the organization. Appeals are often supplemented by complaints procedures of a more comprehensive kind; in the United Kingdom, the Citizens' Charter, introduced in the 1990s, required all public bodies providing services to the public to specify the standards of service accompanied by suitable mechanisms for complaining when the ser- vice obligations were not met. The advantages of internal accountability mechanisms are several: (i) they are informal, easy to initiate, usually fast, and fairly cheap; (ii) they have the advantage of the appeal or complaint being dealt with by an official who is experienced in the field of administration; and (iii) they can be wide in their scope and they need not be confined to matters of law. Internal procedures also have disadvantages: (i) it is difficult to keep separate the primary deci- sion-maker and the appeal body or investigator; (ii) secrecy and a lack of transparency often characterize internal procedures; and (iii) the quality of the internal procedures is often low owing to lack of training or proper orga- nization. Extemal Appeals By external appeals we mean a process by which a person dissatisfied with an administrative action may appeal to a body that is independent of the ad- ministration. Such appeals may raise questions of law, but their main attrac- tion is that they can consider the facts and substance of the action. This ap- peal function is sometimes performed by lower or specially created courts; alternatively, special appeal bodies may be set up-these are not courts, but they do make an independent adjudication in respect of the matter. Howev- Principal Institutions and Mechanisms of Accountability 37 er the appeal body may be comprised, the essential idea is to examine the ev- idence, the facts, and the primary judgment about these to determine whether the appeals body is the best or most supportable in the circum- stances. Appeals on the merits to external bodies are familiar in some Westem sys- tems of administration, although they have no place in the traditions of Cen- tral and Eastern Europe. The French Tribunaux Administratives, which are the first-instance administrative courts, have the power to examine the merits as well as legality in certain contexts. A more extensive system of external ap- peals can be seen in the tribunal system of the United Kingdom. This is an extensive system that covers most, but not all, areas of administration. The usual pattern is to have a chairperson who is a lawyer accompanied by two lay members who are experienced in the field of administration. However, the most highly developed system of extemal appeals is to be found in the Australian Administrative Appeals Tribunal (AAT), which consists of one main set of tribunals similar to but with more extensive powers than the British system. The AAT not only has the power to examine the primary deci- sion to see whether it was wrong in some way, it has the additional duty of considering the matter afresh and substituting the decision it thinks best, even if no error can be found in the original decision. Where discretion has been conferred on the original authority, the AAT is obligated to reconsider and re-exercise the discretion. External appeals are normally allowed only after internal appeal mecha- nisms have been exhausted (when there are such mechanisms). The main dif- ference between the two is that the latter are conducted within the adminis- tration by administrative officials, while the former are heard by an independent semi-judicial body. The scope of appeal is similar in both cases, usually allowing a full re-examination of the merits of the case. Internal mechanisms are likely to be very informal, although emphasis on informality is also an important feature of extemal appeals. The two go well togetheL Most errors or sources of grievance can be remedied at the intemal stage, and can be done so with speed and efficiency. This in itself is a good reason for having internal mechanisms and requiring that they be invoked as the first instance. Where grievances persist after the internal process, they can be dealt with still reasonably quickly and informally by an external appeal body. The added value here, however, is the appeal body's independence and its 38 Denis Galligan Session II capacity to provide a level of scrutiny that may not be possible within the de- partment or agency itself. In addition to their role in dealing with individual cases, through their decisions in such cases, internal and external processes can also have a role in setting general standards of good administration. Just how effective they are in that role is a matter that needs further research. The relationship between these two forms of substantive appeals and judi- cial supervision should be noted. Judicial supervision is concerned with the legality of administrative actions and is a necessary feature of a rule-of-law system. It does not examine the substantive merits of an action but has the function of ensuring that the administrative body has legal authority for what it does and that in exercising its authority it has complied with other relevant legal principles. Appeals, whether internal or external, are primarily concerned with the facts and the substantive decision made on the facts. Is- sues of legality may arise, and where they do they will be dealt with; but the main point of these processes is to re-examine the merits. Ombudsman The idea of the ombudsman as a mechanism of accountability is rapidly gain- ing ground in Europe and elsewhere. Although a relatively new form of ac- countability, except in Sweden from which the modem form is derived, the ombudsman appears to meet a need that otherwise would not be adequately met. It is particularly popular in the new democracies of Eastern Europe, al- though there may be some confusion there as to both its essential functions and its limits. The essential idea of the ombudsman is an independent statutory body whose task is to investigate complaints made by individuals or groups about the actions of administrative bodies. The ombudsman may have a general, wide-ranging power to investigate all aspects of administration, or it may be given supervision over specific areas, such as the police, prisons, and the health service. An ombudsman is usually created under a statute or law that specifies its powers and makes it accountable to parliament. Since its main function is to investigate, scrutinize, and possibly criticize government and administration, it is essential that it be independent of both. An ombudsman's role is often marked by several characteristics. First, it investigates complaints in order to determine whether there are faults in the procedure or substance of the administrative action. Second, an Principal Institutions and Mechanisms of Accountability 39 ombudsman usually has extensive powers to question officials and to require them to produce documents. Third, when an investigation does disclose fault or impropriety on the part of the administrative body, the ombudsman recommends a solution or some form of remedy, rather than impose a sanction. It is then for the agency or department to remedy the defect in accordance with the ombudsman's recommendations, encouraged undoubtedly by the desire to avoid adverse publicity and an unfavorable report to parliament. The usual recommendations are reconsideration, reversal, or the payment of compensation. The question arises as to what kinds of defects an ombudsman investi- gates. The answer is that there are several, and indeed ombudsman bodies may be quite different in their purpose and function according to the nature of the defect. Broadly three main categories can be identified. The illegality model: according to the classic Swedish model, an ombudsman investigates complaints alleging illegality on the part of the administration. Illegality means that the administration has breached a statute, regulation, court-made rule, the constitution, or a principle of international law. The idea that an ombudsman should concentrate on complaints concerning the actions of the administration has been influential in the new European democracies. The Polish ombudsman, created in 1987, was considered a great success because it investigated with an independence of mind violations of the law and princi- ples of community life and social justice. The constitutional and human rights model has been especially prevalent in the new European democracies where complaints concerning the abuse of rights are of particular concern. This has resulted in the creation of various kinds of ombudsman institutions to deal with the abuse of rights. The rights model may be seen as a variation on the illegality model; instead of embrac- ing all forms of administrative illegality, an ombudsman of this kind focuses on illegality relating to the violation of constitutional and human rights. The maladministration model is based on the idea that good administra- tion requires more than staying within the law, and that there are many de- fects that may broadly be considered maladministration. This term is not eas- ily defined, but it includes improprieties on the part of the administration that go beyond illegality, although of course illegality is itself an instance of maladministration. Carelessness, undue delay, lack of cooperation, unfair- ness, and procedural irregularity are all covered. This model of ombudsman 40 Denis Galligan Session II has been adopted in many places including the European Union, France, Britain, Australia, and New Zealand. While the three models overlap to a considerable degree, the emphasis and function of each is different. A country considering the adoption of an ombudsman should consider which model best meets its needs at the time and which best fits in with other forms of accountability. In countries where the court system is weak or discredited, there may be an argument for incor- porating the legality model, at least as a temporary measure; in the other countries the pressing need may be to protect human rights. The maladmin- istration model is something of a luxury and generally should be considered only after a strong court system has been established and human rights issues are under control. One of the dangers to guard against is the idea that an ombudsman can perform many functions, some of which are traditionally left to other institu- tions, and that an ombudsman may even remove the need for other institu- tions. Unawareness of this danger is sometimes apparent in the new Euro- pean democracies where the proliferation of ombudsman institutions is most noticeable-often without careful consideration of their functions and their relations to other institutions, however. One danger that should especially be avoided is to imagine that an ombudsman is a suitable substitute for courts. On the contrary, ombudsman bodies serve a different function-investigat- ing complaints-and should complement courts, whose task is to uphold le- gality. The ideal should be to develop both a strong system of courts and an efficient ombudsman mechanism. This is not to deny of course a certain overlap between the two, especially in cases in which the illegality model of the ombudsman is adopted. Howev- er, the general lines separating the two should be kept clear. Courts are judi- cial bodies with the final responsibility for deciding questions of law; they can impose remedies such as declarations of nullity or liability, but they can inquire into and rule upon only specific cases that come before them. An om- budsman for its part is a nonjudicial body with responsibility for investigat- ing complaints against the administration; it may recommend that certain action be taken, which may go beyond the specific complaint. An ombuds- man is usually more easily accessible than the courts and the procedures are quite different. Principal Institutions and Mechanisms or Accountability 41 Other Accountability Mechanisms Other accountability mechanisms that I shall mention rather than analyze in detail include inspectorates, standard-setting bodies, parliamentary processes, and especially the committees of parliament. Inspectorates are of many kinds and usually consist of specially created bodies with powers to monitor, scruti- nize, and report on the actions of a primary administrative body. While their activities now range widely, probably the most important is the audit author- ity, which supervises the financial management of agencies and departments. Standard-setting bodies are perhaps less common, but the general idea is to create a supervisory body, one of whose main tasks is formulating standards of behavior and service with respect to the area of administration that is sub- ject to it. Such standards then become one of the grounds for holding the ad- ministrative body accountable. The parliamentary process is the ultimate form of accountability, and is now normally conducted through a committee system, which is becoming a standard feature of modern democracies. Evaluation and Reflections It can be seen from this brief account that a considerable range and variety of accountability mechanisms for the supervision of government and adminis- tration are available. Well-developed, modern democracies are likely to have elements of all or most of them in some form or another, although just pre- cisely what form they take and how they fit together as a whole is bound to vary greatly. The general idea is that different mechanisms serve different functions in securing accountability, and the aim should be to devise over time a pattern of mechanisms that are adequate in their cover of government and administration, and which are reasonably compatible with each other but without too much overlap or duplication. The more comprehensive and coherent the pattern is, the more effective it is likely to be in making govern- ment and administration accountable. The corollary is that there is no one single mechanism that will serve all purposes; a realistic view is that each adds in its own small but distinctive way to achieving satisfactory levels of ac- countability. While a network of accountability mechanisms is a worthwhile ideal for all modern democracies, it cannot be achieved overnight, nor can it be achieved without committing substantial resources to it. As to the first point, 42 Denis Galligan Session II it is generally wise for newer democracies to develop accountability mecha- nisms step by step, with an order of priority clearly stated, and in line with the available resources. For example, a first priority should be the creation of an independent and effective court system, which may but need not neces- sarily be accompanied by an ombudsman system. An ombudsman is impor- tant, but courts should come first. Parliamentary committees have great po- tential for accountability, but they take time to establish themselves and to define their areas of expertise, and so on. It is vital, moreover, that each insti- tution or mechanism be adequately funded so that it is effective. Nothing is more likely to bring discredit and a sense of illegitimacy than the creation of an institution that quickly proves to be ineffective because of a lack of fund- ing. The ombudsman system in Eastern Europe provides a good example; one does not have to look far to find ombudsman bodies that are swamped with complaints that they cannot possibly even read, let alone investigate. Similar- ly, while elaborate laws and regulations regarding parliamentary committees can be seen all over Eastern Europe, most of them are largely dormant. Now while these points are easily made, the newer democracies face a dilemma. On the one hand, they are under great pressure from many quar- ters-western governments, intemational organizations, nongovernmental bodies, and the financial and business sectors-to develop accountability mechanisms quickly and comprehensively. On the other hand they do not have the expertise or the resources to make those mechanisms effective. This often results in the creation of dysfunctional institutions and low levels of ac- countability. There is of course no easy solution to this dilemma. The sensible ap- proach, however, is for each country, with the benefit of outside help, to for- mulate its own plan of development, based on its own needs as understood against its social and historical conditions, and according to its economic ca- pacity. Such a plan should identify needs and priorities, taking care to ensure that any proposed accountability mechanism adds distinct value to the exist- ing arrangements. It should also include techniques for monitoring the effec- tiveness and quality of the institution and its processes. This is only a begin- ning, but I suggest that it is a necessary beginning in the creation of sound and lasting forms of accountability. The Role of the Ombudsman Bience Gawanas Ombudswoman Republic of Namibia I am very pleased to be with you today and to share my time with such distinguished panel members. I wish to commend the World Bank for the invitation, as I am representing an occupation, the ombudsman, that is so crucial in accountability discourse, yet is always overlooked at conferences of this nature. This forum will no doubt, afford us with the opportunity for an in-depth discussion on accountability. I will therefore address the topic by looking at the ombudsman institution as an alternative for holding govern- ment accountable. However, before doing so, I wish to make some prelimi- nary points. Discourse on Accountability I attended a conference last year in Toronto and, among the many useful ob- servations and statements made, the issue of the use of private sector lan- guage to describe accountability in public sector institutions came under scrutiny. This discourse on accountability obviously begs the question as to the language that we all use so easily to define accountability. As such it is not only a question of a definition, but also the need to find a common lan- guage and a common lens through which we all can look at issues of ac- countability as a principle of good governance. At the conference, we were reminded to reclaim the language of govern- ment, which includes the following: * Public good; * Common good; * Serving the public; * Fairness, dignity; and * Respect, honesty. 43 44 Bience Gawanas Session II Traditional Means of Ensuring Accountability The constitution is always taken as the starting point for accountability, as it is the fundamental law that establishes structures and instruments for good governance. This is followed by an emphasis on the rule of law based on the principle that public affairs must be conducted on the basis of legality. It re- quires among other things the adherence to principles of good administra- tion, as set out by the Commonwealth Secretariat, which are as follows: * Be just, fair, and equitable; * Be transparent and honest, and not corrupt; * Conduct oneself in the interest of the public at large and do not serve the private interest of public servants; * Carry out duties in accordance with the rules of financial good practice; * Be responsive to the needs of the public; * Conduct operations in an efficient manner, that is, without undue de- lay and inconvenience to the citizens; and * Remain open to public scrutiny. Coupled with the above is the need to create an environment of trans- parency through legislation such as freedom of information acts, whistle- blowers protection acts, and codes of conduct. There are also various governance structures that work to promote ac- countability and, among others, these are: * Parliament; * Auditors general; * Judiciary; * Anticorruption agencies; * Human rights commissions; * Election commissions; * Public service commission; * Civil society organizations including the media; and * Ombudsman offices. It is the ombudsman offices, in particular those in the developing world, that will be primarily addressed here as alternative mechanisms. The Role of Ombudsman 45 In the 1990s many countries transformed themselves from autocratic states to constitutionally created democratic states. Although many of them have introduced multiparty democracies with an entrenched bill of rights, they have yet to consolidate a framework for democratic governance. There- fore, unlike in established democracies where a culture for the respect of the rule of law has been firmly established, in developing countries, checks and balances expected to exist among the various arms of government are either nonexistent or do not function effectively. Human rights abuses occur and the search for good govemance is an ongoing struggle. Coupled with this, corruption has become a major issue. It permeates every sector of society and has become accepted as a way of life. In the absence of a viable alterna- tive, the economic and social rights of citizens are insufficiently guaranteed or met. This is also a time when demands are being made for good governance- namely, political pluralism, an end to corruption, more respect for human rights accountability, transparency, and effective and efficient administra- tion. Multiparty democracy refers not only to elections but also to the rela- tionship between the state and the citizen. When people vote their leaders into power, they have expectations that the leaders will serve the public, be fair and act reasonably and according to law, provide effective and efficient services, be accessible and follow the rules of natural justice, and provide vi- sionary and accountable leadership. As such, governments must first and foremost be held accountable by the people themselves in a given country. People will have confidence in public institutions only if they can be as- sured of honesty and being served in a transparent and open manner and if there are mechanisms through which they can hold government account- able. However, effectiveness of control of the two most important check and balance mechanisms-parliament and the courts-are hampered, first, by the fact that although separation of powers is an important feature of a demo- cratic dispensation, absolute separation between parliament and the other branches of government is not possible, and second, by the expense and slowness of litigation which inhibit effective access to courts. The importance of independent monitoring bodies including the role of civil society can therefore not be overstated. The ombudsman can be said to fill the gap by playing a complementary role to parliament and the courts. It is not, however, a substitute for proper values or an internal complaints 46 Bience Gawanas Session II mechanism, as the best solutions and controls are usually found within an institution itself. The Role of the Ombudsman It is within the context outlined above that the role of the ombudsman as- sumes a wider dimension in that he or she is expected to be the defender of human rights, including the right to good govemance. The concept of the ombudsman is understood in various ways; the following are provided as examples: * The ombudsman is a concept entrenched within a democratic system as a safeguard against governmental abuses of individual liberties. * It also serves to enforce executive accountability for the good of ordi- nary citizens. * It is a mechanism necessary for the enforcement of the rule of law. * It offers informal methods for resolving disputes free of charge to the complainant and relatively quickly and inexpensively for government compared to litigation. It does not replace the courts but is a compli- ment to the courts in dispensing quick and just remedies. As an important role-player in the democratization process, the ombuds- man fulfills a much broader mandate than do traditional ombudsman insti- tutions. Therefore, I believe that our role in emerging democracies should be geared toward the following: 1. Search for justice by promoting respect and protecting the rights of the individ- ual. I assume that when countries choose the democratic path, they also pledge to move away from oppression and injustice and toward improving citizens' quality of life, toward an environment in which human rights and fundamental freedoms are observed and enjoyed. Yet, whether knowingly or systemically, violations do occasionally take place within these government administrations-indicating a gap be- tween theory and reality. Individuals who have been subject to the im- pact of maladministration or corruption or have suffered violations of their human rights should be aware that they have a right to complain The Role of Ombudsman 47 to an independent and impartial ombudsman and know how to make such a complaint. Officials must also be made aware that their deci- sions and actions are subject to scrutiny to determine whether these ad- versely affect citizens. 2. Promote the rule of law. In a democracy, all government institutions, be they at the central, regional or local level, are required to act within and uphold the rule of law. This means that the actions of government must be reasonable, fair, and just. Public officials must at all times act in a manner that is not arbitrary or contrary to public interest. Their decisions must be in accordance with previously defined rules and procedures. The ombudsman is there to ensure that the rule of law is imple- mented in terms of protecting the rights of the people as set out in the constitution and according to the mandate of the Ombudsman Act and other laws and regulations. When officials do not adhere to these prin- ciples, their decisions adversely affect the rights of the ordinary citizen and lead to maladministration. Authorities and their officials can cause maladministration as a result of abuse of power, arbitrariness, mistake, and neglect. Therefore, in promoting good governance and effective administra- tion, it is incumbent upon the ombudsman not only to seek a remedy for the grievances of individual citizens, but also to pursue a policy of prevention-which means pointing out deficiencies within the public service that need improvement and which were revealed while investi- gating a complaint. These broader systemic issues may require correc- tive action, which may include the adoption of rules and procedures that will promote and create a public service culture that is responsive and adheres to standards. 3. Eliminate corrupt practices and promote ethical standards in public life. I be- lieve that the basic tenet of democracy is that public institutions must carry out their work in a transparent manner; if they are not willing to subject themselves to public scrutiny, these institutions will fail to gain the public's trust. The expectation of the public is that officials will 48 Bience Gawanas Session 11 perform their duties to the highest possible standard. Therefore, there is a need to define good ethical administrative practice in a code of conduct. Where administrative behavior falls short of this code, offi- cials must be held accountable and their decisions must be challenged whether it is through the courts or by filing a complaint with the office of the ombudsman. The office of the ombudsman views the abuse of power, corruption or unfair, discourteous or other improper conduct on the part of an official not only as affecting the rights of a citizen but also as an indication of the deterioration of ethical standards. Ethical issues are becoming more and more the standard against which people measure elected officials. Increasing corruption and de- clining integrity are perceived as major causes for poor service delivery. They also undermine the processes of institutional development, good govemance, and overall socioeconomic development. Therefore there is a clear link between the quality of service delivery and integrity. Ser- vice delivery has to take place in a culture of honesty and integrity. Communities expect their leaders to lead with integrity and deliver quality service. 4. Promote and advance democracy and good governance. It is essential that we recognize that the concept of governance includes the active partic- ipation of people in the processes of govemment, such as the exercise of power and the making of decisions that affect people's lives. There- fore I believe that democracy should not only be about setting up insti- tutions or structures, and elections should not be regarded as the end- all of democracy. The framework must involve a process of establishing values that form the basis of any democratic society. These values, when exercised within a multiparty democracy, must of necessity in- clude tolerance of differences and opposing viewpoints, inclusiveness, and respect for human rights. In this way, people's participation within political processes will be promoted. For example, it is no use talking about women's participation in public life if we continue to erect barriers in front of them using tradi- tion, religion, and stereotyped notions of their proper role and place. The Role of Ombudsman 49 From my perspective as the ombudswoman of Namibia, I want to see within this debate on accountability the issue of viewing human rights as ba- sic tenets of good governance. As such, measurements of accountability as a principle of good government cannot solely be in terms of dollars, but have much more to do with human values of dignity. What is the point of holding governments accountable only insofar as it concems their efficiency in terms of deficits if this forces them to cut social spending? What is the essence of holding governments accountable extemally, if indeed the public is excluded from such accountability frameworks? In my view, accountability is achieved when the citizens of a country, based on equal participation in the processes that affect them, can call gov- emments to account regarding the effective and efficient provision of the ser- vices they need and which should be based on the core values of serving the common good. People who are aware of their rights will not be willing to suf- fer in silence or merely be called upon to vote at elections. They will increas- ingly make demands for more transparency and accountability in their deal- ings with the administration, and also from their elected representatives. The slogan "bringing government closer to the people" can only become a reality if concerted efforts are made by the political leadership to reach out to the people through public education and awareness campaigns. One may need to ask the extent to which a country can be regarded as democratic, in- cluding an accountable govemment, if people generally continue to be ex- cluded from decisions affecting their lives. Is it enough to have formal decla- rations of democracy and good governance, if in fact people continue to be denied their right to question their leaders and demand accountability from them? Is it enough to ask for votes every four or five years without also asking what people's views, experience, needs and concerns are and to take these into account when formulating policies and plans? I would therefore submit that government should be held accountable by those it serves-as they in- clude the illiterate, the downtrodden, the marginalized whose voices are rarely heard. They and they alone can tell when a government fails to live up to their expectations. They and they alone know when they are treated as second-class citizens in their countries. They know when they are hungry, thirsty, homeless, and destitute even though they may not be able to define what accountability is. 50 Bience Gawanas Session II The role of the ombudsman has been and will continue to be to promote participation and assist the people in understanding and holding public of- fice bearers accountable through public education and outreach efforts, which include visits, distribution of leaflets, radio and television and public speaking engagements at schools and conferences, and so on. SESSION III Can Laws and Institutions Give Voice to the Poor? Barricades or Obstacles The Challenges of Access to Justice Martin Abregfi Executive Director Center for Legal and Social Studies (CELS) Argentina Introduction When I first asked some colleagues the question that is the topic of this ses- sion, I heard some very different answers, so I have chosen a few that I would like to share with you: * "It is obvious that laws and institutions can give voice to the poor, but do they want to?" * "If laws and institutions cannot give voice to the poor, what are they for?" * "Laws and institutions are not able to give voice to the poor, but at least they should consider how to assure people a free translator." Others preferred to raise previous questions, such as: e "What do we mean when we say 'give voice'?" * "What do we mean when we say 'the poor'?" Confronted by all these questions and answers, I decided to try to articu- late all of them, to try to approach this issue in a way that allows us to con- sider the extent, but also the limits, of the subject we have to deal with. There is no doubt that to "give voice to the poor"-understood as protect- ing the weakest ones, within a rule of law framework-is in the very nature of the establishment of any law and institution. Beginning with Hobbes' 53 54 Martin Abregul Session III justification of the state in his Leviathan, but also considering other liberal explanations-not to mention any of the other much more interventionist modern theories-the notion of a "legal" state has always included the prin- ciple that there has to be a fair way to solve disputes regardless of the quali- ties of those involved in the confrontation. We could conclude, then, that the very notion of the modern state neces- sarily includes a component on how to manage people's conflicts with some rational trend. Therefore, this rationale has to consider (a) how to make sure that everybody will be able to have access to these "legal" solutions; and (b) how to deal with the actual differences between the parties in order not to fa- vor the privileged ones but to secure equity among them, which might in- clude some unequal rules to protect those disadvantaged. The administration of justice, therefore, must have a teleological aim that goes far beyond the mere resolution of conflicts. As has been said, it is not by chance that the ministry of justice is the only ministry that is named after a virtue. 1 Within this context, the question that we have to answer in this session should not be understood as questioning the postulates of the modern states, as questioning what is due under the rule of law-since such an understand- ing would mean an outdated proposal for the new century. The question should not be understood as questioning the possibility to reach those objec- tives either, such as whether the principle to give voice to the poor must be left aside as another modern utopia. On the contrary, this session must be viewed as an inquiry into the condi- tions to ensure that laws and institutions would give voice to the poor, into the actual challenges that the rule of law has to face to aim this objective. It is in this sense-but only in this sense-that we have to celebrate that we are discussing this question, as a necessary step to tackle the current deficiencies of our legal systems. Until recently, the World Bank "only very indirectly ad- dressed the more sensitive issues of judicial independence, access to justice and related constitutional and legislative reforms"2 and, therefore, our discus- sion is an important move forward. 1. Bielsa, Rafael. 1986. El concepto de la reforna orgdnica del servicio de justicia en Cuadernos de FUNDEJUS. Buenos Aires. 2. Lawyers Committee for Human Rights. 2000. Advancing Judicial Reform. An Environ- mental Case Study in Bolivia. March (see p. 3). Barricades or Obstacles: The Challenges of Access to Justice 55 Since we are considering this issue at a conference entitled "Comprehen- sive Legal and Judicial Development: Toward an Agenda for a Just and Equi- table Society in the 21st Century," the question on the voice of the poor is a question on the access to justice in a broad sense. Assuming that the poor do not have actual access to the courts, we have to consider which are the obstacles that people find in order to get justice done, how we are sup- posed to avoid them, and which kind of response we think the courts have to give them. Access to Justice: The Role of the Center for Legal and Social Studies Now that we have identified the problems that we have to face, let me ex- plain my background. I work for a domestic human rights law-oriented non- governmental organization, the Center for Legal and Social Studies (CELS). We have a rights-based approach to human rights issues. We are not experts on the administration of justice, but we have the expertise of those who use the system every day to "get justice done," in a strict sense. Our experience, therefore, is exclusively related to Argentina-even though we might easily consider it just an example of Latin American judiciaries. Actually, CELS was created, in 1979, to confront the denial of justice to those victims of the dictatorship that ruled Argentina from 1976 to 1983. During those years political dissidents disappeared under the "dirty war" and CELS' founders-four very well-known lawyers-decided that it was neces- sary to have a legal strategy and began to file habeas corpus petitions about the fate of their loved ones. These were systematically rejected, and that was the beginning of our work to build some new roads to the courts. Since then, we have been dealing with many serious obstacles that stand in the way of justice for those who have been victims of human rights viola- tions. Probably the most outrageous example of denial of justice is the one re- lated to cases of police brutality. As it has been extensively denounced and demonstrated, victims of police brutality are systematically confronted with a lack of response-or even complicity with the suspected policemen-from judges and prosecutors.3 During the last few years, however, we had to begin considering the access to justice question in a much broader sense. After the transition to 3. CELS-Human Rights Watch. 1998. La inseguridadpolicial: violencia de las fuerzas de seguridad en la Argentina. Eudeba, Buenos Aires. 56 Martin Abregui Session I1 democracy, we started receiving many different complaints and demands from low-income people. Either we went to distant neighborhoods or they came to our downtown office, but it was always the same story: poor people, not necessarily victims of gross human rights violations, but unable in one way or another "to get justice done." People came asking for legal counseling and representation on matters as diverse as labor laws, health care, immi- grants' rights, and family issues. At the beginning we tried to develop some tools to help them, but there was an underlying question that we had to face: Why were they coming to us instead of going to some state-sponsored office? The answer was also obvious: the state was rejecting them, the state was ignoring them. Therefore, their only way to claim their rights was through a nongovernmental human rights organization. As a human rights organization, the issue of access to justice for us became an instrumental one.4 Our experience revealed clearly enough that there was no possibility for the actual enjoyment of basic rights if there was not a fairly established way to secure access to justice. In other words, the routine denial of basic rights was what brought us to the access to justice problem, whose solution would pave the way to a rational system of solving conflicts among people. We decided then to carry out various projects to approach this issue. Prob- ably the most important one is the research that we are carrying out current- ly with the Defensoria del Pueblo de la Ciudad de Buenos Aires (The Om- budsman-actually, the Ombudswoman-Office of the City of Buenos Aires). We are interviewing all the legal aid offices in the city, including the bar asso- ciation and the law school clinics, but we are also interviewing the clients of these services. What we would like to determine is: * Who are the users of these services? * Are the users finding the response that they are seeking? * Which are the cases that never reach the courts (the most important ones for us)? 4. 1 am aware different concepts of access to justice exist. However, I prefer not to dis- cuss those points of view; I will instead just explain our practical approach to the issue. To read about alternative concepts, see Bielsa (1986: 12), cited above in note 1. Barricades or Obstacles: The Challenges of Access to Justice 57 This research illustrates our concern: how (in)accessible are the courts for those who cannot pay for a lawyer, or, in much more realistic terms, if you do not have money to pay for a lawyer, do you have any possibility of bringing your conflict to be resolved before an impartial judge?5 Obstacles Let's go back then to our original question: Can laws and institutions secure access to justice for the most vulnerable groups? Even at the risk of sounding like an economist, my first answer is that it depends. As I will try to demon- strate, it depends on many operational matters but, much more important, on some other deeply rooted problems that we will have to cope with if we really aim to secure justice for all. I will try then to identify those obstacles that prevent the most disadvantaged sectors of society from accessing justice, and I will suggest some very general but key principles that should guide any serious effort to revert the situation, to move from our skepticism toward a more positive answer to our dilemma. Operational Obstacles As has been already suggested, we should differentiate between operational obstacles and structural ones. If we accept this classification, we should consider "operational problems" to be those related to the efficiency and effectiveness of the administration of the justice system, and "structural problems" to be the ones that are in the very nature of our judiciaries as they are currently organized. There might be some difficulties in differ- entiating one kind of obstacle from another-and, of course, there is some discretion on this classification. But what we should keep in mind is that a clear line could be drawn between obstacles that could be reverted from inside the judiciary and those that are far beyond any endogenous solution. 5. The relevance of this question is fundamental: "Since the legitimacy of rule of law is based on the effective implementation of the principle of equality before the law, in- equalities to access to justice compromise the legitimacy that a democratic State must preserve and increase permanently." However, it must be assumed that the right to effec- tive judicial protection is a myth. Access to justice is always available, but only in theory. As has been said, it is like the Sheraton Hotel, "everybody can come in; the only thing that you need is money" (Garro, Alejandro. 1999. El acceso a la justicia y el "derechlo de interes publico. " In Justicia y Sociedad. Hacia un mejor servicio puiblico de justicia, April No. 2, pp. 37-39) 58 Martin Abregzu Session III We will mention just a few of these operational obstacles:6 * There is no comprehensive plan that facilitates the coordination of ef- forts, avoiding overlaps. * There is a growing unprotected social sector, since legal aid services have not evolved with the increasing population and its needs. * These services do not have a general approach but a specific one-to protect only certain rights. * The quality of legal assistance has been traditionally related to the pay- ment of lawyers' fees. * Public defense has been oriented to criminal cases and as a conse- quence is notoriously inefficient in dealing with other issues. * The path to a civil process that avoids the payment of litigation costs goes through a preliminary judicial process. * There are no serious data on the clients of these legal services. * Legal aid services normally have their offices in downtown areas and are not easily accessible to those living in suburban areas-who are, in most of the cases, the ones who need these services the most. * The process cost is proportionally more expensive for small-amount disputes. * An adequate or appropriate pretrial counseling system is not in place. * There is a dearth of appropriate advice to avoid unnecessary processes. Those of you who are experts on the administration of justice and have been working and criticizing the reform process that has been carried out during the last decade have a clear knowledge of these difficulties and have some answers on how to deal with them. Most of the bibliography emphasizes these barriers, and there is a lot of material and interesting research about them, but this is not the information that we have been working with, so I will not analyze but just mention it. Actually, I hope that some others on this panel might help me find some tools to mitigate this problem. 6. Garrido, Carlos M. "Informe sobre Argentina." In Situaci6n ypolfticas judicales en Amnrica Latina, Special Publications Series No. 2, Escuela de Derecho, Universidad Diego Portales, Chile, pp. 81-82. Barricades or Obstacles: The Challenges of Access to Justice 59 Structural Obstacles I would rather consider the structural obstacles, those that are not just ju- dicial problems but, on the contrary, are problems that have to do with the very basic forms of societal organization. These issues are prior to the judicial response to any specific case brought before a tribunal, but are inherently linked to the administration of justice. At least three of those major obstacles need to be mentioned: 1. The very organization of the judiciary "turning its back" on the people; 2. The situation of vulnerability of those we have considered here as "the poor"; and 3. The lack of awareness of those vulnerable groups of their right to claim their rights. As has been said before, these obstacles go far beyond the judiciary. However, they have to do with the very reason of the establishment of a judiciary-as we have seen at the beginning of this presentation-that is, to secure a rational and legal way of conflict resolution. It has to do with con- sidering not how the courts deal with people, but how we manage to have more people dealing with the courts. A footnote might be needed at this point: this is not a call for a uniform bureaucratic judicial response to any conflict that might arise. This does not have to do with judicial versus other informal ways of conflict resolution. This has to do with the fact that, in order to live in a fair and equitable soci- ety, everybody must have the possibility of bringing his or her conflicts be- fore a tribunal-whether that is a court, a justice of the peace, or any other other rational system. If we do want to give voice to the poor, if we do want to secure access to justice for the vulnerable, we shall certainly have to find a way "to get justice done" for everyone and not only for those who reach-or try to reach-the courts. If we do want to give voice to the poor, these are the first obstacles that we will have to face and, even though they are not just judicial ques- tions, the judiciary has a lot to offer in solving them. It is necessary, therefore, to consider in more detail each one of these obstacles. 60 Martin Abregui Session III 1. The judiciary was established following its own necessities, developing its own logical thinking, and thus creating "barricades" for those from the outside who want to trespass the "judicial land." A few examples of those barriers include: * The location of the tribunals. Courts are always at specific down- town locations. People not only face long trips to get there, but the courts are also conceived as an autonomous part of the city, where everybody has to go to file their complaints. The very idea of a "judi- cial city" is the best example of the judiciary's thinking of itself as a differentiated property. * The design of judicial buildings and tribunals. Once you get there- the judicial land-it is not easy to find your way to the particular court. Huge and labyrinthine buildings, full of symbols that remind you that you are not at home but at some virtuous palace, send a threatening message to those who try to get to the courts without due guidance. By the same token, if you happen to reach a court, with or without a lawyer, you will not be able to pass through the entrance desk (mesa de entrada), which separates those who impart justice from those who wait for it. * The development of its own "legal" language. Lawyers, judges and prosecutors speak their own dialect. Even at oral trials, most of us have witnessed how it is virtually impossible for the accused to un- derstand the reading of their sentence. It is commonplace at the ju- diciary's meetings to blame the media for not having journalists who are "experts" on justice issues. On the contrary, what is annoy- ing-at least for me-is that one has to be an expert to understand when "justice is done." * The reification of the clients of the judicial service. Users of the judi- cial system, once they get involved in a case, are no longer persons with a conflict that has to be solved but plaintiffs or defendants, ac- cused or victims. Their whole life will be suddenly reduced to their primordial role: the one that they have to play during the process. This reductionism and standardization transforms the complaints into something that has nothing to do with real life. Barricades or Obstacles: The Challenges of Access to Justice 61 It is not necessary to point out that these problems do not affect only the poor. But it is also obvious that you might easily reduce these in- conveniences if you do have the possibility of hiring your own "city" guide and translator, and if you have enough money or prestige not to be considered just a plaintiff or an accused. 2. The second obstacle that was mentioned before was the vulnerability of the weakest members of society. In this case, the difficulty is intrinsical- ly related to the fact of poverty. People with no jobs and no social secu- rity rights are too vulnerable to stake a claim for their rights. Since they are "beneficiaries" of social programs and they have no right to de- mand social assistance, they are permanently afraid of upsetting their official "donors." A couple of examples might illustrate this vulnerability. A few years ago, we studied the lack of public defenders for noncriminal cases in the Province of Buenos Aires, the biggest and, in some areas, the poor- est Argentine province, and we focused on some very poor, high-popu- lation suburban neighborhoods. Among them, there was a very dis- turbing one, La Matanza, where the numbers speak for themselves: there were only two public defenders for noncriminal cases for a total population of 1,173,190, of whom 347,917 had unsatisfied basic needs. But the two public defender offices were not yet working. We were looking for a client of those defenders for years, but we could not find a single person who wanted to file a complaint against the local govern- ment. They were all afraid that there might be some kind of retaliation, such as cutting off their social benefits. During 1999, some beneficiaries of a well-known social program came to CELS inquiring about a possible action to restore the funding that had been cut off. There was no ground for a judicial request so we decided to file a complaint before the World Bank Inspection Panel, since the program was founded by a loan for a structural adjustment program and, we claimed, the Argentine government was not appro- priately using these funds. Again, one of the problems we had to face to file the complaint was that none of the beneficiaries wanted to sign it. It was necessary to assure them that the denunciation would be 62 Martin Abregui Session III anonymous and that the government would only learn about CELS' representation, but not the names of those represented. Only under these conditions did we manage to collect more than a hundred signatures. Eventually, we did file the complaint before the inspection panel, and the government then decided to restore the original budget for the program. When the panel had to decide the issue, it had already become moot, but, among other rulings, the panel recognized the right of the beneficiaries to denounce it anonymously. Anonymity, then, was the key element that allowed the beneficiaries to succeed in their demands. What those two examples clearly show is that those who depend on a social program do not want to confront the state because they are afraid they might lose their benefits. Since they do not have a right to that social assistance which is essential for their very subsistence, they prefer not to press for their rights at all. This vulnerability is old news. It is the very same vulnerability that provoked the consolidation of the social state during the first decades of the twentieth century. After the consolidation of liberal democracies in western countries, a trend of social constitutionalism sprang up in those countries. With the irruption of the welfare state, governments aimed to organize not only civil and political rights but also economic, social, and cultural ones depending on the role that each person has in the labor market.7 However, it is important to keep in mind that those social rights, as they have been postulated even in international treaties, were inher- ently related to the requisite of being an employee. Therefore, with the welfare state crisis and the increasing unemployment rates, those who depend on social programs are no longer people with rights, but with benefits. On the road from a liberal and social state to the newest 7. As Cappelletti has explained, "the access to justice movement constitutes a central part of the modern social State or welfare State." Using the "waves" theory, he points out that at a first stage, the aim was to elude the obstacles related to poverty, and, second, this movement was focused on more complex and articulated difficulties, such as those related to the vulnerable groups in industrial societies. (Cappelletti, Mauro. 1999. "Acceso a la justicia." In Revista del Colegio Pziblico de Abogados. La Plata. See pp. 248-49.) Barricades or Obstacles: The Challenges of Access to Justice 63 "assistential" state, the poor became more vulnerable if they chose to pursue their traditional rights. To some extent, they are in the very same situation they were before the recognition of those rights, since they do not feel free to lay claim to them. 3. Last but not least, the third structural obstacle to access to justice that was mentioned above was the lack of awareness of the right to demand basic rights. This is not the session to analyze the educational issues re- lated to this topic. But what might be important to consider in this ses- sion is that, quite frequently, the most vulnerable groups do not even know that they have a right to lay claim to their rights. Even though they are probably aware of their rights to freedom of speech or associa- tion, to health and education, they may not have any clue about how to exercise them.' Another footnote might be needed at this point: there are plenty of problems regarding the lack of awareness of basic rights. Of course there are some people who are not even aware of their very basic civil and political rights. There are also some other people who-a bigger number than the previous one-consider social rights, generally speak- ing, as unjustifiable political gifts. However, I do not think we should consider these educational gaps at this session. What I do want to analyze is that, even though many people may be aware of their rights, in most cases they do not think about their every- day conflicts from a rights-based point of view. Therefore, they do not even consider the possibility of filing a complaint before a tribunal.9 The right to access to justice could be described, in this sense, as the most ignored right, since, for a full understanding of this right, a 8. In Roberto Berizonce's words, "the lack of rights protection is frequently related to the ignorance of legal tools and the distrust of the judicial systems and its agents, pro- voked by formalism and bureaucratization of the proceedings... The common faith of be- ing aliens before the system erodes the confidence on judicial matters and manners, par- ticularly for the disadvantaged sectors." (Berizonce, Roberto. 1993. Administraci6n de Justicia en Iberoamerica, J. Ovalle Favela coord., U.N.A.M. Mexico. See pp. 41-65.) 9. Luis Moreno Ocampo, former prosecutor and speaker at this Conference, used to have a very interesting TV program, in which he was an arbitrator between two parties who presented their cases in front of the camera. The educational achievement of that program was that ordinary people learned about solving their differences through an impartial process. 64 Martin Abregui Session III person has to (a) be aware of his or her rights, (b) be aware that there is also a right to exercise those rights, and (c) be used to reading some of his or her social conflicts as legal questions. Guidelines and Proposals As has been already explained, these issues go far beyond judicial matters and could be ignored if we take an endogenous approach to the problem of the access to justice. However, an actual response to the question about securing voice for the most vulnerable segments of society calls for a comprehensive view that should confront these problems or, at least, incorporate them.'0 At this stage it is important to point out that there are some interesting responses that the judiciary could offer to diminish the aforementioned barriers to access to justice, including taking organizational measures regard- ing those classified as operational obstacles. In this sense, there are some very basic principles and guidelines that must be followed in order to reverse this diagnosis. A few examples might help for a better understanding of these ideas. 1. There is a crucial necessity to bring the tribunals closer to the people. Some of these measures could be considered as operational ones, fol- lowing the classification that we proposed before. However, what is supposed to be behind these proposals is the basic idea put forth by John Jay, first chief justice of the United States Supreme Court, about bringing justice to the threshold of the house of each citizen. This idea encompasses the following: * Courts should be decentralized. It is a key element of any program striving to increase access that the tribunals should be moved from cities (downtown) to the neighborhoods. To be sure, there will be some centralization of activities, but it is important to try to keep it as minimal as possible. * Since access is not just a matter of location, it is also crucial that court buildings look like an open public place. If courts are 10. See also Bielsa (1986: 4). See note 1 for full reference. Barricades or Obstacles: The Challenges of Access to Justice 65 decentralized, they do not need to be huge buildings. Actually, ordi- nary houses might be perfect. A good example in Argentina is the new Prosecutor District Office in a Buenos Aires suburban area, Saavedra. Even though there has been some very strong opposition to this proposal, the office is doing a great job, forging strong links between the people and, at least, one area of the judicial system. * It is also necessary that we start moving in the opposite direction re- garding the use and abuse of a legal dialect. Some safeguards might be very useful to deter this tendency. * A jury system should be established. If ordinary people would play this fundamental role, lawyers would have to adapt legal terms to plain words. Arguments against the jury system invariably support some kind of elite justice, which always goes in the opposite direc- tion of our original intent-that is, ensuring justice. • It may be also extremely useful to establish some kind of media of- fice within the judiciary. Judges and other judicial agents frequently do poorly when communicating through the media. Therefore, if some specific office would "translate" judicial decisions for the me- dia, that might help people understand the decisions and would keep judges "safe" from journalists. * Another important requisite for making the courts more accessible is to turn the relation between courts and clients into a much more in- formal one. In order to do so, a key element for the organization of the administration of justice is that it must be shaped by the require- ments of its eventual clients, thus not demanding that the clients adapt themselves to the courts' bureaucratic logic. * The "Justices of the Peace" Jueces de Paz) in some rural areas in Peru could be a good example of an informal and flexible system, responding to local needs. On the other extreme, the Argentine establishment of compulsory mediation is a good example of how we could transform good principles into bad rules. * When we are carrying out a reform process of the administration of justice, it is necessary to include every actor in the process. As has 66 Martin Abregu Session III been explained, "the experience and perspective of the users of the judicial system, often represented by nongovernmental organiza- tions and public interest lawyers, can make a valuable contribution to the identification of reform needs and priorities. If judicial reform is to contribute to improving the basic relation between state and citizens in a country, the reform process should, fairly early on, pro- vide citizens with a greater sense of ownership and control over the judicial system."" The Lawyers Committee for Human Rights has certainly applauded a World Bank experience in this trend: A small but noteworthy Ministry of Justice sub-component of the (Bo- livian) project focused on analyzing the traditional judicial system used by several of Bolivia's indigenous communities. Regional NGOs with experience with indigenous communities were contracted to car- ry out the studies. The studies were undertaken in recognition of the fact that large sectors of Bolivian society-in particular, indigenous groups-lack access to the national justice system. In addition to the lack of access to "formal" justice, indigenous law persists, because the populations often prefer to use traditional forms of justice to solve conflicts within communities or between neighboring communities of the same ethnic background. The national legal system lacks legitima- cy for these groups.... This component of the project, if carried for- ward, offers a groundbreaking opportunity to integrate different legal traditions in a way that should strengthen the overall legitimacy of the justice system. It could also potentially improve access to justice in a significant way at the community level for groups that have long been left outside the bounds of any effective formal means of conflict management. 12 2. The question of the vulnerability of those depending on social pro- grams is, no doubt, the most difficult one to solve from a judicial 11. Lawyers Committee for Human Rights (2000). See note 2 for full reference. This reflects one of the lessons learned of the World Bank experience, namely "that these pro- jects should be conducted through a participatory approach. Participation is needed in order to gain ownership and commitment from the government and stakeholders," in- cluding different branches of government, bar associations, law schools, NGOs, and citi- zens. (World Bank. 1999. Initiatives in Legal and Judicial Reformn, Legal and Judicial Refortn Unit Legal Department. Washington, D.C.) 12. Lawyers Committee for Human Rights (2000: 13). See note 2 for full reference. Barricades or Obstacles: The Challenges of Access to Justice 67 perspective. To eradicate or at least diminish this social problem, it is necessary to recreate the rights that have been abolished since the crisis of the welfare state and, therefore, the judicial response will be a very mild one. However, it is important that, assuming this vulnerability, the courts grant broad criteria for standing-that is, for organizations to repre- sent individuals. To secure actual, effective protection-not merely nominal-of those rights and interests, not only on an individual but also on a collective level, it is necessary to allow and even pro- mote and facilitate the access of the representatives (public and pri- vate) of unorganized groups with nondefined-and probably not definable-boundaries. 13 * We should recognize that class actions, acciones de tutela or amparos colectivos, are necessary tools to overcome this obstacle. It is also extremely important to grant autonomous standing to NGOs, so that they can represent those interests that no one individual can represent. * Nevertheless, to allow the NGOs the necessary procedural tools to enable them to freely access the courts is only the first step. It is also necessary to give the judges the training and administrative infra- structure to handle these collective claims. 3. Finally, if we want to secure the right to access to justice, we should also promote a rights-based understanding of social conflicts. This has noth- ing to do with education but with building links between the people and the courts. Individuals might not need to learn themselves about their rights and how to exercise them but they do have to have a famil- iar counterpart to advise them. * Some experiences show that lay lawyers or paralegal officers could be key actors in this role. In some countries where lawyers are scarce, these agents have revealed themselves as encouraging entities for people to bring their cases before the courts. 13. Cappelletti (1999: 249). See note 7 for full reference. 68 Martin Abregri Session III * But, again, it is important not to limit us to these alternatives. In some cities of Argentina, for example, where there are thousands of lawyers with few cases and low income, it would be much more practical not to train lay lawyers but to promote the involvement of actual lawyers in minor cases. * It is important to point out that even though the state should fulfill its responsibility to secure justice for all, in Latin America, owing to budget constraints, the biggest expectations for success rest on lawyers and other legal professionals working with NGOs and other civil associations, since "these legal services might acquire a preven- tive or consultative form, not necessarily limiting themselves to ac- tive representation of legal defense."'14 At CELS, for example, we are carrying out a joint project with a sub- urban university (the Universidad Nacional de General Sarmiento) in one of the poorest neighborhoods of the Province of Buenos Aires, to assist the local bar association in establishing a legal aid program. In or- der to do so, we are not "exporting" any other model but we are trying to, first, determine needs and resources, and second, organize an in- digenous system. What might be very important for the success of this project is that the whole community has been involved in the discus- sions that we are promoting. It is worth mentioning that if we happen to be successful in this goal, there is going to be an "explosion" of cases presented before the courts. However, this should not deter us from moving ahead. Even though it is crucial to prevent these side effects and, therefore, to secure the institutional operational requirement to face this demand, it should not be forgotten that only such an explosion might be the wel- come consequence of a push for justice for all. Final Remarks These are just a few suggestions on how to promote equitable access to jus- tice. The ultimate question, however, is what response the vulnerable will re- ceive from the judiciary. It is not worth repeating that access to tribunals is meaningless if justice is not to be served. However, this is another issue that is 14. Garro, Alejandro (1999: 50). See note 5 for full reference. Barricades or Obstacles: The Challenges of Access to Justice 69 different from the instrumental character of the right to access to justice that I preferred to point out in this presentation. It is clear by now that we are not talking about just some minor or esthetic reforms of the judiciary, but about a second reform of the state- one that focuses on the rebuilding of its basic duties to secure the rule of law. It is imperative, therefore, to push for these changes as the only fruitful path to sustainable development. Paraphrasing Ferrajoli, we might conclude then that "access to justice" has nothing to do with mere legalism, formalism, or procedural issues. On the contrary, it consists of the protection of fundamental rights which repre- sent the values and the interests that institute and justify the existence of those artifices that are the law and the state, of which enjoyment for all con- stitutes the substantial basis of democracy."s 15. Ferrajoli, Luigi. 1995. Derecho y Raz6n. Madrid. See pp. 28-29. Engaging and Empowering Communities Grizelda Mayo-Anda Assistant Executive Director Environmental Legal Assistance Center, Inc. (ELAC) Philippines Years of developmental legal advocacy work with indigenous peoples, fisher- folk, farmer communities, and the rural and urban poor in the Philippines have provided alternative or public interest lawyers like myself with a differ- ent perspective in viewing and using the law. Law generally reflects the per- spectives of the elite and powerful in society. Law, in both content and process, by articulating only a dominant perspective also reflects the current balance of political and social conflict.1 Not all laws are just, equitable and so- cially relevant. A disparity exists between policy rhetoric and actual practice. Given these realities, laws are dynamic and open to interventions by people. The so-called myth of the law and the reality of the poor are continuing dilemmas that we face. The poor and powerless usually find it difficult to deal with the law. More often than not, laws and institutions are unable to com- prehend and address the realities faced by the poor-their culture, intricate problems, interests, and aspirations. There have been attempts to address these inadequacies, such as the passage of new legislation, creation or refor- mation of institutions, and strengthening of regulatory mechanisms. How- ever, these efforts are at times fragmented, unsustained, and still inadequate to respond to the mounting economic and social problems faced by the poor. The Need and Opportunities for Engagement Notwithstanding the aforementioned difficulties, it is important for the poor to make use of the law, participate in legal processes, and work with existing institutions. 1. Leonen, Marvic. 1994. "Engaging the Rhetoric: Law and Its Interface with Commu- nity Action." Issue Paper 94-02, , p. 2. Legal Rights and Natural Resources Center- Kasama sa Kalikasan, Manila. 71 72 Grizelda Mayo-Anda Session I1 First of all, the existing legal framework provides opportunities for the participa- tion of marginalized and underprivileged communities in the formulation and im- plementation ofpolicies. In the area of resource management and environmental protection, for in- stance, the constitution of the Philippines provides the following: 1. Democratization of access to resources: Direct users of natural re- sources, such as farmers, forest dwellers, and marginal fisherfolk, are guaranteed the right to continue using such resources for their daily sustenance and survival in accordance with existing laws.2 Hence, the constitution introduced the concept of small-scale utilization of natur- al resources as a mode of natural resource utilization.3 2. Social justice: There is a bias for the underprivileged as regards the development and management of natural resources such that land and other natural resources shall be made accessible to them. Municipal waters, for example, are reserved for the preferential use of subsistence fisherfolk.4 3. The right of the people to a balanced and healthful ecology: The con- stitution protects the right of the people to a "balanced and healthful ecology in accord with the rhythm and harmony of nature."5 The state is mandated to protect, advance, and promote the people's right to ecological security and health. In the case of Oposa vs. Factoran,6 the Supreme Court had occasion to rule on the interpretation of the constitutional policy on the environment. In this case, the Supreme Court declared the "right to a balanced and healthful ecology" as a self-executory right and recognized the primacy and centrality of ecological security and health among the many rights ensured by the constitution. 2. See 1987 Philippine Constitution, Article 13, Sections 4, 6 and 7. 3. See 1987 Philippine Constitution, Article 12, Section 2, paragraph 3. 4. See 1987 Philippine Constitution, Article 12, Section 3. S. See the Constitution, Article 2, Section 16. 6. 224 SCRA 792. Engaging and Empowering Communities 73 4. Due process clause: The constitution guarantees the right of the people to life, liberty, and property to be free from undue intervention and usurpation without due process of law. Thus, surface owners or occu- pants whose rights are based on a Torrens title or valid tenurial instru- ment issued by the government and whose rights may be impaired by development and exploration activities can assert their right to due process. S. Fundamental liberties: Besides the right to due process, important pro- visions include the right to information and the right to people partici- pation, where the state recognizes and promotes the right of youth, women, labor, indigenous communities, nongovernmental organiza- tions (NGOs), and community-based or sectoral or people's organiza- tions (PO). There is a provision for a people's initiative and referendum on proposing, amending, rejecting, or enacting laws. These policies serve as a basis for community groups to participate in establishing, conserving, managing, and formulating policies and resource manage- ment plans. Environmental statutes also provide for the preferential treatment of the underprivileged and for community participation. For example, the Philip- pine Fisheries Code of 19987 provides for the following: * Protecting the rights of fisherfolk, particularly of municipal fisherfolk communities, in the preferential use of municipal waters; : Providing primary support to municipal fisherfolk through appropriate technology and research, adequate financial and marketing assistance, and other services; * Managing fishery and aquatic resources in a manner consistent with the concept of integrated coastal area management in specific natural fishery management areas; and * Establishing Fisheries and Aquatic Resources Management Councils (FARMCs) at the municipal and barangay8 level to assist local govern- ment units in formulating and enforcing policies. 7. Republic Act (RA) 8550. 8. A barangay is considered the smallest political unit of government. 74 Grizelda Mayo-Anda Session III The Local Government Code9 provides for participatory policymaking as follows: * Representatives for NGOs and POs have seats in almost all councils, leagues, and boards; * Resource use or management plans can be enacted into ordinances through the local people's initiative;1' * Resource use plans formulated by fisherfolk in several barangays or mu- nicipalities may be implemented through the league of barangays and municipalities."1 In the case of Pala'wan, its unprecedented and landmark legislation known as the Strategic Environmental Plan (SEP) for Pala'wanU2 provides for the use of participatory approaches in the realization of its goals and programs. Second, poor communities cannot rely solely on government to convert such policy rhetoric into reality. Government's failure to enforce laws has always been a pervasive problem and has caused poverty and violations of human rights. Hence, poor commu- nities such as marginal fisherfolk and farmers, indigenous peoples, and other segments of the rural and urban poor must be empowered to effectively en- gage with laws and institutions. Third, community participation in legal processes, complex as it may seem, can help shape or refine policy and enrich pro-poor legislation, programs, and in- stitutions. Poor communities have shown that, when organized and capacitated, they are able to develop approaches that utilize existing laws and institutions to effectively respond to their needs. Here, interventions of nongovernmen- tal groups and to a certain extent, government, play a crucial role. At this juncture, allow me to share with you some experiences of NGOs in our country, particularly my own NGO, the Environmental Legal Assistance Center, Inc. (ELAC), in assisting poor communities of fisherfolk, farmers, and indigenous peoples to effectively engage with laws and institutions. 9. RA 7160. 10. RA 7160, Section 120. 11. RA 7160, Sections 491 to 507. 12. RA 7611. Engaging and Empowering Communities 75 Raising Law from Rhetoric to Reality: Empowering Communities through Various Approaches Developmental Legal Aid Developmental legal assistance or DLA philosophy, as alternative law groups (ALGs) or public interest law groups call it, involves the use of law, legal edu- cation, or service as a means to empower local communities confronted with problems.13 This is distinguished from traditional legal aid, which views legal service as an end in itself and works strictly within the existing framework of the legal system. According to DLA philosophy, citizens cannot solely rely on the legal system to address or resolve their problems. Their own creative forms of community action are necessary to effectively enable them to assert their rights and interests. In implementing the DLA perspective, ALGs have departed from the tradi- tional legal aid in that they seek to empower client communities to enable them to develop their own legal and political strategies. In his article, "Partic- ipatory Justice in the Philippines," Stephen Golub aptly sums up the nature and impact of the work of ALGs in the Philippines as follows: Their activities embrace both conventional and unorthodox legal work. They may litigate; appear before quasi-judicial proceedings, such as labor and agrarian reform tribunals; negotiate with corporate leaders regarding en- vironmental and labor issues; and provide legal assistance and guidance re- garding strikes and protest activities. They may also secure government ser- vices for partners; organize communities; train paralegals; pursue efforts to affect jurisprudence; conduct research; produce scholarly articles and publi- cations; advise advocacy groups; and work on legal and regulatory reform. ALGs' activities, then, can be seen as an effort to make client populations more legally and economically independent. They aim to inject fairness, ac- countability, and predictability into a legal system that is often abused or ig- nored by elite interests. More broadly, ALGs seek to democratize access to state-allocated resources and policymaking processes.'4 13. See Golub, Stephen. 2000. "Participatory Justice in the Philippines." In Mary Mc- Clymont and Stephen Golub, eds., Many Roads to justice, The Law Related Work or Ford Foundation, p. 219. Golub identifies the contribution of alternative law groups to policy implementation as "helping their partners raise Philippine law from rhetoric to reality." 14. Golub (2000: 200, 202). See note 13 for full reference. 76 Grizelda Mayo-Anda Session III Tb.MiwAI$oy Sainng P oorChildren an A,ult 'lb'r'" an Sd the Degraded Mur"niTi Aa, tyeofcmerifishingthathaloge been_ bnmed by law vwing to Itsueof W ldlbor ad its dese"pct onth o bl e t bt ds tutive en cc j~~~~~o M: i !--i:OlV. .i udin th0hlppn0tthssy The COMMer, fisig prtin cotiue unde th us fp-I h Chasbee MAlwe yg- prcine of Cebu , enr Visayas Ln southen Philipp Oprtons grh arefocused mainly pn the waters o lal'an where coralref and mae-oo n opeio,andd malretmnt at the hands of the "maes or orman . ,d,,,,¢., ,pr ... .. ................. of h fishin opraios Govrmn nocmetaet prhend- ed afew of these vessels in the p~~~~~~~~~~~~~~~~~~~~~~~~ast bt no ass av bbefid dtoWfe A 'ibyt ASS Fis ind Developmn Gpr bpratni, 00wss m ppre MPueto ri Cty. Whie nchore t po. r tha - q9,es,ca,ped. The, nCavy, turne d over theq ves,sel andprteinet document s<, 0 :9 to' th fishery- persil 4 onniel in chargem inh hoe tha-t a cas iw ould bg 0e : fi' b hled.oen imy th ve bid relea. T a w exposed by the media when some of the~V minor anadt fiswrk w l -. :ho esZaped were in 0 00-400lfl 0 S'0l0terv00' ::g00' fiewed.0 T g,, he navy,'> m';7-edia,$ and'an,-NG is,ought the assac fELCi nttt Ing the apprbpriateb egal actinipaainst Ithegownerioperao ofifish-, 0'ti''ngvessze'l' and als a'gainstth iknept, govrnmG<;ent pesonl. ELAfiledSt three e eo cthilabuse, anMtherfor m fisg and st i T InTIM,83i-002; -lE0.X:gE-00g bb u' dC0EptWS , , ,4S,Sg:t 2d S)e).t)Wt,-e0-000SdSl- rhoryonw ww 'o odS t'liCteC-0S-|Sf'S.,;i 15. Muro-ami is defined by law as a fishing method that uses diving and long hoses with stones and metals tied at the end, to pound the coral reefs and other habitat to en- trap and catch fish. 16. Pa-aling is a modified form of muro-ami in that instead of using stones and met- als, bubbles are used to scare the fish in order to entrap them. Engaging and Empowering Communities 77 The Muro-Ami Story (continued) ELAC's interview with the minor and adult fishworkers-escapees pro- duced disturbing revelations. All of the fishworkers had been recruited from poor fishing and farming communities in Negros Oriental. They were promised good pay, but they ended up dismayed by the hardship and suffering they were subjected to. All the interviewees disclosed that they were ordered to use stones to pound on the corals. Armed only with a long hose linked to a compressor, they had to dive some 20 to 30 meters to scare the fish. The majority of the fishworkers could barely read and write (mostly with elementary level of education, specifically from grades 1 to 4i. They were led to believe that the fishing activity they would engage in would be safe and pay well. Some of them, especially those between the ages of 18 and 24, left without the knowledge of their parents. Because they were poor, the fishworker-escapees initiallV thought that they were In no position to complain about their plight. They never realized that their plight could generate attention and support. The operating company was ordered to temporarily stop its fishing op- erations as a result of the conpiaints lodged against it. ELAC also initiat- ed a campaign to banpa-aling as a type of commercial fishing, since the government is currentty reviewing the existing fishery regulation governing such type of fishing activity. As a result of these initiatives, government attention was generated. Labor and social welfare offices provided financial assistance. NGOs convened a meeting in order to solicit financial and material assistance to the fishworker-escapees. The case also caught the attention of the national media, In the area of policy reform, ALGs have helped prepare critical national legislation that would advance the cause of the poor, such as the Urban Development and Housing Act, the Indigenous Peoples' Rights Act, the Philippine Fisheries Act, and the Clean Air Act. While these laws may not be perfect, having been muddled by lawmakers during the legislative process, they have been able to articulate certain policies and programs in favor of poor and marginalized communities. ALGs have also helped develop admin- istrative regulations or executive agency policies to implement new and rela- tively progressive statutes. 78 Grizelda Mayo-Anda Session III Opposition to the Pala'wan Cement Project: AI Studyon Public rAdvocacy The public debate on the tPala'wan Cerment Project proides 0 a good example on how ALGa helped achideve a sijd environmental lobby togetherwith NG and People's orgaln iation nopsn uiu development project that even had strong poticaloendorsements." The lobby ofNGs wasZcoordirnated by the GPalawan NO Network. i Inc, (PNNI) backed by good infrmation andfresearch; and comple- rimented boynmedia advocacy and network buiiding. PNN liaunched at ' Ocyberspace advocacy" campaign primrarily to gain international sup- poftd or the struggle of the Pala'wan ind om munity and: to counter the disinformation being spread by te pr t proponents. A Canadian company called Fenway Resources, woking with a localt partner, was proposig to buiid a U.S. $470 million cement plant in 4the imunicipality of SofroniEspanola, south otheprovince.,With a hproected' annual ouput of 2 milmlionimetric tonseof cement, Fenway was claiming that it was going to be the biggest cement plant in the country. Thetproect wastcontentious from the start owing to the refsal of the :Pala'wan indigenous ommunitSto ;accept the proect. It also became a controversial toissue entheA project proponents secured an endorse-: rmentapproval from the Palawan Council fr Sustatinabfie Develop- OmenV (PCSP) in 1 996without even a public bearing or consuitation called for thatpi proe.~ With the help of ALG Ilayers, the NGOs and POs were able to raise the following issues: a. Serious adverse environmenta irmpacts of the project, partict ularly on the forestal, coastal, dandtribal antlstrar'land areas; 17. Excerpt from Mayo-Anda. 1999. Case Studies on Mining and Environmental Impact Assessment.. 18. The PCSD is mandated under the Strategic Environmental Plan for Pala'wan to provide policy direction and govern the implementation of the SEP. Engaging and Empowering Communities 79 Opposition to the Pala'wan Cement Project (continued) b. Absence of technical and financial capability of the project proponent, Fenway Resources, and its speculative trading practices in the Vancouver Stock Exchange where it was pub- licly listed; c. Unresolved legal issues: (i} quarrying would cover old- growth forest that was considered a core zone and protected area under existing policies; (ii) quarrying site would have an impact on the ancestral domain of the Pala'wan tribal corn- munity; (iii) wharf site would entail the destruction of some four hectares of mangrove forest and coral reefs that were classified as core zones; (iv) plant site was located on agri- cultural lands covered by Certificate of Land Ownership Awards (CLOAs) which could not be transferred within a 10-year period, thereby precluding its reclassification into an industrial zone. Owing to the strong environrnental lobby spearheaded by the Pala'wan tribes and the NGOs, the PCSD decided to refer the project to the De- partment of Environment and Natural Resources (DENR) without en- dorsing it. This was a change from its original position of endorsement- approval. The DENR, for its part, has not acted on the Environmental Compliance Certificate (ECC) application, as it had no PCSD endorse- ment. Some Pala'wan politicians, however, are still lobbying the DENR to issue an ECC to the project. At the Vancouver Stock Exchange (VSE), the share prices of Fenway be- gan to plunge when reports on the real status of the project and its prospects began to find its way onto the Internet. In early 1998, the VSE delisted Fenway shares from its trading board, on findings that included insider trading and nondisclosure of critical information. This, however, has not completely led to the demise of the project, as its proponents are currently working to get the same project listed in other areas. The NGOs and indigenous communities have remained vigilant because there is still the possibility that sheer political influence alone can allow the company to get an ECC from the DENR. 80 Grizelda Mayo-Anda Session IfI As regards law implementation, ALGs have actively engaged in education work, organizing paralegals, information and media advocacy, and building linkages or coalitions to achieve greater community participation in imple- menting progressive laws and in advocating for stronger government ac- countability. Ultimately therefore, law is brought to the grassroots level. In asserting their rights, poor communities are often harassed with law- suits. While these suits usually get dismissed, the presence of a criminal com- plaint or warrant of arrest still shakes and stresses concerned community res- idents, PO leaders, and barangay officials. Community or PO members know that ALG lawyers will be there to assist them, but their strong distrust of the justice system causes them to worry. To address this community concern, lawyers together with NGO partners hold community consultations and as- semblies to discuss the nature and effects of the lawsuits. In these meetings, the community members agree upon an action plan or strategy with the sup- port of NGOs. A cohesive community or PO usually decides to continue with its ongoing initiatives despite harassment suits. In one case, barangay officials and fisherfolk who vigorously opposed the encroachment of commercial fishing into the bay area were swamped with a string of cases-libel, illegal assembly, abuse of authority, and threat. In another case, barangay officials and farmer residents who opposed illegal quarrying activities undertaken by a former mining company were sued for illegal assembly and trespassing. These harassment suits were dismissed after almost two years. During the period of time that these cases were pending, the village officials and community residents affected proceeded with their advocacy initiatives. The continuing partnership between the affected PO members, village officials, and NGOs strengthened the commu- nity's resolve. Paralegal Trainings: Tool for Community Empowerment Paralegal trainings consist of two- or three-day workshops, lectures, and group dynamics on the law, national policies on resource use and environ- ment; on specific environmental laws, legal and metalegal"' remedies; skills training on investigation, arrest, and search; and preparing complaints and 19. In ALG parlance, metalegal refers to community actions undertaken to assert or dramatize community issues in order to generate government action. Engaging and Empowering Communities 81 affidavits. Local communities-ranging from marginalized fisherfolk, farm- ers, and indigenous communities to youth, NGOs, and barangay officials- participating in these became cognizant of their rights and available remedies through their acquired knowledge of significant environmental laws, the legal system, and procedures and paralegal skills. Since 1996, local communities in Pala'wan undertook concrete actions to address community-specific environmental problems, such as the use of citi- zen's arrest or seizure and confiscation of illegally gathered forest or fishery products, quarry resources, and paraphernalia used in the commission of en- vironmental crimes; conduct of community patrols; monitoring and report- ing of these violations to concerned authorities and NGOs such as ELAC; and filing of criminal and administrative complaints against violators and derelict or corrupt government officials. Besides increased awareness and knowledge, members of local communi- ties who used to violate environmental laws were mobilized to actively join the community's environmental protection efforts. A good example is the agreement forged between fishpond owners, barangay officials, and ELAC on the protection of the remaining mangroves in Barangay Babuyan, Puerto Princesa City. Besides being forward-looking, the agreement serves as a com- pelling factor to ensure the commitment of existing fishpond developers and barangay officials to protect the remaining mangroves in the barangay. In 1999, paralegal development efforts got the support of the city mayor The series of paralegal trainings in the city of Puerto Princesa culminated in the deputization of selected paralegals from five barangays by the city mayor as volunteer community paralegals (VCPs). The deputization of VCPs, em- bodied in an executive order issued by the mayor, is a first in the history of the city and province. At this point the VCPs have undertaken initial action plans that include, among others, conduct of community patrols and moni- toring, establishment of marine sanctuaries, and organizational development activities. Community-Based Resource Management The Environmental Legal Assistance Center (ELAC) was organized as an alter- native law group that seeks to empower communities as resource managers through the use of law and capacity-building strategies. This is expressed in our vision, thus: 82 Grizelda Mayo-Anda Session III ELAC envisions communities that are empowered and self-determining stewards of natural resources. These communities are vigilant and assertive of their environ- mental and human rights. Its DLA philosophy inspired ELAC to evolve its legal assistance work into community-based resource management which entailed, among others, com- munity organizing and participatory research activities and involvement in local policy advocacy. ELAC focused its efforts on strengthening existing POs. Besides conduct- ing trainings and seminars, ELAC organized exchange visits by community organizers (COs), key community leaders, and barangay officials to other fish- ing communities with similar situations. Their meetings with fellow fisher- folk as well as their visits to community-initiated projects such as sanctuaries provided participating PO leaders, barangay officials, and COs with fresh in- sights and a broader perspective on resource management and community development. Advocacy capacities of community leaders and members were strength- ened as they became members of Fisheries and Aquatic Resource Manage- ment Councils (FARMCs) and barangay committees. While FARMCs were rec- ommendatory bodies insofar as fishery resource planning and policymaking were concerned, the active participation of PO leaders had an impact on law enforcement and drew support from the local government. In one instance, local government and the DENR were compelled to address community is- sues such as fishpond development and quarrying. In another instance, apa- thetic barangay officials were encouraged to support the stoppage of com- mercial fishing activities in their barangay. Also in the area of local policy advocacy, fisherfolk in partnership with ELAC played a key role in the formulation of the citywide fisheries ordinance in early 1997. Fisherfolk leaders, together with NGOs, participated in various workshops facilitated by such institutions as the local government, DENR, and PCSDs to discuss coastal/marine guidelines and tourism guidelines for Pala'wan. Residents in two barangays recently undertook the prerequisite steps to establish a marine sanctuary in their areas. Communities have leamed gradually that innovative approaches are im- portant in advocacy work. For instance, they know that it would be valuable to identify key players in policy formulation and implementation and estab- Engaging and Empowering Communities 83 lish links with these policymakers, even on an individual basis. Through dia- logue and other forms of communication with policymakers and govern- ment implementers, communities are able to change the attitude of govern- ment and eventually engender their trust in the capability of communities for resource management. They also have learned the value of building coalitions and networks-es- pecially through cases in which traditional politics intervene. In advocating for the expeditious identification and delineation of ancestral domain claims in the province of Pala'wan, NGOs and POs working with indigenous com- munities formed themselves into a working group. The working group pre- pared a short-term plan, met with key government officials, submitted an al- ternative guideline which was later approved by PCSD, and pushed for a budget to carry out the delineation process. Moreover, communities have realized the value of media advocacy. On their own, some community leaders have gone to radio stations and written newspapers to air their concerns and expose the ineptness of government agencies. As regards research work, community members have participated in re- source profiling and assessment. One approach that has effectively been used is called Environmental Investigative Missions (EIMs). An EIM is designed to be a participatory, multipartite effort to determine the possible impacts of a development project on the community. Community participation is an in- tegral component of the EIM. Environmental Investigative Missions were conducted to determine the environmental impact of trawl and purse seine fishing activities in Honda Bay and the proposed shipyard and shipbuilding development project in Coron. The research has been used both as an advocacy and planning tool. The community's appreciation of the research results is one immediate con- sequence of the EIM activity. Community members have also been trained to undertake monitoring and evaluation activities as part of the resource management planning process and environmental defense efforts. In Coron, for instance, the com- pletion of a participatory rapid appraisal of the natural resources in the area of a proposed ship repair facility in one barangay strengthened the commu- nity's position on the project. 84 Grizelda Mayo-Anda Session III Tenurial Security for Poor Communities: Addressing the Need for Resource and Land Access Without some form of legal instrument allowing poor communities to occu- py foreshore or forestal areas, these communities do not have equitable ac- cess to our natural resources and consequently they are discouraged from par- ticipating in any management or protection scheme. In the past, some of the poor fisherfolk, farmers, and indigenous communities were actually em- ployed by illegal fishers, loggers, and wildlife smugglers to engage in destruc- tive methods of resource use. In the coastal zone, tenurial instruments, which are also in the nature of management schemes, help deter the "tragedy of open access." For indige- nous communities, the instrument is called the Certificate of Ancestral Do- main Claim (CADC) or the Certificate of Ancestral Domain Title (CADT) un- der the new Indigenous People's Rights Act.20 For fisherfolk and farmers, there M-.Gow -theo : =pw.n :- Coro'-: ?sw 20. IPRA law or RA 8371. 21. Rimban, Luz. 1998. "Paradise Regained.t he Investgawtve Reporting Magazine (Mfanila) 4(3): 19. Engaging and Empowering Communities 85 is the Community Based Forest Management Agreement or Certificate of Stewardship Contract. A critical element to complement land tenure and sustain any resource management initiative is the provision of alternative livelihood or appropri- ate enterprise activities. Farmers who have lived on slash-and-bum farming and fisherfolk who are wont to use cyanide or dynamite need livelihood as- sistance to enable them to live decently. In the experience of the fisherfolk of Sitio Honda Bay, a group of fisherfolk attempted to address the problem con- ceming dwindling fish catch. They generated the support of NGOs and the city government in their plan to set up a tourism-related enterprise to supple- ment their current fishing activity. The Story of HOBBAI (tionda Bay Boatmen Association): Developing a Community-1ased Tourism Enterprise Over the past three years or so, Honda Bay, Puerto Prinresa City, Pala'wan, has been one of most popular tourist destinations in Puerto Princess along with the world-famous Underground River. In 1997 alone, out of the 100,000 tourist arrivals in Puerto Princesa, approxi- mately half visited Honda Bay. Ferrying of tourists around Honda Bay used to be controlled and rno- nopolized by only five families who had enough capital and established connections with the hotels and inns in the city proper. The rest of the community members would get a rare chance of earning from the visi- tors if and only when the so-called cartel was unable to accommodate all the guests on their boats. it was only in such situations that they would "pass" the excess tourists on to other boatmen. Even then, the boatmen would not get the full amount for the service they rendered, since cartel members would as a 'norm" get the Ulon's share of the gross income. The system began to change when some 30 fasherfolk sought ELA's assistance in organizing themselves into a boatmen association in the latter part of 1996. They called themselves the Honda Bay Boatmen continued 86 Grizelda Mayo-Anda Session III AJTheta of bHORBAIt(cdontinued) Assocfiation Inc.o -BA.Wa 'these sall boat oertors wanted$000 u0 0 ;0 0000ws some' opportnlty, if not an equalopportunity,to ear from the ; grow t00itng tourism idutry the(:yTorism Offi ces calldit:e "aphenfoWme-;4 3 0 0 : l l00nal grotsh'. ktoo lmot a year f r th batenasscaltio tinally ;;:gQi start operation i^0o3 nce the new bamn did.not want t start withotut ; ;$0; d 0;0; g iSdSi SfASDes,ph3ite intiaesistance gfro te original Agroupoffive families, HOB- W itit0000S00 BAl members proceeded to get the support- of theCity Tourism 0Council.i0000000S ai SAfter^F a. seie ofdialogues and repr'eseEntatins with the city officials,: thel;f;d g city tAfmayo issed excutve odrgving Sexcusi'v'e righttoHOBBAV0Id;3 to0 oprtei . 238 Hon. David Kingsley Malcolm Session VII is restricted to universities and government agencies. In Saudi Arabia, access is limited to companies, hospitals, and universities.27 The total prohibition of electronic communication is unrealistic, however, and I suspect impossible to enforce. Even the partial prohibition of certain terms or subjects creates difficulties. For example, the filtering and restriction of messages by a carrier or service provider that contain the word "sex" would also exclude access to material on safe sex or even the English county of Sussex.28 It has been reported that in late 1995, the German government attempted to exert pressure on service providers rather than users to restrict access by Bavarian users to material that was deemed "explicit." As a result of the inter- national nature of the communications, the effect was that 4 million users around the world were prevented from accessing the same sites. Sites as var- ied as Vatican pronouncements on sex and an academic commentary on pornography in China29 dropped out of the Internet as a result of what Ger- many did. As this example illustrates, regulation by a single state could have far-reaching and potentially unforeseen effects on users all over the world. What might once have been seen as draconian internal battles over the re- striction of access to subversive political literature could mean the prolifera- tion of extradition applications, or alternatively, the imposition of the same internal restrictions on international users of the Internet. The private commercial interests that are involved in the Internet net- work also constitute an obstacle to regulation by the state. The point is made by a number of commentators that internet users often consider that the internet is a "law-free" zone and a great deal of effort is put into steps to circumvent or subvert state regulatory practices.30 Private Internet service providers are reluctant to enter into authoritative statements on content regulation as they infringe on the ability of users to use what is essentially a commercial service. While it may be suggested that multilateral treaties on the use and access of Internet resources is a possible approach, one is immediately presented 27. Grabosky, P., and R. Smith. 1989. Crime in the Digital Age. Sydney: Federation Press. See p.125. 28. Grabosky and Smith (1989: 130) See note 28 for full reference. 29. Grabosky and Smith (1989: 133) See note 28 for full reference. 30. Grabosky and Smith (1989: 123) See note 28 for full reference. Independence and Accountability: An Asian Pacific Perspective 239 with the same difficulties that I have outlined above in regard to internation- ally applicable standards of "objectionable," "indecent," or "subversive." For example, the United States Supreme Court has maintained a strong commit- ment to the First Amendment and the protection given to freedom of expres- sion. Two recent examples provide an indication of the scope of electronic communications permitted and the reluctance of the Supreme Court to place any restrictions on the nature of those communications. In 1996, the United States Government enacted the Communications De- cency Act as part of the Telecommunications Reform Act. The Act prohibited the "patently offensive display of indecent material to minors." Neither "in- decent" nor "patently offensive" were defined. In its decision in Reno v. American Civil Liberties Union32, the Supreme Court found that the Commu- nications Decency Act, while protecting minors from offensive material, in- terfered with the freedom of speech guaranteed by the First Amendment. The Court was concerned with the vague nature of the terms employed by the Act and the criminal sanctions that had been attached to a breach of its provi- sions. The Court noted that its role was not to "limit the level of discourse reaching a mailbox to that which would be suitable for a sandbox" and af- firmed the right of adults to exchange and view material such as that struck at by the Act.33 In its judgment, the Court said: The growth of the internet has been and continues to be phenomenal. We presume that govemmental regulation of the content of speech is more like- ly to interfere with the free exchange of ideas than to encourage it. The in- terest in encouraging freedom of expression in a democratic society out- weighs any theoretical but unproven benefit of censorship.34 In a matter that came before the United States Supreme Court earlier the same year, an injunction was issued preventing the enforcement of Georgia legislation that prohibited the use of an Internet user name which "falsely identified the person." The application for the injunction was brought by a number of civil liberties organizations, arguing that the use of false names allowed individuals to participate in discussions on sensitive topics or to 32. Unrep.; 26 June 1997; United States Supreme Court; 96-511. 33. Kirkland, E. 1997. "US Supreme Court Sends the White House Home to Think Again." Computers and Law 8: 19. 34. Kirkland (1997: 39). See note 33 for full reference. 240 Hon. David Kingsley Malcolm Session VII express disapproval of government without fear of retribution. In granting the injunction, Judge Shoob said: On its face, the act prohibits such protected speech as the use of false identi- fication to avoid social ostracism, to prevent discrimination and harassment and to protect privacy.34 Such an approach would of course have considerable benefits for authors wishing to publish works that may criticize or satirize government action or may be objectionable to others. The double-edged nature of the protection, as I mentioned earlier, creates a number of concerns. A laissez-faire approach to the content of communications also raises the specter of constitutionally sanctioned "hate speech." As I have said, electronic communications and commerce offer opportuni- ties for both personal and commercial growth. All of these important devel- opments may not have been possible without the assistance of technology. Law reform on a global scale takes a concentrated effort over a long period of time. I think it was Michael Kirby who said, "law reform is for long distance runners." Years can pass while decisions and agreements are reached. Human rights continue to be violated, but this does not dull our spirits domestically or internationally. Each step we take is a step closer to achieving our goals of justice and fairness through the cooperation of countries, particularly in the Asia Pacific Region. There are many challenges being faced by the countries of this Region. I have been inspired and encouraged by the willingness of the chief justices to join together in mapping out pathways to achieve judicial and other reforms to improve the administration of justice in the Asia Pacific Region. They have commenced a journey in the last part of the twentieth century that I hope will continue in the twenty-first century. 34. American Civil Liberties Union and Ors v Miller reported in Brown 1997, 4:14. See note 24 for full reference. The Judicial System of Pakistan Measures for Maintaining Independence and Enforcing Accountability Hon. Irshad Hasan Khan ChiefJustice of Pakistan The Independence of the Judiciary The concept of judicial independence has, along with changing international relations, acquired a new impetus of placing a greater premium on the role of the judiciary and the protection of human rights in the past half century. The 1948 Universal Declaration of Human Rights recognizes the right of individ- ual to "a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him."' Similarly, the 1966 International Covenant on Civil and Political Rights states:2 In the determination of any criminal charge against him, or of his rights and obligations... at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. And the United Nations Basic Principles on the Independence of the Judi- ciary stipulate the following:3 Persons selected for judicial office shall be individuals of integrity and ability with appropriate training or qualifications in law. Any method of judicial selection shall safeguard against judicial appointments for im- proper motives. In the selection of judges, there shall be no discrimination against a person on the grounds of race, colour, sex, religion, political or other opinion, national or social origin, property, birth or status, except 1. Article 10. 2. Article 14. 3. Article 10. 241 242 Hon. Irshad Hasan Khan Session VII that a requirement, that a candidate for judicial office must be a national of the country concerned, shall not be considered discriminatory. The Sixth Conference of Chief Justices of Asia and the Pacific held in Beijing on August 19, 1995 adopted the Beijing Statement of Principles of the Independence of the Judiciary in the Law Association of Asia and the Pacific (LAWASIA) Region as follows (excerpts): 1. The Judiciary is an institution of the highest value in every society. 2. The Universal Declaration of Human Rights (Art. 10) and the Interna- tional Covenant on Civil and Political Rights (Art. 14 (1)) proclaim that everyone should be entitled to a fair and public hearing by a competent, independent, and impartial tribunal established by law. An independent Judiciary is indispensable to the implementation of this right. 3. Independence of the Judiciary requires that: a. the Judiciary shall decide matters before it in accordance with its im- partial assessment of the facts and its understanding of the law with- out improper influences, direct or indirect, from any source; and b. the Judiciary has jurisdiction, directly or by way of review, over all issues of a justiciable nature. 4. The maintenance of the independence of the Judiciary is essential to the attainment of its objectives and the proper performance of its func- tions in a free society observing the Rule of Law. It is essential that such independence be guaranteed by the State and enshrined in the Consti- tution or the law. 5. It is the duty of the Judiciary to respect and observe the proper objec- tives and functions of the other institutions of government. It is the duty of those institutions to respect and observe the proper objectives and functions of the Judiciary. 6. In the decision-making process, any hierarchical organization of the Ju- diciary and any difference in grade or rank shall in no way interfere The Judicial System of Pakistan 243 with the duty of the judge exercising jurisdiction individually or judges acting collectively to pronounce judgment in accordance with Article 3(a). The Judiciary, on its part, individually and collectively, shall exer- cise its functions in accordance with the Constitution and the law. 7. Judges shall uphold the integrity and independence of the Judiciary by avoiding impropriety and the appearance of impropriety in all their ac- tivities. 8. To the extent consistent with their duties as members of the Judiciary, judges, like other citizens, are entitled to freedom of expression, belief, association, and assembly. 9. Judges shall be free subject to any applicable law to form and join an association of judges to represent their interests and promote their pro- fessional training and to take such other action to protect their inde- pendence as may be appropriate. jurisdiction 33. The judiciary must have jurisdiction over all issues of a justiciable nature and exclusive authority to decide whether an issue submitted for its decision is within its competence as defined by law; and 34. The jurisdiction of the highest court in a society should not be limited or restricted without the consent of the members of the court. Judicial administration and judicial independence are interlinked and intertwined. The independence of the judiciary cannot be maintained in letter and spirit until the basic factors and requirements relating to judicial administration are adhered to. In my view, factors that are relevant and have a bearing on judicial independence are the absence of coordination among the various tiers of judicial hierarchy, nonexistent court manage- ment and case processing mechanisms, lack of access to information tech- nology, absence of competent and trained human resources, lack of infra- structure facilities, lack of automation, poor salaries to judicial officers and 244 Hon. Irshad Hasan Khan Session VII court staff, inadequate performance standards, inadequate data and statis- tics on performance, inefficient budgetary allocations, and so forth. Numerous other international and regional human rights instruments also provide for judicial independence and the dispensation of quick but fair and impartial justice. The rationale for judicial independence and the impar- tiality of judges may be ascertained in an address given in 1997 by the Chief Justice of Australia (then Chief Justice of the State of New South Wales). He said, and I quote: Judges regard the judiciary as the third arm of government, separate from and independent of the two political arms, the legislature and the executive. Their duty is to maintain the rule of law, to uphold the constitution, and to administer civil and criminal justice, impartially, according to law.... The in- dependence of the judicial arm of government is not a benefit won by judges on some ancient industrial battlefield, and now jealously guarded as a perquisite of office. It is a constitutional principle with a sound practical ra- tionale. Justice must be, and be seen to be, administered with impartiality. Executive governments are themselves major litigants. Almost all criminal cases are fought as contests between the government and a citizen. Govern- ments are frequently involved in civil litigation, either directly or through corporations in which they have a stake. Courts are sometimes called upon to determine disputes between different governments, or between the leg- islative and the executive branches of government. Judicial independence is an element of the constitutional system of checks and balances, and is the primary source of assurance of judicial impartiality. The independence of the judiciary is a basic principle of our constitutional system of governance. The Constitution of Pakistan contains specific and cat- egorical provisions for the independence of the judiciary. The Preamble and Article 2-A state that "the independence of the judiciary shall be fully se- cured"; and with a view to achieve this objective, Article 175 provides that "the judiciary shall be separated progressively from the executive." The rul- ings of the Supreme Court in the cases of Government of Sindh v. Sharaf Fafridi,4 Al-Jehad Trust v. Federation of Pakistan,5 and Malik Asad Ali v. Feder- ation of Pakistan,6 indeed, clarified the constitutional provisions and thereby further strengthened the principle of the independence of the judiciary, by 4. PLD 1994 Sc 105. 5. PLD 1996 Sc 324. 6. PLD 1998 Sc 161. The Judicial System of Pakistan 245 providing for its separation from the executive branch, clarifying the qualifi- cations for appointing High Court judges, prescribing the procedure and time frame for appointing judges and chief justices, and the transfer of a judge from a high court to the Federal Shariat Court. Furthermore, the supreme court judgments in the cases of Mehram Ali v. Federation of Pakistan7 and Liaquat Hussain v. Federation of Pakistan8 are also in line with the above rul- ings: they elaborate and reiterate the principle of judicial independence and the separation of the judiciary from the executive. The Supreme Court in its recent unanimous verdict, authored by the Chief Justice of Pakistan, on the military takeover of October 12, 1999, observed: Notwithstanding anything contained in the Proclamation of Emergency of the Fourteenth day of October, 1999, the Provisional Constitution Order No. 1 of 1999, as amended and the Oath of Office Judges) Order No. 1 of 2000, all of which purportedly restrained this Court from calling in question or permitting to call in question the validity of any of the provisions thereof, this Court, in the exercise of its inherent powers of judicial review has the right to examine the validity of the aforesaid instruments. In the exercise of its right to interpret the law, this Court has to decide the precise nature of the ouster clause in the above instruments and the extent to which the jurisdiction of the Courts has been ousted, in conformity with the well-established principles that the provisions seeking to oust the juris- diction of the Superior Courts are to be construed strictly with a pronounced leaning against ouster On the subject of independence of judiciary the Court held: Stability in the system, success of the Government, democracy, good gov- ernance, economic stability, prosperity of the people, tranquillity, peace, and maintenance of law and order depend to a considerable degree on the interpretation of the Constitution and legislative instruments by the Supe- rior Courts. It is, therefore, of utmost importance that the judiciary is in- dependent and no restraints are placed on its performance and operation. It claims and has always claimed that it has the right to interpret the Con- stitution or any legislative instrument and to say as to what a particular provision of the Constitution or a legislative instrument means or does not mean, even if that particular provision is a provision seeking to oust the jurisdiction of this Court. Under the mandate of the Constitution, the 7. PLD 1998 SC 1445. 8. PLD 1999 SC 504. 246 Hon. Irshad Hasan Khan Session VII Courts exercise their jurisdiction as conferred upon them by the Constitu- tion or the law. Therefore, so long as the Superior Courts exist, they shall continue to exercise powers and functions within the domain of their ju- risdiction, and shall also continue to exercise power of judicial review in respect of any law or provision of law, which comes for examination before the Superior Courts-to ensure that all persons are able to live securely under the rule of law; to promote, within the proper limits of judicial functions, the observance and the attainment of human and Fundamental Rights; and to administer justice impartially among persons and between the persons and the State, which is a sine qua non for the maintenance of independence of judiciary and encouragement of public confidence in the judicial system. In a system of constitutional governance-one that guarantees fundamen- tal rights and is based on the principle of trichotomy of powers-such as ours, the judiciary plays a crucial role of interpreting and applying the law and adjudicating disputes arising among govemments or between state and citizens or citizens inter se. The judiciary is entrusted with the responsibility of enforcing fundamental rights. This calls for an independent and vigilant system of judicial administration so that all acts and actions leading to the infringement of fundamental rights are nullified and the rule of law is upheld in society. The judiciary is required to oversee the performance of all state organs, in- cluding itself, to ensure that each organ remains within its allotted sphere and does not intervene in the affairs of the other(s). In a celebrated ruling, the Supreme Court of Pakistan in the case of the State v. Zia-ur-Rehman,9 issued an authoritative interpretation of the relevant provisions of the Con- stitution. The Court's observation relates to the federal scheme of "distribu- tion of subjects" and the system of "separation of powers"-and the role of the Supreme Court in implementing the same. The Court ruled: The functions of the State are distributed among the various State func- tionaries and their respective powers defined by the Constitution. The nor- mal system under such a system, with which we are familiar, is to have a trichotomy of powers between the executive, the legislature and the judi- ciary. But each of these organs may itself be fashioned in a variety of differ- ent shapes and forms. Thus the legislature may be unicameral or bicameral; the legislative subjects may be divided between the federating units and 9. PLD 1973 SC 49. The Judicial System of Pakistan 247 the federation in a federal system or even the legislative power may be di- vided between the executive and the legislature as in our present system. The executive may take the Presidential or the Parliamentary form. The ju- diciary also may consist of various types and grades of Courts with the highest at the apex either as an ultimate Court of Appeal or a Court of Cas- sation. There may also be other administrative tribunals outside the judi- cial pyramid. In all such cases, it will also be the function of the constitution to define the functions of each organ or each branch of an organ, as also specify the terri- tories in which, the subjects in respect of which and sometimes even the circumstances in which these functions will be exercised by each of these organs or sub-organs. Limitation would, therefore, be inherent under such a system so that one organ or sub-organ may not encroach upon the legiti- mate field of the other. Thus, under a written Constitution, the legislature of a federal unit will not be able to legislate in respect of a subject which is within the field of the federal Legislature, nor will a federal Legislature be able to legislate upon a subject which is within the exclusive field of the Legislature of the federating units. It cannot, therefore, be said that a Legis- lature, under a written Constitution, possesses the same powers of "om- nipotence" as the British Parliament. Its powers have necessarily to be de- rived from, and to be circumscribed within, the four corners of the written Constitution. In a similar vein earlier, the Supreme Court in the case of Fazal-ul-Qadir Chaudhry v. Shah Nawaz,10 had taken the view that in view of the constitu- tional scheme for the distribution of power among various state organs and authorities, the superior judiciary is allotted a crucial and delicate responsibil- ity of containing organs and authorities within their allotted spheres of oper- ation. Since the judicial review function of the Supreme Court is assigned to it by the constitution, it is the bounden duty of the Court to examine and pass necessary orders and directions to institutions and authorities to ensure strict adherence to the letter and spirit of the constitution. Thus, it may check the arbitrary tendency of state authorities and functionaries. The Court clari- fied that in performing this function, it does not arrogate to itself a supra- constitutional role, as the constitution obligates it to do so, so as to avoid en- croachment of an organ or authority that is on the preserve or domain of another. The Court observed: 10. PLD 1966 SC 105. 248 Hon. Irshad Hasan Khan Session VII So far, therefore, as this Court is concerned it has never claimed to be above the Constitution nor to have the right to strike down any provision of the Constitution. It has accepted the position that it is a creature of the Consti- tution; that it derives its powers and jurisdictions from the Constitution; and that it will even confine itself within the limits set by the Constitution which it has taken oath to protect and preserve but it does claim and has al- ways claimed that it has the right to interpret the Constitution and to say as to what a particular provision of the Constitution means or does not mean, even if that particular provision is a provision seeking to oust the jurisdic- tion of this Court. It is indeed for the purpose of realizing the above-mentioned objectives, that the constitution mandates the independence of the judiciary and its separation from the executive branch. With a view to attain such indepen- dence, the constitution prescribes a whole set of safeguards or guarantees so that not only the judiciary in its institutional capacity, but also judges in their individual capacity may remain shielded against any possible outside pressure or control or influence. Such independence is necessary, for other- wise the courts would not be able to administer justice freely, impartially, and without fear or favor to all manner of people, as is dictated by the constitu- tion and the law. To ensure such independence, the constitution prescribes the qualifications for and mode of appointment of judges, security of tenure, service conditions, salary, and other privileges, together with grounds and mode of removal of judges and the courts' power to recruit their own minis- terial staff and regulate the staff's employment terms and conditions. The constitution further provides for the immunity of courts from unwarranted criticism by the public or the legislature. It grants the courts the power to punish for its contempt. All the executive and judicial authorities are bound to aid the superior courts in the enforcement of their judgments and orders. In short, the constitution grants administrative and decisional independence to the judiciary. The constitution makes it the exclusive power, responsibility (indeed, a legal obligation) of the judiciary to ensure the sustenance of the separation of powers system, based on checks and balances. The judiciary is called upon to enforce the constitution and safeguard the fundamental rights and freedom of individuals. To do so, it has to be properly organized and effective and efficient enough to quickly address and resolve public claims The Judicial System of Pakistan 249 and grievances; and also has to be strong and independent enough to dis- pense justice fairly and impartially. It is such an efficient and independent ju- diciary that can foster an appropriate legal and judicial environment where there is peace and security in society, safety of life, and protection of property and guarantee of essential human rights and fundamental freedoms for all in- dividuals and groups, irrespective of any distinction or discrimination on the basis of cast, creed, color, culture, gender or place of origin, and so on. Indeed such a legal and judicial environment also is conducive to economic growth and social development. The Code of Conduct to be observed by the judges of the Supreme Court and all the High Courts in Pakistan inter alia enjoins: The prime duty of a Judge as an individual is to present before the public an image of the justice of the nation. As a member of his Court, that duty is brought within the disciplines appropriate to a corporate body. The Constitution, by declaring that all authority exerciseable by the people is a sacred trust from Almighty Allah, makes it plain that the justice of this nation is of Divine origin. It connotes full implementation of the high principles which are woven into the Constitution, as well as the universal requirements of natural justice. The oath of a Judge implies complete sub- mission to the Constitution, and under the Constitution to the law. Subject to these governing obligations, his function of interpretation and applica- tion of the Constitution and the law is to be discharged for the mainte- nance of the Rule of Law over the whole range of human activities within the nation. To be a living embodiment of these powers, functions and obligations calls for possession of the highest qualities of intellect and character. Equally, it imposes patterns of behaviour which are the hallmark of distinction of a Judge among his fellow-men. A congenial functioning environment for the judiciary is increasingly be- ing emphasized locally and internationally. The present World Bank confer- ence indeed aims at creating and strengthening such an environment. The President of the World Bank, Mr. James D. Wolfensohn, considers such an en- vironment a key pillar of the Bank's strategy for spurring economic develop- ment and growth. In the Comprehensive Development Framework Plan, pre- sented before the Bank last year, he emphasized the maintenance of the role of legal and judicial systems in improving governance: 250 Hon. Irshad Hasan Khan Session VII Without the protection of human and property rights and a comprehensive framework of laws, no equitable development is possible. A government must ensure that it has effective systems of property, contract, labour, bank- ruptcy, commercial codes, personal rights laws, and other elements of a comprehensive legal system that is effectively, impartially, and cleanly ad- ministered by a well-functioning, impartial, and honest judicial and legal system. To achieve the desired goals and objectives, the legal system and the sys- tem of administration of justice ought to be constantly reformed and im- proved. The system has to be cognizant of current issues and problems and geared toward meeting future challenges. It has to have an appropriate strate- gy for achieving the stipulated goals and objectives. There has to be a con- stant endeavor to improve the pace of delivery and quality of justice through timely changes and improvements in laws and procedures, introduction of newer methods and techniques of expediting trial, use of alternative methods of disputes resolution, upgrading of the human and physical facilities of courts, use of modern information technology, and improvement in the quality of legal education and judicial training programs. This paper explains the system of administration of justice in Pakistan and the manner in which it functions. It highlights the issues and problems the judicial system is confronted with and the goals and objectives it seeks to achieve. It analyzes the constitutional and legal basis for the exercise of juris- diction and powers by courts at various levels of judicial hierarchy. Finally, it studies the prescribed mechanism for ensuring judicial propriety, enforcing accountability, and the state of administrative, functional, and financial in- dependence-as prescribed by the Constitution and the laws that are inter- preted and clarified by the Supreme Court of Pakistan. Judicial Organization The judicial system of Pakistan may be broadly divided into the following hi- erarchical classes of courts: 1. Superior judiciary comprising the Supreme Court, Federal Shariat Court and high courts; 2. Subordinate judiciary comprising the district and session courts and civil/criminal courts; and 3. Special courts and administrative tribunals. The Judicial System of Pakistan 251 Superior Judiciary The Constitution of Pakistan describes the organizational structure, as well as jurisdiction of the superior courts and terms and conditions of service of judges in such courts, in a fairly elaborate manner. Part VII of the constitu- tion relates to the adjudicature. Article 175 provides for the establishment of the Supreme Court, a high court for each province and other subordinate courts. This Article also mandates the separation of judiciary from the exec- utive. Articles 176-191 provide for the composition and jurisdiction of the Supreme Court, Articles 192-203 explain the establishment and juris- diction of high courts, and Articles 203A-203J provide for the establish- ment and jurisdiction of Federal Shariat Court. Articles 204-212 contain general provisions relating to adjudicature-for example, provision for con- tempt, forum for and grounds for removal of judges of the superior courts, and the subjects in respect of which administrative courts and tribunals may be created. Elsewhere the constitution provides for the independence of the judicia- ry.'1 It also entrusts the superior judiciary with an obligation to preserve, protect, and defend the constitution.12 The remuneration of judges and other administrative expenditures of the Supreme Court and High Courts are charged on the federal and provincial consolidated funds.'3 Following the ruling of the Supreme Court in the case of Government of Sindh v. Sharaf Faridi,14 the superior courts were given a degree of financial autono- my inasmuch as the chief justice of the Supreme Court and each high court were authorized to make reappropriation of funds within their budgetary allocations. Supreme Court The Supreme Court of Pakistan is the apex court of the land and is conferred original, appellate, and advisory jurisdiction.'s It consists of a chief justice and 16 judges.'6 The chief justice of Pakistan is appointed by the president 11. Article 2A and Objective Resolution. 12. Article 178 and 194 read with 3rd Schedule. 13. Articles 81 and 121. 14. PLD 1994 SC 105. 15. Articles 184, 185, and 186. 16. Supreme Court (Number of Judges) Act 1997. 252 Hon. Irshad Hasan Khan Session VII and other judges by the president after consultation with the chief justice of Pakistan. The qualifications prescribed for judges are as follows: 1. To be a citizen of Pakistan; and 2. To have been a judge of a high court for a period of five years; or 3. To have been an advocate of a high court for a period of not less than 15 years. The Court is given original jurisdiction in intergovernmental disputes,17 in other words, disputes between the federal government and any provincial government or provincial governments inter se. The Court has also been con- ferred upon the exercise of advisory jurisdiction.18 Thus, the president may refer to the Supreme Court any question of law, of public importance, for opinion and advice. The Court is authorized to appoint its own staff'9 and can frame its own rules of procedure.20 Federal Shariat Court The Federal Shariat Court consists of eight judges.21 The judges are appointed by the president from among the serving or retired judges of the Supreme Court or a high court or from among persons who possess requisite qualifica- tions for appointment as high court judges. Among the eight judges, three are required to be well-versed in Islamic law. The appointment is made for a period of three years, which the president may further extend.22 Its jurisdic- tion is of two kinds: i Examining and determining whether or not a certain provision of law is in conformity with the injunctions of Islam; and * Exercising revisional jurisdiction over criminal courts in Hudood cases, which involve limits fixed by the Holy Quran for specific offenses. The Court can appoint its own staff23 and can frame its own rules of procedure.24 17. Article 184(1). 18. Article 186. 19. Article 208. 20. Article 191. 21. Article 203-C. 22. Article 203-C. 23. Article 208. 24. Article 203-J. The Judicial System of Pakistan 253 High Courts A high court is the principal court of a province. The number of judges as- signed to each High Court is fixed, as follows: 1. Lahore High Court 50 2. High Court of Sindh 28 3. Peshawar High Court 15 4. High Court of Baluchistan 6 The chief justice of each high court is appointed by the president after consultation with the chief justice of Pakistan and governor of the concerned province. Other judges are appointed by the president after consultation with the chief justice of pakistan, governor of the concerned province, and the chief justice of the concerned high court.25 The qualifications prescribed for the judges of a high court are as follows: 1. To be a citizen of Pakistan; 2. To be less than 40 years of age; and 3. To have been for a period of ten years an advocate of a high court; or 4. To be, and to have been for a period of not less than ten years, a mem- ber of civil service, and to have served, for a period of not less than three years, as (or exercised the functions of) a district judge; or S. To have, for a period of not less than ten years, held, a judicial office in Pakistan. The high courts exercise original jurisdiction with regard to the enforce- ment of fundamental rights, and appellate jurisdiction in respect of judg- ments and orders from the subordinate courts. Each high court has the pow- er to supervise and control the subordinate courts in the province.26 The court appoints its own staff27 and can frame rules of procedure for itself as well as the subordinate courts.28 25. Article 193. 26. Article 203. 27. Article 208. 28. Article 202. 254 Hon. Irshad Hasan Khan Session VII Subordinate Judiciary The subordinate judiciary, again, may be broadly categorized into the follow- ing classes: 1. Civil courts; 2. Criminal courts; 3. Special courts and tribunals; and 4. Revenue courts. Civil Courts The civil courts consist of a district judge, an additional district judge, and civil judges first, second, and third class. Their jurisdiction is fixed by law. In keeping with the value of a lawsuit, appeals against these judges' orders or judgments lie before a district judge or the high court, as the case may be. These courts function under the administrative control of the respective high courts. Criminal Courts These courts comprise a sessions judge, an additional sessions judge, and judicial magistrates first, second, and third class. In keeping with the severity of the penalty imposed, appeals against their order or judgment go to the session judge or the high court. These courts also function under the admin- istrative control of the high court. Special Courts and Tribunals The Constitution empowers the Federal Legislature to establish admini- strative courts and tribunals for federal subjects. Consequently, several special courts and tribunals have been created and are currently func- tional. Such courts and tribunals include the special banking court, special court custom, taxation and anti-corruption, income tax (appellate) tribunal, insurance appellate tribunal, and so on. Similarly, the Consti- tution also provides for the establishment of administrative courts and tribunals in matters relating to terms and conditions governing the employment of civil servants, and tortuous acts of government. Accord- ingly, service tribunals for the federal government employees as well as provincial government employees and judicial officers have been The Judicial System of Pakistan 255 established.29 Appeals against their decisions are addressed to the Supreme Court. Revenue Courts There also exist revenue courts, classified as board of revenue, commissioner, collector, and assistant collector. These courts were established and exercise their powers and functions under the Land Revenue Act 1967. Issues and Challenges The civil and criminal justice system of Pakistan is currently facing major issues, problems, and challenges. First and foremost is the perennial problem of case delays and accumulated piles of pending cases. This is a problem not unique to Pakistan, since other countries in our region as well as outside are also confronted with the same problem. The problem is an old and chronic one and is not restricted to developing societies alone. It is also a constant cause of concern for advanced nations such as the United States and the United Kingdom. Louis Lauer, then director of the Columbia University Pro- ject for Effective Justice in his address in 1964 to the New York Senate Judicial Committee remarked thus:30 Remember that delay in the courts has the history that reaches past Shake- speare to Hammuarabi and, no doubt, past him to his ancient ancestors. Similarly, Charles Dickens, in his famous novel, Bleak House depicted the classic case of Jarndyce v Jarndyce, not as a parody but as a fact and warned future litigants to avoid entering the portals of courts in the following words:31 Suffer any wrong that can be done you rather than come here. The problem seems to be intractable. Notwithstanding efforts to reduce delays, the problem has consistently defied solutions. This is so because haste may cause miscarriage of justice. An important principle of the crimi- nal justice system is to punish the offender, after due process, and following the establishment of guilt, beyond any shadow of doubt. Similarly, the civil 29. Article 212. 30. Quoted by Jack Jacob in his book, The Reforn of Civil Procedure Laws. London: Sweet & Maxwell Ltd. (1982 edition, p. 91). 31. Jacob (1982: 92). See previous note for full reference. 256 Hon. Irshad Hasan Khan Session VII justice system also demands strict adherence to procedural law and the prin- ciples of equity, justice and fair-play. Such universally recognized and time- tested principles necessarily entail reasonable time and opportunities to par- ties and their counsel to present and defend their cases. Important though the issue of clearing the backlog and expediting the trial may be, it does not mean rushing to settling claims and deciding matters. The courts have to follow legal and procedural formalities and ensure due process. In the case of Mehram Ali v. Federation of Pakistan,32 I had an occasion to deal with this issue, and made the following observation: The solution of the problem of Court-delay does not necessarily lie in a large scale addition of new Judges or creation of Special Courts but delay in the disposal of cases can be reduced only by Judges who are willing to insist that the lawyers/prosecutors/parties meet reasonable dead-lines for the conclu- sion of the trial. This effort will require concern and commitment on the part of the Judges. Judges will probably receive considerable "heat" from lawyers/prosecutors understandably upset by changes in their scheduling prerogatives. Be that as it may, delay in disposition of cases can be eliminat- ed to a large extent through good Court management and not necessarily by creation of new Courts and increase in the strength of Judges. I would em- phasise that it is for the Presiding Officer of the Court to evolve strategies within the parameters of the law/procedure for accelerating the pace of dis- position of civil and criminal cases, resulting in reduction of delay and clear- ance of backlog. However, I would add a note of caution that sacrifice of jus- tice to obtain speedy disposition of cases could hardly be termed as justice. A balance ought to be maintained between the two commonly known max- ims, "justice delayed is justice denied" and "justice rushed is justice crushed." I do not suggest that speed and efficiency ought not to be ultimate measure of a Court but it should not be at the expense of justice. Causes of Backlog and Delays The causes of delays may be attributed to a variety of reasons and factors. In our own context, I have no hesitation in saying that the judicial system has not kept pace with increase in population and the bulk of consequent litiga- tion. Increase in litigation is also attributable to increase in the literacy rate, general awareness of the people of their rights and interests, which is indeed indicative of civilized behaviour and respect for the rule of law. It is also true 32. PLD 1988 SC 1445. The Judicial System of Pakistan 257 that a number of complaints emanate from the arbitrary actions and abuse of discriminatory powers by state functionaries, impinging upon the rights, interests, liberties and freedoms of people who then resort to the court of law for redress. The problem of case delays and backlog may also be partly attributed to the inaction or too little action on the part of successive govern- ments towards strengthening the administration of justice in the country. The courts-particularly the subordinate courts-do not have adequate re- sources for their effective performance and functioning. Indeed some of the courts have to operate in dismal conditions. There is a chronic shortage of judicial officers and administrative staff. In some areas the strength has to be doubled even trebled, so as to keep pace with the pending cases. There is a problem of lack of adequate courtrooms and residential accommodation for judges and court staff. They lack adequate equipment and have no access to modern technology. They do not possess even the essential law books in their libraries. I also take the view that the problem of slack supervision over the functioning of the subordinate judiciary is one of the causes for delay. I have, therefore, always emphasized upon internal assessment and evaluation of performance of the judges of subordinate courts by the respective high courts who are entrusted with the responsibility of control and supervision over such courts. Lack of proper court management, deficient case processing, shortcomings in the system of legal education and judicial training, non-utilization of alter- native dispute resolution mechanisms, archaic laws, and inflexible proce- dures further aggravate the situation. The march toward globalization, ten- dency toward urbanization, policy of privatization and its consequences in the shape of retrenchment of labor, and others further create waves in the so- cial fabric and lead to a rise in crime. This state of affairs contributes to deteri- oration in law and order and dampens the prospects of economic growth. It also results in restricting, if not denying, access to justice, and disenchant- ment with the system of judicial administration. Meeting the Challenge Whereas the problems and issues confronting the judicial system are enor- mous and appear to be formidable, in my view, they also give us the greatest opportunity to address them. In my capacity as head of the administration of justice, I have tried, through a systematic strategy and after due discussions 258 Hon. Irshad Hasan Khian Session VII and deliberations in the relevant forums such as the Chief justices' Commit- tee, the Supreme Judicial Council, and the Pakistan Law Commission, to de- vise workable time-specific measures for redress. I would like to summarize these along the following lines: Measures for Reform 1. Initiating the process of filling existing vacancies at all levels of judicial hierarchy, in the prescribed manner; 2. Constituting special benches in high courts for special subjects to en- sure quick disposal; 3. Extending working hours to meet the specified target of case disposal; 4. Designing strategies for clearing the backlog of cases concerning de- prived and underprivileged sections of society including widows, mi- nor children, claims for maintenance by wives, child custody cases, and so forth; S. Maintaining weekly and monthly reports on the progress in backlog clearance and fresh institution of cases in the high courts and the sub- ordinate courts; 6. Measures for disciplining judicial officers and support staff through strict action for inefficient performance, impropriety or corruption, and the like; 7. Issuing guidelines and instructions to subordinate courts for the expe- ditious disposal of cases; 8. Giving orientation to and imparting pre-service training to newly re- cruited judges and judicial magistrates and in-service training to others; and 9. Giving appreciation and commendation certificates to judicial officers for exemplary performance. After launching this program, the initial results for the past three months were very encouraging. I should like to explain the results through charts, showing the backlog disposal rate at various levels of the judicial hierarchy. The performance of all courts including the Supreme Court, high courts, and subordinate courts has improved. This is clearly shown in the following charts, which provide the figures of pending cases, fresh institution, disposal, remaining balance, and reduction in pending cases. The charts also present The Judicial System of Pakistan 259 relevant data on judicial hierarchy, financial expenditure on judiciary, strength of judges in Supreme Court, Federal Shariat Court, high courts and subordinate courts, strength of court staff, number of law colleges, number of law officers, number of practicing lawyers, number of police personnel, and so on. Supreme Courtt Shariat Appellate Bench of of the Supreme Court Pakistan 5 (3 SC + 2 FS) CJ + 16 Federal Shariat Court| | CJ + 7 (3 to be Ulema) 5 S r Entertaining Criminal Cases Fr Under Hudood Laws Lahore High Court High Court of Sindh High Court of Peshawar High Court Baluchistan CJ +49 CJ +27 CJ5CJ +14 Dist. J Sessions Judge Distrate 3r d . & Sessions Judge 2ndDClass J aist e 3r Cessions Judge Addl. Dist. & Sessions Addl. Dist, i Sessions Addl. Dist. & Sessions Addl. Dist. B Sessions Judge Judge C C Judge Judge Senior Civil Judge Judicial Magistrate 1 st Class Senior Civil Judge Judicial Magistrate st Class Civil Judge 1st Class Judicial Magistrate 2nd Class Civil Judge 1st Class Judicial Magistrate 2nd Class Civil Judge 2nd Class Judicial Magistrate 3rd Class Civil Judge 2nd Class Judicial Magistrate 3rd Class Civil Judge 3rd Class Civil Judge 3rd Class Senior Civil Judge Judicial Magistrate I st Clas Senior CDvil Judge Judicial Magistrate G st Class Civil Judge Ilst Class |Judicial Magistrate 2nd Class| Civil Judge 1 st Class |Judicial Magistrate 2nd Class| Civil Judge 2nd Class Judicial Magistrate 3rd Class Civil Judge 2nd Class Judicial Magistrate 3rd Class HIERARCHY OF COURTS AND STRENGTH OF JUDGES 260 Hon. Irshad Hasan Khan Session VII Number of Judges in the Supreme Court, Hight Courts. Districts and Session Judges/ Senior Civil Judges bCivil Judges, and Administrative Staff of the Subordinate Courts Supreme Lahore High Court Peshawar High Court Court of High Court of Sindh High Court of Pakistan Baluchistan Chief Justice and Judges 17 50 28 15 6 Administrative Staff of Supreme 507 1,199 865 344 249 Court and High Court Districts B Session Judges/ n.a. 649 390 177 123 Senior Civil Judges & Civil Judges, under each High Court Administrative Staff of the n.a. 6,376 3,940 1,725 663 District Courts under Administrative Control of High Courts n.a. Not applicable. List of Advocates Supreme Lahore High Court Peshawar High Court Court of High Court of Sindh High Court of Pakistan Baluchistan a) Advocates 2,406 13,000 4,500 2,026 350 bh Advocates of Districts Courts n.a. 14,500 5,270 4,342 384 under each High Court ci Advocates-on-Record 190 n.a. n.a. n.a. n.a. n.a. Not applicable. The Judicial System of Pakistan 261 Pendency, Institution and Disposal of Cases in the Supreme Court of Pakistan, High Courts and Subordinate Courts, April 1-30, 2000 Name of the Court Pendency on Institution Disposal Balance on Apr. 1, 2000 Apr. 1-30, 2000 Apr. 1-30,2000 Apr. 30, 2000 Supreme Court of Pakistan Petitions 6.363 540 972 5,931 Appeals 5,474 130 199 5,405 Lahore High Court 70,633 8,369 10,769 70,004 HighCourtofSindh 71,949 3,785 3,822 71,912 Peshawar High Court 1,221 106 179 1,148 High Court of Baluchistan 892 231 213 832 Punjab 516,784 75,701 70,820 521,665 Sindh 7,555 1,088 3,887 4,756 NWFP 5,801 1,849 3,651 3,999 Baluchistan 145 91 70 166 Pendency, Institution, Disposal, and Balance of Special Category Cases April 1-30, 2000, in the Province of the Punjab S. No. Special category Pendency on Institution Disposal Balance on Apr. 1, 2000 Apr. 1-30, 2000 Apr. 1-30, 2000 Apr. 30, 2000 1 Family cases 29,330 9,312 16,453 22,189 2 Custody of minors 4,137 1,228 1,939 3,426 3 Maintenance 8,565 2,538 4,390 6,713 4 Dower. 4,084 834 1,464 3,454 5 Admn. of Estate of 270 57 180 147 Deceased 6 Eject. from houses 2,372 409 807 1,974 7 Cases of widows 1,581 492 978 1,095 8 Cases of orphan children 852 236 378 710 9 Cr1. Cases carrying 37,706 9,301 5,265 41,742 penalty up to two years imprisonment 10 Small disputes 2,043 34 130 1,947 Total 90,940 24,441 31,984 83,397 262 Hon. Irshad Hasan Khan Session VII Pendency, Institution, Disposal, and Balance of Special Category Cases April 1-30, 2000, in the Province of the Sindh S. No. Special category Balance Disposal Dismissed Total Balance as of on merit in default disposal as of Apr. 1, 2000 Apr. 29, 2000 1 Matters relating to widows 248 115 26 141 107 (specify law & section) 2 Matters relating to orphans 4 2 2 2 (specify law S section) 3 Suit for administration of 81 31 1 32 49 the estate of the deceased persons 4 Suits for maintenance 420 129 41 170 250 5 Suit for dower 208 57 21 78 130 6 Cases for custody of minors 484 160 65 225 259 7 Otherfamily suits 2,566 906 272 1,178 1,388 8 Cases relating to ejection 1,508 571 95 666 842 from houses only 9 Criminal cases (punishable 1,622 900 61 961 661 by not more than 2 years) Total 7,141 2,869 584 3453 3688 N Pendency, Institution, Disposal and Balance of Special Category Cases Apr. 1-30, 2000, in the Province of the Baluchistan Family cases Custody Cases Cases Suit for Rent cases Taxation cases Criminal cases Civil suit (divorce, of minors of widows of orphan administration dowry, children of the estate maintenance) of deceased persons Previous 145 35 23 0 26 137 0 269 909 Pendency Institution 91 8 2 0 13 34 0 125 269 ,; Total 236 43 25 0 39 171 0 394 1,178 Disposal 70 10 12 0 13 41 0 156 256 Balance 166 33 13 0 26 130 0 238 922 Statement Showing Pendency, Institution, Disposal and Balance of Special Category Cases Apr. 1-30, 2000, in the Province of the NWFP S. No. Category of cases Pending as of Institution Total Disposal Balance Apr. 1, 2000 Apr. 1-30, 2000 for disposal Apr. 1-30, 2000 1 Family cases 3,387 943 4,330 1,876 2,454 2 Custodyof minors 397 118 515 270 245 3 Cases of widows & orphans 409 144 553 240 313 4 Rent cases 764 563 1,327 529 798 5 Minor cases 802 64 866 696 170 6 Admin. of estate of deceased 42 17 59 40 19 Total 5,801 1,849 7,650 3,651 3,999 264 Hon. Irshad Hasan Khan Session VII Budgetary Allocation for the Judiciary During the Financial Year 1999-2000 S.Ne jRupees. in Milllion/Thousands 1 Total Budget of Federal Government AS. 525, 904.4 (Million) 2 Budget of Supreme Court RS. 79.408 IMillion) 3 Percentage of Federal Budget 0.0150 1 Total Budget of Federal Shariat Court. RS. 23.254 (Million) 2 Percentage of Federal Shariat Court 0.004 1 Total Budget of the Punjab Province RS. 90, 940.834 (Million) 2 Budget of the Lahore High Court RS. 715.751 (Million) 3 Percentage of Punjab Budget 0.786 4 Administration of Justice in the Punjab RS. 715, 751.000 (Thousands) 1 Budget of Sindh Province RS. 50,249.392 (Million) 2 Total Budget of High Court of Sindh RS. 307.323 (Million) 3 Percentage of Sindh Budget 0.610 4 Administration of Justice in Sindh RS. 307,323.200 (Thousands) 1 Total Budget of the NWFP RS. 35,492.973 (Million) 2 Budget of the Peshawar High Court RS. 165.704 (Million) 3 Percentage of NWFP Budget 0.464 4 Administration of Justice in NWFP RS. 165,704.000 (Thousands) 1 Total Budget of Baluchistan Province. RS. 17,151 .689 (Million) 2 Budget of High Court of Baluchistan RS. 85.395 (Million) 3 Percentage of Baluchistan Budget 0.495 4 Administration of Justice in Baluchistan RS. 85,395.240 (Thousands) Federal and 4 Provinces Budget RS. 719738.288 (Million) Budgetary Allocation to Supreme Court, RS. 1274.173 (Million) Federal Shariat Court, 4 High Courts and Subordinate Courts in 4 Provinces Percentage Expenditure on Administration 0.177 of Justice The Judicial System of Pakistan 265 Gender Balance: A Look at the Numbers of Women in Bar Associations Year Bar Associations Total Women Percentage 1997 Supreme Court 456 7 1.53 1995 NWFP 6,750 112 1.65 1994 Baluchistan Bar Council 350 6 1.71 1995 Punjab Bar Council 27,000 271 1.00 1995 Sukkur Division 663 11 1.65 1995 Larkana Division 477 4 0.83 1995 Hyderabad Division 1,111 59 5.31 1995 Mirpur Khas Division 265 1 0.37 1995 Karachi Bar Association 2,080 262 12.59 The Numbers of Law Officers in the Supreme Court and Provinces Supreme Punjab Sindh NWFP Baluchistan Court Law officers 25 205 97 48 34 The Numbers of Law Colleges by Area Federal Territory, Islamabad Punjab Sindh NWFP Baluchistan 1 24 10 8 1 The Police Force in Numbers: The Provinces, Islamabad/Railways/AJK, and Northern Areas Punjab Sindh NWFP Baluchistan Islamabad Railways AJK Northern Areas Police Force 97911 93555 31481 15954 7036 7715 6274 2857 266 Hon. Irshad Hasan Khan Session VII Reform Strategy Our reform strategy is structured around the following steps: 1. The various forums for improvement in the administration of justice have been activated through regular meetings and monitoring perfor- mances. In case of defects or shortcomings, remedial action is to be promptly suggested and implemented. 2. The judiciary recommends law reforms to the government, through the Pakistan Law Commission, to modernize laws and bring them in con- sonance with changing times and realities. 3. Implementation cells, headed by the respective registrars, have been established at the level of the Supreme Court and each high court. Similarly, cells have also been created at the level of courts of district and session judges. 4. Liaison officers have also been appointed at the levels of the Supreme Court, each high court, and the courts of district and session judges to monitor progress in backlog clearance and expeditious disposal of cas- es, particularly in special categories of cases-namely, family cases, cas- es of child custody, cases of widows and orphan children, cases of ejec- tion from residential houses, suits related to estate administration disputes following deaths, and minor criminal cases. S. Regular evaluation of the work and performance of judges of high courts by the Supreme Judicial Council will be carried out. 6. The respective chief justices of high courts have nominated their judges to monitor the working and functioning of the subordinate courts for securing compliance with the decision of the Chief Justices' Committee and so as to enhance efficiency and to check irregularities. 7. Close liaison is maintained with the members of the bar. They are being recruited as partners and consulted. As chief justice of Pak- istan, I invited the elected representatives of the bar throughout the The Judicial System of Pakistan 267 country to a meeting to inform them of the decisions of the Chief Justices' Committee and to secure the cooperation of the members of the bar for implementing the same. The response of the members of the bar was indeed very encouraging and to the satisfaction of all concerned. 8. The media (print and electronic) have been successfully associated with the process of judicial reform and with ensuring speedy disposal of cas- es. Thus, lists of backlog clearance and case disposal performance are being shared with the media through a transparent strategy. To help the relevant court in identifying the cases of litigants in special cate- gories, the respective high courts notify the general public through the media-television, radio, and newspapers-to file applications with the court for expeditious redress of their grievances. 9. Steps are underway to increase the number of judicial officers and ad- ministrative staff, build courtrooms, provide equipment, and consider enhancing the emoluments of judicial officers and court staff. 10. In addition to the above measures, at the appropriate time the scope of the consultative process will be widened to all users of the administra- tion of justice by arranging workshops, seminars, and conferences involving various segments of society, including lawyers, the executive branch, business communities, workers, women, jurists, professionals, Islamic scholars, and others. These are only a few measures, some already applied and operational and others envisaged and planned for the future. But much more is required. New goals have to be set and new benchmarks need to be prescribed. Judges and court staff engaged in the process have to be motivated, trained, and given the necessary tools and equipment to enable them to rise to the occasion and seek to accomplish the prescribed goals. Such activities would require financial resources, however, which is a ma- jor constraint faced by the system of justice administration in Pakistan. The country is resource deficient, and there are several demands on the scarce state resources. There is an overall economic slowdown as the gross domestic 268 Hon. Irshad Hasan Khan Session VII product (GDP) growth during the past few years has barely kept pace with the growth of population. And a considerable portion of the meager resources goes to debt servicing; the debt burden equals the entire national income. Therefore, budgetary constraints impede not just the delivery of justice to its users but also social sector development. This is obviously a serious issue that has to be tackled and resolved; if we fail in this regard, the ideal of opening up access to and quick dispensation of justice for all segments of the popula- tion (and in particular for the deprived and underprivileged classes) cannot be realized. Judicial Accountability Independence is defined as a state or condition of being free from the control, dependence, subjection, or subordination of an outside agency or authority. Such independence is given to the judiciary to ensure that it is able to administer justice freely, impartially, and without any fear or favors involved-and the judiciary may be taken to task and held account- able if it fails to administer justice in accordance with the law and estab- lished procedure. The judicial process should also be expeditious and economical. Under Pakistan's Constitution, a full-fledged mechanism for the account- ability of Superior Court judges has been prescribed. Article 209 details the grounds as well as the forum and procedure for the removal of these judges. A code of conduct has been prescribed for the judges of the Supreme Court and high courts as well. The code is fairly elaborate, covering public and private conduct, strict observance of elements of judicial propriety, and efficient performance. Such accountability is carried out through the Supreme Judicial Council. The Council consists of the Chief Justice of Pakistan as Chairman and the two next most senior judges of the Supreme Court and two most senior chief justices of high courts as members. On a reference received from the presi- dent, the Council inquires into the allegations of misconduct or physical or mental incapacity and may recommend the removal of a judge. The presi- dent then, acting upon these recommendations, may remove the judge from office. A judge of the Supreme Court or a high court may not be removed ex- cept on the stipulated grounds by the Council, following due process. Thus, the Constitution ensures the freedom, independence, and impartiality of the judges of the superior courts. The Judicial System of Pakistan 269 Following a constitutional dictum for the separation of the judiciary from the executive branch and the ruling of the Supreme Court in the case of Gov- ernment of Sindh v. Sharaf Faridi,33 the Court observed: The concept of judicial independence warrants the elimination of financial control of the executive branch over the budgetary allocation of the judicia- ry and therefore the respective Chief Justice should be authorized to make necessary re-appropriation funds within approved budgetary allocation of the court. Such authorization has since been given. In my view, financial indepen- dence is an essential ingredient of judicial independence. Having said so, however, I should also emphasize that to be able to derive full benefits of fi- nancial autonomy and independence, we need to put in place appropriate mechanisms for control through good management, and establish priorities through proper planning, monitoring, and reporting systems. This brings me to the concluding part of my paper, in which I tried to ex- plain the accountability law and procedure as designed and being practiced in the subordinate courts of Pakistan. The subordinate courts, both civil and criminal, are supervised and controlled by the concerned high courts, which are the principal courts of the province. The administration of justice is a provincial subject, and the organization of subordinate courts and the terms and conditions of service for judicial officers are determined under provincial statutes and rules. The Public Service Commission recruits the ju- dicial officers generally through competitive examination. The high courts are also associated in the selection process as judges sit on interview panels. As regards posting, transfer, promotion, and disciplinary proceedings, the respective high courts are empowered to take appropriate action in all such matters. The judges of the subordinate courts function under their respec- tive provincial codes of conduct. In my view, such codes are inadequate to cover all aspects of judicial performance, and therefore the Pakistan Law Commission is currently examining a new code of conduct for subordinate court judges. The codes are enforced by the respective high courts through efficiency and discipline rules and due process is followed. After the initial inquiry and investigation, a report is submitted to the respective chief jus- tices who can impose the appropriate penalty. The justices' orders may be 33. PLD 1994 SC 105. 270 Hon. Irshad Hasan Khan Session VII appealed to the provincial judicial service tribunals, which comprise the judges of high courts. The high courts exercise supervisory functions by inspecting and calling of records of the courts. They exercise judicial control through their power of re- vising and overturning upon appeal orders and decisions of the subordinate courts. The judicial system of every country is unique, unique because it is based on the country's peculiar historical, cultural, and politico-legal evolution. But there are some attributes and features that are common in all systems, and judicial independence and accountability are among those. These are realized and sustained through different and diverse institutional mechanisms and legal safeguards, howeveL I have tried to list and explain the salient features of our judicial administration. Conferences, such as the present one, help in making comparisons and leaming from each other's experiences, to further strengthen the system of administration of justice. Judges, particularly superior court judges who have to interpret the law and the constitution, perform a crucial role of not just settling claims and dis- putes but also seeking to converge the latent and patent thought and philos- ophy and expound the same through rational and logical propositions. In doing so, they become trendsetters. This is indeed an onerous responsibility and cannot be adequately per- formed but by impartial, independent, competent, and courageous judges. This is how the courts tend to determine the stand of contemporary society on fundamental issues. The various components of judicial independence are meant to bolster the role of courts in doing so; only then may the judiciary contribute to the growth and development of the society. George Washing- ton was right when he stated, "The true administration of justice is the firmest pillar of good Government." And Alexander Hamilton, writing in the Federalist Papers,34 maintained, "The ordinary administration of criminal and civil justice... contributes, more than any other circumstance, to impress- ing upon the mind of the people affection, esteem, and reverence towards the Government." It is an independent and capable as well as accountable ju- diciary that can contribute toward establishing good and beneficent adminis- tration of justice for the welfare of the people and growth and development of the nation. 34. Federalist Paper 17. SESSION VIII How Does Legal Training Improve Participation in the Reform Process? The Many Facets of Training Hon. Sandra E. Oxner President, Commonwealth judicial Education Institute Halifax, Nova Scotia, Canada Reform Is Change Judicial and legal reform to a great extent involves changing the habits and behavior of humans-often contrary to their personal and vested interests. This is not as easy as building roads and bridges-most people by nature tend both to resist change and to revert to former ways when a short-term pressure for change goes away. Experience shows us that successfully achieving long- term behavioral change requires a combination of incentives to change, par- ticipatory identification and articulation of changes required by those to be most affected by the reforms, and sanctions for failure to change. To achieve this we need to create an environment that is open to change-an important part of which is to inculcate in the judges, support staff, and bar an ethos of service and openness to reform. In legal and judicial reform there is the added challenge owing to the ne- cessity of doing it in a way that protects the independence of the bar and the judiciary while creating or strengthening the accountability and transparen- cy of their processes and procedures. In addition, the legal profession, includ- ing the judiciary, is often a conservative element strongly resistant to change. Reform Requires Training Few now dispute that the foundation for behavioral change required for re- form is one of training and consensus building. Education is, therefore, a common component in legal and judicial reform projects. However, other reform project components that may not seem to do so on the surface, re- quire training. In one country I found that machines for recording evidence in courtrooms were still sitting in their unopened boxes three years after 273 274 Hon. Sandra Oxner Session VIII delivery, stacked in a storeroom. No one knew how to install or operate them. Evidently no training had been provided. In many countries I have seen computers provided to judges for research or case flow management lie on their desks under thick layers of dust-or in use by clerical staff. One-on-one computer training for judges, preferably linked to Web searches of professional and personal interest, will go a long way toward ensuring the success of a judicial computerization component. Even in the renovation or building of courthouses, a comparative study of various floor plans that promote efficiency and security and a review of the significant body of literature on courthouse planning now available can pre- vent the expenditure of funds on new additions to the current line-up of ob- solete and dysfunctional structures. Judicial education is the foundation of judicial reform. The desired end- product of judicial education is improved service to the community, deliv- ered by an impartial, competent, efficient, and effective judiciary whose per- formance attracts the confidence and respect of the people it serves. Objectives of Judicial Reform and Training What are the objectives of judicial reform?' In my view, they are identical to those of judicial education. I like to use the acronym "ICEE," pronounced icy, to identify them. I am told this is not inappropriate for a Canadian. "I" stands for both the reality and the perception of impartiality. This in- cludes the following concepts: 1. An impartial and independent judiciary; 2. Transparency-from the appointment process to the rendering of judg- ments comprehensible to the public; 3. A transparent and accessible judicial complaint process; and 4. An articulated and publicized code of judicial ethics and conduct so that the community is aware of the standards they have the right to re- quire of a judiciary. "Impartiality" and "independence" are often used interchangeably. I choose "impartiality" to describe the personal and intellectual integrity of 1. This section is based on a paper on judicial education and judicial reform written by the author and published byJUTA in 1997. The Many Facets of Training 275 the judge. In the analysis of judicial independence, shown in chart 1 in the annex, you will see that I choose to use "judicial independence" to mean far more than judicial independence from the executive and legislature or con- trol over budget and administration. This analysis includes mechanisms that have been found to be supportive of the environment that is most likely to ensure an impartial judicial mind. It includes the following: 1. Substantive independence-which means that in the discharge of his or her functions a judge is subject to nothing but the law and the com- mands of his or her conscience; 2. Internal judicial independence-which requires that the judge be inde- pendent from directives or pressures from his or her fellow judges re- garding his or her adjudicative functions; and 3. Collective independence-which extends to the independence of the judiciary as a whole, as a corporate body and is measured by its admin- istrative independence. This concept of judicial impartiality-independence identifies roles and re- sponsibilities for the judiciary, the executive, the media, the legal profession, and the public. The creation and support of an impartial mind has a different focus depending on which country you are in. For example, in the post-Soviet states the focus is on developing an impartial independent dispute resolu- tion mechanism that is free from state interference. In such countries as Canada, the United Kingdom, and Australia, judicial education places emphasis on "social context" training to eliminate hidden bias from the judicial mind in fact finding, particularly in relation to gender and ethnic issues. A major impartiality issue facing many jurisdictions is the reality or perception of corruption among judges and judicial support staff. While anti-corruption campaigns must be multi-pronged, important aspects include wide judicial consultation to articulate required standards of behavior on and off the bench; the preparation by the judges of an anno- tated code of ethics and conduct linked to an accessible and transparent judicial discipline and complaint process; and intensive education pro- gramming to ensure that judges are familiar with the code of conduct stan- dards and sanctions. 276 Hon. Sandra Oxner Session VIII "C" stands for competency. This, of course, refers to an adequate level of legal knowledge-both substantive and procedural. In many developing countries there is insufficient information and material provided to the judges to maintain an adequate level of competency. "E" stands for efficiency, which includes efficient judicial court room man- agement, case flow and process efficiency, reform of rules and procedures to narrow the issues early on and encourage timely settlements, court-annexed and free-standing mediation and other alternative dispute resolution (ADR) practices. Efficiency also relates to appropriate physical structures, adequate equipment, and timely access to such judicial tools as laws, precedent cases, legal texts, and other scholarly writing. Jurisdictional restructuring is a basic reform method that is successfully used in many countries to achieve greater efficiency. Examples of how this may be done include the following: 1. Downloading cases to subordinate courts by increasing their jurisdic- tion. (As a byproduct, this makes them a better training ground for the elevation of their members to higher judicial office. This in itself may be a supportive reform method, as recruitment to superior courts from the private legal profession is a problem in many countries owing to the great disparity in income between judges and lawyers in private practice. A career judicial path is an incentive to attract well-qualified candidates to subordinate courts.) 2. Making room in subordinate court lists by using out-of-court settle- ment techniques for quasi-penal and regulatory matters. These may be enforced by a refusal to issue government licenses (namely, motor vehi- cle licenses) to those with outstanding fines or court appearances. 3. Free-standing small claims courts, perhaps sitting in the evening to meet public convenience. These may be presided over by nonjudicial members of the legal profession and may or may not allow representa- tion by counsel and appeals. 4. Elimination of preliminary hearings or proper use of paper committals in jurisdictions that retain preliminary hearings. The Many Facets of Training 277 5. Decriminalization and diversion processes for appropriate cases. The second "E" stands for effectiveness and describes several aspects of ju- dicial effectiveness. One is bridging the gap between law and justice by judi- cial techniques such as domestic application of international human rights norms, judicial activism in interpretation of constitutions or through the ex- ercise of discretion. All these judicial techniques are currently in use to achieve justice in particular cases. Judicial predictability is a second aspect of judicial effectiveness. A third aspect is the collective judicial responsibility of listening to the community's complaints about the justice system and using the judiciary's influence to shape the justice system to respond to responsible complaints. For example, judges often do not consider a low rate of judgment recovery their responsi- bility. In many countries, however, difficulties in enforcing judgements make successful litigation a hollow victory and bring the judiciary into disrepute. There are legal and administrative ways of improving judgement recovery. Should the judiciary not be interested in supporting these? As discussed under "I" above, another aspect is the reality and perception of impartiality to attract the confidence of the community that the judi- ciary serves. Training for Judges Definition What is judicial education? A definition of judicial education includes colle- gial meetings (international, national, regional, and local); all professional in- formation received by the judge, be it print, audio, video, computer disk, satellite television, online; mentoring; and feedback. The targets of judicial reform training are as follows: 1. Aspirant judges; 2. Newly appointed judges; 3. Sitting judges; 4. Judicial support staff; 5. The legislature; 6. The executive; 278 Hon. Sandra Oxner Session VIII 7. The media; 8. School children; and 9. The community at large including nongovernmental organizations (NGOs) and civic society organizations (CSOs). Levels of Judicial Training There are several levels of judicial training: 1. The provision of basic legal information-such as updated statues and case reports-that is necessary for the judge to effectively do his or her job (and that is not always easily provided in the developing world). 2. Making sure that judges understand new laws that define a shift in phi- losophy-for instance, the laws of a new regime creating a democracy, or legal framework reform to support a market economy. 3. Teaching a judge a new intellectual approach such as the judicial exer- cise of discretion, domestic application of human rights norms, or developing schools of jurisprudential thinking, such as "law and economics." 4. Inspiring behavioral change required to create an impartial and ac- countable bench that can rise to social expectations. As discussed above, in some countries the change required may relate to gender or racial bias. In others, the behavioral change required involves encour- aging the judicial ethos of service in the community and the fact and perception of judicial independence, integrity, and impartiality. In many countries the serious backlogs and delays require changed behav- ioral patterns to make the process more efficient. Attitudinal and behavioral change is the most difficult area of education in any field. It is the essence of reform. It requires motivated and inspired teachers who are properly trained and who are respected and trusted by the judges. For this reason judges or former judges who have acquired a high lev- el of teaching skills are likely to be effective judicial educators. The Many Facets of Training 279 Curricula Development How does a judiciary determine what to study? In many common law coun- tries, judicial education began with judges electing to spend their study time considering the law of evidence and procedure. However, community criti- cism of the justice system rarely seems to find fault with judicial application of the law of evidence and procedure. Criticisms dwell on other weaknesses that are perceived. You may recollect the story of the chief justice of England during medieval times who wished to petition the King to seek improvements in the benefits of judicial office. Thinking it tactful to take a soft approach the Chief Justice wished to begin the document with the following preamble "mindful as we are of our inadequacies..." The judges, however, were not prepared to agree that they had inadequacies. The following compromise was arrived at "mind- ful as we are of each other's inadequacies." Therefore, mindful as we are of each other's inadequacies, what should judges study? The content of judicial education programming must respond to community perceptions of judicial weaknesses. The community (in this context) includes not only the judiciary, the bar, and court users, but also the business sector and society at large. Judicial education is expensive-one must take into account the judges' days off the bench, the cost of maintain- ing courthouses, and paying court staff during judicial absences, as well as travel and accommodation expenses for participants, and program delivery costs. To justify these expenditures, programming must go beyond the old standbys of "evidence" and "procedure" and visibly respond to areas of per- ceived weakness. A curriculum committee may employ several tools to iden- tify areas requiring improvement: 1. A broad-based needs assessment survey of the community; 2. A review of complaints against judges; 3. A review of media complaints on justice issues; 4. An assessment of areas of the law that call for frequent appellate re- view; 5. An analysis of the role and function of a judge;2 or 6. A combination of all of the above. 2. Ibid. 280 Hon. Sandra Oxner Session VIII A sample needs assessment is contained in chart 2 (see annex). It is inter- esting to note that an additional benefit of such a needs assessment is that it often produces a prioritized list of needed judicial reforms. It also tends to en- hance public confidence in the judiciary as soliciting court users' opinions as- sures the public of judicial sensitivity to the community it serves. Any finding of guilt or innocence or rights between parties determined by the facts is based on subjective beliefs of the trier of fact. In many jurisdic- tions a single judge sitting alone without a jury is the finder of fact. The great- est power of a common law judge lies in the function of being a finder of fact, as for all practical purposes a judge cannot be reversed on appeal in this area. A judge should also be aware, as most of any experience are, of the fallibil- ity of the human powers of observation and memory. The experiments of psychologist Elizabeth Loftus3 have shown us how sympathy can make hon- est people see things inaccurately. Many experienced judges think that their function in making findings of credibility is not in danger of being usurped by a lie-detecting machine, as in their experience most people have con- vinced themselves that their evidence is true by the time they get to the courtroom. The science of fact finding in judicial decision-making is an important but neglected issue. While legal writers have given some attention to this issue4 their analysis is different from the process of belief and proof that is consid- ered by Seniuk.5 His work points out that because of the power of the finder 3. Loftus, Elizabeth. 1979. Eyewitness Testimony. Cambridge, Mass.: Harvard University Press. Loftus, Elizabeth. 1980. Memory, Surprising New Insights into How We Remember and Why We ForgeL Reading, PA: Addison-Wesley Publishing Co.. 4. Abella, R. S. 1987. "The Dynamic Nature of Equality." In S. Martin and K. Ma- honey, eds., Equality and Judicial Neutrality. Toronto: Hardwell (pp. 3-8). Shientag, B. L. 1975. "The Virtue of Impartiality." In G. R. Winters, ed., Handbook forJudges. Chicago: The American Judicature Society. Wilson, Bertha. 1990. "Will Women Judges Really Make a Difference?" Osgoode Hall Law foumal 28: 507. For example, Wigmore, J. H. 1937. The Science ofJudicial Proof 3d ed. Boston: Little, Brown; Twining, W. L. 1985. Theories of Evidence: Bentham & Wigmore. London: Weidenfeld & Nocolson; Gold, N., C. Mackie, and W. L. Twining. 1989. Learning Lawyers' Skills. London: Butterworths; Twining, W. L. 1990. Rethinking Evidence: Exploratory Essays. Oxford: Basil Blackwell. For a number of articles considering a new academic movement called the "new evidence scholarship," which considers the implications of decision theory, probability and statistics for the study of evidence, see "Decision and Inference in Litigation" (1991) in Cardozo Law Review 13 (Special Issue): 253. I am indebted to the Honorable Judge Gerald T. G. Seniuk for this reference. 5. Seniuk, Gerald T. G. 1994. "Judicial Fact-Finding and a Theory of Credit." Paper given at the Nova Scotiajudicial Education Seminar, Halifax, Canada. February 16. The Many Facets of Training 281 of fact, the outcome of a case is often determined by which judge is drawn. This, in essence, leaves the outcome as much to chance as would the flip of a coin.6 His conclusion is supported by mock findings of guilt or innocence made by judges in judicial education programs. Having viewed a video that depicts a trial in which a young female from a troubled past alleges a retired war-disabled veteran sexually assaulted her, the judges are polled for their verdicts. When used throughout the Commonwealth, the result has almost always been an approximate 40/60 split on the part of the experienced judi- cial decision-makers.7 Programs assisting judges to analyze, detect, and im- prove biases in their fact-finding process are important to the success of the judicial reform process. Faculty Development The identification and training of judicial education leaders is key to effective judicial education and reform. Few judges have teacher training. However, most are accomplished learners and with professional educator support can design programs that motivate and inspire judicial reform. Skills that judicial educators need to acquire include adult pedagogy, resource networking, the methodology of curriculum development, the development of teaching plans and tools, distance learning techniques, and fundraising. Evaluation The first measure of successful program content is how well the program re- sponds to the community's concerns about its judiciary. Achieving this goal, however, is only the first step. Program topics must respond not just to pro- gram objectives; individual sessions within a program should articulate sub- objectives that can also be evaluated. These precisely defined session objec- tives should be linked to participation evaluation forms to measure the learning achieved. For example, a program on detecting bias in fact finding 6. Rabelais' Judge Bridlegoose did decide cases by tossing a coin-see Gargantua and Pantagruel (1955), transl. J. M. Cohen, Vol. 3, Chs. 39-43, Penguin. Another unusual sto- ry of a coin-tossing judge is that of the Manhattan judge who used this method to decide the length of a jail sentence. He also asked courtroom spectators to vote on which of two conflicting witnesses to believe. He was removed from office in 1983 by the New York State Commission on Judicial Conduct. The Times, February, 3, 1982. 7. Experience gleaned from the use of the video at Commonwealth Judicial Educa- tion Institute programs. 282 Hon. Sandra Oxner Session VIII may have the following session objective: "The participant will leam three bias- es of which he or she was previously unaware." In assessing the session, the par- ticipant evaluation form would ask: "Did you leam of any biases you hold of which you were previously unaware? If so, how many?" This would allow quan- tifiable evaluation of whether programming objectives were achieved or, un- happily, not achieved. The measurement of learning achieved, however, is relatively simple when compared with the challenge of evaluating how the learning process pro- duces attitudinal and behavioral change. Professionals in the field spend many long hours developing effective performance indicators. While they are still fine-tuning these tools, a combination of the following is often used: 1. Pre-, post-, and year-end focus groups and surveys of internationally ac- cepted standards; 2. Participant satisfaction and self-evaluation interviews; 3. Assessment of court data and records; 4. Personal interviews with designated officials; and S. Independent expert appraisal. The behavioral change that is the basis for sustainable judicial reform is likely, however, to take one or even two decades to have an impact. While ob- viously mileposts along the way are necessary, donor agencies need to under- stand that in judicial reform projects the full impact cannot be measured in a three- or five-year project term. A project is not unsuccessful if the seeds for change have been planted and nurtured. Donors need to establish evaluation techniques for judicial reform projects that do not put pressure on program managers to choose project components that have little sustainable behav- ioral change impact.8 A further aspect of judicial education that needs to be evaluated is the ef- fectiveness of presentation. In the old days, any incumbent of a distinguished office was considered an adequate speaker to fill up judicial education hours. Failing this, a quickly established panel of those present would be talked into convening an ad hoc discussion. Long lectures-highly conducive to judicial 8. See general discussion on this point in Toope, Stephen J. 1997. "Programming in Legal and Judicial Reform: An Analytical Framework for CIDA Engagement." September. p. 17. The Many Facets of Training 283 nap-taking!-were a matter of course. Today, adult education studies have shown that an average adult (hopefully, a judge is better than average) retains only 7 percent of what he or she hears. Visual aids, teaching plans, provision of background material, and interactive teaching methods are now de rigueur in order to achieve an acceptable score in programming evaluation. Legal Education I leave this specialized area of academic and professional qualification train- ing and continuing professional legal education to my more knowledgeable colleagues on the panel. However, I wish to note that it is an important foun- dation area for judicial reform. In most jurisdictions judges come from law schools if not through the bar. The ethical and public service values instilled or failed to be instilled in them in their law schools and professional training will shape the bench. Their le- gal analytical and research skills will determine the quality of their profes- sion. Their jurisprudential understanding of the theory and philosophy of law is particularly important in those jurisdictions with constitutionally en- trenched charters of rights and in countries developing modern market economies. A failure to achieve acceptable standards of basic legal education inculcating a jurisprudential understanding of the function of law as the un- derpinning of the economic and social well-being of the community reduces law schools to trade schools and provides a poor foundation for reform. A recent publication9 analyzed civil process reform in 13 countries; the study concluded that the one constant in efforts to reform justice systems in both common and civil law countries, developed or developing, was the op- position of the organized bar. This comes as no surprise to those of us who have undergone judicial reform or who have worked on the judicial reform projects of others. The bar has a great deal of political clout in most countries and there are many examples of how bars have successfully impeded reforms that they perceive as threats to their vested interests. While an ethos of public service will alone not serve to overcome the resistance of the bar to change, where it exists, it is a powerful support for reform. Linked with high professional standards imposed and enforced by 9. Zuckerman, Adrian A.S. 1999. Civil justice in Crisis. Oxford: Oxford University Press. 284 Hon. Sandra Oxner Session VIII an effective self-disciplinary bar, it can go far to promote pressures to over- come resistance to change. Continuing professional legal education can only provide a supportive environment for a justice system that effectively serves the community. Unfortunately bar associations in some developed and many developing countries have not assumed or do not exercise the necessary control over ad- mission standards, continuing education, or the professional conduct of their members. judicial reform projects would do well to encourage the assump- tion by the bar of these responsibilities. This requires support for the regular reform process of widespread dissemination of information on comparative best practices, wide spread consultation to achieve articulation of desired re- form appropriate to the national culture, identification and training of emerging reform leaders, and formulation and stakeholder adoption of a step-by-step reform process and implementation of the reforms. Training is involved at every stage. Training for the Media Many countries have a career judicial pattern with a highly professionalized judiciary that makes little use of lay judges or juries. In such situations and where there is a strong media, this plays an important role in creating the im- age of justice. Few people attend court hearings. Relatively few people are in- volved in the administration of justice as litigants, witnesses, or jurors. This means the public information about the impression of judges and the justice system is shaped by the members of the media. Their understanding-or lack of it-of the justice system will color their reporting and the public percep- tion of the justice available to them. For this reason, it is important that pro- grams are established to teach the media the principles underlying a well- functioning judiciary. Members of the media need to understand the principles and processes of an independent judiciary and they need to know the standards the community has the right to demand of its judiciary so that they can scrutinize, monitor, and report accurately on the degree of attain- ment of these standards Unnecessary and inappropriate undermining of the judiciary because of a lack of knowledge and understanding of how it should function is as danger- ous to high standards of judicial service as is a failure of the media to scruti- nize and analyze where it fails. In addition to collegial short training The Many Facets of Training 285 programs on such topics as access to justice or basic constitutional judicial issues for members of the media, longer-term legal studies-such as Bachelor of Laws programs made available to meritorious journalists interested in spe- cializing in legal reporting-contribute to higher standards of judicial service. It is also important that lines of communication are kept open between the media and the judiciary. This can ensure an understanding on the part of one essential element of democracy about the objectives, principles, and difficulties of the other. This opening of communication lines has been accomplished in some jurisdictions by the creation of bench and media committees. Community Training The need for community training is threefold. The first need is to ensure that there is popular understanding and support for the need for judicial indepen- dence to allow the courts to protect civil and human rights from executive excesses and to ensure that the legislature acts within constitutional limits. To ensure the right of the individual to equality before the law and the pro- tection of the law, the judiciary must be able to exercise its function without pressure from the state, the rich, and the powerful. The independence of the judiciary is a comerstone of a society that cherishes the rule of law. The courts are impotent without the support of the executive branch. They have no capability of carrying out their orders against the state without executive compliance. This is being dramatically illustrated now in the news reports emanating from Zimbabwe concerning court orders that are not be- ing followed by the police. In a democracy the executive is ultimately con- trolled by the people. And only if the people understand the importance of an independent judiciary can they exert their will that the executive and leg- islative branches discipline themselves to support judicial independence- through positive actions and by obeying court orders against the state. Chart 2 in the annex lists a number of mechanisms that have been found to be sup- portive of the environment that is most likely to ensure an impartial judicial mind. It is an entertaining yet effective educational tool-one that can assist both those who are legally trained and others who are not-to measure the support their country gives to an independent judiciary. Second, the community must be informed of the standards that it has the right to demand from its justice system. This not only means the right to an 286 Hon. Sandra Oxner Session VIII impartial hearing and the right to have easy access to a transparent, efficient, and effective judicial complaint process. Appropriate court access also means that access to justice is not denied for economic, geographical, physical, or other reasons, such as illiteracy or lack of understanding of the official court language. In some countries the official court language differs from the vernacular; in multilanguage countries interpretation services are often inadequate. Targets of Community Education The targets of community education necessary to foster the judicial reform process are broad. They include educating the legislative branch, the execu- tive branch, school children, disadvantaged groups, and the community at large-including NGOs and CSOs. In a constitutional democracy it is impera- tive that the legislators are provided with sufficient information and training to make them sensitive to their responsibilities in relation to maintaining an independent judiciary. In addition, and this is particularly the case in coun- tries that have recently undergone significant legal changes and are engaged in legal framework reform, it is important that the bills presented to the exec- utive cabinet and legislature be accompanied by information and training programs explaining the reasons requiring the new legal framework and the economic and social impact of the proposed bills. The information to allow meaningful reaction to complex legal framework reforms so often funded by donors cannot be presumed to be in the minds or hands of the legislators. As indicated in chart 1 (see the annex), the executive branch in a well- functioning state must actively support the judiciary-in other words, prose- cuting those who would corrupt the judicial process, and obeying court or- ders directed against the state-and at the same time restrain themselves from interfering in the decision-making process or undermining public confi- dence in the judiciary. To ensure a public that is educated in the importance of a well-function- ing justice system, school curricula should include programs on principles of judicial independence, access to justice, and the standards that the commu- nity has the right to demand from its justice system. Disadvantaged groups such as women and minorities need to have special efforts made to acquaint them with their legal rights and assist them to reach out to the law for pro- tection. Sensitivity training for judges, judicial support staff, and lawyers is The Many Facets or Training 287 more effective if the disadvantaged groups are trained to understand their le- gal right to equality before the law and the procedure to claim the protection of the law. Programs on access to justice delivered locally not only teach legal rights and the legal path to obtain them, but often include training in mediation and conciliation skills to establish or strengthen local ADR processes and in- stitutions. This training has not only the direct benefit of supporting extra-ju- dicial dispute resolution-thereby lightening the court workload-but also the indirect benefit of bringing mediation and conciliation skills to families and the community. Finally, experience has shown that judicial reform makes the best progress if pressures that are extemal to the formal justice system instigate and sup- port initiatives for judicial reform. The training of trainers in NGOs and CSOs to provide information and discussion at the local or village level for the pur- pose of garnering public support to create these pressures is an essential im- petus for effective judicial reform. Training for Those Involved with Judicial Reform We have discussed above the need for training to develop national judicial re- form leadership-both inside and outside the formal justice system. There is, however, another area that merits examination. The upsurge of interest in ju- dicial reform has created a need for judicial reform specialists to act as consul- tants on judicial reform projects. To do this requires leaming in many areas. Some of the most important are these: 1. We need to understand that theories and principles may transplant but that institutions and processes often do not. A good example comes from my home jurisdiction of Nova Scotia which was, in 1749, the first settled English colony in what is now Canada. The early settlers were dominantly of English stock and one would have thought admirably suited to receive English legal institu- tions and processes. The first governor instituted courts of sessions presided over by volunteer lay justices of the peace on the English mod- el. The early records indicate the poor attendance of the lay judges and the reluctance of the settlers to sit on juries. With hindsight the reason is clear. There were no members of the landed gentry in the province 288 Hon. Sandra Oxner Session VIII derisively called "Nova Scarcity" who could afford to donate their time for civic duty. Inevitably reality overcame the theory and the need to get on with the judicial process resulted in the abandonment of volunteer judges and the development of the highly professionalized judiciary of mod- em Canada. The lesson well known to Nova Scotian law students is that English institutions and process which admirably suited England were not transplantable even to English settlers in "New Scotland." The formal abandonment of the aboriginal dispute resolution created both social and legal injustice for aboriginal Canadians. A study of legal history of other English colonies shows that often no effort was made to transplant an independent judicial process in the subordinate courts, but rather control of the subordinate judiciary was kept in the hands of the colonial administrators to ensure them control over public order and judicial officers sympathetic to the colonial ad- ministration. While to my knowledge the executive branch controls the subordinate courts now in only two Commonwealth countries- Zimbabwe and Bangladesh-this emancipation of junior but powerful judicial officers is relatively recent in many countries and goes a long way toward explaining the slow development of judicial independence in the subordinate courts in these countries. To understand the present problems judicial reformers need to un- derstand the past. Sustainable change cannot be planned without tak- ing into account the legal history and the culture it created. Judicial reformers need excellent listening skills as well as a broad- based knowledge of a variety of legal cultures to understand the con- text of a justice sector weakness and to be able to recommend solutions that are custom designed to suit not only the problem but the context in which it is found. Westem solutions imposed on non-westem cul- tures may not work or may only work during the life of a project to be followed by a creeping return to pre-reform ways. A good example is the Philippine situation where westem-style time limitations imposed on judges without treating the underlying causes of delay have resulted in some judges filing fraudulent work returns and others preferring not to file at all and to suffer the penalty of nonpayment of their salaries. A similar example may be found in a story from Asia of a judge, also The Many Facets of Training 289 desperate to meet his monthly quota of cases, who resorted to the prac- tice of hearing two cases at the same time-one in the courtroom, presided over by his clerk and another in his chamber, over which he presided. His monthly quota of cases was met, but it must have ap- peared to the judgeless litigants in the courtroom that the priority product to be delivered by the justice system was efficiency and not the reality or perception of a fair trial. 2. The judicial system works within a national culture. There is no univer- sal prescription that will necessarily work for common problems. Let us look at a few examples. Enforcement of Judgements One component of delay is often inefficient and ineffective enforce- ment of judgements. The causes of this can differ. For example in Yemen, the official executing court orders may be met with armed resis- tance; in many jurisdictions the problem is corruption of the court offi- cers (or delegated private firms) enforcing court civil judgements; in some West African countries the culture will not permit the attachment of land traditionally used by the community; in still other countries de- lay in enforcement may be caused only by lack of appropriate legal framework, inefficient processes, and inefficient personnel. Bankruptcy Law Another example of a national culture resisting international best prac- tices may be found in Uganda where there is almost no use made of a perfectly functional bankruptcy law. This is because of the strong social pressure against both those undergoing the bankruptcy process and those who seek to use it. Corruption It is unreasonable to expect that judges will naturally have ethics supe- rior to those of the culture from which the judges come. Without ques- tion, a certain number of people in all walks of life in every country have high standards of integrity which they follow regardless of temp- tations and cultural norms. We know from such varied countries as 290 Hon. Sandra Oxner Session VIII Bangladesh and Uganda that the members of the superior courts are able to rise above national ethical standards and enjoy the confidence of at least the legal community. (As discussed below the community at large generally takes its image of justice from the subordinate courts.) Anti-corruption campaigns are founded on large-scale community education programming and are many-pronged. They include a widely disseminated code of judicial conduct on and off the bench that allows the community to know what standards it has the right to demand. It requires a transparent and easily accessible judicial complaint and disci- pline process which is efficient and fair to judges and provides for visi- ble imposition of remedial and punitive sanctions to judges who have transgressed the code. As the code requires of the judges a standard of conduct that prevents not only the reality but the perception of corrup- tion, they require an annotated code with hypothetical and preceden- tial fact situations to clearly articulate to the judges the conduct re- quired of them. To develop the requisite ownership of the code necessary for effective implementation (to attract even the grudging support of the judiciary) requires its development through the involve- ment of the whole judiciary. Further consultations and continuing edu- cation sessions are required to ensure widespread understanding of ex- pected standards of conduct throughout both the judiciary and the community. 3. judicial reformers need to understand the delicate balance between ministries of justice and judiciaries. Some tension between the executive and the judiciary is healthy, as the function of the judiciary is to protect the citizen from executive misuse of power. "It is an accepted fact that in all countries with work- ing democratic systems, strains develop between the judiciary and the Legislature or the Executive."10 However, when the tension grows to interrupt necessary communi- cation between the two branches of government to the extent that it paralyzes all or part of the judicial function, it becomes destructive. 10. Georges, P. Telford. 2000. "Report on the Independence of the Judiciary in Trinidad and Tobago." February 16. p. 14; . The Many Facets of Training 291 The most current example of this is the refusal of the executive branch in Zimbabwe to carry out court orders. It serves to remind us that a judiciary is impotent without executive support. Judicial reformers need to be very careful not to exacerbate the tensions between the two branches of government, since tensions tend to escalate during reform projects. 4. We need to collect information and share ideas. Only by building up a body of literature, only by collecting and analyzing empirical data, by exchanging information on our successes and failures and creating files on lessons learned can we become more effective. The World Bank has given leadership and impetus to this quest for judicial reform learning in several ways, one being this "Global Conference" bringing together so many leaders and workers in the field. Other ways in which it has made significant contributions are through the establishment of a World Bank Web page linking together people and information in the field and the publication of important judicial and legal reform publi- cations.'1 Only through the rigorous evaluation of training programs and their relevance to priority needs can legal and judicial education to support judicial reform be improved. Only through application of ap- propriate evaluative techniques to the work we do can we discharge our duty to be accountable to the public and ourselves for the time and money spent on judicial reform. S. Judicial reformers, including judges, from developed countries need to appreciate the difficult position of the judge in a developing country. The position of the subordinate court judge is particularly onerous. The subordinate court presents the image of justice to the people. It is the court that has the greatest public contact. The opinion held of the subordinate court colors the reputation of all courts. If the subordi- nate court has fallen into disrepute, if it does not provide an efficient 11. Dakolias, Maria, and Said, Javier, World Bank Legal and Judicial Reform Unit, "Ju- dicial Reform a Process of Change through Pilot Courts"; Buscaglia, Edgardo, and Dako- lias, Maria, World Bank Legal and Judicial Reform Unit, "An Analysis of the Causes of Corruption in the Judiciary"; Messick, Richard E., "Judicial Reform and Economic Devel- opment: A Survey of the Issues." All in the February 1999 World Bank Research Observer 14(1): 117-36; . 292 Hon. Sandra Oxner Session VIII dispute resolution service, if it is reputed to harbor corruption, the pub- lic's faith in the state and the judiciary is eroded. Furthermore, the per- ception and reality of the unpredictability, costs, and inefficiencies of the court system block national, social, and economic development by driving away local and foreign investment. Subordinate court judges are poorly paid, usually not housed, made by necessity to travel to and from court on public transport with the witnesses and litigants who appear before them, and are intensely scru- tinized and criticized. In some jurisdictions, their decision making process is interfered with by some of their many superiors. They often must watch the people who come before them wait in dirty and run- down courthouses, without information services, unable to provide even copies of documents, and they know that the poor record-keeping and lack of case flow management are invitations for corruption for which they will be criticized. There is usually no adequate in-service professional growth program to assist them to improve their competency and confidence, few tools to spark intellectual interest in the philosophy of law and justice, and little contact with external judiciaries to discuss solutions found else- where to common problems. Training is needed to point out to the senior judiciary, the legal community, the Ministry of Justice, and the community that more trib- ute needs to be paid to the subordinate court. Its defects are perceived and public dislike of the defects-which are often beyond the court's ability to remedy them-earns it disrespect. The judiciary is a hierarchical institution. The subordinate judiciary is at the bottom of the judicial tier. Despite its important and essential function as the workhorse of the judiciary and despite its wide jurisdic- tion (some have unlimited civil jurisdiction and have the power to im- pose the death penalty), its achievements are not much heralded. The leadership of the judiciary, the government, the bar, and the communi- ty need to be agents for change in publicly recognizing the importance of the court, encouraging its judges to set and attain high personal goals of integrity and professional competence, and demonstrating re- spect for the office of the subordinate judge. The Many Facets of Training 293 Judges in nearly all developing countries are inadequately paid. In many jurisdictions they work without basic tools and equipment and live in modest government housing that often lacks potable water. In some instances they are so overburdened with judicial reform consul- tants and projects that there is little time left to hear cases. They have electronic technology pressed upon them by donors; some, having conquered the computer and e-mail, find their phone and power cut off as a result of their electronic legal researching costs having exhaust- ed the judicial budget allocation. Intellectually and emotionally they are torn by being asked to solve in their courts issues that are social and economic and usually beyond their state's capacity to fund. Conclusion The question put to us is, "How does legal training improve participation in the reform process?" My response is that it creates an environment for reform through knowledge. Judicial training improves participation in the reform process in the following ways: 1. It identifies the community perception of judicial weaknesses; 2 It designs and delivers effective remedial programming to respond to the identified weaknesses; 3. It develops leaders in judicial education and reform and equips them with the skills to inspire others; 4. It lays the foundation and provides continuing support for the sustain- able behavioral change that is the essence of judicial reform; 5. It strengthens the fact and perception of the impartiality, competence, efficiency, and effectiveness of the judiciary; 6. It builds public confidence in the judiciary; and 7. It creates pressures within and outside of the judiciary for reform. Judicial education is not only a separate component of judicial reform pro- jects; it is a supporting thread running through all. 294 Hon. Sandra Oxner Session VIII Annex Chart 1 Needs Assessment The Judicial Education Curriculum Committee would like to solicit your opinion on topics for judicial education, the study of which would strengthen the Judiciary. Would you kindly prioritize the following topics ranked in order of preference from ONE to TEN, number ONE being the most important? More than one topic may share the same numerical rank. Please write in any additional topics you might like to suggest, assigning them a numerical rank. You will note the topics are divided into four general categories: 1. Impartiality 2. Competency 3. Efficiency 4. Effectiveness Please rank the above-noted categories in order of their priority to you. More than one category may be assigned the same rank. A. Impartiality, Independence, and Accountability (Please enter a number between ONE and TEN for each item. Two or more items may share the same rating.) 1. The Principle and Practice of the Independence of the Judiciary 2. Accountability to the Public Judges Protect and Serve 3. Judicial Ethics and Conduct, On and Off the Bench 4. The Science of Fact Finding-Recognition of Judicial Bias 5. Sensitivity Training in Contemporary Social Issues 6. Gender, Ethnic, and Other Disadvantaged Groups Sensitivity Training Other: _ B. Competency-Professional Skills Updating-Continuing Education in Substantive and Procedural Law (Please enter a number between ONE and TEN for each item. Two or more items may share the same rating.) 7. Criminal Law B. Sentencing 9. Evidence 10. Constitutional Law 11. Family Law 12. Civil Procedure 13. Criminal Procedure 14. Legislative Interpretation 15. Torts 16. Contract Law The Many Facets of Training 295 17, Administrative Law 18. Assessment of Damages 19. Property Law 20. New Developments in the Law Other: Economic Laws (Please enter a number between ONE and TEN for each item. Two or more items may share the same rating.) 21. Intellectual Property Law 22. Bankruptcy Law 23. Banking Law 24. Modern Corporate Law 25. Principles of International Trade and the Roles of Financial Institutions and Banks 26. Evidence Laws for Administrative Tribunals 27. Foreign Exchange Laws 28. International Trade Procedures 29. International and Domestic Arbitration Laws 30. Competition Law 31. Communications Law 32. Labor Law 33. Income Tax Law 34. Environmental Law Other: C. Efficiency (Please enter a number between ONE and TEN for each item. Two or more items may share the same rating.) 35. Computer Training 36. Case Flow Management 37. Time Management 38. Mediation Skills 39. Alternative Dispute Resolution 40. Stress Management 41. Court and Docket Management Skills 42. Management Skills Other: _ 296 Hon. Sandra Oxner Session VmII D. Effectiveness (Please enter a number between ONE and TEN for each item. Two or more items may share the same rating.) 43. Judicial Techniques to Bridge the Gap between Law and Justice 44. Interpreting Constitutional Charters of Rights 45. Domestic Application of International Human Rights Norms 46. Exercise of Judicial Discretion 47. Media-Bench Relations 48. Judgement Writing and Delivery 49. Judicial Skills-Chairpersonship of the Proceedings-Maintenance of a Dignified, Orderly, Efficient Pace of Proceedings 50. Sensitivity to Needs and Rights of the Witnesses, Litigants, and Public 51. Communication Skills-in the Courtroom, with Stakeholders and the Community at Large 52. Adapting to Change 53. Social Impact of Judicial Decisions 54. Economic Impact of Judicial Decisions 55. Legal and Judicial Reform Other: Comments: The Many Facets of Training 297 Chart 2-Index of Judicial Independence Impartial Impartial Adequate Constitutionally Security An Physical Civil appointment discipline salary protected of tenure independent security immunity process process salary bar for judicial functions Executive Executive Executive A govemment An educated Articulated Freedom Integration support to restraint support to that is public that judicial from of enforce from prosecute sensitive demands an ethical interference Subordinate judgments interference and punish to public impartial standards in decision- Court even against in judicial attempted opinion judiciary making from as full itself decision- or actual superior members making judicial judicial of the process cornuption officers Judiciary outside of the appellate process Emancipation A lack of Judicial Judicial Constitutionally Freedom Free and Judicial of the retrospective control of control of entrenched from informed control Subordinate legislation its own its own courts geographic press of the Court budget administration transfer curriculum from the without and faculty Executive consent of judicial (unless it education is term of employmentl Improving the Reform Process through Legal Training Akua Kuenyehia Dean, Facuilty of Law University of Glhana Introduction In recent years many developing countries have embarked on various struc- tural reforms of institutions supported by donor agencies. One of the main objectives of these structural reforms has been to create an environment that will attract investment and enhance private sector growth and devel- opment, and also improve access to and the delivery of services to the citizenry. It has become apparent that a country's legal environment plays a highly significant role in fostering investor-friendly conditions as well as promoting private sector growth. It also plays a large role in improving the conditions of living for the ordinary citizen. It is crucial that institutional reform and re- structuring, capacity building, technology enhancement, and the strengthen- ing of the various institutions of law in general be undertaken if the right conditions are to be created that will foster investment, encourage an active private sector as well as encourage full participation of all beneficiary groups in the development process. Legal education and training are important components of legal reform. The training of lawyers by academic institutions and continuous education for lawyers in private practice and in various institutions and for judges, as well as training for support and administrative staff are critical in this process. Additionally sensitization and awareness creation of the processes of the law-especially the operations of the judiciary and other institu- tions-for the general public are important to ensure a constant evaluation of the role of the legal sector in the development process. 299 300 Akua Kuenyehia Session VIII Legal Training Institutions Faculties of law and law schools, where lawyers are trained, have an im- portant role to play. The training they provide for lawyers has an influence on the kind of legal environment that exists in any country. This is especially the case in developing countries where these institutions may operate under severe economic restraints. Curricula in these institutions ought to be constantly reviewed so that subjects that are taught are relevant to the needs of the country while at the same time keeping pace with developments in the rest of the world. It is important that these training institutions pay special attention to emerging areas of law that have a direct impact on the development process. They need to provide adequate instructions in these emerging areas of law so that the lawyers who are trained will be able to function effectively, rendering appropriate service to society. In view of the above there is a need therefore to ensure that the training institutions are adequately financed so that they will be able to have the needed resources to provide the required training for lawyers. The teachers in these institutions also need to constantly update their knowledge through participation in conferences, seminars, workshops, and other activities both at the national and the international level. This way, they would be able to monitor and evaluate the training that they are provid- ing for lawyers in the country. Links with other institutions are an important part of the training provided by the training institutions. Links that allow the exchange of students and staff can provide an excellent opportunity to learn from the experiences of others as well as keep abreast with the developments of the law in various areas. It also provides exposure to new ways of looking at old problems and new strategies for dealing with problems. Continuous Legal Education for Lawyers This can be broken down into education and training for lawyers in private practice and those employed in various institutions, both in government and in the private sector. This is crucial for progress in any country. Since law is dynamic, it is nec- essary to put in place an effective system of continuous legal education for lawyers that would help them update their knowledge. This should be a re- quirement for every lawyer wherever that lawyer works. Improving the Reform Process through Legal Training 301 The world is moving so fast that developing countries are lagging behind in a great number of areas. Especially in information technology there is the need to tailor the training to meet the identified training requirements of the various institutions. The important thing is that training and education need to be an integral part of the program of institutional activities and actions. The rapid pace of development in information technology means that there has been a dramatic change in many areas of the law. The only way in which lawyers can keep up their knowledge is to have consistent periodic programs of going back to the classroom to deliberate and learn about new developments in the law. There are many ways of exposing lawyers to new learning and all the possibilities ought to be exploited and fully utilized in the effort to keep lawyers abreast of new developments. One cannot overemphasize the need for continuous learning for lawyers in all sectors. This is especially true in the context of reforms. Lawyers cannot be effective participants in the process of reform unless they receive training in new areas as well exposure to new thinking on old areas of the law. Lawyers themselves must be willing to take the initiative and strive to equip themselves with resources that will enable them to keep abreast with new de- velopments in the law. As has been observed continuous education could take many forms de- pending on the type of practitioner under consideration. For lawyers in pri- vate practice, the Bar Association needs to organize a program for updating their knowledge. This must be a requirement for all lawyers in practice and must be a prerequisite for obtaining a license to practice. For those employed in the Ministry of Justice and other institutions both within government and the private sector, there is the need for a variety of training programs targeting different areas of operations. Since reforms include both revisions of laws as well as the introduction of new laws, lawyers in these institutions need training in new areas of law as well as in drafting skills. The training could take the form of formal periodic courses at local as well as foreign institutions, participation in seminars, workshops and conferences both at home and abroad, as well as in-house training provided by experi- enced lawyers imparting their knowledge and skills to newly employed ones. In situations in which resources are scarce, every avenue for training ought to be explored and utilized for the benefit of the institutions. This 302 Akua Kuenyehia Session VIII actually forms part of the reform in that it fosters an economic utilization of scarce resources. Enhanced library facilities to facilitate research in these institutions should be part of the process. Access to the Internet and of course training in the use of it for research purposes all help to improve lawyers' knowledge and thus equip them to be a vibrant part of the reform process. This way, lawyers are able to play an effective role in the process of reform by bringing their skills and knowledge to bear upon the revision of laws as well as the introduction of new laws. The Judiciary In most countries, especially in developing ones, very little attention is paid to the training needs of the judiciary. As a result the judiciary tends to be the weakest link in the legal chain. It is therefore important to pay special atten- tion to the training of judges and other personnel involved in the adminis- tration of justice. These include the administrative staff, some of whom may be judges, and court personnel as well as other support staff. Judges Judges do not receive specialist training for the bench. They are normally ap- pointed to the bench based on their experience at the bar or in academia. Even though upon appointment they are given short orientation courses, they mostly rely on their aforementioned experience. It is important that a system be put in place to give the judges some training in judicial reasoning and discretion. This will go a long way in helping them dispense justice satis- factorily. These are skills that are acquired; they do not necessarily come nat- urally to the individual. Judges also need to be exposed to the Intemet and be granted access to comprehensive libraries so that they can carry out research that would add to their knowledge and aid them in the discharge of their duties. Some of the problems that the judiciary in developing countries face arise because it is assumed that judges, once appointed, know how to be judges. They need training in judging cases, especially in using new ideas as part of their everyday working experience. Judges play such a crucial role in the reform process that their training needs cannot be overlooked. In view of this role, they also need to be trained Improving the Refonn Process through Legal Training 303 in areas of economic and commercial laws-such as laws and regulations gov- erning banking transactions, capital markets and securities, insurance, intel- lectual property, consumer protection, electronic commerce, economic crimes, and associated fields. Development is such that judges ought to be abreast with the emerging areas of the law if they are to assist in ensuring that the legal system is responsive to both the private sector and the citizenry during this develop- ment process. Lack of knowledge of new areas of the law can be a serious drawback to judicial dispute resolution, which in turn can have very serious repercussions for the development process. The training of judges, just as that for lawyers, should be a continuous one. It is therefore necessary to establish an institution that is well equipped to provide the necessary training in all areas and, especially, in the emerging areas of law. This way, judges would be able to handle competently all types of cases that come before them thereby helping to provide the needed environment for investment as well as enhancing access to justice for the population. There is also a need to provide management-training skills for those judges who have administrative responsibilities. This enables them to discharge their administrative responsibilities efficiently. It must never be assumed that a judge has the necessary administrative skills to manage, as well as to be a judge. Most often, this training is not given, and judges are therefore not able to discharge the added obligations of their position efficiently. Court Personnel and Support Staff of the Judiciary For any judiciary to function efficiently, it is necessary for the judges to be well versed in the law and its operations. It is also necessary for the staff who work in the various sections of the judiciary to be trained so that they have the required skills that will enable them to discharge their responsibilities ef- fectively. This is important, since one of the major objectives of any reform process is to have a judicial system that is transparent and efficient. Most often, in developing countries, court personnel such as court clerks, bailiffs, ushers, and interpreters are not provided with any training, whether in-house or externally. They thus become stale and in some cases unfamiliar with court processes. In order to increase their efficiency in the discharge of 304 Akua Kuenyehia Session VIII their responsibilities, it is necessary to provide them with short-term training on a regular basis that would reinforce their knowledge of court processes and also enhance their skills in discharging their obligations. This will help them in realizing that they play an important role in the administration of justice. More important, it helps reinforce their pride in the work they do and en- courages them to give their best to the persons they serve. Most often, because such staff are unfamiliar with the court process, they tend to abuse the very process that they are charged to administer This in turn leads to corruption or perceptions of corruption within the system. A system that allows the staff to be trained and have their knowledge re- freshed and updated regularly leads to better efficiency. It also allows them to participate in the reform process from an informed perspective. It helps them appreciate their role in the whole reform process. Additionally, training in the use of new technologies, especially informa- tion technologies, is important for support staff in order to enhance the role of the judiciary in the reform process. In cultures in which computers are the exception rather than the norm, it is important to ensure that support staff have access to training programs that would introduce them to the use of computers, e-mail, and the Internet. Without these skills the reform process will not make much of an impact. The administration of justice does not depend on judges alone, but more importantly on the staff who support the judges and deliver the associated services. Regular management training courses that are organized or made available to judicial staff will help them keep abreast with modern trends in management and thus enhance their efficiency. In countries where there are lay adjudicators, training of such personnel in the basics of law and the legal system is crucial to their successful participa- tion in the adjudication process. It is important for these persons to be con- versant with legal concepts involved in the dispensation of justice. Public Awareness The public-the user of the services provided by the legal sector-has an important role to play in the reform process. When the general public is conversant with the processes connected with the administration of justice, they are able to demand performance, and corruption is minimized, if not totally eradicated. Improving the Reform Process through Legal Training 305 The situation that prevails in most developing countries, however, is that processes are obscure and cumbersome-the public lacks knowledge about court processes, land registration, and associated processes, and this makes them susceptible to exploitation by junior and senior workers alike within the institutions charged with rendering the necessary services. It is possible for awareness to be created among members of the public so that they would play an active role in the reform process. Through various campaigns and fora, awareness of court and associated processes can be created to enable the public to demand accountability and performance from the service providers. This has the added advantage of encouraging the ser- vice providers to do what is right at all times, since ignorance on the part of the public will no longer provide them with protection for wrongdoing. It must be noted that this process needs to be ongoing, and it ought to be an integral part of any reform process. Without creating public awareness- enabling the public to use the process without hassle, and also to call atten- tion to abuses-there will be no effective way of monitoring and evaluating the effectiveness of the reform. Conclusion Training is an indispensable and crucial part of legal reform. Without train- ing, reform is seen only in the context of revision of laws and the introduc- tion of new laws. Reform, to have a lasting and effective impact, must aim at revising old laws as well as introducing new ones. But more important than that, it is necessary to pay attention to the institutional framework within which reform takes place as well as the human resources that make the insti- tutions function. Any reform program that does not have a clearly defined training compo- nent for the different groups within the legal system involved in the adminis- tration of justice is bound to fail. Training is important to make reform last for the benefit of society. Not only will training for lawyers and others who run the legal system improve the reform process, it will also enrich and accel- erate the process. The individuals involved will be in a position to fully ap- preciate the benefits of an efficient and transparent system and therefore work harder to achieve the bigger picture. Legal Training in a Transitional Democracy The Georgian Experience Dr. Lado Chanturia Chief Justice Republic of Georgia The collapse of the Soviet Union and the creation of new, independent states across Eastern Europe, the Caucasus, and Central Asia have presented an op- portunity for legal reform unlike any other time in modern history. My homeland, Georgia, has proudly joined the family of democratic nations and has taken great steps toward establishing a market economy and a society based on the rule of law. As I begin my remarks, I must first stop to express the deep thanks of my nation and its government-particularly its judiciary-for the assistance pro- vided by intemational organizations such as the World Bank in helping us draft and implement the changes necessary to reform our legal system. His- torically, Georgia has many links to the continental law system and we have benefited from a close collaboration with European legal experts. We have also relied on the American legal community for help in those areas in which we have chosen to model our system more closely on the adversary system in the United States. While building our new legal system in Georgia, we learned many lessons. We realize that we must have strong institutions that are able to implement the numerous changes from the old Soviet system. But we also have leamed that our institutions are only as strong as the people who serve in them. We recognize that successful legal reform cannot occur without lawyers and judges who understand the advantages of a system based on the rule of law. We also realize that to have lawyers and judges with such understanding, we must reform our system of legal education. The importance of reform in our method of educating those who will practice and judge the law is clear to us in Georgia. We also know that it is 307 308 Dr. Lado Chanturia Session VIII not only the future lawyers and judges, but also all public servants, who must understand our new legal system. But I must leave the topic of reform of our legal education system for an- other time. Today I want to focus my remarks on the critical areas of judicial reform and training for those who currently sit in judgment of the legal dis- putes that come before the courts of Georgia. In 1998, Georgia took a historic step to ensure that its judges knew and understood the many new laws in our nation. We began judicial qualification examinations for all those who were judges under the old Soviet system and for new judicial candidates. This was a crucial reform in our system. It gave the people confidence in the judiciary of our newly independent country and ensured that judges would be appointed based on their legal knowledge. An indication of the level of change this reform brought to our judicial system is the fact that since 1998 we have had six judicial qualification exam- inations. Over 1,500 candidates have taken the examinations but only 287 have passed and only 70 of those were former judges. There are 388 judicial positions in Georgia and we have filled 206 of these positions with men and women who have passed the judicial qualification examination. As a result over half our judiciary consists of these newly quali- fied judges. This is a reform that we are truly proud of and from which we will never turn back. Passing the qualification examination is just the beginning of the reform process. Good judges must not only know the law, they must know how to apply the law and to fulfill their duties as judges. That is why we have now placed judicial training among our highest priorities. Let me provide details of some of the ways we are giving our new judges the tools necessary to do their job in the most professional way. We have created the Judicial Training Center to determine the areas in which judges themselves feel the greatest need for instruction and then pro- vide training and seminars in those fields. The Center coordinates the assis- tance provided by international organizations such as the European Union, Council of Europe, World Bank, United States Agency for International De- velopment (USAID), and the German Agency for Technical Cooperation (GTZ) in arranging seminars and workshops for the judges. In many of these, Georgian judges serve as speakers and help organize the training sessions. Legal Training in a Transitional Democracy: The Georgian Experience 309 Seminars are arranged in various locations around the country to make sure that training is provided to judges in all the regions. We have made maximum use of foreign legal experts to share their experi- ences with our new judges. These experts provide practical examples to show judges how cases can be heard and decided. During the Soviet regime, the ju- diciary was never exposed to outside experiences and we know the damage that such isolation caused. Judges have a crucial role to play in a democratic society with a market economy. Our judges need to closely cooperate with, and learn from, European and American judges and legal experts during our transition period. We have begun a program of training Georgian judges in the methods of teaching their fellow judges. We have created a group of judges from our Supreme Court and our appellate courts who are specially trained to conduct seminars and provide workshops for their associates. Important changes have also been made in our court organization in Georgia. Court reform laws created an appellate court level in our system and restructured the function of the Supreme Court, which has now become a court of cassation. As a result of this reform, judges have required training in hearing and deciding cases on appeal from lower instance courts. It has be- come important for appeal judges to learn the process of discussing and ana- lyzing the decisions of lower courts and identifying possible errors in those decisions. Seminars on these topics have become a tradition in our Supreme Court and appellate courts and we recognize this as an important area of ju- dicial training. The publication of court decisions has also had a great impact on the level of legal education of our judges. The decisions of the Supreme Court are now published and distributed to every judge in the nation. This is part of our ef- fort to develop a body of law that can be applied consistently throughout our court levels. An important part of our training system has been our ability to send Georgian judges on training tours of European and American courts. These tours allow judges to observe practices in other courts and to apply these ex- periences when they return to Georgia. The World Bank has been very help- ful in this field and our Supreme Court has cooperated with the Supreme Court of Germany (BGH) and GTZ in providing six-week training courses in Germany for our judges. We have been also been able to send judges for 310 Dr. Lado Chanturia Session VIII training in the United States and France in addition to programs in Germany. The sharing of experiences with judges of different nations is of great impor- tance to our developing court system. In Georgia we are in the unique position of being able to draw upon two legal systems in creating our training programs. We have strong historical links to the family of European continental law but we are also learning from experts in common law courts. Our legal education is strongly linked to con- tinental law so our training programs for judges are designed to emphasize this connection. Judicial education programs based on continental law help the judges in applying the relevant law to the facts of a case and reach a deci- sion that complies with the requisites of the law and court procedures. Our friends in countries using the common law system, particularly judges in the United States, have been of great assistance in sharing their experi- ences about court administration and case management. Also, American judges have conducted many seminars on judicial discipline and judicial ethics. Their contributions to our knowledge in these fields have been of cru- cial importance as we begin our effort to establish a disciplinary system for the judges of Georgia. These training programs have all been organized to accomplish our goal of improved judicial knowledge and professionalism. Our training system takes three forms: 1. Joint discussions between Georgian judges and foreign experts about the facts of a case and the possible methods of resolving the dispute in accordance with applicable law. 2. Identification of problems in court practice and administration and use of foreign experiences to solve these problems. 3. Translation of decisions of Georgian judges into foreign languages and assessment of those decisions by foreign judges who discuss their con- clusions with our judges. We have found all three methods extremely useful and apply the appro- priate training method to the particular problem facing our system. I should mention one practical problem that we face in conducting all of these training programs. Judges must first of all be judges-they must spend time in their courtrooms hearing cases and in their offices giving considera- Legal Training in a Transitional Democracy: The Georgian Experience 311 tion to their opinions. As a result, we have tried to schedule as many semi- nars and training sessions as possible for weekends and we have arranged for regional training sessions so that judges can gather in one place and meet for workshops and seminars together with foreign experts. Finally, I must mention our great need for legal textbooks and commen- taries. Our judicial reform turned all our old law books based on the Soviet system into paper for our fireplaces. The judges need new textbooks and com- mentaries to help them gain insight into the application of all the new legis- lation that our Parliament has enacted to implement these reforms. Again, international organizations have played a crucial role in helping us prepare and publish such commentaries. The Netherlands Ministry of For- eign Affairs-Center for International Legal Cooperation, USAID, and GTZ have all been closely involved in this effort in connection with our Civil Code. The American Bar Association has sponsored publication of commen- taries by one of our Supreme Court judges on the new Criminal Code, which will be distributed to every Georgian judge at the upcoming Conference of Judges. Our law library has benefited from purchases of literature by USAID, GTZ, the American Bar Association (ABA), and Open Society Georgia Foundation (OSGF). Without their assistance, we would have very limited research mate- rials. The American Bar Association is assisting the Supreme Court in design- ing and equipping our Supreme Court Law Library, which will be open not only to judges but also to law faculty, students, and the public. Let me end these remarks with a very special word about our relationship with the World Bank. The Bank plays a key role in our judicial training effort and without their financial and technical assistance many of the projects I have discussed today could not exist. The Judicial Training Center is a prime beneficiary of the Bank's support and our credit agreement makes judicial re- form a reality in Georgia. The training of our judges, the reform of our court structures, and the modernization of our equipment is possible because of the World Bank's support. With the help of our friends in the World Bank, the United States, and throughout Europe, each new day brings Georgia closer to its goal of a modern, professional court system that is the foundation of a society based on the rule of law. This is the dream of every judge in Georgia and of each of our citizens. Bringing Sub-Saharan African Lawyers into the Legal Reform Process Experiences and Lessons of the International Law Institute- Uganda Legal Centre for Excellence Swithin J. Munyantwall Executive Director ILI-Uganda Legal Centre of Excellence Introduction It is common knowledge that most Sub-Saharan African lawyers do not par- ticipate in law reform activities in the transition economies of the Region. Reform initiatives, such as privatization, infrastructure-finance transactions, and commercial law reform, are largely the domain of Western consulting firms and highly priced consultants with no real understanding of local con- ditions. But law reform programs in Sub-Saharan Africa can succeed only if indigenous lawyers are fully involved. This paper argues that a lack of continuing professional legal education (CLE) is a major cause of the marginalization of indigenous lawyers from le- gal reform processes. It demonstrates that the establishment of the Interna- tional Law Institute Legal Centre of Excellence in Uganda (ILI-Uganda) is a positive response to the need for post-professional legal training and has, in its two years of existence, provided vital programs for public and private sec- tor lawyers in Sub-Saharan Africa. The central argument of this paper is that CLE is an essential factor in en- abling these lawyers to participate in legal reform processes, and that in- creased efforts by the Sub-Saharan African public and private sectors to aug- ment their knowledge through periodic training will result in more meaningful participation in the process and, therefore, more successful re- sults for reform programs. 313 314 Swithin J. Munyantwali Session VIII The paper begins by demonstrating that legal education in the Region has not responded to the need for CLE and how ILI-Uganda, established in 1998, has begun to address the CLE needs of Sub-Saharan African lawyers and relat- ed professionals. It then describes related capacity-building initiatives in which ILI-Uganda is involved, such as technical assistance related to training and research. Background and Problem Analysis If lawyers are to work effectively in a world of accelerating legal, financial, and commercial change, regular participation in CLE is essential. Even in so- cieties that provide excellent law school education, a practicing lawyer soon finds a continuous need to be current with changing conditions. This need is particularly severe in Sub-Saharan Africa, where basic law school education is often inadequate. In Uganda, and typically throughout Sub-Saharan Africa, law schools have traditionally provided a narrow focus on antiquated views of traditional sub- jects. The universities have neither the resources nor the infrastructure to provide an updated and comprehensive legal education. This leaves the law school graduate with a general understanding of the law, but without the tools necessary to function effectively as a lawyer. Additionally, because a so- phisticated employment marketplace does not exist, there is no environment that provides opportunities or motivation to sharpen skills or provide effec- tive, ongoing CLE training. The result is a cadre of young lawyers who never fully become experts in their fields and older lawyers who, notwithstanding longer service, also do not possess the necessary expertise in their fields. Sub-Saharan Africa has not had regional entities capable of providing CLE on the latest issues affecting both domestic and international law. In addi- tion, a lack of sufficient facilities, limited libraries, outdated materials, and re- search documents that do not address regional conditions, prevent legal and business professionals from performing their functions in both the private and public sectors. Consequently, indigenous professionals in Sub-Saharan Africa are at a disadvantage in developing the essential skills and perspectives needed to function effectively and productively at home or on the interna- tional scene. All too often, because the skills of indigenous lawyers are not updated regularly to meet the changing needs in their respective countries or in the world at large, the result is an inferior level of professional service. A lawyer Bringing Sub-Saharati African Lawyers into the Legal Reform Process 315 from a more developed country, who frequently updates his or her skills by attending mandatory CLE seminars in their country, can then more effec- tively represent clients in matters involving new and complicated legal mat- ters, such as those in a complex joint venture transaction, privatization, debt management, international arbitration, commercial negotiations, in- ternational finance, or an intellectual property and technology transfer agreement. In addition, government officials or related professionals who receive CLE training are then able to perform their duties more efficiently and productively. The lack of capacity within the legal sector affects practically every aspect of a country's operation. It is well understood that business and law operate together. A legitimate business transaction can occur only within a depend- able and reliable legal environment. Domestically, governance is not ren- dered as completely or as efficiently as it should be. Essential services and programs do not reach their intended beneficiaries, are not run efficiently, or are not completed because of the lack of the essential legal structure to fully develop the programs and to strictly enforce their application. In addition, the inadequacies of the legal sector create an insecure environment that is hostile to foreign and domestic investment. Internationally, the lack of capacity within the legal sector is even more damaging. The globalization of the world economy has become so increas- ingly complex that it now heavily influences the development of a country's economy. Highly trained legal and business professionals have become essen- tial to the majority of the complicated transactions required for successful op- eration within the global economy. When faced with new issues in an inter- national transaction, or involving negotiations with a lawyer from a more developed country, the majority of Sub-Saharan African lawyers are frequent- ly at an extreme disadvantage in representing their clients. This results in severe discrepancies harming economic growth. First, local governments usually receive an inferior bargain or insufficient terms in contract negotiations with foreign companies and governments. Second, domestic companies are not able to benefit fully from global economies of scale because they lack the capacity to operate efficiently and negotiate inter- nationally, which results in stagnant domestic growth and employment. Third, foreign companies and organizations operating in the region do not use local representation, resulting in less effective operations because of a lack of local knowledge. And finally, since governments and large companies 316 Swithin J. Munyantwali Session VIII are forced to use foreign legal representation, this hampers current local em- ployment and prevents the influx of resources into the legal sector needed to facilitate the development necessary to provide these services in the future. The use of foreign consultants is not cost-effective for the govemment or the corporations and cannot be continued into the indefinite future. This is a vicious cycle that will continue without the intervention of ef- fective CLE training. Current resources are insufficient to train Sub-Saharan Africa's legal and related professionals adequately so that they can con- tribute to the creation of economic wealth. Without the creation of economic wealth the current resource base cannot be improved, and the cycle becomes one of inadequate input resulting in inadequate output. The lack of adequate advanced legal services deprives a country of the tools needed for economic growth and acts as a dead weight against all efforts toward that end. The problem is deeply aggravated because Sub-Saharan Africa lacks institu- tions offering effective CLE programs. Efforts in the past have concentrated exclusively on the building of training institutions for economic policy. To be sure, sound economic policy is essential to a country's development and growth, yet it cannot be implemented in practice and expected to produce ef- ficient results without a concurrent growth in legal resources. Successful eco- nomic and human development requires structurally sound rules of law. In the past, local CLE training programs have been sporadic donor- financed projects, run by existing institutions whose focus is in other areas. Thus, CLE programs were irregular, inconsistent, and lacking in long-term planning. In the case of Uganda, the Law Development Centre (LDC) was supposed to provide CLE training but has almost completely failed to do so (further discussion below). Discussions with various bar associations in East Africa have shown that they do not possess the resources to provide CLE training to their members. This is also true of most bar associations in other parts of Sub-Saharan Africa. A few fortunate lawyers (mostly from government institutions and the rela- tively few successful private sector companies) manage to attend courses of- fered abroad, but this occurs at great expense and as a result is done infre- quently. Not only are the resources not currently available for CLE training, there is also a void in research materials and services necessary to keep abreast of legal Bringing Sub-Saharan African Lawyers into the Legal Reform Process 317 developments. The libraries of the current institutions are antiquated and un- derfunded, and since they are cut off from the international network they cannot acquire the vast materials that are needed to provide useful facilities. Furthermore, with the growing importance of online legal research, there is a need in Sub-Saharan Africa for computer facilities and online research train- ing. Most law schools in more developed jurisdictions now devote consider- able time to training their students in online research methods, and the gap in training will become a further impediment to the African lawyer. An effective CLE program with modern research programs and facilities will intervene in the vicious cycle in African legal education and post-profes- sional training and will improve the region's legal capacity, which will in turn provide the resources and create the demand for a higher level of legal ser- vices. The effect will be that the beneficiaries of CLE training will be able to design, analyze, and implement successful programs that will improve their country's productive capacity. They will manage their organizations more ef- fectively, have the skills to implement advanced policies, provide legal ser- vices without the need or expense of foreign consultants, and negotiate on equal footing with foreign investors, financiers, governments, multilateral or- ganizations, contractors, consultants, exporters, suppliers, and licensors. The Need for a Professional Legal Education Center of Excellence In Sub-Saharan Africa, there has been a failure of the respective national legal institutions to provide CLE for private and public sector lawyers once they graduate from law school. The problem with these institutions is that they are supply-driven, poorly funded, inefficiently run, with poor quality person- nel, and they lack critical resources (for example, libraries). The case of the Ugandan LDC described below is symptomatic of the crisis in continuing professional legal education that plagues Sub-Saharan Africa. The need for a permanent professional legal education center of excel- lence to provide CLE training in Uganda was stated in the Report of the Committee on Legal Education Training and Accreditation in Uganda (Odoki Report, July 1995). This report, which was funded by the World Bank and requested by all the relevant stakeholders was subsequently adopted as Government of Uganda policy, and it provided the rationale for the creation of ILI-Uganda. There is no other institution in Uganda that offers CLE on a 318 Swithin J. Munyantwali Session VIII systematic basis, and there are no significant CLE programs in other coun- tries in the region.1 The Odoki Report noted that the curriculum at Makerere Law School "is rather narrow, and unduly occupied with traditional subjects which were fashionable twenty-five years ago in English law schools... ";2 and further that "continuing legal education is increasingly recognised as essential in view of the unavoidably limited coverage of university and Law Development Centre (LDC) programmes, the emerging specialist areas, and new developments and trends in the law."3 As a result of these educational deficiencies, Ugandan lawyers are fre- quently deficient in "emerging areas of specialised commercial practice such as international trade, international investment, joint ventures, intellectual property law... and international commercial arbitration."4 These are all areas in which the Centre offers training. The situation with the LDC in Uganda is representative of the problems facing institutions in Sub-Saharan Africa. Although the LDC has the statuto- ry responsibility to provide continuing professional legal education pro- grams in Uganda, it is widely recognized that this is not possible given its current resource constraints, and may even be undesirable. This view is strongly supported by key officials in government, including the Attorney and Solicitor General. The Ministry of Justice, which is responsible for the overall policy on continuing professional legal education, strongly supports the approach of this function by an independent organization such as ILI-Uganda. The Odoki Report noted that while it may have been desirable in 1971 to centralize many legal functions in the LDC (the LDC statute lists no less than 15 separate responsibilities), "constraints on resources and capacity have made it impossible to operate such a multi-functional estab- lishment. LDC is no longer in a position to carry out such a complicated 1. The Law Development Centre (LDC), which is managed by the Ministry of Justice, is charged with providing CLE in addition to a host of other duties, but has never had the resources to mount a significant program. It is generally accepted that the LDC's re- sources are inadequate even for its basic mission of postgraduate practical training for new lawyers. Neither Makerere nor universities in Nairobi or Dar es Salaam provide sig- nificant CLE programs. To our knowledge, most CLE projects in Sub-Saharan Africa are provided by donors on a sporadic basis in response to particularly acute needs. 2. Odoki Report, p. 8. 3. Odoki Report, p. 3. 4. Odoki Report, p. 6. Bringing Sub-Saharan African Lawyers into the Legal Reform Process 319 diversity of legal tasks."5 For instance, the LDC is presently responsible for training graduates of Makerere Law School for the post-graduate bar course, but can only partially fulfill this function. LDC can presently train only half of the Makerere Law School graduates who apply for the post-graduate bar course, and even then the quality of training these students receive has been questioned and has resulted in the recommendation that this function be privatized to include other training providers. Given the inability of the LDC and other similar institutions in Sub-Saha- ran Africa to respond to the need for CLE programs for state attorneys and private practitioners, it is reasonable that such programs should be privatized. The Ugandan plan was to originally use donor support, with the facilities of the International Law Institute-Washington (ILI-Washington) and other in- ternational providers to form a model so that "it should be possible to plan a longer programme which is however locally based."6 The Response-The Establishment of ILI-Uganda Legal Centre of Excellence With funds from the World Bank-funded Uganda Institutional Capacity Building Project (UICBP), ILI-Washington established operations in Uganda in 1997 to provide CLE training for the benefit of public and private sector lawyers in Uganda. The program, which was eventually opened to the Sub- Saharan African Region, attracted participants from many states in the Region. In April 1998, the institution was registered as a local indigenous NGO and the regional Centre was established. This is the first regional center of excellence in Sub-Saharan Africa. I like to think of the World Bank project as the pregnancy that nurtured and carried ILI-Uganda to term. I would like to further point out that the only two other institutions in the world that offer CLE on a continuous full-time basis are the ILI in Washington, and the International Development Law Institute (IDLI) in Rome. After the forma- tion of ILI-Uganda, ILI-Washington began to withdraw control of the African operations, and now serves as a partner to provide a declining level of technical support. The Washington, D.C. operations, as a separate entity, are extremely valuable to the operation of ILI-Uganda for the knowledge, S. Odoki Report, p. 71. 6. Odoki Report, p. 67. 320 Swithin J. Munyantwali Session VIII expertise, credibility, and contacts created in over 40 years of successful oper- ation in intemational law. In August of 1998, we received a significant grant from the Austrian gov- emment for the building and implementation of the facilities and programs that form our current institution. With this grant and the revenue generated by program fees, consulting contracts related to training, and a modest in- kind contribution from the Ugandan govemment, we moved into a new fa- cility, hired new staff, created the beginnings of a library, launched a success- ful internship program (discussed later), and managed, over the last two years, to serve a Sub-Saharan African constituency of over 1,000 govemment officials, legal and business professionals, and scholars from our base in Kam- pala. Participants to the Centre have come from Kenya, Tanzania, Zanzibar, and Rwanda in East Africa; Zambia, Zimbabwe, Botswana, Angola, Namibia, Swaziland, South Africa, Malawi, Lesotho, Mauritius, and Seychelles in the Southern African region; and Ghana, Nigeria, Cameroon, and Mali in West Africa. We recently received applicants from Greece who will be attending the fall programs. The grant has recently been renewed for a similar financial contribution and is part of the ongoing funding plans. In addition, the Nor- wegian government has recently indicated their interest in cofinancing the program and have already pledged $250,000.00 as their contribution for the remainder of this year We are now a fully operational African center of legal excellence, which is staffed, run, and controlled by African lawyers and professionals. The semi- nars are taught using a combination of foreign and local experts so that inter- national theory can be applied to local conditions. The courses offered by the International Law Institute in Washington and the Centre do not require any particular legal background. All of the courses offered at the Centre or ILI-Washington, are attended by individuals from nations with vastly differ- ent legal backgrounds. For example, over the years, ILI-Washington, and to a lesser extent ILU-Uganda, have had participants from the civil and common law traditions. The interest by these individuals in courses such as debt man- agement, arbitration, privatization or even foreign investment, derives from the fact that the issues or problems raised in each of these subject areas is the same regardless of the underlying legal structure existing in a participant's country. Consequently the legal background of the faculty member does not in any way affect the quality of the seminar Bringing Sub-Saharan African Lawyers into the Legal Refortn Process 321 The experts we have used tend to be from the United States with strong international and local insight into the subject matter. With close collabora- tion with ILI-Washington we have sourced these experts from public inter- national institutions such as the World Bank and International Finance Corporation (IFC). From the private sector, numerous individuals at the world's leading law firms in London, Paris, New York, and Geneva who deal with these issues on a day-to-day basis are frequent lecturers at ILI-Uganda. We also source many leading academics from leading U.S. educational insti- tutions such as Harvard Law School, Georgetown University Law Center, and University of California at Los Angeles. We are constantly increasing our base of European and regional experts to provide a worldview in each of our programs, and will continue do so under the new programs offered by ILI-Uganda. Since our main emphasis is on the development of African capacity, the importance of using indigenous and local experts of world-class standing cannot be underscored enough. Many regional experts, in a wide variety of fields, have attended training seminars in Washington or Kampala and now return to lecture and teach in our seminars. We are increasingly using highly skilled regional professionals for our seminars. These have included the CEO of the Nairobi Stock Exchange, the legal director and company secretary of Kenya Airways who led the privatization and initial public offering of the air- line, and many of the region's justices and magistrates, to name a few, includ- ing a significant number of experts from South Africa. Under our agreement with the ADB mentioned below, the ADB will provide some of its staff as lec- turers for selected courses. Our recent publishing success with Capital Markets in Uganda, by Stuart Cohn and Fred Zake, a foreign and a regional expert in their respective fields, demonstrates the commitment and success of the North-South capacity-building aspect of our program. Stuart Cohn, from the University of Florida Law School, was a lecturer in the capital markets course under the World Bank program, and Fred Zake, an investment lawyer in Uganda, was a student in the course. We encouraged their cooperation in writing the book, which was finally edited and published by ILI-Washington. The book is a clear and concise explanation of Uganda's capital market and is intended to assist in its development by providing guidance and informa- tion to private and public sector organizations, firms, and individuals in 322 Swithin J. Munyantwali Session VIII positions to facilitate market growth and development. Another publica- tion on comparative experiences of privatization in the subregion is forth- coming and should be released in the fall. The principal authors are Gerald Tanyi, formerly an attorney with the respected Wall Street firm of Sullivan and Cromwell, and presently with the World Bank Group, and several for- mer regional participants-experts in privatization who attended a course on legal issues in privatization in the fall of 1998. We are now building a library to house our publications and materials gathered during our opera- tions, and with appropriate funding, it should be the basis for an expanded research center open to professionals from the subregion. With the success of our seminar offerings and increased demand from across the region, we are increasing our seminar offerings from 20 this year to 27 in 2001. Cours- es covered include a wide selection of essential areas, such as: government integrity/corruption, debt management, foreign investment negotiation, legislative drafting, international commercial arbitration, WTO participa- tion, international human rights, the nature of international organizations, and intellectual property. Playing a Role in Law Reform and Economic Development In order to achieve full and successful participation in the global economy, a nation requires a market infrastructure, a stable legal environment and up- dated legal framework, functioning capital markets, and trained executives and professionals in the private and public sectors. Overall law reform is an indispensable aspect of this process. ILI-Uganda promotes an orderly path to effective participation in a world economy through its programs of training lawyers and related professionals in business, finance, law, and governance for governments and institutions throughout Sub-Saharan Africa. As part of a multi-pronged response to Africa's capacity deficiencies, we fo- cus on developing a stable and effective legal environment, which is a funda- mental aspect of a successful economic development program. It produces the reliability and integrity within a country that is conducive to attracting the domestic and international investment necessary for growth. While we are committed to providing the CLE training that is necessary for the growth of Sub-Saharan Africa's legal structure, its benefits for economic development go well beyond legal training. Bringing Sub-Saharan African Lawyers into the Legal Reform Process 323 It is important to emphasize that even though we sponsor research pro- jects and can provide extensive programs of technical assistance, we are not a "think tank." We have pragmatic goals. We work to build functional capacity by training professionals in business, finance, law, and governance. We are dedicated to the encouragement of open markets and successful participation in the international economy. Because of the high quality, importance, ap- plicability, and variety offered in our training seminars, many of the Centre's seminar participants are not trained lawyers. They are professionals from the public and private sectors in business, government, finance, economics, and law. In fact, managers and policymakers from other capacity-building and de- velopment agencies from throughout the Region often attend our seminars. Our training infrastructure allows the Centre to conduct seminars on other economic issues as easily as legal topics, and many of our seminars are on hy- brid subject areas. In the past we have covered such areas with seminars that have included legal issues in privatization, debt management, international business transactions, project procurement, WTO participation, securities and capital markets, international loan negotiation and renegotiations, for- eign investment, and development and regulation of securities and capital markets. Furthermore, our previously discussed publication, Capital Markets in Uganda, is reflective of the hybrid subject matter being dealt with by ILI-Uganda. Our courses are constantly being revised to meet the changing nature of private sector development and public concerns in the Region and are there- fore demand-driven. We have already drawn up our agenda of courses for 2001, which will include seminars on banking regulation (following the re- cent banking crisis in the Region), utility reform and privatization, telecom- munication policy and regulation, and improving foreign investment flows to Sub-Saharan Africa. Through the Centre's high quality seminars, the ca- pacity needed to design, analyze, and implement successful economic pro- grams is being built. Our effectiveness in capacity-building extends also to providing assistance to the economic institutes and universities in the Region. The possibilities for cooperation in capacity-building programs between ILI-Uganda and the Region's economic policy analysis and training institutes are among the most promising opportunities currently being explored. Our access to a wide range 324 Swithin . Munyantwali Session VIII of prominent international faculty and the flexibility to quickly meet specific demands make us the perfect complement to the programs of the established economic institutes. In addition, the resources and facilities we offer make us an ideal training facility for faculty from other institutions, either to attend topic specific seminars, instructor-training seminars, or to use the resources for research and publishing. In informal discussions with the Masters Programme in Economic Policy Management-a project funded by the African Capacity Building Foundation (ACBF)-at Makerere University, Kampala, the practicality and benefit of co- operation with ILI-Uganda was immediately obvious. The possibilities for ar- eas of collaboration, from our upcoming list of seminars alone, included hav- ing our faculty provide supplemental instruction in the areas of international negotiation, privatization, foreign investment, public enterprise, WTO partic- ipation, and capital markets and securities development. In addition, there is recognition of the benefit and interest in the possibility of members of their faculty attending or instructing at future seminars. This situation is likely to be found in most of the economic institutes across Sub-Saharan Africa. The quality and diversity of our training and expertise make us a powerful tool in economic capacity-building in Sub-Saharan Africa, on our own or in collabo- ration with existing institutions and universities. We aim to develop further our regional activities. We are currently the only institution in Sub-Saharan Africa that is able to provide a systematic program of continuing legal education to the Region's public and private sector lawyers and related professionals. We would like to expand so as to centralize CLE activity for the Sub-Saharan Region and also serve as the hub for a developing network of legal experts, practitioners, and researchers. Regional, rather than national, training institutions generally will serve human and institutional capacity-building needs more cost-effectively. From our training seminars over the last two years, we have developed an in-depth understanding of the developing-country issues that affect impor- tant matters such as foreign investment, privatization, joint ventures, debt management, procurement, capital markets, and other significant policy is- sues. Our access to the foremost experts-who are sensitive to the develop- ing country perspective-in each of the courses offered under our present and proposed curriculum allow these experts to pass on the benefit of their Bringing Sub-Saharan African Lawyers into the Legal Reform Process 325 experience to lawyers and related professionals in the Region who are actors in this dynamic marketplace and who, with the benefit of the Centre's semi- nars, can make more informed policy decisions affecting their respective countries and the Region at large. We have submitted requests for funding to various donor programs. These funds would allow us to expand our operations. The expansion of the Centre would allow us to better meet the demand for our seminars, but also it would allow for the improvement of training facilities to world-class levels. CLE does not produce fully effective results with only one-time training seminars. CLE is an ongoing process of instruction and education. Seminar graduates need facilities and updated courses so that they can keep abreast of changes and developments within their fields. Furthermore, successful graduates will often advance workplace production to a level requiring more advanced or related training that was not applicable with their old skills. We will serve to develop the human and institutional capacity-building needs of Sub-Saharan African professionals through our training programs, research facilities, and publications. The Link to Improved Regional Law Reform Efforts There has been an outpouring of positive feedback from the region's public and private sector stakeholders since the inception of ILI-Uganda. Based on independent surveys that we have carried out and unsolicited feedback from heads of department in ministries and other public and private sector institu- tions across the region, there is a consensus that our training programs have made a positive impact on the contribution of public and private sector lawyers in overall law reform and other efforts. Following are samples of these responses. Recent participants representing 11 countries from Sub-Saharan Africa at- tended a course on legislative drafting, which is a course we have introduced since expertise in this area is indispensable to most regional law reform ef- forts. Three anonymous participants had the following comments. "This seminar was refreshing in that after having practical experience in the field of legislative drafting I have been able to remove doubts I have about situations I have actually faced in real life, and it has buttressed my knowledge of this field." 326 Swithin J. Munyantwali Session VIII A second respondent stated that "I am going back home a more polished draftsman than I was before coming to the course..." Finally a third respondent stated that "I can now draft a bill based on the knowledge acquired from the seminar." The manager of the Kaduna State Water Board (KSWB) in Nigeria com- mented late last year that his staff's participation in our courses had greatly increased their effectiveness at work, and that their recent commendation by the World Bank as the best performing water authority in Nigeria was in large part attributable to their participation in ILI-Uganda training programs. The KSWB continues to send its staff to our courses. Several attorneys general and training managers at ministries of justice across the region have expressed appreciation for our courses as they relate to overall law reform. The following was an excerpt from a letter written by Uganda's Attomey General, Hon. Bart Katurebe to us: "The Ministry of Justice does appreciate the contribution made by ILI in the training of our lawyers, and we shall continue to support the work of the Institute in this country." A senior partner of a small but growing commercial practice in Uganda commented that he substantially relied on our two-week seminar and course materials in joint ventures and franchising, which helped him put together a joint venture agreement between a South African telecommunications firm he was representing in a joint venture with a Ugandan concern. These are just a few of the responses we have received from across the region. Our impact in improving the changing face of law reform in the Region will continue to grow as more and more regional public and private sector lawyers and related professionals get to know our work. Finally, the espirit de corps created by the attendance at our courses of a diverse group of regional professionals has resulted in useful networking of participants toward improving legal services. For example, a reputable grow- ing mid-size Tanzanian commercial firm is already in merger talks with a sim- ilar Ugandan firm following the senior partner's attendance of the Managing a Legal Practice seminar held earlier this year. Furthermore, the existence of many of our alumni in high level positions around the Region has provided for a fertile ground when setting up local training or technical assistance pro- jects in their respective countries. These are some of the tangible benefits, which over time will positively contribute to the regional law reform process. Bringing Sub-Saharan Afrtican Lawyers into thie Legal Reforn Process 327 Future Activities of the Legal Centre of Excellence Our primary function will continue to be the provision of CLE seminars. In addition, the Centre will continue training judges from around the Region, engaging in research and publishing on issues of public and private interna- tional law and international economic relations, and hosting conferences and symposia on these subjects, in addition to other relevant activities. The beneficiaries of our work will continue to be all Sub-Saharan African public and private sector professionals in business, finance, and law. The objective is to establish ILI-Uganda into a self-sustaining institution, which will provide these services into the indefinite future, without direct donor support. We are registered as a Ugandan nongovernmental organization (NGO), es- tablished to provide broad legal services that cover the aforementioned man- date. At present, we are registered as the International Law Institute-Uganda Legal Centre of Excellence, but are strongly considering changing the name to the ILI Regional Centre of Excellence to give us a more regional character and appeal. ILI-Washington (through subcontracts with ILI-Uganda) will continue to provide important albeit diminishing level of technical assis- tance to us in the coming years. The next steps in our growth include the following: 1. Providing a broader range of demand-driven seminars in continuing professional legal education for the benefit of public and private profes- sionals in business, finance, management and law in Sub-Saharan Africa; 2. Engaging in research and publishing in the areas of public and private international law and related economic development issues; 3. Increasing the use of and opportunities for Sub-Saharan African acade- mics and experienced regional public and private sector experts to lec- ture in our seminars; 4. Establishing an attachment program through which key individuals from public sector institutions in the Region are attached (following attendance in a particular course) to well-established and relevant insti- tutions in the Region or the United States and Western Europe to enhance their skills in relevant areas of their work; 5. Providing support to visiting senior researchers, and academics from Sub-Saharan Africa, and the rest of world conducting research focused 328 Swithin I. Munyantwaii Session VIII on vital areas of law, finance, and related economic issues in Sub-Saha- ran Africa; and 6. Formalizing and substantially expanding our marketing program to ob- tain tuition-paying participants with a view to attaining 100 percent self-sufficiency. Since legal training is the main source of revenue for the Centre in reach- ing self-sufficiency, it will, therefore, be our principal business activity. We will continue to engage in research on various issues broadly related to private sector development and public and private international law. As mentioned earlier we have already developed a modest library from the sem- inars we have been offering since our inception and will be using this oppor- tunity to add to its collection. In time, we will have developed a library where officials from ministries of justice, other important public and private sector institutions, and representatives from academia in Sub-Saharan Africa are able to research and collect the latest information and trends on various issues on public and private international law and related economic issues. To enhance this process, we are already in discussions with reputable inter- national online research companies such as Lexis/Nexis and Westlaw. This will allow Africa's researchers to access a wealth of constantly updated mate- rials available online. In continuing with our objective of enhancing the skills of law students from universities in Sub-Saharan Africa and the rest of the world, the future will see an expansion of our present internship program. The program, which began two years ago is very competitive and attracts leading students from around the world, with diverse backgrounds, to work on important projects, provide research input to ongoing assignments, and help in preparation for planned conferences and seminars. The program has also provided an oppor- tunity for these students to attend selected meetings and therefore interact with local professionals, officials, and lawyers, including the opportunity for some field activities. The program further presents an opportunity for law students to learn about current issues in law, finance, govemance, and other related issues affecting Sub-Saharan Africa while providing hands-on experi- ence working on a wide range of projects. To date, the program has attracted interns from as far away as the United States (Cornell Law School), Germany Bringing Sub-Saharan African Lawyers into the Legal Reforn Process 329 (District Court of Stuttgart), and England (University of London), working with others from Uganda (Makerere University Law School) and from around the Region. This month students from Georgetown University Law Center, Cornell Law School, and Makerere Law School begin an eight-week intern- ship program. It is a unique and productive opportunity. As mentioned earlier, ILI-Washington will continue to provide a dimin- ishing degree of oversight and technical assistance to the Centre. It will assist with cash management, financial systems, controls and reports, administra- tive and personnel systems, foreign faculty logistics, obtaining research publi- cations and documents, and in marketing efforts. However, at every stage of our development we will work very closely with ILI-Washington, as there will always be a benefit to its wealth of experience spanning over 40 years. Our specific goal in marketing will be to steadily increase the number of participants attending the courses on a tuition-paying basis, so that the pro- gram can become self-sufficient and operate without the need of additional direct donor support. Our numbers to date indicate an impressive perfor- mance since the World Bank project in 1997. The comparison between par- ticipant revenues under the World Bank project, and the first year of opera- tion as an independent institution resulted in a 76.5 percent gross increase in the latter period. When comparing the first quarter of 1999 with this year, we registered a 176.86 percent gross increase. The projections for the rest of the year are even more impressive. As of October 1999, the closing date for our first year of operation, we were 36.8 percent self-sufficient based on revenue generated in that period. As of today, six months after the last reporting period, present income and commitments far exceed the revenue we gener- ated in the previous 12 months. This year will be a much more successful one than the last. This is testament to the fact that as we enter the new mil- lennium it is increasingly clear that from Accra to South Africa, Sub-Sahara's public and private sector institutions are growing to rely on ILI-Uganda as an important resource to improve the skills of their staff and to provide training- related technical assistance in areas broadly related to finance, management, law, and govemance. Our impressive performance is also an indicator that improved market- ing will largely increase the possibility of our achieving 100 percent self- sustainability in the long term. Currently, the resources directly available 330 Swithin J. Munyantwali Session VIII have limited the marketing of our seminars. We would like to expand our marketing budget to enable us to improve our Web page, to create addition- al awareness within the public and private sector of the entire Region, to improve our visibility with increased advertising in all the major publica- tions of the Region, and to allow our staff to take more trips within the re- gion to develop contacts and create interest in our seminars. Our affiliation with ILI-Washington will continue to bring an added ca- chet to the marketing efforts. ILI-Washington already has an impressive worldwide reputation for its programs of professional training, technical as- sistance, and publishing. Through an expanded and intensive marketing ef- fort (which will be helped by the expanding reputation and networking of ILI-Uganda) and the offering of demand-driven seminars, we will attract a larger number of paying participants from around the region. Already the participant demand for our seminars is growing rapidly with modest market- ing efforts throughout the Region. The public donor community has support- ed a majority of these participants in the past, and new scholarship agree- ments are being developed with agencies such as the African Development Bank (ADB), and the United Nations Institute for Training and Research (UNITAR), which has provided a reliable revenue source facilitating cofinanc- ing and allowing our continual investment in marketing and expansion as discussed further below. As mentioned earlier, the Norwegian government has also recently joined our growing list of donors to invest in the program. As African legal communities develop, however, it is expected that increasing amounts of support will be available from the private sector, and that CLE in Africa will eventually resemble the privately supported systems found in de- veloped countries today. Examples of Technical Assistance and Other Activities of ILI-Uganda Related to Law Reform The activities of the Legal Centre of Excellence discussed above are only one aspect of the capacity-building functions of ILI-Uganda. While seminars are-and will continue to be our primary function, the knowledge and exper- tise developed through their administration allows us to fulfill other roles re- lated to broad commercial law reform in the subregion. A few of these are highlighted below: Bringing Sub-Saharan African Lawyers into the Legal Reform Process 331 Uganda Commercial Court Project At the request of the Uganda Commercial Court (UCC) and funded by the Danish International Development Agency (DANIDA), we were retained to examine and make recommendations related to case management and alter- nate dispute resolution, the lack of which result in the poor adjudication of disputes before the UCC. ILI-Uganda in collaboration with ILI-Washington put together an impressive team of experts, which included a former judge of the English Commercial Court (ECC), a member of the Judicial Committee of the House of Lords, a former Registrar of the ECC, and other prominent members of the English bar and bench. At the conclusion of the project, ILI-Uganda issued recommendations, which included jurisdiction of the UCC; composition of the UCC; case man- agement; procedures; court facilities; alternative dispute resolution; and training. Currently DANIDA is examining our recommendations before proceeding with a more extensive follow-up project. Rwanda Procurement Reform Project In 1998 ILI-Washington was retained by the Government of Rwanda through the National Tender Board (NTB), to begin developing a regulatory framework for the conduct of public procurement in Rwanda. The project in- volved the drafting of a code to establish the NTB, and a decree regulating public procurement in Rwanda. The code is currently before Cabinet, and will thereafter be debated by Parliament. The project was funded by the World Bank. The project resulted in a memorandum of understanding (MOU) between the Government of Rwanda (GOR), through the NTB, and ILI-Uganda, which calls for conducting training seminars and technical assistance in the areas of policy and operations management, capacity-building and career devel- opment, public procurement management, and procurement information management. In early 2000, ILI-Uganda won a contract to continue capacity-building and technical assistance activities for the benefit of the NTB, and related stakeholders in Rwanda. The project, which is also funded by the World Bank, involves the following: 332 Swithin f. Munyantwali Session VIII * Review and finalization of the draft law establishing the NTB and regu- latory decree. Activity involves discussion with all key public and pri- vate sector stakeholders involved in public procurement in Rwanda; * Preparation of implementing procurement regulations; * Preparation of Standard Bidding Documents; * Identification of other aspects of procurement-related legal framework for possible review and modernization. This will involve a survey of le- gal and regulatory areas ancillary to procurement law and regulations themselves. We will identify key areas of the law that need to be re- viewed for modernization. 2001-2003 Agreement with UNITAR Following successful implementation of a two-year scholarship agreement between ILI-Uganda and UNITAR a new agreement has been entered into for a three-year period, beginning in 2001. In addition to scholarship assistance, it will cover two of the following areas. Under the first, we will be contracted to perform national profile assessments (NPAs) of the present legal infra- structure for debt and financial management in Uganda, Tanzania, and Rwanda. Recommendations from the NPAs will seek to strengthen the legal infrastructure for debt and financial management in the three countries. Fi- nally, ILI-Uganda and UNITAR will develop a joint Web site, which will pro- vide important information on debt and financial management, such as sam- ple loan agreements, key introductory terms for all the ILI-Uganda/UNITAR courses on debt and financial management, a list of regional and internation- al experts on debt and financial management, and cross references to related Web sites of the United Nations and other sources. The agreement is an important vehicle in allowing us to meet our operat- ing costs and to promote capacity-building in the Region. Afnican Development Bank Agreement We recently entered into an agreement with the African Development Fund (ADF) under which the ADB like UNITAR will fund participants from Region- al Member Countries (RMCs) to attend courses at ILI-Uganda. The MOU provides for scholarships to benefit mid- to high level government officials from RMCs to attend training seminars in the following fields: WTO acces- sion, compliance and disputes, and regional integration efforts; privatization; Bringing Sub-Saharan African Lawyers into the Legal Reform Process 333 public-private sector partnership; development and regulation of securities and capital markets; procurement as it relates to governance issues; intellec- tual property and transfer of technology; best procurement practices; debt management and related negotiation issues; legislative drafting; arbitration and related alternate dispute resolution matters; and financial sector restruc- turing. The agreement also contemplates technical assistance and training by ILI-Uganda as the ADB develops its new governance program. The MOU is another vehicle, which will lead to increasing self-sustainabil- ity for ILI-Uganda. Common Market for East Central and Southern Africa (COMESA) Agreement We also recently signed an MOU with COMESA under which we will provide technical assistance and training primarily in the areas of trade and competi- tion policy. The agreement also provides for training in areas of interest to COMESA such as procurement reform. The increasing demand for our services by governments and regional bod- ies in Sub-Saharan Africa is reflective of the primacy of a solid legal frame- work toward the analyzing, designing, and implementation of any significant reform and development programs and management schemes. We hope to increase our human and material resources to meet the in- creasing demand for our training-related consulting, research, and design analysis services. The Centre and Research It is fundamental to our role in building human and institutional capacity in Sub-Saharan Africa that we are able to serve as a central coordinating mecha- nism to the professional community for publishing, research, information provision, advice, and analysis. To serve this need, we will continue to build our library, make available training manuals, provide access to our collection of legal materials and texts, and work to publish more works on law and eco- nomics in Sub-Saharan Africa. Since the inception of the current CLE program, we have accumulated a library on various commercial subjects broadly related to private sector devel- opment. This library is drawn mainly from the subject matter in the seminars and some related texts contributed by ILI-Washington. The American Bar 334 Swithin J. Munyantwali Session Viii Association will also soon be providing some texts on the subject of bank- ruptcy. As part of the capacity-building effort we have provided the libraries of LDC, Law Reform Commission, Makerere University Law School, and the Ministry of Justice in Uganda with literature covering subjects such as inter- national business transactions, foreign investment negotiations, internation- al trade agreements, international loan negotiation and renegotiation, legal issues in privatization, capital markets development and regulation, interna- tional project procurement and contract negotiation, computer law and con- tracts, joint ventures and franchising, intellectual property and transfer of technology, international commercial arbitration, and debt management. In addition, other private and public sector individuals from Uganda and partic- ipants from Sub-Saharan Africa buy these materials at cost. In fact, the Ugan- dan Inspectorate of Government Office, which is charged with fighting cor- ruption recently purchased copies of our entire catalog of seminar binders. This is highly valuable material that is not available elsewhere in the region. We will continue to expand this base of information to include other im- portant and increasingly relevant subject matter offered in our seminars, and drawn from our conferences and symposia. Past participants have frequently contacted us with questions on how to handle a particular negotiation question, procurements, sale of public enter- prise, and various other matters related to their public or private sector re- sponsibilities. We have responded to these requests by providing the individ- ual or institution with relevant literature on the subject or put them in touch with our experts to handle the question-or both. We plan for an expanded research center, which will allow for the addi- tion of invaluable research texts, treatises, hombooks, scholarly journals, le- gal publications, and many other essential materials. Additional funding will allow us to incorporate computers and online capabilities into the research facilities. Access to the wealth of constantly updated materials available on- line through legal research providers, such as Lexis-Nexis or Westlaw will open up invaluable research tools to us. Further, any professional in Africa, whether a lawyer, policy analyst, educator, or manager, can benefit from the speed and availability of information online to complement their research. A fully functional library, providing access to a variety of powerful research tools, open to professionals from across the Region, in conjunction with first- rate seminars and access to world-class experts will form a complete and Bringing Sub-Saharan African Lawyers into the Legal Reform Process 335 effective CLE training institution prepared to tackle the overwhelming need for human and institutional capacity-building in Sub-Saharan Africa. Institutional Objectives Long-Term Objectives Our long-term objectives are as follows: * To improve the capacity in Sub-Saharan Africa of the overall delivery of professional services in business, finance, and law in the public and pri- vate sector by creating a strong human resource nucleus of African lawyers, professional policy analysts, and managers who are trained in and kept abreast of the most recent developments and techniques in their fields; * To facilitate the development of skills that will allow indigenous African lawyers to deal on an even level with the best foreign-trained lawyers, creating more effective, cost-efficient, and beneficial economic dealings with foreign governments, corporations, banks, NGOs, and investors; * To create a permanent institution in Sub-Saharan Africa that will ensure that the Region has the capacity to train enough local legal and eco- nomic policy professionals to decrease the region's dependence on for- eign technical assistance and overcome the shortages created by the brain drain of talented Africans to industrial countries; and * To serve as a central legal coordinating mechanism for Sub-Saharan Africa, capable of providing modem continuing legal education train- ing, research facilities, technical support, and publishing services in subjects that are fundamental to legal development, policy analysis, and economic development. Short- to Medium-Tertn Objectives In the short to medium term we hope to achieve the following targets: * Expand our marketing program to reach a wider target audience across the whole Sub-Saharan African Region and to provide better in- formation access through our publications, Web site, staff visits, and advertising; 336 Swithin J. Munyantwali Session VIII * Increase our physical capacity to meet the growing demands for our training seminars and for technical support to the region's govern- ments and organizations through the expertise of ILI-Uganda; and * To build a comprehensive library that will symbiotically support our seminars in continuing legal education by providing access, research materials, and facilities to professionals from throughout the Region allowing them to keep updated in current legal developments. We cannot achieve our long- and short-term objectives without the strong support of key multilateral institutions such as the World Bank and other European donors such as the Austrian and Norwegian governments. Strategic worldwide alliances discussed below are one possible avenue of achieving our goal of legal capacity-building through training and effective law reform. Strategic Worldwide Alliances Increased multilateral alliances with institutions such as the World Bank, which initiated this process of our development and other donors, such as the Austrian and Norwegian governments, which have ensured our contin- ued existence, will be more important in the future. Our long- and medium-term plans will require much more funding in the immediate future if we are to achieve our objectives. We cannot get to the "next level" without financial assistance from major donors to purchase our own premises, hire more competent staff, advertise in each major publication of the Region to attract the most qualified participants and therefore reach the required levels of self-sustainability within our three-year projections, make the required structural changes to our facilities to offer classroom space and related facilities of a world-class standard, or provide library and research facilities with the most up-to-date technological innovations to enable re- gional researchers to have access to the latest global trends on a cross section of issues in public and private international law and related economic issues. This kind of assistance is crucially important and immediately necessary for us to be able to achieve our objectives. We have proven through verifiable data that we have the capacity and potential to create a regional institution that is capable of making a profound contribution to overall law reform ef- forts through training in the Sub-Saharan African Region. Bringing Sub-Saharan African Lawyers into the Legal Reform Process 337 Examples of some of these strategic alliances could include the following: * Provision of scholarship assistance to regional participants who cannot afford to attend our courses. We have found that there are a substantial number of mid- to high-level lawyers and other professionals in the public and private sector who cannot afford our course fees. As already stated we have successfully exercised such an arrangement with UNI- TAR over the last two years. We hope to finalize a similar arrangement with the ADB soon; * Provision of grants to provide needed capital expenditures; * The World Bank Institute (WBI) and ILI-Uganda could partner in devel- oping distance leaming programs for Sub-Saharan African professionals and institutions. Such an arrangement could finance the establishment of technological infrastructure at ILI-Uganda to allow online seminars for longer courses such as legislative drafting, and corporate finance. This would allow extremely busy senior lawyers and other professionals who do not have the time to attend Kampala seminars to attend cours- es online and improve their proficiency while receiving the certifica- tion that is necessary to improve their skills and opportunities for ca- reer advancement at the same time. This so-called e-learning is already taking off in the United States and has resulted in the creation of such companies as Unext.com, University Access, and Pensare. Already New York University, Columbia University, and others have set up for-profit Web ventures for post-career training. The target groups are mid- to high-level public and private sector professionals-the same target au- dience for the ILI. Conclusion We at ILI-Uganda have also seen tremendous growth in the demand for our training programs in the Region. We foresee an increase in technical assis- tance and advisory assignments in the future and will seize the opportunity to make a difference in legal and judicial development. Through our train- ing programs, which have greatly benefited numerous institutions through- out the Region, we have created a reputation for effective and world-class training. This has increased the demand for our training services. All of these activities will result in increased revenue generation for a stronger, 338 Swithin J. Munyantwali Session VIII self-sustainable institution providing these services into the long term. We will consequently be well positioned to tackle the overwhelming need for human and institutional legal capacity-building in the Sub-Saharan African Region. Only through the creation of a functional enabling environment for high quality domestic legal outputs can a country's efforts toward sustainable eco- nomic growth and development be realized. We will continue to promote an orderly path into the world economy through our programs of professional training and technical assistance for public and private sector professionals in business, finance, law, and governance. However, without the important strategic alliances with important donors around the world, we will not be able to achieve our laudable objectives. If we meet these challenges, together we will be able to successfully ex- pand our efforts toward overcoming the lack of human and institutional le- gal capacity in Sub-Saharan Africa. SESSION IX How Does Global Knowledge Sharing Foster Civil Society Participation? Pending Challenges of Judicial Reform The Role of Civil Society Cooperation Alfredo Fuentes Hernhndez Executive Director Corporation for Excellence in justice Colombia Background The recent history of judicial reforms in Latin America and the Caribbean cannot be conceived in isolation from the reformulation of development strategies and the restructuring of the role of the state in society and the economy. Since the late 1980s, the regional development agenda has under- lined the role of the market, intemational competition, and private initiative as growth engines. Nevertheless, it has also approached the debate on the re- vitalization of certain public areas in order to respond to pending social chal- lenges-among them, the lack of basic services, infrastructure and qualified human resources, as well as regulatory and institutional flaws that hinder the rule of law. There is growing concem about the need to improve the judiciary's role in social and economic development, by enhancing its responsibilities of guar- anteeing law enforcement, facilitating transactions, and avoiding arbitrary actions and corruption.' The debate on the scope of state restructuring has been enriched with eco- nomic analysis emphasizing the relationship between explicit or implicit rules of society and economic performance. Leading research on institutional change and economic development emphasizes how formal and informal 1. The World Bank's 1997 World Development Report, devoted to the issue of the role of the state, explains how economic welfare is unreachable without institutions that (a) al- low for the resolution of disputes among corporations, citizens, and govemments, (b) clarify the ambiguities of the law, and (c) endeavor to enforce obligations and contracts. 341 342 Alfredo Fuentes Hemdndez Session IX legal rules of conduct are the fundamental drivers of economic growth, since they define an incentive structure. Legal and judicial systems are key to the performance of the economy, as they ensure the enforcement of contracts and property rights, and allow different branches of the state to make deci- sions within a framework of legal security. This reduces the cost of transac- tions as well as the costs and risks of economic activity.2 Judicial reform is deemed to be an essential component for strengthening democracy to the extent that it is an effort to redefine interactions between a state and its citizens, aimed at increasing efficiency, equity, and predictability in the resolution and prevention of conflicts. Moreover, the reforms to the justice system, while trying to establish reliable and enforceable legal rules, nonarbitrary procedures, and judicial organizations capable of acting with transparency and effectiveness, also uphold the use of law as a tool for peace- ful and equitable coexistence. Today it is widely recognized in governmental as well as nongovernmental circles, that supremacy of law in a democratic society cannot be firmly estab- lished and safeguarded without an effective and well-functioning judiciary. Notwithstanding such recognition, judicial reforms still lag behind and the agenda for the future calls for a wide range of critical work in many areas. Reform efforts in the Region have been aimed at overcoming various ob- stacles to the provision of a good service, including: (a) the judiciary's limited independence, b) insufficient and inefficient allocation of resources to oper- ate the system, (c) cumbersome procedures and requirements, (d) lack of an entrepreneurial approach in the management of courthouses and legal cases, (e) inadequate selection and training of personnel, (f) powerless sanctions to anti-ethical conduct, and (g) limited scope of alternative dispute resolution (ADR) mechanisms. In spite of the wave of justice reforms, there are still serious delays in legal processes, a great accumulation of cases in the courts, limited access to ser- vices (especially by the poor), corrupt practices, scarce predictability of judi- cial decisions, and a high level of mistrust among citizens regarding their ju- dicial powers.3 2. North, Douglass, 1990. Institutions, Institutional Change and Economic Performance. Cambridge, United Kingdom: Cambridge University Press. 3. Buscaglia, E., M. Dakolias, and W. Ratliff. 1995. "Judicial Reform in Latin America: A Framework for National Development." Stanford, Calif: Hoover Institution on War, Revolution and Peace, Stanford University. Pending Challenges of Judicial Refonn 343 Given the current dissatisfaction with justice services in the Region, a "third generation of reforms" has been recommended by experts in their evaluations of achievements and pending challenges.4 This would consist of a more pragmatic fine-tuning stage, based on the understanding of that which does not work, learning from experiences of other countries in order to introduce better practices, and paying greater attention to cultural issues that hinder the transition process. The new approach to institutional change would require the adoption of a political and eco- nomic conception of the reforms-one that acknowledges the interests of supporting or opposing groups, and regards the incentives and merit sys- tems equally relevant to improving the poor performance of the adminis- tration of justice. Such an approach would imply a change of the rules of the game between the political actors, in order to keep old vices from prevailing or appearing with greater momentum in the reformed institutions. In this new phase of re- forms nongovernmental organizations (NGOs) are playing an active role. In- deed, during the past decade there has been a welcome emergence of NGOs concerned with legal and judicial reforms. These organizations are undertak- ing impartial activities to foster the reform process. Nongovemmental organizations have often filled the gap left by govern- ments, providing legal aid, promoting public awareness of the legal system, research, legislative support, and court reforms. NGOs' increased involve- ment has provided monitoring mechanisms of judicial performance, in- creased public consciousness of the adverse effects of inefficiency, and en- hanced understanding of the importance of independence and integrity of the judicial system. As a result, the NGOs in Latin America working on judi- cial reform have become an integral part of the process to strengthen the rule of law in the Region. Innovative Approaches to Judicial Reform The most relevant elements of these new approaches to judicial reform are summarized below. In the first place, regarding reform leadership, experts 4. Hammergren, Linn. 1999. "Fifteen Years of Judicial Reform in Latin America: Where We Are and Why We Have Not Made More Progress?" In Corporation for Excel- lence in justice, Judicial Reform in Latin America. Bogota, Colombia. 344 Alfredo Fuentes Hernandez Session IX acknowledge the need to counteract the low political capital of Latin Ameri- can judiciaries. In most cases they have a poor level of public acceptance and institutional limitations to generate sound reform proposals and innovative amendments to motivate the participation of social groups. Hence, it is of critical importance to promote alliances among the executive branch, the spokespersons from the legislative branch, and civil society organizations and intemational agencies to overcome problems in the reform process stemming from weak leadership and lack of continuity.5 Above all, there is a need for better coordination among those who pro- mote the reforms, and for building coalitions for the sake of public interest, in order to compensate for the opposition of groups who will necessarily lose power and privileges once the institutional rules of the game are modified.6 These alliances are also important for promoting a suitable environment for investment and economic development; to consolidate a rule of law capable of protecting human rights and vulnerable groups; and to strengthen region- al cooperation mechanisms aimed at defending democracy from the threats of transnational crime.7 In the second place, the success of future reforms will depend on the removal of cultural impediments that pose obstacles to well-designed and timely reforms. Aside from formal rules, there are further informal restric- tions that are deeply entrenched in traditions, culture, and corporate behav- ioral patterns; these generate perverse incentives and deter individuals from undertaking change. Discussions on this subject point out how the defensive culture toward innovation in the judiciary may be historically explained. In fact, in one example, once country independence was attained, no significant changes were introduced to the formal and authoritarian institutional model of law and justice prevailing in the Spanish colony, and no adequate room 5. Carrillo, Fernando. 1999. "Challenges of Justice Reform in Latin America." In Judi- cial Reform in Latin America (see previous note for full reference). 6. In countries such as Spain, the judicial power summoned the parliament, the gov- emment and Spanish society to enter into a suprapartisan agreement for justice, where- by the majority government parties and the opposition accorded the priority necessary to the reforms set forth in the Libro Blanco de la Justicia (White Book of Justice) so that they could prevail as a long-term plan or objective. See General Council of the Judicial Power. 1997. Libro Blanco de la Justicia. Madrid. 7. Garcia, Jorge. 1999. Keynote presentation of the Seminar on Judicial Reform in Latin America, held in Bogota, Colombia, July 1998. In Judicial Reform in Latin America (see note 5 for full reference). Pending Challenges of Judicial Reforn 345 was left for local dispute resolution methods or for the development of cus- tomary law traditions.8 Within this context, any reform process should give priority to the modifi- cation of a set of informal and formal rules that determine the extremely con- servative nature of judicial power. Sound policies have to be designed to fight the scarce creativity of judges regarding the cases they handle, subordination to the initiative of the parties, and adhesion to hierarchy and corporate cul- ture, rituals, and written forms. The policies also should confront reluctance to delegate, insufficient dissemination of judges' decisions, and deductive ju- dicial reasoning centered on preexisting rules, which often neglect the eco- nomic and social context of cases under trial. In the third place, new approaches to reform should grant increasing at- tention to the search for efficiency and effectiveness in the system, based on a better allocation of physical, human, technical, and financial resources. From the public finance perspective, there is consensus that the "expansion phase" of judicial reforms in the Region is coming to an end. This highlights the challenge to achieve a strong recomposition of public spending in order to fund activities aimed at substantially raising service quality. In this respect, the reallocation of resources should give priority to initiatives such as broad- ening alternative dispute resolution mechanisms; training and undertaking the continuing education of judges, prosecutors, and lawyers; and providing technological equipment for case management in courts. This investment- productivity approach may be facilitated by "de-judicialization" and out- sourcing policies of certain procedures and complaints.9 The discussion about improving the distribution of resources gives rise to the question of how to increase effectiveness through incentives that encourage policy measures for private resolution of socially relevant disputes, keeping litigation from reaching excessive levels. Within a context of scarce 8. Saez, Felipe. 1999. "The Nature of Judicial Reforms in Latin America: Some Strate- gic Considerations." In Judicial Reform in Latiz America (see note s for full reference). 9. To achieve such a reallocation of resources it is crucial to count on expedited judi- cial budgeting and auditing capacities. Besides, the body representing the judicial branch must have technical abilities and legitimacy to participate in budget debates and negoti- ations, linking the demand for financial resources with the adoption of measures that ensure high productivity in the performance operators. Fuentes, Alfredo. 1999. "Justice for the New Century: Proposal for the Colombian Goverment 1998-2002." In Judicial Re- form in Latin America (see note s for full reference). 346 AifTedo Fuentes Herndndez Session IX resources, no justice system can pretend to deal with every interpersonal con- flict, and therefore it is necessary to apply "corrective policies" to modify the gaps between private incentives and the social costs of using the system. These policies should promote the configuration of a more rational, plur- al, and diversified system to solve and prevent disputes, which transfers liti- gation costs to the parties involved (direct settlement, conciliation, arbitra- tion, risk insurance, among others). Likewise, corrective policies should also comprise, in some cases, the use of the price system (court expenses, rates or fees), which reflects the fact that although justice bears elements related to the public good, it may also allow regressive appropriation of benefits by pri- vate individuals or organizations.10 For an adequate design of such systems, it is key to count on better empirical knowledge of the characteristics of soci- ety's demand for justice and of possible alternative mechanisms that would facilitate a better service within the context of scarce resource allocation. In the fourth place, justice administration reforms in Latin America are faced with the challenge of insisting on incorporating as a priority objective the improvement of access for disadvantaged sectors of society, such as the poor, indigenous peoples, and women. While discussing policies, there is insistence on the fact that justice spending tends to be regressive to the extent that those who have access to justice are basically those who can afford its services. This bias would continue to justify the adoption of correc- tive policies aimed at subsidizing programs such as legal aid and public defenders for the poor, in order to correct undesirable and inequitable "sub- litigation" situations and maximize the social profitability of resources. In order to overcome access barriers, the current debate strongly recommends focusing efforts on the promotion of better knowledge of citizens' rights and obligations and learning how the system functions to enforce them.11 10. Such private appropriation of the benefits of numerous judicial processes is the result of the gratuitous nature of justice which subsidizes litigation costs, especially for high-income litigators. The use of the price system to rationalize the use of the service, or mechanisms for the parties to assume the cost of the resolution of their conflicts would contribute to a more rational supply of justice. Except in cases of legal assistance for the poor, there doesn't seem to be any justification for certain litigation procedures to continue being cheap or gratuitous in situations of high judicial workload. For a com- plete discussion on the subject, see Shavel, S. 1996. "The Fundamental Divergence be- tween the Private and the Social Motive to Use the legal System." Center for Law, Eco- nomics, and Business. Harvard Law School, Discussion Paper No. 206. November. 11. Cox, Sebastian. 1999. "Legal Aid for the Poor: The Experience of Forja." In judicial Reform in Latin America (see note 5 for full reference). Pending Challenges of judicial Reform 347 In the fifth place, a new generation of reforms should avoid past short- comings due to lack of definition of a precise agenda of transition, objectives and strategies, and it should determine which would be critical interventions and what the expected results would be. Public justice policies or the failure to adopt them, often represent private and social costs and benefits that must be measured to justify and facilitate the transition toward better practices.12 It is also key for specific transition agendas to define the responsibilities of the various actors of the justice system and the tools they require to fulfill their duties to their fullest extent.13 Finally, the agenda needs to comprise the task of disseminating the reforms, so that citizens, as direct beneficiaries of the justice service, are able to have access to it, submit proposals for its improve- ment, and responsibly exercise their rights and duties. Participation of NGOs in Judicial Reform Given the aforementioned shortcomings that have prevented the judiciary from becoming more fair and efficient, one may ask about the role that non- governmental organizations have in supporting the reform process. Though NGOs are not civil society itself, their political importance and coverage empower them to pass judgment on the legitimacy of institutional and cul- tural change. By promoting the participation of and alliances with sectors such as mass media, trade associations, universities, and the private sector in general, NGOs become a powerful instrument in judicial reform processes as they monitor and follow up on the reforms. At the same time, NGOs end up promoting trust and support for state institutions when they disseminate successful results of reform initiatives. Nongovemmental organizations may also significantly contribute to the diffusion and evaluation of comprehensive, reliable, and timely statistics on 12. Regarding the benefits and costs that such reforms would yield for economic ac- tivity, there is a wide range of methodologies based on empirical research or business sur- veys, which unveil the hidden costs assumed by taxpayers, citizens, and the economy as a whole, as a result of the poor performance of the judicial system. See Castelar, Arman- do. 1999. "Hidden Costs of Judicial Inefficiency in Brazil." In Judicial Reform in Latin America (see note 5 for full reference). 13. For example, the quest to overcome dilatory habits should embrace systemic poli- cies determining responsibilities and qualifications for lawyers, citizens, and those in charge of administering justice and managing administrative tasks. See Lopez, Luis. 1999. "The Spanish Experience of Judicial Reform." In Judicial Reform in Latin America (see note 5 for full reference). 348 Alfredo Fuentes Herndndez Session IX the justice sector, which bears several advantages for a sector characterized by secretive handling of information and resistance to accountability. A great deal of NGOs are directly involved in the rendering of legal and educational services to the community, as well as in private conflict resolution activities. Given the incomplete commitment or lack of leadership of judicial and gov- ernment officers, many organizations in the Region are also promoting mul- tidisciplinary justice reform efforts supported by the legal community and in- ternational organizations. Among specific judicial reform activities being pursued by NGOs in the Region, the following may be of interest:"4 * Support the judiciary in designing merit-based judicial appointment and evaluation systems, taking into account positive incentives and negative sanctions. * Review of disciplinary and sanction enforcement mechanisms for judges to improve ethical behavior, as well as motivating public vigi- lance of disciplinary complaints. * Compilation of statistics and evaluations of judicial performance and making them available to the public. * Building alliances with the judiciary to establish pilot projects in order to apply innovative case management methods and to carry out train- ing programs needed to fight court delays. - Working with judicial schools to design high quality continuing educa- tion programs for judges and prosecutors. • Organization of legal awareness educational programs to promote bet- ter knowledge of rights and duties, and comprehension of judicial mechanisms and procedures. * Provision of ADR services, legal aid, and public defender programs to low-income citizens and communities. However, both within individual countries and regionally, the impact of the work of NGOs has been diminished by insufficient communication 14. Cardenas, Marcela. 1999. "Civil Society and Justice: Some Experiences." In Judicial Reform in Latin America (see note 5 for full reference). Pending Challenges of Judicial Reform 349 among them and a consequent inability to profit from and build on each other's advances. Insufficient cooperation also has a negative impact on donors' work in that they are frequently unaware of potential partners and useful pilot projects that they might incorporate into their programs. A regional conference held in Bogota in July 1998, under the auspices of a local NGO-the Corporation for Excellence in Justice-was a worthy exam- ple both of the way to learn about innovative programs being undertaken by a variety of private and public sector actors throughout the Region, and of the potential benefits to be derived by encouraging this kind of interchange. The achievements attained by NGOs that shared experiences in this con- ference, as well as the institutional changes they have been promoting through their novel approaches, are worth mentioning. Among these entities are those that are private in nature and financed locally; others that receive various degrees of international funding; an organization composed of offi- cials of the judicial branch; and an entity directly supported by the Supreme Court of Justice. In general, they are independent NGOs, and therefore not subject to the interference of political parties. Grass roots organizations in- clude some devoted to defending the rights of women, children, indigenous peoples, and other vulnerable groups. It is interesting to note the determined commitment of the entrepreneurial sector to judicial reform processes, and the strategic role played by mass media in supporting reform. Although most of the organizations carry out training activities, they have no formal rela- tionship with the education sector. The Inter-American Network for Judicial Reform Good governance requires information, transparency, and participation. The initiative to create a regional network grew out of the April 1998 Sum- mit of the Americas in Santiago, Chile. Three months later, NGOs from eight Latin American and Caribbean countries joined forces in the afore- mentioned regional conference in Bogota, in order to establish the Inter- American Network for Judicial Reform, RIRJU, which is currently housed in Bogota's private Corporation for Excellence in Justice. The project seeks to formulate a network for organizations that are participating in judicial reform in Latin American countries. Since these organizations have the 350 Alfredo Fuentes Hemdndez Session IX common aim of strengthening justice systems in their respective countries, they know that they can gain insight and support from peers with better knowledge.IS By working together in cyberspace NGOs can have instantaneous access to information-specifically, insights and feedback about successes and fail- ures of the participatory process and activities implemented by other NGOs, courts, and other entities working in the field. It is of common interest to use these lessons in ongoing and planned operations. Research and evalua- tions on judicial performance and monitoring of how the public is affected by changes in the judiciary will also allow donors and international agen- cies to better assess the social impact of the projects they finance. In addi- tion to the benefits mentioned above, this network will further assist in strengthening the role of justice systems by keeping doors open to partici- pation, thereby helping to enhance judicial credibility and adherence to the rule of law. To sum up, the main objectives to be achieved by RIRJU are as follows: 1. To use the network to increase communication and information exchange among NGOs, public sector entities, and individuals working on judicial reform. 2. To use the network-and the entity charged with organizing it-to identify and facilitate discussion of common problems facing reform programs and the various means adopted to resolve them. 3. To encourage interorganizational cooperation in the development and implementation of research and action projects at national and region- al levels. Such cooperation might itself be virtual (that is, conducted via an electronic network), or it may entail the physical pooling of human and financial resources. 4. To help donors and international organizations learn more about the activities of the members and to identify organizations that could possibly collaborate in their operations. Following those objectives, the network promotes specific activities such as the following: 15. Dakolias, Maria. 1999. "La Red Latinoamericana de Reformas Judiciales." In Judi- cial Reforn in Latin America (see note 5 for full reference). Pending Challenges of Judicial Refonn 351 * Exchange of publications, magazines, research findings, and all other materials. * Dissemination of activities to be undertaken by each of its members. * Cooperation to channel resources from international agencies. * Organization of periodic meetings on experiences of modernization and access to justice in the hemisphere. * Coordination with other networks pursuing similar objectives, with the purpose of avoiding duplication of effort. * Discussion and meetings through electronic media. * Dissemination of the network's activities through mass media. * Support initiatives aimed at strengthening the justice system in every country, upon members' request. * Exchange of experiences through visits to countries with pilot projects on modernizing justice and access to justice. The Network has been modeled after the information mall program cur- rently being used for the Global Cultural Heritage Network at the World Bank. The mall is managed by a technical group responsible for updating the sites on a regular basis, with the valuable support of the Bank. Information on the mall includes descriptions of each participating organization, their ac- tivities, publications, contact people and links to their own Web pages, dis- cussion groups on various topics, kiosks with project announcements, issues and events, ongoing cases, and so forth. NGOs (there are already 24) and other institutions, such as the World Bank, Inter-American Development Bank (IDB), U.S. Agency for International Development (USAID), and United Nations Office for Project Services (UNOPS) are members of the Network and have the ability to contribute on an ongoing basis by updating their own kiosks with information on their projects, events, and research. Donors and loan institutions can use the Net- work to keep abreast of reforms in various countries and have a better under- standing of what kind of activities are having an impact on the reform process. In addition, as a result of the 1998 Summit of the Americas in Santiago, Chile, the participating governments agreed to establish the Justice Studies Center for the Americas as an intergovernmental, self-governed entity that will promote the exchange of information and cooperation to facilitate sup- 352 Alfredo Fuentes Herndndez Session IX port for the modernization of justice systems in the Region. Based on consul- tations with the directors of the Center, it is now envisaged that the Inter- American Network for Judicial Reform may support the Center's endeavor to serve as a clearinghouse for the collection and distribution of information on national experiences pertaining to reforms and for the dissemination of indi- cators and data related to justice in the western hemisphere. According to the Network's policies and bylaws, which relate to mem- bership and governance, the members of the Network shall annually desig- nate an executive committee composed of three of their members. This committee approves new members and leads the Network toward achieving the proposed objectives. It is presently formed by the following organiza- tions: Corporaci6n Latinoamericana de Desarrollo (CLD), Ecuador; Asociaci6n Civil Primero Justicia, Venezuela; and the Corporation for Excellence in Justice (CEJ), Colombia, which is coordinating the technical updating, maintenance, and translation of the information mall, with the support of the World Bank. There are three possible ways to participate in the Network: as an active member; as a provisional member; or as a user. The first is a person or an entity, who after actively participating in the Network during a pro- visional period, has been accepted as an active member and has assumed the corresponding commitments to share knowledge on a permanent basis. The final admission of a provisional member shall depend on his or her active participation during a time period not exceeding one year. The user shall be a person who, in spite of using some of the services offered by the Network, is not interested in participating on an active and ongoing basis. The sustainability of the Network will depend mostly on NGOs using the system rather than on monetary fees. The monthly cost to maintain the site is being financed by a World Bank grant. This amount covers Inter- net service provider fees and management costs. It has been agreed that the Bank will service the Network on the technical operational aspects while the Network members will handle, through their coordinators, the substan- tive issues. This Network could later be expanded to other regions. The in- tention is to link up with previously established non-hemispheric networks on judicial reform. Pending Challenges of Judicial Reform 353 Final Remarks This paper examines the issue of dealing with pending challenges of judicial reform in Latin America and defining the role of NGOs, as well as promoting their regional cooperation in order to foster the needed process of change. As far as the objectives of the reform are concerned, preeminence is given to the following tasks: (a) adopting an economic conception of how to promote institutional change aimed at increasing the effectiveness of the judicial system; and (b) improving access for low-income segments of the population to justice services by identifying policies to overcome access barriers. Increasing effectiveness is considered to be closely related to the improve- ment of resource allocation in the sectoral budget. The functioning of the ju- diciary is usually intensive in human resources, salaries, and physical infra- structure, so that other items closely related with the increase of efficiency and effectiveness of the judicial system are generally underinvested. Having reached the goal of removing disincentives caused by poor remuneration in the judiciary, the recommended next step involves efforts to adopt an invest- ment-productivity approach to encourage expenditure in training and con- tinuing education of judges, prosecutors, and lawyers. In the same vein, mod- ernization policies related to the adoption of new technologies and management techniques in courts should be implemented. Achieving a strong recomposition of public spending to fund activities aimed at raising service quality should be mixed with the de-judicialization of and outsourc- ing policies for certain procedures and complaints. Concerning the task of improving access, priority should be given to broadening the scope of alternative dispute resolution mechanisms and con- tending with cultural barriers that deter citizens, corporations, and public en- tities from bringing their cases before conciliators, mediators, arbitrators, jus- tices of the peace, or administrative officers. Efforts need to be made to promote a better knowledge of such mechanisms and of the type of com- plaints, rights, and obligations related to the reconciliation process. Also, giv- en the regressive bias of justice expenditures, the adoption of corrective poli- cies is recommended to subsidize public defenders and legal aid programs. The goals of a judicial reform program could miscarry if no attention is paid to cultural barriers that hinder the transition process. A "fine tuning" approach is needed to identify components that do not work, and to define 3s4 Alfredo Fuentes Herndndez Session IX critical interventions and expected results within a precise agenda of transi- tion. This approach might facilitate a better perception of the interests of those groups that support and oppose the reform. Nongovernmental organizations have developed capabilities to undertake impartial activities that foster and support judicial reform processes. They have become an integral part of activities that strengthen the rule of law in the Region. In different countries, NGOs have helped to counteract the low political capital of Latin American judiciaries, bringing leadership and conti- nuity to reforms. Through the promotion of alliances within civil society, they have become able to fight against a culture that is reflexively defensive toward innovation, and to oppose the conservative nature of judicial power. It is extremely important for future reforms to take advantage of the afore- mentioned learning process developed by NGOs. A first step is to thwart in- sufficient communication among such organizations by encouraging a process of building on each other's advances. The recent creation of the Inter- American Network for Judicial Reform constitutes a positive example of a way to learn about innovative programs for institutional and cultural change in the Region. Such intemational alliances are powerful instruments to mon- itor reforms better and to diffuse and evaluate their outcomes. Legal Reform, Global Knowledge, and Civil Society The Kenyan Experience Hon. S. Amos Wako Attorney General of Kenya I am delighted to be a participant at this important World Bank conference on "Comprehensive Legal and Judicial Development: Toward an Agenda for a Just and Equitable Society in the 21st Century." That the World Bank has or- ganized this conference is to me an important watershed, a landmark in the transformation in the thinking of the World Bank on its functions and role in economic and social development. Gone are the days when the World Bank and our development partners focused exclusively on financing economic and social projects such as roads, schools, health centers, water projects, and other easily quantifiable efforts. In a world in which careers depended on vis- ible and quantifiable achievements, something as abstract as justice was bound to find no suitors in the halls of the donor community among those responsible for setting the agenda for development. I am glad there is now recognition that a solid foundation for economic and social progress requires consolidation of democracy as well as respect for the rule of law and human rights: that the enabling environment for eco- nomic and social development lies in good governance, respect for the rule of law, the dictates of universal human rights, and the effective pursuit of dem- ocratic ideals. Parallel to this development, which recognizes the centrality of the legal and judicial sectors in development, there has also been further thinking on the elements or factors that enhance democracy at the national and interna- tional levels. No longer is democracy viewed simply in terms of universal and equal suffrage. People exercising their right to vote and to be elected at gen- uine periodic elections is just the beginning; democracy also means people have a say and can advance views and opinions and influence decisions that 355 356 Hon. S. Amos Wako Session IX affect them on an ongoing basis. Whereas governments formerly operated on the basis that the making of decisions and policies was their exclusive preserve and jealously guarded the information on which such decisions and policies were based-under such legislation as the Official Secrets Act- now it is increasingly recognized that the people's role is not just to vote at elections, but also to be consulted and to contribute from time to time during the decision-making process. This they do either directly or through non- governmental organizations (NGOs) or civil society. Hence the rise of the right to access to information. Whereas in the past civil society, which attempted to influence govem- ment decision-making, was seen as an opposition force and not entitled to any relevant information in possession of the government, today it is increas- ingly recognized as a partner of government, sharing its aims and objectives, particularly in the area of legal and judicial development. It is apparent that the sharing of information between civil society and government will con- tribute to the best solution in any circumstance and thereby contribute to- ward the goal of an equitable society underpinned by an efficient, transpar- ent, and just legal and judicial system. It is well established that the actors in civil society can be an independent third force alongside industry and government in actively helping to combat social, political, and economic problems, as well as ecological degradation and in helping create an impartial system of administration of justice. In- stead of playing complementary roles, traditionally, NGOs and government have been divided by mutual suspicion, lack of understanding, and even hos- tility. To avoid the destructive force inherent in this conflict, there is a need to build linkages and understanding between civil society and government. Both must work to harmonize and reinforce their objectives. This synthesis can only be obtained within the context of knowledge-sharing. There is no doubt that global knowledge-sharing has helped dispense with unjustified fears such as the initial presumption that trade and environment would be fundamentally incompatible. The two major social movements that may be the biggest legacies of the twentieth century-human rights and en- vironmentalism-were largely a product of the struggle of civil society. In the case of the latter, the United Nations Conference on Environmental Devel- opment (UNCED), which adopted Agenda 21 in Rio de Janeiro in 1992 Legal Reformn, Global Knowledge, and Civil Society 357 marked a major milestone as the first significant global interaction between civil society and governments. Two years ago in Rome, during the Diplomat- ic Conference on the International Criminal Court, there was a sharing of knowledge between governments and civil society. The door having been opened and no monsters having been found on the other side, trust started to emerge between the international community as represented by govern- ments and international civil society. The confrontational approaches between government and civil society must give way to consultative engagement, which can yield positive results if the knowledge is shared. The way forward is through constructive dialogue. However, in this transitional period there will be those on either side who will engage in the tactics of yesteryear when confrontation was the name of the game, without realizing that a new order of collaboration between gov- ernment and civil society has emerged. That may be one of the reasons why in July 1997, the Secretary General of the United Nations stated in his blueprint for reform (DOC A/5 1 /950) in the chapter entitled "Reaching Out to Civil Society": Civil Society constitutes a major and increasingly important force in inter- national life.... Yet despite those growing manifestations of an evermore ro- bust civil society, the United Nations is as at present inadequately equipped to engage civil society and make it a true partner in its work. The Secretary General went on to appeal to all the United Nations entities to be open to and work closely with civil society organizations that are active in their respective sectors, and to facilitate increased consultations and coop- eration between the United Nations and such organizations. These consultations and cooperation among governments, their inter- governmental organizations, and NGOs can only be successful and effective for the good and in the best interest of society if they share values, objec- tives, and information. Sharing knowledge has the effect of diffusing con- troversies and building essential confidence and trust. That is one of the rea- sons why at the international level, institutions such as the World Bank-which is an intergovernmental institution whose operations are such that it is a repository of a wealth of information from governments-have to evolve ways and means of sharing their information with and receiving information from civil society. 358 Hon. S. Amos Wako Session IX At this juncture, permit me to put in a word of caution. There is a prolifer- ation of nongovernmental organizations in the world and particularly in Africa. There are certain limitations that have to be taken into account as governments and intergovernmental organizations engage civil society in constructive dialogue. I will mention only three. First, many of the organizations have been formed primarily as a means or source of income for the officials and members and lack genuine commit- ment to the ideals and noble objectives they espouse, and grass-roots support. Second, because these organizations are formed with a specific objective in mind, they can pursue this objective at the expense or to the detriment of other equally important objectives, which may not have the support of an or- ganization with resources. Governments therefore have a duty of balancing the various objectives in the national and public interest. Third, the question must be asked: to whom are the nongovernmental or- ganizations accountable? In a democratic system there are many ways to hold government and its officials accountable. The ultimate weapon is to vote out a governmental administration at an election. Nongovernmental or- ganizations must be held to even stricter rules of transparency and account- ability. The fact that global sharing fosters civil society participation is not in doubt. I would like to go over my own experiences in Kenya and Africa before I conclude this paper When I assumed office following my appointment as attorney general in May 1991, 1 informed the country that constitutional and legal reform were going to be my priority areas of concern. As was the case with virtually all countries in Africa at that time, Kenya was in the midst of great and exciting political changes, which eventually saw the country move from a single- to a multiparty state in December 1991. Furthermore, I knew that the bulk of Kenya's procedural and substantive law was a colonial heritage totally unsuit- able for a modern democratic state whose economic philosophy was govern- ment facilitation of private sector as an engine of economic growth. I knew that speed was of the essence in undertaking the law reforms. I fur- ther knew that the institutional mechanism for law reform was undercapaci- tated and thus incapable of speedily midwifing the reforms I thought were necessary. I therefore decided that constituting task forces to review the laws was the best way forward. I sold the idea to my colleagues in government, Legal Reform, Global Knowledge, and Civil Society 359 and it was agreed that the instrumentality of Kenya's law reform would be the task forces. In all, 15 task forces were established, covering important areas such as penal laws and procedures; security legislation; company law; laws relating to children, women, persons with disabilities; legal education; landlord and tenancy laws; press laws; agricultural laws; land laws; public health laws; labor laws; and so on. Eleven out of 15 have submitted their reports so far. In setting up the task forces, we followed a deliberate policy to ensure that the composition of each task force was representative of the various social and professional interests, with a proven record and expertise in the particu- lar area of reform. I reached out to civil society and recruited a fair mixture of academics, legal practitioners, judicial officers, members of the business com- munity, women, members of the clergy, persons with disabilities, and so forth. The task forces were under instructions not only to consult widely but to crisscross the country and meet the people who had views to express on the area covered by their mandate. Why did I decide to involve civil society in the law reform process? I decided to do so because first, I wanted to tap into the knowledge that I knew civil society had in the area of the law to be reformed. When it comes to law reform, governments all over the world have tended to be more conservative and to move more slowly than the situation warrants. This may not be neces- sarily bad. Governments have to ensure that peace, stability, and cohesion in society are not compromised as reforms are undertaken. This leads govem- ments to be, at times, more cautious than is necessary. Civil societies, by con- trast, want reforms; they want to change society. This tension, if properly handled, is good for society as a whole. In Africa, whereas governments look inward, civil societies look not only inward, but also outward and establish linkages regionally and internationally. They therefore have access to outside information and know more than the government about what trends and de- velopments are going on in any area of law worldwide. Furthermore, govern- ments of most African countries have yet to computerize or have access to the Internet whereas reputable NGOs have already cleared that hurdle. By appointing members of civil society to these task forces, I ensured that the in- formation they had was available to the task forces. Second, because of the experience they have in working in that area of the law to be reformed, civil society members have a wealth of experience on its 360 Hon. S. Amos Wako Session IX shortcomings. Third, by involving civil society, I involved that part of our society most affected by the law or interested in the operation of that law, and therefore they felt a sense of ownership when the law was enacted. My task of steering the legislative outcome of these processes would be made easier if the govemment could be seen as having not acted on its presumed wisdom, but as having engaged interest groups and the public in the process of law-making. The govemment came to realize that it was of no use reforming the laws unless the public perceived that the machinery of justice was an integral and indispensable component of an efficient national infrastructure. The follow- ing were some of the issues that had to be dealt with: complaints of ineffi- ciency and delay in delivery of legal services whether by the judiciary, or by legal practitioners whether private or public; inordinate delays in the disposal of cases, whether criminal or civil; the condition of legal registries; and the general decline in professional conduct and discipline. It was during the process of reforming the legal machinery that an enabling environment would be created for the reformed laws to serve the purposes for which they were enacted. The coordinating committee on legal sector reform was therefore consti- tuted with the mandate to review the legal sector comprehensively and to recommend appropriate measures to enhance its operational efficiency. It was to strive for a holistic and integrated approach to legal sector reforms and be guided by the best practices in the world. I will focus on reform methodologies since that is what is relevant for the purposes of this conference. In terms of composition, in addition to ensuring that those institutions or offices involved in the legal sector-such as the ju- diciary, the Attorney General's Office, the Law Society of Kenya, faculties of law, and so on-were represented at a high level, we made sure that con- sumers of justice, represented by civil society, such as the business communi- ty, women's organizations, and the like, were also on the committee. The committee's approaches on any issue are participatory and, in con- junction with stakeholders, it has developed a lobbying strategy for success- ful legislative and administrative reforms. In this regard, two national stake- holders workshops were held: the first one was held in June 1999 and formulated an agenda for reform; the second one was held in December 1999 and used the results of the first national stakeholders conference to formulate Legal Reform, Global Knowledge, and Civil Society 361 an action plan for reform within the sector. Over 150 stakeholders attended the workshops. The workshops increased understanding of the var- ied perceptions of the sector's problems, formulated interventions that had been arrived at through consensus and that heightened the sense of owner- ship of the sector among the stakeholders. Interestingly, these workshops also provided rare fora in Kenya for repre- sentatives of the three branches of the legal profession-namely, the judicia- ry, the bar, and the public sector-to discuss the state of their sector and to move forward as one on this matter. Prior to this, the various institutions in the administration of justice area tended to talk at each other rather than with each other by shifting blame for who was responsible for shortcomings in the sector. By sharing knowledge we have found that we can create an enabling environment to find solutions to problems in the administration of justice. I have stated briefly what is going on in Kenya in the way of knowledge- sharing and civil society participation. Now I would like to widen the scope of this discussion and talk a little bit about the regional scene and the African scene. As I have earlier stated, in general, civil society in Africa has been bet- ter organized than governments when it comes to issues of law reform. They have not only had access to information, but have for many years now formed regional and international linkages. The African Bar Association, for example, which is composed of the national bar associations of the common- wealth countries in Africa, has been in existence since the early 1970s. Most national bar associations in Africa either belong to the International Bar As- sociation or its counterpart in francophone countries. The International Commission of Jurists has many chapters in African countries. Civil society in Africa has therefore been on the forefront in demanding and undertaking studies and research on issues touching on the independence and account- ability of the judiciary, the independence of the bar, the standards required in legal education, and so on. In fact, African civil societies have made attempts to address each of the specific topics covered in this conference. By contrast, governments in Africa have not been as organized. I believe one of the first attempts to get them to address the issue of administration of justice was when I convened in Nairobi, in October 1992, a meeting of the ministers of justice and attorneys general from Eastern and Southern African states to discuss this topic. I called the meeting because I was anxious to hear 362 Hon. S. Amos Wako Session IX my colleagues' experiences in dealing with the administration of justice in their respective countries. It transpired from the discussions we held that each one of us in our capacity as legal advisor to our respective govemments shared many concerns on the state of the administration of justice in our countries. We recognized the indispensability of the rule of law and the ad- ministration of justice to the development process. We discovered that throughout the region there was neglect by governments in terms of bud- getary allocations, and we appealed to our governments to rectify the situa- tion and allocate more resources to the sector. We also squarely put the ad- ministration of justice on the agenda of development. We also recognized donors as development partners in furtherance of the ends of an efficient, just, and equitable legal and judicial system. I was mandated to put forth this viewpoint at the Vienna Conference on Human Rights whose Declaration states in part: This Declaration provides those concerned with administration of justice and with its importance in development, with a juridical basis for seeking support both at the national and international levels. In the statement, we identified constraints in the legal and judicial sec- tors-and indeed in the administration of justice as a whole-that militate against full realization of human rights and hence the creation of a just and equitable society. We identified the problems in law enforcement agencies, the judiciary, the penal systems, and the Attorney General's Offices. We also touched on the importance of legal aid services. We stated the urgent need to establish workable and sustainable legal aid schemes. I am mentioning this meeting because it showed clearly the value of shared knowledge and experience. Until this conference each one of us had thought that the seemingly insurmountable problems he was facing were unique. After the conference, at least there was added determination to tack- le the problems and face the challenges, which we now know are common to all of us and on which together we can more effectively lobby our respective governments. Following this meeting the potential and value of exchange of knowledge within the African continent has shown itself in many ways. For example: 1. When I wanted to draft and enact the Community Service Order Act, I set up a task force on this, consisting, as I said before, of representa- Legal Refortm, Global Knowledge, and Civil Society 363 tives from government and civil society. We realized that we should not be reinventing the wheel. Therefore some members of the task force visited Zimbabwe, Swaziland, and South Africa where such schemes are operational. We also involved some regional and interna- tional nongovernmental organizations such as Penal Reform Interna- tional and the African Coalition Against Child Abuse Network. The result has been good legislation, which will not only assist in the reformation and rehabilitation of convicts, but also reduce the prison population. 2. It is the intention of the Government of Kenya to constitute by legisla- tion the Kenya National Commission on Human Rights. Experts from similar organizations in Uganda and South Africa have been consulted and have participated, in addition to the local and international non- governmental and governmental organizations, in the workshops final- izing the draft legislation. 3. It is the intention of the Government of Kenya to put in place a legal aid scheme that is affordable. I have set up a committee consisting of representatives of government and those nongovernmental organiza- tions currently offering some legal services to the public without pay- ment of fees. Again, we involved experts from the United States of America, the United Kingdom, South Africa, and Zambia where such schemes are already in place. The foregoing highlights the importance of establishing some networking on the African continent where knowledge in the legal and judicial sector and the reform of laws generally can be shared between governments and civil society as a matter of course. At the government level, opportunities have arisen for us to meet and consult at various fora provided by meetings at the regional and African lev- els. However what is now lacking is the linkage between African governments and their civil societies, particularly in the area of legal and judicial reform. Within the East African region, the East African Law Society has been formed, and we are in the process of institutionalizing cross-border practice, and members of the branches of the legal sector are given opportunities to meet and consult on various aspects of the legal sector. 364 Hon. S. Amos Wako Session IX My experience in Africa is that even though we may have different legal traditions, the problems we face are the same and the sharing of knowledge, experiences, modalities, and solutions to the problems will be extremely use- ful because in some cases implementation of programs that have proved use- ful in one country could be replicated with some modification in other coun- tries. Sometimes I become aware, just by having a casual discussion with my counterpart or with a nongovernmental organization, that in a particular country they have enacted legislation that closely follows what I was contem- plating drafting, and this has made my task easier because of the available precedent and that country's experience in implementing that legislation. There is no doubt Africa stands to benefit from knowledge-sharing between governments and civil society. In conclusion let me summarize my points. 1. There are certain limitations on the part of civil society that should be taken into account by governments and intergovernmental organiza- tions as they engage civil society in a constructive dialogue. Some NGOs were formed primarily as a source of income for its officials or members and only secondarily to espouse certain ideals. They often lack transparency and accountability, and pursuing one track-as near- ly all nongovernmental organizations do-can be detrimental to other equally important tracks. Governments and intergovernmental organi- zations have a duty to see the overall picture and make decisions in the interest of society as a whole. 2. The involvement of civil society in decision-making makes better pub- lic policy and enhances transparency and public accountability. The comprehensive legal and judicial reforms aimed at creating a just and equitable society in the new century are more amenable to this in- volvement because members of the legal fraternity, whether they be in the judiciary or in the public and private sectors, whether they are hu- man rights activists or lawyers, share common values and objectives when it comes to the issues of the rule of law, protection of human rights, and an independent, efficient, and accountable judiciary and bat Each of the groups brings to the table its own perspective on how Legal Reform, Global Knowledge, and Civil Society 365 these objectives can be achieved, and through shared knowledge and information, our training is such that a solution or the way forward is found. 3. Global knowledge-sharing is necessary because in putting all sides on an equal footing as far as the information they have is concerned, it promotes the understanding of each other's role and competence and helps build the capacity of each to meaningfully contribute to enlight- ened decisions. 4. In Africa today, there is an urgent need to have linkages and improve communication and information-sharing if we are to improve, in a cost-effective manner, the administration of and access to justice and undertake comprehensive legal reforms toward this goal. S. There are cost implications to legal reform, to putting in place an inde- pendent, transparent, and efficient administration of justice system and to providing the necessary linkages with the institutions and civil societies with interest in the rule of law, and other legal and judicial matters. I hope the World Bank can attach priority to this neglected area because on it depends economic and social development. SESSION X How Can Effective Strategies Be Developed for Law and Justice Programs? Are There Models for Legal Reform Programs? Legal Reform in Developing and Transition Countries Making Haste Slowly Julio Faundez Professor of Law University of Warwick United Kingdom Introduction The organizers of this conference have asked me to address two questions: * Why is legal reform slow and difficult to achieve? and * Are there are models for legal reform? I am delighted that these questions are on the agenda of this important conference. I am delighted because these questions confirm that law has fi- nally established itself as an essential component of the development agen- da. This is good news, for until recently those involved in the practice and study of development ignored or avoided law altogether. I am also delighted because the questions suggest an awareness that law is a complex and often contradictory instrument. This is a welcome develop- ment because some publications on legal technical assistance depict law as simple and unproblematic.' The message that these publications seem to convey is that there is a single model for legal reform and that all one needs to achieve success is to take into account the five attributes of market-friend- ly legal systems; namely, rules known in advance; rules actually in force; availability of mechanisms for the application of the rules; independent 1. See, for example, Cooter, Robert D. 1996. "The Rule of State Law and the Rule-of- Law State: Economic Analysis of the Legal Foundations of Development." In Annual World Bank Conference on Development Economics 1996, pp. 191-237. Washington, D.C. 369 370 Julio Faundez Session X bodies to resolve conflicts over the interpretation of rules; and procedures for amending the rules.2 The questions I have been asked to address suggest that perhaps there are doubts as to whether in fact there is a single model applicable to all developing and transition countries. Finally, I am delighted because by linking the process of judicial and legal reform with the objective of achieving a just and equitable society, the orga- nizers of this conference acknowledge that a just and equitable social order is not a byproduct of economic processes, but a goal that has to be consciously and deliberately pursued. If we take this goal seriously we cannot afford to ig- nore law and legal institutions. The questions posed above, though they delight me, are also daunting. In order to carry out my task I will do the following: I will first offer a brief and schematic response to each of these questions. I will then explore selected is- sues that arise from this initial response. Why Is Legal Reform So Slow and Difficult to Achieve? Because it is a process and, as such, it requires careful preparation, meticulous planning, effective execution, elaborate coordination of public officials and disparate institutions, as well as the agreement or at least acquiescence of those directly affected by it. Success in carrying out legal reform requires con- siderable commitment, patience, and a certain amount of good luck. But suc- cess is elusive as the process of legal reform often has unintended conse- quences and sometimes is blocked by unexpected events. There are, of course, many examples of successful reforms. Yet, their success is difficult to measure and evaluate. Regardless of how success is measured, the number of new laws drafted and enacted is not the sole criterion. Indeed, although the enactment of new rules is generally part of the process, new rules often re- strain rather than facilitate the objectives of the reform process. Are There Models of Legal Reforn? Yes and no. Yes, if by model we understand a simplified description of what the reform process should achieve and it is used to assist those in charge of designing and implementing the reform process. Indeed, how could any 2. World Bank. 1992. Govemance and Development. Washington, D.C. See p. 30. Legal Reforn in Developing and Transition Countries 371 process of reform proceed were there no model or vision of what the reform- ers seek to achieve? If, however, by model we mean blueprint-that is, a detailed plan of the form and content of the reform process-then the an- swer is no. Yet, the question that should be addressed is whether a model, de- rived from an ideal type of market and legal system, can be made to work in every country, regardless of local circumstances. I am aware that my answers are far too general and raise more problems than they solve. This paper addresses some of these problems. The first section below examines whether and if so why legal reform is slow and why foreign legal experts tend to regard legal reform as mainly an exercise in legal drafting. Two examples, one from the United States and the other from Peru, are used to show that legislative change is not always the only or the best alternative available to legal reformers. The second section explores some issues that arise from externally funded projects. It examines the argument as to whether importing laws is better than allowing home- grown products to develop, and includes brief remarks on the role of for- eign legal experts. It also discusses the political impact of externally funded projects in recipient countries. Under the rubric "local ownership," the third section explores some issues related to the long-term sustainability of legal reform projects. Two aspects of local ownership are examined: technical ownership through legal drafting and legal ownership through training and legal education. The concluding remarks highlight some of the main points. What follows is based largely on my experience in the area of legal techni- cal assistance in Latin America and Africa. I have also drawn on the work of many colleagues who have similar experience in other parts of the world. I do not, however, purport to offer a comprehensive review of the literature in the field of legal technical assistance. The purpose of this paper is to raise ques- tions and draw attention to aspects of the process often neglected both by academics and practitioners. To facilitate the reading of this paper I have avoided expressions of hesitancy. This is merely a stylistic device as the paper only purports to put forward provisional answers to the issues it raises. I will have fulfilled my purpose, however, if one or two of my comments provide the basis for a debate that helps us find solutions to the many problems en- countered by legal reformers. 372 Julio Faundez Session X The Reform Process Is Legal Reform Really Slow? The evidence of the past two decades seems to indicate that legal reform is neither slow nor difficult to achieve. After all, during this period there has been an unprecedented amount of legal reform. It started with the current wave of democratization, which prompted many countries to adopt new constitutions or to amend old texts. The comprehensive restructuring of the political rules of the game was followed by an equally comprehensive redef- inition of the rules governing economic policy as virtually every country in the world incorporated the "Washington consensus" into its legislative framework. This new legislation provided the platform to launch major pro- grams of liberalization, deregulation, and privatization. A well-known exam- ple of the speed and impact of the current reform process is the regulation of foreign investment. While in the 1970s foreign investment codes were large- ly hostile to foreign investment and imposed various hurdles, today they are entirely different. Instead of rejecting foreign investment they welcome it, and instead of hurdles they contain various mechanisms to attract it.3 This shift in the content and style of foreign investment regulation is replicated at the intemational level by the proliferation of bilateral and plurilateral in- vestment treaties. The evidence of the last two decades thus suggests that le- gal reform is not only relatively easy to achieve, but that it can also be achieved in a relatively short period of time, both at the national and inter- national levels. It is undeniable that over the past two decades, developing and transition countries have enacted a large number of new laws. This process, however, has been both narrow in scope and partial. Narrow because it has focused on a relatively small area of legal regulation and partial because it has consisted mainly in the enactment of new legislation. Legal reform has, so far, focused primarily on the linkages between nation- al economies and world markets. In the case of transition economies, the focus has also been on the establishment of comprehensive frameworks to 3. For an analysis of the impact of a foreign investment code, see Nichols, Philip M. 1997. "The Viability of Transplanted Law: Kazakhstani Reception of a Transplanted For- eign Investment Code." University of Pennsylvania Joumal of International Economics 18: 1235. Legal Reform in Developing and Transition Countries 373 regulate private transactions.4 Yet, these reforms, though narrow in focus, have nonetheless radically altered the basis upon which the state and legal systems operate. The interventionist state of yesterday is in the process of be- ing replaced by a new, leaner, and less obtrusive state-a state that is friendly to the market. The dramatic transformation of the state has generated its own momentum making national governments and international organizations aware of the need to extend the process of reform to other areas of legal regu- lation. Thus today, the reform agenda has expanded to include areas such as judicial reform, decentralization, labor standards, equal opportunities, gender equality, land tenure systems, criminal law, and the protection of the envi- ronment.5 Although the reforms carried out so far have already had a major impact, they have, nonetheless, been partial as they have concentrated mainly on the relatively easy task of drafting and enacting new legislation. The task that most national governments face today is ensuring that the laws they have so effortlessly enacted are rigorously applied, fairly interpreted and, if necessary, promptly amended. This is a complex process that requires time, patience, and considerable political and legal skills. Not surprisingly, national governments and international organizations have already begun to shift their attention toward the task of strengthening and developing the capacity of the newly established or recently reformed state institutions. Accordingly, the emphasis today is on training and on changing the culture of public bureaucracies to ensure that the reforms already in place are not undermined by practices that in the past plagued the political and legal systems. The process of legal reform has thus entered a new stage. The reform agen- da is now broader. Perhaps some would say that it is too broad. Moreover, the efforts to ensure that new legislation is successfully implemented require le- gal reformers to look beyond the limited confines of legal doctrine and con- sider the compatibility of the new rules and institutions with the rest of their legal and political systems. This new stage of the process of legal reform will be more difficult than the first and will undoubtedly be slower. 4. See Gray, Cheryl W. et. at. 1993. Evolving Legal Framework for Private Sector Develop- ment in Central and Eastem Europe. Washington, D.C.: World Bank. 5. On the expansion of the reform agenda, see Shihata, Ibrahim E I. 1997. "The Role of Law in Business Development." Fordham International Law fournal 20: 1577, 1586. 374 Julio Faundez Session X Legal Drafting-A Fatal Attraction I am certain that few would dispute the proposition that legal reform is a process and that it is not simply about drafting and enacting new rules. Yet, when foreign legal experts assess the legal needs of developing countries they almost always seem to assume that the problems they have identified can be resolved by the enactment of new legal rules. While in some occasions this diagnosis is correct, quite often it is not. Why is it that the prescription of- fered by these experts almost always tends to be the same? There are several possible answers to this question. First, simply because legal drafting is something that most lawyers do well and enjoy doing. Sec- ond, because by training lawyers are attached to closed systems of rules that are capable of resolving current problems and anticipating problems in the future. And third, because foreign legal experts often do not have the time or the resources to inquire how the legal systems of recipient countries work be- fore deciding whether prevailing rules and practices are effective or whether new rules are necessary. The attraction that foreign legal experts have for new legal rules is curious. Indeed, most lawyers and policymakers know that social problems are not al- ways resolved by enacting new rules. In fact, it is often the case that new legal rules are not the best solution either because there is no agreement in society as to the content of the rules or because the rules simply do not reach the groups that the rules are meant to reach. The case of affirmative action in the United States and of the administration of justice in a remote community in the Andes illustrate this point. A Foreign Lawyer Looks at Affirnative Action in the United States Suppose that a lawyer from a developing or a transition country who has learned about the five attributes of market-friendly legal systems-rules known in advance; rules actually in force; availability of mechanisms for the application of the rules; independent bodies to resolve conflicts over the in- terpretation of rules; and procedures for amending the rules-is invited to visit the United States to examine how affirmative action works in this coun- try. What would she notice? What would surprise her? I suppose that for a lawyer who believes in the generality and certainty of the rule of law one of the most baffling features of affirmative action in the United States is how difficult it is to know with any degree of certainty which types of affirmative Legal Refonn in Developing and Transition Countries 375 action measures are legal and which are not.6 This uncertainty is not caused by the absence of rules as there is an abundance of federal or state regulations on this topic. She would also be surprised to learn that despite several at- tempts, the Supreme Court has not clarified this point. Indeed, and judging by the large number of law review articles published after each decision, our friend could well conclude that Supreme Court decisions add layers of com- plexity to an already complicated issue. Our friend would also be bewildered by the inconsistency between the policies of the federal government and that of some states.7 She would probably ask: why doesn't the federal Congress in- tervene-setting out, once and for all, clear rules of the game? After all, un- certainty over affirmative action is bound to undermine the way firms oper- ate and such confusion is not market-friendly. Aware that Congress is reluctant to legislate on this matter, our friend would probably turn to the Court and ask the same questions again and again. If our friend tumed her attention to the political arena she would soon re- alize that, even though everybody agrees that affirmative action is an issue of fundamental political and social importance, there is no consensus as to how best to deal with it. Upon reflection she would realize that despite the ab- sence of clear rules, law does play an important role in channeling the debate and in the practice of affirmative action.8 It does not, however, work as a me- chanical device. It is part of a complex and often contradictory social process. Conflict Resolution in the Andes The assumption that legal reform requires new rules is especially absurd in cases in which the formal legal system does not reach the whole territory of the state. This is indeed the case in many developing countries where the state either does not have the resources or the legitimacy to rule effectively over its entire territory. In most of these cases local communities are gov- erned partly by their own customary practices and partly by the rules of the formal legal system. It is not self-evident that the existence of a plurality of 6. For a recent and very stimulating discussion of affirmative action, see Rubenfeld, Jed. 1997. "Affirmative Action." Yale Law journal. 107: 427. 7. On California's policy on affirmative action see Spann, Girardeau A. 1997. "Propo- sition 209." Duke Law Journal 47: 187. 8. On this point see Sunstein, Cass R. 1996. "Public Deliberation, Affirmative Action, and the Supreme Court." California Law Review. 84: 1179. 376 Julio Faundez Session X legal systems is a problem. Indeed, allowing diversity and customary prac- tices to flourish is probably the best way to improve the quality of gover- nance and to democratize both the form and content of legal regulation. In any event, managing legal diversity is not an easy task. The integration of local communities within the state is certainly a matter of legitimate concern for state authorities. It is not the case, however, that this matter can be resolved by enacting laws or issuing executive decrees. This type of official intervention is likely, more often than not, to create rather than resolve problems. The experience of an indigenous rural community in a remote area of the Andes, about 90 miles from Ayacucho, in Peru, is a case in point. With the fi- nancial support of the British Council I recently had the opportunity to visit this community and observe how the local people run their affairs. This is a community of some 200 families of Quechua-speaking peasants who live high up in the Andes in a place of extraordinary physical beauty, but where life and farming conditions are extremely difficult. In recent years, this com- munity has had to cope with untold atrocities. First they were victims of the activities of the Shining Path, a terrorist group which sought its support through intimidation, torture, and murder. Later on, when the government's military campaign against the terrorists reached their area, several members of the community were accused by the military of belonging to Shining Path, and there followed another round of intimidation, torture, and summary executions. Caught between the crossfire this small community was nearly destroyed. At the time of my visit, violence had subsided and the members of the community, with admirable courage and resilience, were attempting to re- constitute their social life. With the support of a local nongovernmental or- ganization (NGO) they had elected a committee of seven to lead this process. The committee performed several functions, one of which was to resolve dis- putes between members of the community. This was an important function because as a consequence of the recent upheavals, there was considerable confusion as to who had a right to cultivate the various plots of land owned by members of the community. I attended one of the hearings of the committee. It involved a dispute be- tween two women over a plot that each claimed had been cultivated by their respective partners. Both partners had been victims of the recent Legal Reform in Developing and Transition Countries 377 violence: one had been murdered by the terrorists and the other had been killed when the army had come in search of terrorists. After a brief hearing during which the women made eloquent speeches in support of their case and answered questions from members of the committee, a solution emerged. The solution proposed by the committee split the difference be- tween the two claims. In his closing speech, the president of the committee stressed the importance of resolving disputes peacefully, highlighting the fact that despite occasional differences they should remember that both par- ties were equally poor and dependent on the land for their livelihood. He fi- nally urged the two women to accept the committee's recommendation. The parties accepted it. The risks involved in this type of informal justice are well known.9 There is always a danger that this type of procedure may degenerate into pure politi- cal justice. It is also likely that strict rules of due process will not be observed. What then is the solution? Self-help? Require the parties to travel a day on foot to seek justice from the nearest state court where proceedings are in writ- ing and in Spanish? Or should the parties instead wait for the government to deliver its commitment to carrying out a comprehensive program of judicial reform? A few days after visiting this community I attended a seminar in Lima where one of the participants proposed that the solution was to pass legislation ensuring that community organs, such as the local committee near Ayacucho, would carry out their activities within the terms of the con- stitution. As a lawyer, I must confess, I find this proposal attractive since it addresses my concerns about the constitutionality of the committee's activi- ties and about the possibility of conflicts of jurisdiction. Yet, on the basis of my limited knowledge of the area and of politics in contemporary Peru, I would not endorse it as I would be concerned that any form of legislative in- tervention would derail the process of reconstruction that is taking place in this community.10 Perhaps in the future some form of state intervention might be helpful. Not now. 9. On this topic, see, for example, Cranston, Ross. 1997. "Access to Justice In South and South-East Asia." In J. Faundez, ed., Good Govemnment and Law, pp. 233-55. London: Macmillan. 10. For an overview of the plight of indigenous people in Latin America, see Dandler, Jorge. 1999. "Indigenous People and the Rule of Law in Latin America." In JuAn E. Men- dez et al., The (Un)Rule of Law and the Underpriviledged in Latin America, pp. 116-5 1. Notre Dame, Ind.: University of Notre Dame Press. 378 Julio Faundez Session X Taking the Context Seriously The importance of understanding the local context is widely acknowledged in the literature on legal technical assistance.11 The examples discussed in the preceding two subsections underscore the importance of understanding local conditions before deciding whether legal reform is necessary, and if so, how to implement it. Yet, despite the widespread agreement on this point, it seems that, in practice, a thorough analysis of the local context is rarely car- ried out either because of time constraints, shortage of resources, or simply because there is no agreement on how it should be done. I suspect, however, that one reason why legal experts from Europe and the United States who advise government in developing and transition countries often appear to disregard the local context is because in their own jurisdic- tions they can afford to take that context for granted. Where institutions are stable and have the capacity to adapt to change legal, reform slips into the process of social and political change in a relatively unproblematic way. To be sure, legal reform in industrialized countries is not easy, but it generally does not have the traumatic impact on the political system or society that it often has in developing environments. Thus, it is not surprising that when lawyers reared in a stable milieu visit other countries as advisers they take local condi- tions for granted and assume that legal reform process is as easy as it is at home. Hence, not surprisingly, they become easily frustrated at the slow pace of the reform process and often assume that the reason for it is that local offi- cials are either lazy, corrupt, uninterested, or inefficient. I am not concerned here with the important methodological question as to how best to carry out a proper analysis of the local context.12 I would like, 11. See World Bank. 1995. The World Bank and Legal Technical Assistance, p. 1 1. Wash- ington, D.C.: World Bank, Legal Department. 12. There are good accounts by scholars and consultants who have taken the wider context of the reform process into account. Perhaps the most elaborate theoretical and practical statement on this topic is the Seidmans' account of their experience as legal ad- visers of a United Nations Development Programme (UNDP) project in China. [See Seid- man, Ann, and Robert B. Seidman. 1996. "Drafting Legislation for Development: Lessons from a Chinese Project." American Journal of Comparative Law. 44: 101. See also Seidman, Robert B. 1987. "Drafting for the Rule of Law: Maintaining Legality in Developing Coun- tries." Yale Law Joumal 12: 84.] Bernard Black and Reinier Kraakman's account of the new company law in Russian provides a good illustration of how modern general principles in a particular area of the law can be adapted to an environment where the private sector is at a relatively early stage of development [Black, Bernard, and Reinier Kraakman. 1996. "A Self-Enforcing Legal Reform in Developing and Transition Countries 379 however, to highlight one feature of developing countries that international legal consultants often tend to forget; namely, that most of them have weak institutional frameworks. Those familiar with the literature on political development and with World Bank publications on governance know that this is an important issue.13 As a recent World Bank publication reminds us, it is also a problem that cannot be resolved overnight.14 Yet, some interna- tional legal consultants seem to ignore the bearing that weak institutional frameworks have on the outcome of the reform process. A state that has a strong institutional framework is one that can get things done in accordance with pre-established procedures and with the minimum use of coercion.I A strong state is not necessarily authoritarian or ruthless. It is also not necessarily a large state-indeed size is often the reason for a state's weakness. Strong states can implement policies and laws, while weak states are generally unable to "get things done," to formulate and implement policy or to secure compliance with the law by its citizens. State strength is, of course, a relative matter In Latin America for example, few countries have all the attributes that one associates with strong institutional frameworks. Some have strong party systems; others have competent judiciaries; some have strong and lively civil societies; others have efficient bureaucracies; some have good systems of legal education and others have good parliamentary procedures. Yet, there is probably no single country in the region where the state has all these attributes. Some transition countries, as evidenced by the Model of Corporate Law." Harvard Law Review 109: 1911; for a critique of this approach see Nikulin, Yevgeniy V. 1997. "The New Self-Enforcing Model of Corporate Law: Myth or Reality." Journal of International Law and Practice 6: 347]. For a case study of an African country, see William L. Andreen's (2000) article on Tan- zania [ "Environmental Law and International Assistance: The Challenge of Strengthen- ing Environmental Law in the Developing World." Columbia Joumal of Environmental Law. 25: 17]. It describes his experience drafting environmental laws in Tanzania and of- fers interesting insights on the bearing that the institutional framework has on the process of legal reform. 13. See Frischtak, Leila. "Political Mandate, Institutional Change and Economic Re- form." In J. Faundez, ed., Good Govemment and Law, pp. 95-119 (see note 9 for full refer- ence). See also the excellent collection of articles on this topic edited by Grindle, Merilee S. 1997. Getting Good Government. Cambridge, Mass.: Harvard University Press. 14. World Bank. 1997. World Development Report 1997: The State in a Changing World, p. 151. Oxford: Oxford University Press. 15. On weak and strong states, see Migdal, Joel S. 1988. Strong Societies and Weak States. Princeton: Princeton University Press. 380 Julio Faundez Session X case of the contemporary Russian Federation, are also affected by the prob- lem of weak institutional frameworks.16 In countries where the institutional and political systems are weak, legal reform, indeed any major reform, is difficult and at times almost impossible to achieve. In such countries it is difficult to distinguish the process of law- making from the process of institution building. Some publications on this topic point out that in order to strengthen the institutional framework the rule of law must be observed.17 In many respects, this statement begs the question as it presents us with the classic chicken and egg dilemma. How can the rule of law be secured in countries where the institutional frame- work is weak; and how can the institutional framework be strengthened, if the legality and the rule of law are constantly flouted? This dilemma, though frustrating in practice, should not lead us into despair. It should, however, serve as a reminder that in countries where the institutional framework is weak, lawmaking and institution building are processes that cannot always be easily distinguished. Hence the importance of ensuring that managers of legal reform projects do not take the institutional frame- work for granted. Undermining the Local Context A paradox of the current stage of the reform process is that while one of its stated aims is to strengthen the institutional framework of recipient coun- tries, in practice, the process itself may undermine it. As the agenda of legal reform expands, there is a serious danger that the institutional framework of many states may deteriorate as a result of the large number of reforms that have to be processed over a relatively short period of time. An over- crowded reform agenda makes it difficult for officials in charge of the reform process to spare the time to understand its wider implications. An overcrowded agenda also reduces the time for consultation and delib- eration. Hence, apart from weakening the institutional system, an over- crowded reform agenda may unintentionally also undermine the dem- ocratic process. 16. See Hendley, Kathryn. 1996. "Law and Development in Russia: A Misguided En- terprise?" American Society of International Law: Proceedings 90: 237.17. See World Bank, World Development Report 1997, p. 80. (See note 14 for full reference.) Legal Reform in Developing and Transition Countries 381 It must be noted that the relative success of the reforms introduced so far may also act as a brake on the pace of the current reform process. Indeed, as explained above, the reforms already introduced have largely achieved the objective of radically restructuring the state in developing and transition countries. Most of the agencies of these recently restructured states are new and their personnel, though technically well-qualified, are often inexperi- enced. Hence, burdening them with a large number of new projects may have the effect of stunting their development. Thus, paradoxically, the suc- cess of the first generation of legal reforms may undermine the reform process during this second stage. External Factors The Inevitability of Politics In general terms, all externally funded and externally managed technical assistance projects constitute a form of intervention in a domestic environ- ment. Whether or not this intervention is consistent with international legal standards does not concern me here. My concern is to highlight the fact that whether the project has had its origins in a direct request by the government, or a set of conditions for soft loans, or a foreign aid package, externally funded or externally managed projects always have the potential of becoming the focus of political controversy in recipient countries. This potential for controversy is especially acute in the case of projects of legal reform as the power to legislate free from external constraints is an impor- tant attribute of sovereignty. A certain amount of controversy and public debate over the reform is per- haps unavoidable. Indeed, in some circumstances, it may be a sign that there is local interest in the project. There are cases, however, in which the agencies entrusted with the delivery of legal reform projects, unaware of local political sensitivities, create unnecessary political resentment or exacerbate existing tensions. In some cases, decisions by managers of the project may, uninten- tionally, deepen divisions within the bureaucracy or create rifts between NGOs. It could well be that the project attracts controversy because of the rel- atively large budgets controlled by those associated with the project. While many of these problems are unavoidable, there are some that can and should be avoided. 382 Julio Faundez Session X It is important to remember that recipient governments are not passive spectators in this process. Indeed, it is often the case that governments make use of externally funded projects to further their own party political agendas showing little regard for the objectives of the project. In these situations mul- tilateral agencies are caught in a difficult dilemma: either withdrawing on the ground that the government is not seriously committed to the project; or continuing on the expectation that despite the government's behavior the project will, in the long run, benefit the country as a whole. The dilemma that multilateral agencies face is difficult and not often fully appreciated by their critics.'8 Multilateral agencies should, however, confront this problem honestly and openly to ensure that political misunderstandings arising from their projects do not undermine the objectives of the project. The (Real) Fear of Legal Imperialism In addition to the immediate political impact that any technical assistance project is bound to have, legal reform projects also generate resentment as they are often depicted as tools designed to impose alien legal regulatory schemes that undermine the indigenous legal culture.19 This criticism comes from all sides of the political spectrum. Some focus on the economic compo- nents of the current process of legal reform, while others focus on its political components. Thus, while some depict the measures that have led to the liber- alization and deregulation of national economies as evidence of a new form of intemational domination, others see the current stress on human rights as confirmation that imperialism is alive and well. Academics from industrialized countries often dismiss these views as a symptom of naive nationalism. Whether or not this assessment is correct, what is relevant for our purposes is to bear in mind that honest and compe- tent officials as well as responsible citizens in recipient countries genuinely believe that externally funded projects are either part of an alien political 18. The failed negotiations of a loan for judicial reform between the World Bank and Peru is a good example of the difficult dilemmas that multilateral agencies face when governments are less than forthcoming regarding their commitment to the objectives of the reform process. For a critique of the World Bank's role in this process see Lawyers Committee of Human Rights. 2000. "El Banco Mundial y la Reforma Judicial en el Peru." IDEELE (Revista del Instituto de Defensa Legal) (Lima) No. 126, March, pp. 73-76. 19. For an interesting proposal on how comparative lawyers can avoid undermining local legal cultures, see Demleitner, Nora V. 1999. "Combating Legal Ethnocentrism: Comparative Law Sets Boundaries." Arizona State Law Joumal 31: 737. Legal Reform in Developing and Transition Countries 383 agenda or pose a serious threat to their legal culture and national identity. The interminable debate in the United Kingdom between the Euro-skeptics and pro-Europeans-a debate that cuts across political class and genera- tions-is a helpful reminder that concern about foreign imposition and con- trol is not only an infantile disorder affecting so-called "young nations." As far as I understand it, however, the Euro-skeptics oppose deepening the process of European integration because they do not want to surrender con- trol of key political decisions-mainly, monetary policy-to a federal type of organization or to unelected officials of the European Union. I am not con- cerned with the merits of the British debate over Europe. I simply want to un- derscore the impact that the perception of alien political domination has on political debates. If citizens and responsible politicians of an old and stable country such as the United Kingdom are genuinely worried about the politi- cal consequences of deepening a process of integration that began nearly half a century ago, it should not be surprising that their counterparts in develop- ing countries should have the same reaction toward projects that seek to inte- grate local institutions to the global economy. The fact that legal reform projects are externally funded or externally managed is, of course, not always a source of controversy in recipient coun- tries. Indeed, more often than not, governments of developing and transition countries actively seek the support of international agencies and bilateral donor agencies. In some areas, such as human rights, for example, the estab- lishment of alliances between local and international groups often provide the impetus to prompt reluctant governments into action. Moreover, many of the legal reforms currently implemented in developing and transition countries enjoy widespread legitimacy as they merely seek to incorporate into the legal systems of recipient countries standards and principles adopted by international organizations.20 This is the case, for example, of internation- al labor standards, of measures dealing with the protection of the environ- ment, and of the many new areas of regulation that have recently become part of the agenda of the World Trade Organization. In any event, officials from international agencies in charge of managing projects of legal reform should not forget that, whether justified or not, these projects raise sensitive issues that should not be ignored or lightly dismissed. 20. Some may of course argue that decision-making processes in some international organizations should be improved in order to enhance the legitimacy of their decisions. 384 Julio Faundez Session X Imports Versus Home-Grown Products The debate as to whether imports or home-grown products are preferable is, in some respects, a restatement, at the technical level, of the political debate about legal imperialism. Though academically interesting, this debate, has, in my view, received far more attention than it merits. Perhaps its prominence is because legal technical assistance projects have hitherto placed excessive em- phasis on the drafting process. The terms of the debate are fairly simple. Those against the importing of legal texts generally point out that it is a form of colonial imposition and, as such, contrary to the principles of democratic governance.21 Importing is also seen as objectionable because it undermines indigenous legal cultures. On the other side, there are those who argue that waiting for the home-grown product to emerge through social practices is inefficient and unrealistic-in- efficient because it takes a long time for social practices to develop and unre- alistic because it is unlikely that social practice will be as clear or as coherent as rules contained in codes based on the experience of more advanced juris- dictions.22 It has also been pointed out that copying and borrowing saves time, contributes to the process of harmonization, and generally avoids hav- ing to reinvent the wheel each time policymakers confront a new problem.23 We have all heard about lawyers who fly the world 'drafting" laws based almost word for word on the laws of their own countries.24 Most observers are in agreement that this approach to legal technical assistance is in the end counterproductive as it is unlikely that such laws will ever be fully imple- mented, let alone understood by the recipients. Moreover, this approach is rejected because it breeds cynicism toward the legal system, not to mention discrediting the enterprise of legal technical assistance. As ever, there are 21. For a lucid summary explanation of this argument see Walde, T. W., and J. L. Gunderson. 1999. "Legislative Reform in Transition Economies: A Short-Cut to Social Market Economy Status." In Ann Seidman, Robert B. Seidman, and Thomas W. Walde, eds., Making Development Work, pp. 84-89. Cambridge, Mass: Kluwer Law International. On this topic see also Gopal, Mohan Gopalan. 1996. "Law and Development: Toward a Pluralistic Vision." American Society of Intemational Law-Proceedings 90: 231. 22. David, Rene. 1963. " A Civil Code for Ethiopia: Considerations on the Codifica- tion of the Civil Law in African Countries." Tulane Law Review 37: 189. 23. Watson, Alan. 1974. Legal Transplants. Edinburgh: Scottish Academic Press. 24. See, for example, the anecdotes recounted by deLisle, Jacques. 1999. "Lex Ameri- cana?: United States Legal Assistance, American Legal Models and Legal Change in the Post-Communist World and Beyond." University of Pennsylvania Intemational Eco, a -nics Law 20: 179. [verify joumal title] Legal Reform in Developing and Transition Countries 385 always examples that appear to show that sometimes this approach to legal technical assistance does indeed work.25 While reckless copying of foreign legal texts should not be encouraged, policymakers and legislators, however, should have a sound understanding of the experience of other countries-preferably countries that have similar fea- tures-in order to assist them both in the choice of policy and in the drafting process. Such understanding should enable them to identify good practice in specific policy areas. Given that public officials and their advisers do not gen- erally have the time or the resources directly to carry out research on best practices, model laws prepared by international organizations or private asso- ciations are helpful tools, provided that they are prudently and wisely used. In any event, as Alan Watson reminds us, modeling institutions on the ex- perience of another country or on a general model is a long-standing prac- tice.26 As such, sometimes it fails and sometimes it succeeds. Some, for exam- ple, regard presidentialism in Latin America as an example of a failed transplant. Inspired by the United States Constitution, most Latin American constitutions adopted a presidential regime. Yet, while in the United States the presidential regime has evolved within a dynamic and open system of government, in Latin America presidentialism is, according to its critics, the main factor that has led many countries into authoritarianism.27 Regardless of of whether or not these critics are right, there is no doubt that the Latin American version of presidentialism is quite different from the model on which it was based. A contemporary example of a successful transplant is the case of the Office of the Ombudsman in Peru, the Defensoria del Pueblo. As we know, the om- budsman originated in Sweden and from there it spread to several industrial- ized countries and then to the rest of the world. Many constitutions enacted by developing countries in recent years make provision for such an office. 25. See, for example, Paul Drake's (1989) study of legal and economic technical assis- tance by a Princeton Professor in Latin America during the 1920s: The Money Doctor in the Andes. Durham, North Carolina: Duke University Press. 26. Watson, Alan. 1996. "Aspects of Reception of Law" American fournal or Compara- tive Law 44: 335. 27. See Linz, Juan J., and Arturo Valenzuela, eds. 1994. The Failure of Presidential Democracy: Volume 2-The Case of Latin America. Baltimore: Johns Hopkins University Press. For a critique of this view see Mainwaring, Scott, and Matthew Soberg Shugart. 1997. Presidentialism and Democracy in Latin America. Cambridge, United Kingdom: Cam- bridge University Press. 386 Julio Faundez Session X The objective of the Office of the Ombudsman is to protect members of the public against abuses committed by public officials. It does not have enforce- ment powers. It merely investigates and makes representation to public au- thorities on behalf of members of the public. In Peru, the Defensoria del Pueblo, based on the Spanish model, was established in 1979 and has recently become a major force in the promotion and defense of civil, political, and so- cial rights.28 Remarkably for Latin America, and particularly for Peru, the De- fensorfa has managed to maintain its independence from the government. The Defensorfa's leading role in the protection of human rights has been widely acknowledged. To a large extent the prominent role of the Defensorfa stems partly from the weakness of the judiciary caused mainly by the notori- ous tendency of the government to interfere with the courts. Given these cir- cumstances, the Defensoda has stepped in to fulfill the demands for justice and fair treatment, particularly from the weakest and poorest sections of the population. So far, the success of the Defensorfa is largely attributable to the courage, intelligence and diplomatic skills of the incumbent and of his tal- ented team of lawyers. Whether the Defensoria's excellent record in the de- fense of human rights will continue beyond the term of office of the present incumbent is an open question. I hope it does, although countries in Latin America have a poor record at institutionalizing good practice. In any event, the experience of Peru's Defensoria del Pueblo is a good example of how im- ported institutions can flourish and develop in unexpected ways even in rela- tively hostile political environments. The foregoing shows that the discrete and careful use of model laws and model legislation does not necessarily undermine legal culture. On the con- trary, it often enriches and adds diversity to local legal cultures. Foreign Legal Experts The participation of lawyers in technical assistance projects is sometimes viewed with suspicion by members of the local bar. It is of course not surpris- ing that lawyers from different countries and often different cultures should view each other with a degree of reticence as lawyers are, by training, parochial. They are experts in the operation of a single legal system and tend 28. See de Noriega, Jorge Santistevan. 1997. "La Defensoria del Pueblo." in Ana Teresa Revilla Vergara, ed., Acceso a la Justicia, pp. 63-68. Lima: Oficina Tecnica de Proyectos de Cooperaci6n Internacional del Poder Judicial. Legal Reform in Developing and Transition Countries 387 to view rules and institutions with which they are not familiar as exotic, silly, or incomprehensible. These parochial attitudes-which could be described as epistemological self-righteousness-occur at all levels. It is well known that many lawyers trained in civil law have great difficulties accepting that com- mon law is a "scientific" legal system. Likewise, many common law lawyers believe that lawyers of the civil law tradition are good at memorizing rules, but not at applying them. Even lawyers who belong to the same legal tradi- tion display considerable intolerance toward colleagues from other jurisdic- tions. Indeed, despite the apparent respect and close links that exist between Wall Street lawyers and city of London solicitors, I wonder whether they real- ly regard each other as equally competent. Given the parochialism prevalent among lawyers it is not surprising that when they are called upon to advise foreign governments they almost invari- ably offer their own laws as solutions to every problem they encounter. More- over, their parochialism leads them often to behave arrogantly, dismissing as irrelevant or silly what they cannot understand. It should be noted, however, that international legal consultants often irritate local colleagues simply be- cause of their ignorance of local practices. If in order to compete in global markets multinational companies train their employees in local customs, why shouldn't multilateral banks require their legal consultants to take simi- lar courses? Despite these problems, the contribution that international legal experts can make is invaluable. An area in which they do make an important contri- bution is in the diagnosis and assessment of the legal and political systems of recipient countries. In my experience, I find that the most interesting studies of my own country-Chile-are those written by scholars from other coun- tries who, apart from being experts in their respective fields, take the time and trouble to understand local conditions.29 In the drafting of new legislation, international legal consultants also make a valuable contribution.30 Yet, in order fully to take advantage of their skills they should form teams with local lawyers who should always have the ultimate responsibility for the drafting process. Foreign lawyers should not 29. See, for example, leetswart, H. 1981. "Labour Relations Litigation: Chile, 1970-1972." Law and Society Review 16: 625. 30. See generally, Seidman, Ann, Robert B. Seidman, and Thomas W. Walde, eds. 1999. Making Development Work. Cambridge, Mass.: Kluwer Law International. 388 Julio Faundez Session X attempt to lead the team. If they feel that their local counterparts are ineffi- cient, slow, or uninterested they should pause and consider whether their feelings have any factual basis or whether they stem from their impatience and parochialism. It is true, of course, that often international teams such as the one I am proposing do not work effectively because recipient govern- ments regard the drafting process as a purely technical task.31 Ownership The concept of property has slipped, perhaps inadvertently, into the analysis of the reform processes in developing and transition countries. Experts on these processes now speak about local ownership of reform projects.32 By lo- cal ownership they mean that all those directly affected by the project should be informed and consulted, and, one hopes, they should participate in its de- sign and implementation. Local ownership is regarded as essential for the long-term sustainability of the project. These are splendid objectives-which I am sure many endorse, provided, of course, that the methods through which ownership is "acquired"are genuine. That is, provided that the efforts to secure local ownership of projects are not mere gestures by irresponsible politicians or unscrupulous local or international bureaucrats determined to demonstrate at any cost that local communities want, understand, and share the objectives of a particular project. Although strategies to develop local ownership focus mainly on securing the support of the wider community-in other words, the stakeholders- there are two aspects of local ownership that are especially important in pro- jects of legal reform. One concerns the understanding and technical expertise of local officials; and the other concerns the extent to which, in the long run, the local legal profession is capable and willing to sustain the reform process. Technical Ownership It is generally agreed that local input in the conception, design, and drafting stages of a project of legal reform is essential. The literature on legal technical assistance contains helpful tips on how to secure this objective. Policymakers should have a clear idea of what they are seeking to achieve; they should 31. See the section on "Technical Ownership" below. 32. World Bank. 2000. World Development Report 1999/2000-Entering the 21 st Century, pp. 18-21. Oxford: Oxford University Press. Legal Reform in Developing and Transition Countries 389 thoroughly understand the objectives and implications of the project; there should be widespread consultation of stakeholders, local lawyers should be involved in the drafting process, and there should be suitable mechanisms to evaluate the project's outcome.33 Applying this advice in practice is, as ever, quite difficult. My participation, as an external legal adviser on two Interna- tional Labour Organisation (ILO)-sponsored projects, one in Namibia and the other in South Africa, illustrates this point. The projects involved advising the departments of labour on the design, drafting, and implementation of policies to eliminate discrimination in employment and to improve employ- ment opportunities for the victims of apartheid. Both Namibia and South Africa have democratically elected governments which enjoy overwhelming popular support. These democratically elected officials also control the majority of seats in their respective legislatures. In both countries affirmative action (as it is called in Namibia) or employment equity (as it is called in South Africa) was seen as part of the wider process of dismantling apartheid. The aims of the legislation were twofold: to secure both equitable representation in employment for individuals belonging to groups excluded from the job market by the apartheid regime; and to achieve a culture of nondiscrimination in the workplace in line with constitutional principles and intemational labor standards. In both countries the potential beneficiaries of the new legislation are the majority of the population. The differences in the process of implementation of the two projects are quite in- teresting. While in Namibia the process was slow and plagued by intrabu- reaucratic problems, in South Africa the process was fast, efficient, and lively. Affirmative Action in Namibia In Namibia the project was launched in 1990, shortly after independence. The members of the ILO team immediately concentrated all their efforts in ensuring that government officials as well as all relevant stakeholders- employers' associations, trade unions, women's groups, representatives of the disabled-were informed and consulted about the new initiative. This stage of the project was not subject to rigid deadlines as the ILO team was 33. See, for example, Knieper, Rolf, and Mark Boguslavski. 1999. "The Concept of Legal Counselling in Transformation States." In Ann Seidman, Robert B. Seidman, and Thomas W. Walde, eds., Making Development Work, pp. 115-44. Cambridge, Mass: Kluwer Law International. 390 Julio Faundez Session X conscious that it was essential to ensure that all relevant groups were proper- ly consulted. The outcome of this stage was, however, disappointing. Meet- ings between the ILO team and Department of Labour officials were difficult to arrange, had spotty attendance records, and were often unexpectedly can- celled. Other government departments showed little interest in the project. The Prime Minister's Office, which has overall responsibility for public sector appointments and, at the time, was busy making new appointments, was re- luctant to participate in consultations. Indeed, at times, officials from the Prime Minister's Office seemed positively hostile toward the project. Equally disappointing was the lack of interest shown by grassroots organizations that represented those who stood to benefit most from the project. The response of employers' associations was, however, quite different. They attended every seminar and offered written comments and proposals to the Department of Labour. Though they regarded the project as unnecessary and potentially dangerous, they made many helpful suggestions, many of which were incor- porated into the draft bill. The project had envisaged that the bill on affirmative action would be drafted by a team of three: two local officials-one from the Department of Labour and the other from the Prime Minister's Office-and a foreign legal consultant. The team, however, never quite worked as such since the local of- ficials assigned to the team had neither the time nor the interest to partici- pate in the project. One was quite senior in his department and was under- standably busy with other matters. The other, with neither seniority nor relevant experience, was dissatisfied in her current job and was actively seek- ing a transfer to another department. In any event the drafting team was doomed from the start as neither the Minister of Labour nor his Permanent Secretary understood the importance of having such a team. They simply ex- pected the ILO to provide them with a draft bill in the shortest possible time-a week was considered long enough. Their sole objective was to get the bill approved by parliament as soon as possible. In the event, ILO submitted a draft bill less than a year after the project was launched. The expectations of the Department of Labour of getting the bill approved by parliament were, however, not fulfilled because the process was blocked by the cabinet. Four years later, after the appointment of a new minister of labour, the project was revived. In 1998, after another Legal Reform in Developing and Transition Countries 391 round of consultations that were more successful than the first, the bill was finally approved by parliament, some eight years after the initiative was launched. Employment Equity in South Africa The development of employment equity legislation in South Africa was quite different. In 1996, with the support of local and international consultants, the government launched the process with the publication of a consultative document.34 This document set out in general terms the objectives of the proposed legislation and requested feedback on specific topics. After receiv- ing responses to the consultation document, the government appointed a drafting team made up of three South African lawyers all of whom worked in private practice. I joined the drafting team as external consultant. The consultation document issued by the government, though compre- hensive, was vague on the crucial and difficult question concerning the meaning of the phrase, "employment equity." Did employment equity re- quire preferential treatment of those who had been discriminated against by the apartheid regime; or, was employment equity merely designed to secure equal opportunities without seeking to remedy the present consequences of past discriminatory practices? As this was a key matter of policy, the drafting team sought clarification from the Department of Labour. After further con- sultations with employers' associations, trade unions, and other stakeholders, the Department decided that employment equity should include preferential treatment for individuals who belonged to groups discriminated under apartheid. After the policy was clarified, the drafting team completed its task and submitted the first draft of the bill to the government. The draft submit- ted by the drafting team was discussed within the Department of Labour and in December 1997 was published in the Official Gazette. The publication of the draft opened up an intense period of consultations during which unions, employers' organizations, and other stakeholders expressed their views on the text and made concrete proposals for changes. After completing this stage of the process the government, with the assistance of the drafting team, 34. Republic of South Africa. 1996. "Employment and Equity Proposals." Government Gazette, Vol. 373, No. 17303. 392 Julio Faundez Session X prepared a new version of the bill. The bill was approved by parliament in October 1998, two years after the government published the first consulta- tion document.35 Comparing the Two Experiences The relative ease with which the South African Government developed its employment equity legislation contrasts sharply with the difficulties that the process encountered in Namibia. There are, of course, many factors that account for the differences between the two processes. In Namibia the process was launched at the wrong time, only days after independence, when the new political leaders who had virtually no administrative experi- ence were busy dealing with more urgent issues. Moreover, the new politi- cal leaders could not count on the loyal or efficient support of the civil service personnel appointed by the preceding administration. The govern- ment in South Africa, by contrast, had a diverse and politically experienced leadership, many of whom had been active during the long years of strug- gle against apartheid. Moreover, the transition to democracy in South Africa had been preceded by a lively political debate-which involved all sections of society and yielded a complex, but interesting document. The most important factor that accounts for the differences between the two processes, though, is that while in South Africa affirmative action was a live political issue, in Namibia it had little, if any, resonance in civil society. In South Africa, the government was confronted with the need to establish a legal framework for affirmative action not only because the constitution al- lowed it, but because affirmative action had become a social fact that re- quired urgent regulation. Indeed, soon after the advent of democracy, the private sector, in an attempt to distance itself from the previous regime and anticipating what it regarded as inevitable, had begun to implement poli- cies of preferential treatment. The fact that affirmative action was already a social and political fact prompted the government to respond quickly by introducing rules to regulate the process. Thus, while in South Africa the government was catching up with social change, in Namibia the Department of Labour wanted to bring about change that, at the time, 35. Mandala, T. H. 1999. "Affirmative Action-A South African Perspective.' SMU Law Review 52: 1539. Legal Reform in Developing and Transition Countries 393 neither officials from the government nor stakeholders understood or regarded as urgent. The irony of this story is that many of the reports, background papers, and drafts of the bill prepared during the slow process in Namibia provided in- valuable assistance to policymakers and legal drafters in South Africa. Indeed, some key clauses in the South African act are based on drafts prepared during the years when the reform process in Namibia was at a standstill. Legal Ownership The role of lawyers in the process of development was a matter of great con- cern for the group of American law professors who in the 1960s launched the well-known, but short-lived law and development movement.36 In their view, legal education in developing countries was inadequate as it placed ex- cessive emphasis on rote leaming of legal rules and doctrine, a method that, in addition to being dull, did not enable the students to understand social and economic reality properly. As a consequence, lawyers in developing countries were unable to make full use of the law either to protect the rights of citizens or to further the objectives of economic development.37 As these law professors believed that lawyers had a major role to play in the develop- ment process they set out to help a select number of developing countries re- form legal education. As we know, the enterprise was cut short because funds dried up and the professors became aware that it was futile to attempt to ex- port legal liberalism.38 The diagnosis of legal education by the law and development movement is still valid today, as the quality of legal education in developing countries has not significantly improved since the mid-1970s. Although it is self-evi- dent that a well-trained legal profession is essential for ensuring the long- term sustainability of legal reforms, the issue of legal education is notoriously 36. For an authoritative history of the law and development movement, see Trubek, David M., and Marc Galanter. 1977. 'Scholars in Self-Estrangement." American Journal of Comparative Law 25: 492. 37. For a critical analysis of the educational objectives of the law and development movement, see Gardner, James. 1980. Legal Imperialism: American Lawyers and Foreign Aid in Latin America. Madison, Wis.: University of Wisconsin Press. 38. See generally, Merryman, John Henry. 1977. "Comparative Law and Social Change: On the Origins, Style, Decline and Revival of the Law and Development Move- ment." American Journal of Comparative Law 25: 45 7. 394 Julio Faundez Session X absent from current debates on legal reform. I am, of course, aware that the World Bank and other multilateral agencies support the establishment of ju- dicial academies and sponsor training programs for judges and lawyers in var- ious countries. These activities are undoubtedly useful, but do very little to improve the overall quality of legal education in recipient countries. Al- though I feel strongly that the reform of legal education in developing and transition countries is urgent, I do not believe that multilateral banks should add legal education to their already heavy agendas. The primary responsibili- ty for this task lies with governments, universities, and local professional as- sociations. International agencies can do much to support activities that con- tribute to improving the quality of legal education; they should not, however, attempt to lead the process. Bilateral donors also have a part to play in this process. One important ac- tivity that bilateral donor agencies have supported, but which in recent years seems to be losing popularity among donors, is sponsoring transnational links between law schools. These links provide a lively and relatively inex- pensive mechanism with immediate practical benefits-such as updating and facilitating curriculum development-as well as long-term intellectual bene- fits as they enable legal academics to organize conferences and launch joint research projects on topics of mutual interest. It must be noted that, contrary to what happens in legal technical assistance projects, these exchanges bene- fit both sides. This is the case of my own institution which, with a relatively small budget, currently has formal and informal links with law schools in more than 20 countries. I would like to think that our partners have benefit- ed from these links as much as we have. For my colleagues and me at War- wick University these links are essential as they allow us fully to develop our teaching and research potential. Concluding Remarks Legal reform is slow, because it is a process. I restate this platitude because, in practice, it is often forgotten. Recipient govemments tend to forget it because most politicians operate within restricted time frames and naturally want to take credit for the introduction of major legal reforms. Multilateral agencies also often behave as if they are unaware that legal reform is a complex and slow enterprise. Their impatience is probably attributable to budget restric- tions and a heavy agenda. I am afraid, however, that their impatience may Legal Reforn in Developing and Transition Countries 395 also stem from a misplaced devotion to theory. Indeed, while it may be true that, theoretically, market-friendly legal systems have some attributes in common; in practice, the interplay among law, the state, and markets is com- plex and far from predictable. Hence my skepticism about excessive legal drafting and my insistence on taking local contexts seriously. I am concerned that those who are impatient with the slow pace of reform may end up endorsing authoritarian regimes on grounds of efficiency and speed. Indeed, it was not long ago that some multilateral agencies applauded Third World tyrants because of their ability to get things done. Today things have changed. Democratization is now the prevailing trend. Yet, many of these new democracies are fragile. It would be a disaster if impatience led to the re-emergence of authoritarian regimes-which, as before, would cynically proclaim their adherence and loyalty to the reform process in order to achieve international legitimacy. Amartya Sen has recently reminded us about the importance of democ- racy in the process of development.39 I am certain that most of those who are impatient with the slow pace of legal reforms share his views and are keen to safeguard and further enhance the current wave of democratization. The suc- cessful implementation of the current package of legal reforms should con- tribute toward cementing the link between development and democracy. It should also provide the foundation for ensuring that the benefits of global- ization are equitably and fairly shared. The reform process should be carried out with vigor and commitment-both its objectives and pace should, how- ever, be realistic. 39. Sen, Amartya. Development as Freedom, pp. 146-59. Oxford: Oxford University Press. Making People the Focus A Risk Worth Taking Hon. Luis Paulino Mora* Chieflustice of Costa Rica Introduction It is well known that democracy is a prerequisite for equitable, balanced, and sustainable social development. Latin America has recently succeeded in paving the way for democracy, notwithstanding various difficulties that have yet to be overcome and that continue to undermine efforts to promote dem- ocratic consolidation. As Enrique Iglesias' pointed out during a recent visit to Costa Rica, the level of social violence in our region is three times higher than in the United States and Europe, the concentration of wealth has creat- ed a huge income gap, and economic growth continues to lag despite efforts to accelerate it. Against this background, our Region must also deal with the impact of economic globalization, a phenomenon that simultaneously offers many opportunities and poses pressing challenges to the survival of our economies. Generally speaking, the people are afraid, and there seems to be no clear perception of how to deal with the changing circumstances we are experienc- ing. As a result, passions run high in discussions of such issues as the size of the state, the role of the market, participation by civil society, political cor- ruption, and disillusionment with democratic institutions. At the same time, it has not been possible to bridge the gap between the benefits expected of democratic regimes and reality as it actually unfolds. In this setting it is absolutely crucial that ways be found promptly to strengthen the rule of law and, in so doing, the judiciary as well. * Translated into English hrom the original text in Spanish and edited in English. 1. Presentation on May 19, 2000 at the National Theater, San Jose. Enrique Iglesias is president of the Inter-American Development Bank. 397 398 Hon. Luis Paulino Mora Session X However, the loss of trust in the judiciary-as high as 85-90 percent2 in some countries-reported by some surveys, along with the aforementioned developments, has created a dangerous vacuum, which populists and sup- porters of the military are exploiting. For example, during the 1990s a number of presidents in Latin America as- serted at various times and to varying degrees that by virtue of their popular support, their right to govern was above the law and they were not beholden to their parties. There is no reason to think that these are atypical or fleeting symptoms. As the gap between the promise of democratic regimes and what they ac- tually deliver continues to widen, the landscape of Latin America is unfortu- nately beginning to closely resemble that of its past. Our Region urgently needs to reform its trading practices and restore cred- ibility in its democratic institutions-particularly those responsible for ensur- ing that the rule of law prevails-so that it can consolidate democracy and take advantage of the benefits of the new world economic order. I firmly be- lieve that justice and economic development go hand in hand, for if eco- nomic development and market forces are to thrive, they both require a mod- ern, reliable, efficient, and strong system of justice that not only guarantees its citizens access to and the protection of the system, but also ensures a cli- mate that is hospitable to investment and development. A weak legal system-as evidenced by a high crime rate, excessive bureau- cracy, and restricted access to justice-adversely affects investment and national development. Indeed, the impact of "noneconomic" forces on investment is becoming increasingly apparent. In Colombia, for example, an increase of 10 homicides per 100,000 inhabitants translates into a 4 percent decline in investments. If the figure rises to 20-80 homicides per 100,000 inhabitants, gross domestic product decreases by as much as 2 percent annually.3 Moreover, the legal bureaucracy-whether within or outside the judicial system-increases transaction costs, thereby affecting the national and inter- 2. In Venezuela, for example. See Prillaman, William. 1999. Judicial Reform and Demo- cratic Consolidation in Latin America. Charlottesville, Va.: University of Virginia. 3. Rubio, M. 1995. Crimen y crecimiento en Colombia-Coyuntura econ6mica. Cited by Martinez, M. 1998. Rule of Law and Economic Efficiency. Washington, D.C.: Inter-American Development Bank. Making People the Focus: A Risk Worth Taking 399 national competitiveness of a country's products and forcing businessmen to waste time and money figuring out how to evade the laws instead of invest- ing in producing goods or devising ways to improve their products. If we add to this the fact that cases can drag on for years as they make their way through the judicial system, the cost to businesses of protecting their commercial or related rights becomes extremely high. It is absolutely essential to strengthen the rule of law in Latin America, in the interests of both democratic consolidation and economic growth. Ac- cordingly, what should our strategic focus be? Why have our efforts at legal reform been inadequate? What does the judiciary require to be efficient and trustworthy? For the past 15 years we have discussed the prerequisites for an efficient and reliable judiciary, including economic and functional independence, ac- cessibility, updated and less bureaucratic codes of procedure, a career path and training for judges, an efficient disciplinary system, establishment of pa- rameters for measuring how judges perform, and separation of administrative functions to enable judges to devote all their time to the administration of justice. Finally, although most of our countries have to varying degrees adopted measures that have had very positive results, these measures have neither increased our credibility significantly among the population nor en- abled us to make up for lost time. I shall now focus primarily on the Costa Rican experience in order to shed light on these questions, for I am confident that there are common denomi- nators applicable to judicial reform in general. Factors That Have Had an Impact on judicial Reform One key lesson which the judicial reform process has taught us in recent years is that we have been underestimating its complexity and scope. While focusing on implementing measures proposed by domestic and external bod- ies and advisers to the letter (independence, access, and so forth), we have failed to take the following factors into account: Increase in Crime and Social Conflict As the population has grown and the gap between the rich and the poor has widened, a heavy demand has been placed on the judicial system. Crime and social violence have increased far more than ever expected. In addition, 400 Hon. Luis Paulino Mora Session X Costa Rica has an extremely litigious populace which, for historical reasons, has tended to resolve disputes through the courts instead of turning to alter- native dispute resolution arrangements or (fortunately) taking justice into its own hands. In the past year alone, 710,000 new cases were brought be- fore the country's courts-this for a population of approximately three mil- lion inhabitants. This figure also reflects the fact that Costa Ricans are well- informed about their rights and can exercise them because they enjoy easy access to the courts at no cost to themselves, as in the case of the Constitu- tional Court.4 Thus, improved access and a citizenry better informed about its rights result in more lawsuits, and this in tum escalates social conflict and places a substantial burden on the judicial system. This burden is a pos- itive one, in that it is a sign that the people have faith in the legal system as a peaceful mechanism for dispute resolution. Reforms Based on a Purely Technical Perspective, Without Reference to the Political Context Since the second half of the twentieth century, Costa Rica's judiciary has tak- en the lead regarding all legislative initiatives in the area of judicial reform, with the exception of the 1989 reforms of the Constitutional Court. Al- though this situation, which is unique to my country, has been very positive from a technical and legal standpoint, judges and magistrates have been trained in such a way that the political ramifications of judicial reform have simply been overlooked. We have approached the reform process as a techni- cal exercise, whereas in reality it has both political and technical elements. "Political" here does not, of course, refer to partisan matters, but rather, to far-reaching changes in the rules of social interaction, which boils down to the question of who obtains what, how, and when. Moreover, we have done little to convince others of the importance of judicial reform for national de- velopment, and have treated it as something separate from our day-to-day lives and the government reform process. We have forgotten to persuade oth- ers that strengthening justice is a strategic necessity, not only in order to 4. Writs of habeas corpus or actions for enforcement of amparo-which pertain to the defense of fundamental rights-are informal and may be submitted by any means: written (including via fax or telegram) or verbal. The court receives complaints 24 hours a day and is even accessible to minors, who need not be represented by a lawyer. In its 10 years of existence, the Constitutional Court has received nearly 65,000 cases. Making People the Focus: A Risk Worth Taking 401 guarantee the stability of democracy, but also to drive economic develop- ment. We have limited ourselves to preparing bills and sending them to the legislature, without undertaking the lobbying required to ensure that our proposals receive priority attention.' When the bills are finally adopted, they will have taken so long to make their way through the legislative process that reforms are introduced four or five years after they were needed. The Lack of Strategic Planning to Make Room for Integral, Ongoing Judicial Reform Judicial reform has been approached as a mechanistic undertaking directed at solving specific problems. There has been no systematic focus or planning. Only in April 2000 did the Costa Rican judiciary adopt a strategic plan with clear objectives covering a five-year period. Junior personnel in all areas, judges throughout the country, and magistrates participated in this effort to develop a mission and vision for the judiciary with strategic objectives and clear targets to be achieved by 2005. This is the first time that the leadership of the judiciary will work on the basis of a plan devised through a participa- tory process bringing together a representative group of officials and judges from all regions to ascertain our strengths and weaknesses and define our short- and medium-term goals. In other words, until recently efforts at reform have been piecemeal and limited in scope, reflecting a restricted vision dependent on the personal ini- tiatives of magistrates or presiding judges. If efforts focused on penal reform, the problems experienced by the civil courts probably were not discussed, and vice versa. Or, if efforts were made to improve the codes of procedure, then administrative reforms or technological innovations did not receive the same close attention. As a result, the budget lacked a broad focus as far as in- vestments were concemed and essentially reflected the subjective preferences of the magistrates sitting on the Budget Committee. For example, if they were criminal judges, their specialty area very likely would receive funding, 5. The conservative approach displayed by the leadership of the judiciary to its politi- cal responsibilities has been a major factor here. The leadership is wary of getting in- volved with deputies or politicians, since it clearly draws no distinction between the ju- dicial functions of judges and their political functions, which also include diplomatic functions. In Costa Rica, the Political Constitution assigns management and administra- tive responsibilities relating to the judiciary to judges, with the result that judges per- form both judicial and political functions simultaneously. 402 Hon. Luis Paulino Mora Session X meaning that investments depended for the most part on the enthusiasm, vi- sion, and individual preferences of each committee member. Inasmuch as the full Court had no concrete action plan either, budget bills usually were adopt- ed as proposed by the Budget Committee, whose membership has tended to vary from one year to the next. The prevalence of this mechanistic approach narrowly targeting specific problems undoubtedly had a negative impact on progress with respect to the independence of the judiciary, access to justice, the protection of fundamental rights, and other areas. Strategic planning is therefore essential to a professional, nonimprovisa- tional, approach to work, and to tackling priorities in an integral, planned manner, thereby preventing the diversion of resources to less important tasks. Relying Too Much on Imitation and Too Little on Innovation We imitated what we observed, without stopping to think. Judicial form was for a long time limited to solving specific problems (the mechanistic ap- proach), primarily through procedural and legislative change, and we have followed that example, perhaps in the belief that because that is how things were done in developed countries, it was automatically the best solution for us as well. Taking this approach, until recently we assumed it was sufficient to study procedural and substantive advances in more developed countries and im- port them with some adaptations in order to keep our own systems of justice up to date. The General Law on Public Administration, the Code of Civil Pro- cedure, the Civil Code, and many other instruments responded in part to this tradition. Even the existing Penal Code was, at the time it was promulgated, identical-with the exception of two or three provisions of its own-to that of C6rdoba, Argentina. Our judges and lawyers were trained overseas, mainly in Europe, and their experience has led us to reproduce the same approaches in our systems of justice without even considering whether those approaches were consistent with our national character and our own history. Because we did not recognize that there was no magic formula for judicial reform, in many instances we reproduced problems from one country to the next by importing solutions foreign to our culture and history. This made us overconfident that we were doing the right thing and prevented us from seeking our own solutions. Making People the Focus: A Risk Worth Taking 403 Spain is an obvious case in point. For years we took every opportunity to follow its example. We adopted Spain's solutions with few modifications, even though the Costa Rican mentality is very different from that of Spain. The Spanish system-as the Spanish themselves acknowledge-is formal and bureaucratic, and not very accessible, which probably resulted from a differ- ent approach to justice. By contrast, our informality and level of freedom re- quire a more accessible, fast-moving, simple, and nonbureaucratic system. Costa Ricans and Spaniards therefore have very different levels of tolerance in such matters. The Libro Blanco de la Justicia6 is one example of something we have tried to copy from a system that is very different from our own, from what we de- sire, and from our historical reality. In so doing, we behaved like a colony, and there are still many who believe that our neighbors have the answers, that we need not introduce any innovations or, as doing so would of course imply, risk seeking our own solutions. Losing Sight of the True Target of Justice: Individuals, and the Need to Solve Their Problems For many years the legal culture of Latin America has been a rigid product of the Napoleonic era. Most of our judges are still trained in this authoritarian tradition at university. The entire system was in general designed to apply the law in a mechanistic fashion, and has paid insufficient attention to the indi- vidual or the social conflict underlying court cases. Form became substance, leaving an endless stream of unresolved disputes mired in meaningless bu- reaucratic obstacles. Our codes of procedure-which, as I have noted, usually were imported-have played a major role in encouraging this rigorous and excessive formality. Our citizens lack access to justice and find it difficult to invest resources and time in lawsuits. They are forced to deal with cold, distant judges who are out of touch with social reality, reluctant to change, and totally unaware of their true role in a democratic society. Our Napoleonic heritage-vertical and authoritarian-has bequeathed to us judges who consider themselves "lords and masters" of their domain and 6. See "La Experiencia Espanola de Reforma Judicial: El Libro Blanco de la Justicia," L. L6pez Guerra, OAS, sladlciw@oas.org. 404 Hon. Luis Paulino Mora Session X are convinced that isolation and absence of controls are the natural conse- quences of judicial independence. This vision is still attractive to many judges, since they can impose their will, enjoying uncontested sovereignty not only with respect to the cases they choose to consider but also over the office they manage. Also prevalent is the notion that judges deal with case files instead of people. The exercise of judicial discretion has been discour- aged, and judges have been cautioned to avoid the "contamination" that might result from speaking with individuals and dealing with reality instead of considering only the facts contained in case files. Another major con- straint has been that our system has compelled the parties involved in a dis- pute and judges to express their views in writing. The ideology underlying the system reinforces this behavior, for according to this ideology, judges do not serve as guarantors of citizens' rights in a democracy; rather, they serve the objectives of the system. Failure to Invest Adequate Resources Finally, one factor that has significantly affected the outcome of judicial re- form efforts has been our failure to invest adequate resources. I am referring not only to the lack of planned investments I mentioned earlier, but also to the shortsightedness of national and international policy in failing to recognize soon enough how important the strategic role of justice is as an instrument of both democratic stability and economic development. Until recently, the judiciary was viewed with the same passivity with which it viewed itself, and the political, social, and economic consequences of poor or mediocre performance by the judiciary in developing countries were underestimated. Consequently, for years our countries kept the judicia- ry on only a "maintenance" budget, making a few mechanistic and there- fore isolated efforts to improve the system, efforts that-for the reasons I have indicated-have proved completely inadequate for the purpose of building a modern, up-to-date, reliable judiciary. Excessive reliance was placed on economic reform, which clearly could not-indeed, could never- resolve the problems faced by Latin America, a developing region in con- stant turmoil. We have come to realize that reforming the state is, once again, a prerequisite for sustainable development and good governance, and only now do we acknowledge the strategic role that the judiciary must play in this process. Making People the Focus: A Risk Worth Taking 405 The Costa Rican Strategy: Making People the Focus of the Justice System After meeting virtually all the requirements experts deemed essential for an effective judiciary-in other words, after trying almost everything-we were surprised and dismayed to find that the public still lacked confidence in the judicial system and that the system had a heavier backlog of work than it had faced prior to the reforms. The factors mentioned earlier are some of the main reasons this happened. Our focus now is twofold: (a) we are pursuing efforts already underway to promote the economic and functional indepen- dence of the judiciary, judicial career paths, accessibility, judicial training, discipline, procedural reform, investment in technology, and other areas; and, even more important, (b) we are striving to encourage a philosophical shift in order to reorient the judiciary toward its true purpose, namely to serve the public, making the individual-not judges-the central focus of its attention. Management planning on both these fronts is in progress, to which end a strategic planning process has been launched with broad participation at all levels (administrative and judicial) in order to guide all activities, decisions, and investments relating to the judiciary, as described above. The concept of a system of justice as a public service focusing on the individual clearly im- plies a profound change of course. The justice system can no longer be con- sidered a power unto itself and must refocus its mission on the human per- son. Consequently, independence and all the other traditional features of the judiciary will play instrumental roles in creating a sound system of justice- which, besides being efficient and effective, must also be transparent to the public and earn its trust. To achieve this goal the courts must first prove that they are accountable and, inevitably, must become independent in the true sense of the word. Sec- ond, civil society must be incorporated openly and transparently in the work of the judicial system (this undoubtedly means establishing a strategic al- liance between the two). Third, a shift in mentality and organizational culture is required to enable the system to develop a customer service orientation. Accountability In a democracy, only the people hold sovereign power. All other powers are delegated and those who hold them are accountable for their actions. 406 Hon. Luis Paulino Mora Session X Accordingly, not a single public official or other authority is exempt from control. No one has this privilege, not even Parliament. Moreover, the people do not merely hold sovereign power; they also finance our work through the taxes they pay, and they are entitled to honest answers regarding how their money is spent. Therefore, in a democracy the independence of the judiciary must exist by virtue of, and as a guarantee for, the people, in order to preclude any doubt that the courts have acted fairly and transparently. Unfortunately, we have focused intently on independence for years, treat- ing it as virtually the only priority objective, and have used it as a shield en- abling us to work behind civil society's back to prevent ourselves from being questioned or held accountable for our actions. On occasion, independence has been used as a weapon during strikes, in an effort to prevent anyone from interfering with our work, particularly if the dispute concerned the establish- ment of remuneration guidelines or proper disciplinary procedures. Because the courts are considered a public service in a democracy, secrecy is out of the question, which means that the independence of the judiciary must always be viewed as a tool and not as an end in itself. The objective must be to provide the population with a reliable justice system. Accordingly, independence neither is nor should be the major focus of the judicial reform agenda, and we should move on to tackle other priority mat- ters of concern to our citizens. Studies show that the independence of the ju- diciary is not the public's major concern at present. The following issues are more important in their view: the degree of access to the justice system, the efficiency and speed with which cases are resolved, cost, and the professional caliber of judges.7 The public believes that independence alone does not guarantee adequate justice for all. In fact, many people's concern is not that there is a lack of independence, but that there is too much, as the writer Fransico de Queva- do has already warned, "Excess was always poisonous," or as Mckechie (1996) observes, "Independence without responsibility is an illusion, and indepen- dent powers should be given only to those who account for how they exer- cise them."8 7. A survey conducted by officials in the State of the Nation program indicates that the public's main concerns are equality of access and greater flexibility and speed. 8. Toharia, J. 1999. In "La independencia judicial y la buena justicia." Justicia y Sociedad, No. 3. Making People the Focus: A Risk Worth Taking 407 A Strategic Alliance with Civil Society Neither the state nor the market has managed thus far to resolve the major is- sues on society's agenda. We firmly believe that it is essential to incorporate civil society in an open and transparent manner at all levels of government (in the broadest sense of the word), particularly in the judicial arena. This is necessary because, as I have already pointed out, the judiciary has been silent, has hidden itself from public scrutiny, and worked in secret, partly as a result of having dangerously distorted the concept of independence and, un- doubtedly, failed to make the individual the focus of its attention. We have learned that listening to the people, hearing their needs, their concerns, and their suggestions, and including them as our allies in our reform effort, is the appropriate way to restore confidence in the judiciary and clear up any distortions the public may harbor concerning the way we work. We have taken a risk to accomplish this, by making our operations trans- parent to the community and the media, and also by looking inward. On this last point, as I have already noted, we have initiated a participatory dia- logue at all levels within government and the judicial system to elicit the views of staff regarding existing problems and determine the strategic objec- tives that should be adopted to resolve them. This effort resulted in the preparation of the first strategic planning document on planned manage- ment for the judiciary. However, our boldest step has been our unprecedented effort to open up our operations to the public. We began by being totally transparent in our dealings with the press, providing it with access and information. We are also engaged in an ongoing dialogue with reporters from all the media-print, television, and radio, rural as well as national-regarding our plans and pro- jects, progress made, and obstacles encountered. Our hope is that this will in- crease understanding of the judiciary and thus ensure that the public is accu- rately informed. We also want to encourage the media to take an interest in the positive aspects of justice and its role in society, in order to counteract their practice of focusing on crime and accident reports as if this information about the system were all that mattered. We have also launched a series of meetings with other key actors in society, including lawyers, politicians, and businessmen, to hear their views and inform them about our plans and objectives. For the same reason, the 408 Hon. Luis Paulino Mora Session X Supreme Council of the Judiciary has visited all of the country's communi- ties, with very positive results. We learned, for example, that both rural and urban inhabitants have a mistaken view of the role of the judiciary, in that they associate us with the increase in crime and with a lack of supervision and patrols-in other words, with problems that are the responsibility of oth- er components of the judicial system. We are using these opportunities to hear the people's concerns and teach them about the role of the judiciary, and are also developing an educational video concerning the judiciary (to be distributed to schools, communities, and the press) in an effort to correct misinformation regarding our role. One interesting fact in this connection gleaned from opinion polls is that the ju- diciary is less popular among persons who have not had any dealings with the courts than with those who have. This indicates that considerable misun- derstanding exists about the role of the judiciary and that the public is unfa- miliar with the judiciary's activities and programs. We are also taking steps to improve our Web page9 so that girls and boys throughout Costa Rica will have access to the history of the judiciary, its functions, programs, and projects, and will be able to communicate online with judges to express their opinions, offer suggestions, or criticize how the judiciary operates. By strengthening our Web presence, people anywhere in the world will be able to reach us and consult records of our proceedings and jurisprudence. As another indication of our desire to reach out to the public, to ordinary citizens, we have been given a one-hour time slot each month'0 on the coun- try's most popular radio program, during which callers can speak directly to judges on any matter of interest to them. We also use this time to inform lis- teners of progress made, as well as projects and programs. A Shift in Mentality and Organizational Culture in order to Develop a Customer Service Mentality If we are to shift from a philosophy that the judiciary is all-powerful to one that holds that the judiciary must serve the population and that civil society 9. . 10. This slot will be available only this year, since it is a collaborative effort with the company. Lack of funds will, unfortunately, prevent us from continuing to participate. Making People the Focus: A Risk Worth Taking 409 must be able to contribute fully, major reforms naturally are required. These should focus in particular on the service we provide, and we must therefore develop appropriate diagnostic and monitoring tools and disciplinary mea- sures to improve how we assist and respond to the public. A Judicial Services Inspection Unit is therefore needed to facilitate com- munications between users and the judiciary, detect problems, and find solu- tions to enhance service effectiveness, through both corrective and preven- tive measures. The Unit will complement the Judicial Inspection Office, ensuring that matters not requiring disciplinary measures are dealt with the utmost dispatch. In addition to contributing to the modernization process, the Unit will also strengthen the people's trust in the administration of justice, encourage the public to participate in supervising the provision of services, and foster the rational use of public resources. It will also help both to enable the people to exercise their right to petition the judiciary so that they can express their views on the quality of services received, and to ensure that their requests are dealt with and resolved. The proposal calls for the establishment of a Central Inspection Unit as well as 11 subunits to be set up gradually throughout Costa Rica as part of a three-stage process ending in 2002. The proposal is now under consideration, with budgetary issues posing the primary obstacle. In introducing the measures described above, Costa Rica is relying on the community as its best ally in the effort to modernize its judicial system and strengthen the rule of law. We know now that the silence behind which we cloaked our operations for so many years generated distrust and ignorance of the role of the judiciary, seriously undermining its credibility and reliability. Although we do not expect this strategy to be a panacea, it is a major tool for developing a more democratic, open, and transparent judicial system. The fact that it calls for ongoing supervision should encourage us to make contin- uous improvements. Before I conclude my statement, I would like to mention briefly a number of other efforts underway to improve traditional indicators relating to judi- cial reform: 410 Hon. Luis Paulino Mora Session X * Procedural reforms to promote orality and simplification of cases. A General Code of Procedure has been prepared which increases the number of statements that may be presented orally and is designed to bring judges and parties together more easily and to accelerate case processing. A Code of Administrative Procedure has also been prepared to update the Law Regulating the Administrative Court System, assigning the public a greater role in monitoring administra- tive procedures. * More judges. We have learned that a severe shortage of judges is one of the reasons the judicial system is faced with a backlog of work. We therefore decid- ed to increase the budget to recruit at least 100 judges initially, a step that will lead to more appropriate workloads. * Investment in technology. We are investing heavily in technology thanks to support from the Corte-Bid Project. Our projects include direct notification to users' servers; consolidation of electronic case processing, allowing remote access from anywhere in the country or the world; access to the legal information system, enabling judges and the public to consult the jurisprudence of the four chambers of the Supreme Court or the Court of Cassation (Tribunal de Casaci6n), the opinions of the Office of the Attorney General, and current legislation from their computers; links between judicial circuits via telephone to consolidate Internet con- nections, and implementation of the final phase of work permitting automatic withdrawal of funds and remote access for major users. * Elimination of atypical jurisdictional responsibilities. We are also considering eliminating atypical jurisdictional responsi- bilities, which increase the cost of administering justice by diverting resources from other priority areas and distorting the role of the judi- ciary.II 11. One example is the removal of uncontested traffic cases (accounting for over 200,000 cases annually) from the competence of the courts. Another example is the Making People the Focus: A Risk Worth Taking 411 Conclusion 1. There is a consensus in Latin America that the rule of law must be strengthened as the key to consolidating democracy and ensuring eco- nomic efficiency. 2. Costa Rica, motivated by a desire to ensure that its judicial system is transparent, efficient, egalitarian, and worthy of trust, and that it con- tributes to the country's economic and democratic development, has therefore launched a carefully planned-not improvised-effort adapt- ed to its particular needs. This undertaking is comprehensive, covers all the factors that are essential for an efficient legal system, and focuses on the individual, in a strategic alliance with civil society. relocation of the Office of Notaries, which handles disciplinary matters pertaining to notaries; although this is not a matter within the competence of the courts, the Office receives substantial budgetary resources, diverting funds that could be used for the administration of justice. The Example of the Organization for the Harmonization of Business Law in Africa (OHADA) Seydou Ba Presiding Judge Common Court of Justice and Arbitration OHADA In the interest of greater cooperation among African states, countries in West and Central Africa, together with the Islamic Federal Republic of the Co- moros, decided to harmonize their legal systems in the area of business law. To this end, the Treaty establishing the Organization for the Harmonization of Business Law (OHADA) was signed on October 17, 1993 in Port Louis. Accession to the Treaty is open to all member states of the Organization of African Unity (OAU) that were not original signatories of the Treaty, and to any other state invited to become a member of OHADA by common consent of all the signatory states. The Treaty entered into force on September 18, 1995. OHADA, which at present has 16 members, seeks to provide a secure legal and judicial environment for businesses. The initiators of the Treaty on the Harmonization of Business Law in Africa justified their effort by emphasizing the need to eliminate legal and judicial insecurity in the business sector. The causes of judicial insecurity had been identified as stemming, in par- ticular, from a lack of knowledge or understanding of applicable legal texts (because official gazettes were not published or were published irregularly and the legal decisions comprising jurisprudence went unpublished). This re- sulted in a climate of uncertainty, which was incompatible with the mini- mum level of predictability regarding legal issues that is necessary for eco- nomic activity. There were many reasons for this judicial insecurity, including the following: 413 414 Seydou Ba Session X * Inadequate training of judges and judicial personnel; * Instability of jurisprudence; and * Dissatisfaction within the judicial profession, in terms of both techni- cal support and the material circumstances of judges. Such shortcomings contributed to a climate of uncertainty regarding the outcome of judicial proceedings. This uncertainty has been acknowledged as one of the major causes of the deterioration of the business environment, re- sulting in paralysis or the exodus of some businesses operating in key sectors. To address this problem, it was deemed necessary to introduce mechanisms to enable all the states concerned to adopt the simplest, most modern, and most appropriate legal procedures-those that were the most effective and most easily accessible to businesses wanting to invest or already operating in OHADA countries. Thus the goal was to ensure a secure and predictable legal environment for businesses through the adoption of uniform acts. Measures to improve the security of the legal environment of businesses are the subject of the first part of this paper. While adopting uniform legal texts admittedly has many positive aspects, it was not sufficient to ensure complete security. Above all, the judicial envi- ronment had to be improved by developing a corps of judges and judicial personnel capable of appropriately applying the uniform laws; establishing a body responsible for ensuring uniform interpretation and enforcement of uniform legal texts; and, finally, developing simplified procedures for collect- ing debt and strengthening enforcement mechanisms. Measures to improve the security of the judicial environment of businesses are the subject of the second part of this paper. Legal Security Uniform law took concrete form with the adoption of texts called uniform acts. These acts were prepared by the Permanent Secretariat of OHADA in consultation with the governments of the states that were parties to the Treaty which established OHADA. The Council of Ministers, a body estab- lished under the Treaty, discussed and adopted the acts on the advice of the Common Court of Justice and Arbitration (CCJA). It is useful to keep in mind that national parliaments are excluded from the proceedings for adopting uniform acts. The Council of Ministers has sole competence in this Organization for the Hartnonization of Business Law in Africa 415 area. This makes it possible to avoid the drawbacks of indirect procedures that could lead to the adoption of conflicting legal texts that would be diffi- cult to implement. The acts become effective immediately after they are published in the Offi- cial Gazette of OHADA, without the need for additional regulatory legislation from the treaty party states. They are directly applicable and binding in all OHADA countries, notwithstanding any contradictory provisions in existing or future national laws. Uniform law is of considerable benefit to private investors. It ensures them better legal information and a completely revised body of business law. The adoption of identical rules for business law has many advantages, such as the following: * The elimination of conflicts of laws, which frequently occur in interna- tional trade relations. Judges no longer need to determine which na- tional law is applicable to the parties, since the applicable law is identi- cal for all OHADA member countries. * The ability of businesses to know which laws apply or will apply to their international activities. It is sufficient to know what law is applic- able in a given country. The revision of business law is evident in three critical areas: the status of businesses, stronger guarantees for creditors, and the relevance of the collec- tive procedures for discharging liabilities to the problems businesses face. Reforming the status of businesses calls for reforming structures and pro- fessional relations. The adoption of modem business laws governing com- mercial firms and economic interest groups is all the more commendable if one considers that except for Senegal, Mali, and Guinea, the remaining mem- ber states of OHADA had been operating under outdated provisions of the civil code and the laws of July 24, 1867 and March 7, 1925. One particularly welcome development is that sales of goods and services between business professionals are now carefully regulated from the develop- ment of the sales contract to its execution or cancellation. Finally, the adoption of a unified accounting system will considerably facilitate the evaluation and comparison of company asset and liability posi- tions, not only within the same country, but also among countries. 416 Seydou Ba Session X Strengthening debt security for creditors is also a concern of OHADA. The limited scope of this paper prevents us from giving a detailed account of the Treaty's provisions in this area; however, it is possible to indicate a few of the innovations. The first demand guarantee, derived from international business practice, was introduced, definitively established, and regulated un- der substantive law. The ranking of creditors holding secured debt, some- what complicated by unclear provisions in the civil code, was considerably simplified and clarified. Various warrants (for the hotel, oil, and agricultural sectors, for example) formerly governed by antiquated and widely scattered legal documents were brought together under common rules and given a new name-schedules of equipment and merchandise inventories used as collateral. Finally, outdated nineteenth century bankruptcy legislation inherited from the commercial code was replaced with collective procedures for dis- charging liabilities. The new procedures are adapted to the range of con- straints businesses face, without sacrificing the interests of creditors. Thus, two mechanisms were introduced to prevent businesses that are un- able to continue their operations from failing to fulfill their debt obligations: internal measures that alert executives of the enterprise, and preventive regu- latory procedures that allow the company to devise a reorganization plan with the agreement of creditors. Naturally, if cessation of payments does occur, provision is made for standard procedures to deal with the situation, namely court-supervised rehabilitation and liquidation of assets. However, court-supervised rehabili- tation is based on the reorganization plan, which allows traditional delay- ing mechanisms (time extensions and forgiveness of debt) as well as other technical, financial, and legal measures that are favorable to the recovery of the business. A final reason that private investors stand to benefit from the fact that a group of African countries (currently 16) have adopted uniform and binding business laws is the establishment of the Trade and Personal Property Register (RCCM) established under the Uniform Act on General Commercial Law, which entered into force on January 1, 1998. Prior to the adoption of this Act, the majority of the states that were parties to the Treaty were governed by the French law of March 18, 1919, Organization for the Harnonization of Business Law in Africa 417 under which the trade register was merely a directory of information without legal force. The Uniform Act adopted by OHADA indicates that the purpose of the RCCM is to record the registration of individuals engaged in commercial ac- tivities, commercial firms, other corporate bodies, and branches of foreign companies exercising a commercial activity within the territory of the signa- tory states. In addition, the Uniform Act provides that the RCCM will also record reg- istrations of securities on movables such as pledges of goodwill as collateral, goodwill vendor's liens, equipment pledges, and especially pledges of stocks and company shares, reservation of title clauses, and leasing contracts. This represents an innovation for all the states concerned except Senegal and Mali. The overall objective of the RCCM initiative is to offer businesses the most extensive commercial information on the legal and financial status of their business partners, as well as the opportunity to put in place reliable legal guarantees to facilitate commercial transactions. To support this objective, the initiative sets up a national RCCM file in each state, and a regional file in the Office of the Clerk of CCJA. Judicial Security To achieve the goal of creating a secure judicial environment for businesses, OHADA established a Regional School for the Advanced Training of Judges and Judicial Personnel (Acole Regionale Sup6rieure de Magistrature, or ER- SUMA). The school offers specialized training for judges and judicial per- sonnel to enable them to properly apply the uniform legislation for the business sector. A CCJA was established to ensure the uniform interpretation and applica- tion of the Treaty, its implementing regulations, and the uniform acts. Finally, it was necessary to set forth simplified procedures for debt recov- ery, and to strengthen enforcement measures without challenging the exist- ing organization of the judicial systems of the treaty party states. This paper will briefly describe, in turn, the Regional School for the Advanced Training of Judges and Judicial Personnel and-the cornerstone of the reform effort-the Common Court of Justice and Arbitration (CCJA) of 418 Seydou Ba Session X OHADA. Finally, it will discuss the simplified debt recovery procedures and enforcement measures. Regional School for the Advanced Training of ludges and judicial Personnel The school's mission is to train judges and judicial personnel from the states that are parties to the Treaty for the Harmonization of Business Law in Africa. The establishment of this school represents an innovation for several reasons: 1. If judicial personnel receive the same professional and legal training, ir- respective of country of origin, one can assume that this will guarantee satisfactory application of the harmonized business law by courts of first instance and courts of appeal. These jurisdictions typically play a decisive role in lawsuits since not all cases reach the court of cassation, the highest appeals court. Moreover, when an appeal on points of law is made, before the jurisdiction responsible for ruling on appeal inter- venes, various measures may already have been undertaken by trial courts, and these measures will have a decisive bearing on the final out- come of the lawsuit. 2. The training offered by the school is designed both for judges and for all judicial personnel (including court clerks, receivers, judicial experts, attomeys, notaries, and process servers). 3. Finally, the school can train judicial personnel in other areas of uni- form law that are not within the purview of OHADA, such as intellec- tual property (the OAPI1 Treaty), banking law (the WAEMU2 Treaty), and insurance law (the CIMA3 Treaty). This extends the scope of judi- cial training offered by the school. Article 41 of the OHADA Treaty places no restriction on the subject areas in which the school may offer 1. African Intellectual Property Organization (Organisation africaine pour la propri&e intellectuelle), (OAPI). 2. West African Economic and Monetary Union (WAEMU). 3. Inter-African Conference on Insurance Markets (CIMA). Organization for the Harmonization of Business Law in Africa 419 training. The school is responsible for training and upgrading the knowledge and skills of judges and judicial personnel of the treaty par- ty states and can therefore provide both preservice training and con- tinuing education. The Common Court of Justice and Arbitration (CCJA) The adoption of common legal texts by the states that were parties to the Treaty establishing OHADA is not sufficient to guarantee effective harmonization of business law, a factor that will help ensure a secure environment for foreign investment (which was the goal of the initiators of the Treaty). In addition, it is particularly important to ensure that the uniform legal texts are consistently applied and interpreted, which means that the same body of jurisprudence should serve as a reference throughout the OHADA area. Introduction to the Common Court of Justice and Arbitration of OHADA. The Common Court of Justice and Arbitration is one of the four institutions en- visaged in Article 3 of the Treaty. The other three institutions are the Council of Ministers, the Permanent Secretariat, and the Regional School for the Ad- vanced Training of Judges and Judicial Personnel. Of the four institutions, the CCJA is the one that best symbolizes OHADA's ambitious goals, by virtue of the scope and specificity of its jurisdictional powers. Occupying a strategic position in the overall process of legal and judicial reform, the CCJA performs the following functions: • Ensures that the Treaty, its implementing regulations, and the uniform acts are consistently interpreted and applied by all the states parties; - Can be consulted by all signatory states, the Council of Ministers, or national courts regarding all the matters discussed above; * Acts as a supra-national court of cassation for rulings handed down by appeals courts in the signatory states or for court rulings of which no appeal is likely in all matters related to the application of the uniform acts and regulations envisaged in the Treaty; and * Through relatively strict monitoring of judicial proceedings and arbi- tral awards, ensures that arbitration is promoted and given credibility as an instrument for settling contractual disputes. 420 Seydou Ba Session X The powers and prerogatives of the CCJA are as extensive as they are var- ied and specialized. For this reason the CCJA often arouses curiosity and prompts questions. It is a unique entity in the legal-judicial structure of Africa, and for that matter, in the world. It is rare that the same court is simultaneously a supra-national court of cassation, a high court with tertiary jurisdiction (when an application is made for judicial review, the court may assume cognizance of a case and rule on its merits), a legal adviser to signato- ry states and community institutions, and an arbitration body. At a somewhat comparable level, the Court of Justice of WAEMU in West Africa and the Court of Justice of the European Communities in Luxembourg do not have as many powers and prerogatives as the CCJA. This brief discussion of the CCJA will conclude with a description of its composition, organization, and functions. Articles 31 to 39 of the OHADA Treaty and Articles 6 to 19 of the Rules of Procedure imply that the CCJA is similar to our national high courts of cassation-staffed with a presiding judge, judges distributed among its chambers, and a chief clerk of court, who also functions as general secretary for arbitration. The only difference is that the judges of the CCJA are elected by the Council of Ministers for a specified term. Terms of reference and competencies of the CCJA. Article 14 of the Treaty stip- ulates that the CCJA has three functions: * Consultation. The Court is consulted and advises on drafts of uniform acts before they are submitted and adopted by the Council of Ministers. It can be consulted by any member state or by the Council of Ministers on any matter related to the application or interpretation of uniform acts or their implementing regulations. It can also be consulted by na- tional courts about lawsuits before those courts on matters relating to the uniform acts. * Litigation. The Court serves as the appellate judge in a court of cassation in place of national courts of cassation in all matters relating to harmo- nized business law. When an application is made for judicial review, the court may assume cognizance of a case and rule on its merits. * Arbitration. Pursuant to an arbitration clause or an arbitration agree- ment, any party to a contract-whether one of the parties is domiciled or has its habitual residence in a signatory state, or whether the con- Organization for the Harmonization of Business Law in Africa 421 tract is executed or to be executed wholly or in part within the territory of one or several signatory states parties-may submit a contractual dispute to the CCJA under the arbitration procedures envisaged in the Treaty. These three functions must be exercised in accordance with specified pro- cedures. This paper will not elaborate on the procedures, but will simply note the following: * Consultation procedures. Neither the Treaty nor its Rules of Procedure specifically say so, but it is reasonable to assume that the opinions of the CCJA cannot be imposed on signatory states, the Council of Minis- ters, or originating jurisdictions. These entities seek the CCJA's guid- ance mainly in order to appropriately apply or understand a uniform act or a related implementing regulation (for example, application over time and specific domestic measures to be taken). * Litigation procedures. Bringing a case before the CCJA suspends all ap- peals proceedings undertaken in a national court against the contested decision (Article 16 of the Treaty, second paragraph). Bringing a case before the CCJA does not, however, suspend execution proceedings. In cases in which a dispute is brought before the CCJA and a national court of cassation has declared itself competent to render a verdict and has done so, the decision is considered null and void if the CCJA rules that the national court wrongly asserted its competence (Article 18 of the Treaty, third paragraph). * Arbitration procedures. The CCJA is involved in the arbitration activities of OHADA even though it does not itself settle disputes (Article 21 of the Treaty, second paragraph). It appoints or confirms arbitrators. It is also informed of the progress of legal proceedings and examines draft awards before they are signed by the arbitrator. In the context of exam- ining the award, the CCJA can only propose changes with respect to is- sues of form. It thus exercises, upstream, the role of "monitor" with the sole objective of making the arbitration activities of OHADA credible. Downstream, Article 25 of the Treaty confers a jurisdictional role on the Court with respect to the execution of arbitral awards, which must be the subject of an exequatur-which the CCJA alone is empowered to 422 Seydou Ba Session X issue-in order to be enforced. Similarly, as set forth in the arbitration rules, the CCJA has jurisdiction in cases in which the validity of an award is contested and it also hears appeals against writs of enforce- ment once an exequatur has been issued. However, responsibility for appending the enforcement order falls to the national authorities. Effects of CCJA decisions. The effects will be defined on the basis of litiga- tion decisions rendered by the CCJA. According to Article 20 of the Treaty, the decisions of the CCJA have the authority of a final court ruling and the force of law. No ruling contrary to a decision of the CCJA may be enforced within the territory of a signatory state. It is therefore useful to analyze the aforementioned article in terms of (a) the effects attributed to the authority of CCJA decisions, and (b) the effects resulting from the enforcement of such decisions. * Effects attributed to the authority of CCJA decisions. Two important effects may be inferred from the assumption in Article 20. First, the decisions of CCJA are to be treated as equivalent to decisions rendered by courts in the signatory states, making it unnecessary for the states to monitor those decisions. Second, the authority of the CCJA extends to the terri- tory of each signatory state. Thus, the authority of a final ruling by the CCJA would, for example, be an obstacle to reopening a case in Togo that had already been pursued in Mali-and vice versa. • Effects resulting from the enforcement of CCJA decisions. The decisions of the CCJA are enforceable within the territory of each signatory state under the same conditions as decisions made by national courts. The enforcement order is almost direct, and the local judge does not have to issue an exequatur decision as is customary for rulings delivered by foreign jurisdictions. Article 42 of the Rules of Procedure specifies a fortiori that the decision has the force of law from the day it is handed down. Article 46 of the Rules of Procedure adds that the enforcement order is appended without any formali- ty other than verification of the authenticity of the decision by the national authority. Organization for the Harmonization of Business Law in Africa 423 The CCJA is nevertheless the sole authority that can suspend an enforce- ment order (Article 46 of the Rules of Procedure ) or entertain exceptional re- view procedures (such as third-party proceedings or reconsideration of deci- sions). As the foregoing information indicates, the decisions of the CCJA are char- acterized by autonomy and detachment from the legal order of, and the everyday events experienced by, the national courts. At the very least, this contributes to the simplicity, speed, and efficiency of the judicial process, all factors that can be attractive to investors. This attractiveness was a major im- petus for the Treaty. Simplified Debt Recovery Procedures and Enforcement Mechanisms One uniform act deals specifically with simplified procedures for recovering debt and measures for enforcing the procedures without challenging the or- ganization of the judicial system in the states parties. The act deals solely with procedures that are most commonly used by creditors. Simplified debt recovery procedures. The procedure relating to an order to pay is applicable in all OHADA countries, although some countries are not aware of it. The procedure involves obtaining a petition from a judge ordering the debtor to pay. If after the notification is served, the debtor does not execute the order or does not contest it within a specified period of time, the order becomes final and enforceable. This simplified procedure is applicable to any liquid and payable debt that has a contractual basis, or is represented by a negotiable instrument or check. The second simplified procedure relates to the obligation of the debtor to deliver an item in execution of the contract (such as a sale, an exchange, a contribution to a partnership's assets, a deposit, a loan for use) or to return the item if the contract is annulled or terminated. This procedure is called an injunction to deliver. Finally, provision is made for clearance of mutual debts between public- law corporations and individuals under private law. Enforcement mechanisms. A creditor may have recourse to provisional at- tachment only if recovery of a contested claim is in serious jeopardy and the creditor is not in possession of a writ of execution. 424 Seydou Ba Session X A judge must authorize the creditor to carry out such an attachment un- less the claim concerns a negotiable instrument, an unpaid and contested check, or unpaid rent certified by a formal order to pay that has not been honored. Previously, national laws of the states concerned required the au- thorization of a judge for all debt claims. Moreover, the creditor has a strict time limit of one month (or the attach- ment will lapse) during which to institute substantive proceedings and ob- tain a writ of execution. Once the writ has been obtained the attachment of goods occurs without intervention of a judge. The court's process server sim- ply serves notice. Notification makes legal proceedings for validation option- al. Validation would take place only if the debtor wished to contest the at- tachment by referring it to a judge. Procedures for the attachment of movable property assume that a writ of execution has been issued and that the attached items are goods, financial claims, or earned income. The attachment of goods is dependent on the prior issuance of an order to pay. The innovation in this Act is that the debtor is allowed to sell the confis- cated goods through a private sale with the agreement of creditors. The in- herent costs of a public sale are thus avoided and a better sale price for the property is obtained. The attachment of claims other than earned income is limited to the sum due and the amount in question is awarded immediately to the creditor even if attachment claims are presented subsequently by other creditors. Limiting the attachment to the amount owed abolishes the former principle of the in- divisibility of the attachment, which tied up a higher sum than was actually owed to the creditor. Owing to the sensitive nature of the attachment of earned income, it was thought preferable to retain the standard procedure of preliminary interven- tion by a judge with attempts at reconciliation, which is the practice in the countries concemed. The payments are processed by the clerk of court. In the case of multiple attachments, creditors are ranked by the amount they are owed, subject to the priority of their claims (for example, maintenance claims). A specific procedure was provided for the attachment of securities and partnership rights, which were previously treated in the same manner as Organization for the Harmonization of Business Law in Africa 425 either financial claims or goods. Attachment and replevin complete the sim- plified procedure for the injunction to deliver and return movable property. Finally, under the procedure for distributing proceeds introduced by the Act, the most diligent creditor may initiate legal proceedings if an amicable agreement between the creditors has not been reached. The rules that govern this procedure are, for the most part, similar to those for the attachment of movable property and real estate. Attachment of real estate. The attachment of real estate raises two funda- mental issues that need to be resolved. The first issue arises from gaps in the registration of real estate, since arrangements differ in the various countries concerned. The solution requir- ing the creditor to have the debtor register the property before a writ for pay- ment is served if the property has not yet been registered (as is the practice in Senegal and Gabon) is preferable to the situation under Malian law, which only requires a statement certifying that the debtor has rights in rem to the property under litigation. The second issue relates to fixing a reserve or upset price for the real estate. The solution, which prevails at present under French law, consists of letting the plaintiff freely set the price. This approach is generally criticized as invit- ing abuse, since it allows the creditor or plaintiff to assign a ridiculously low price to the property. Nevertheless, the practice under Senegalese law of hav- ing the judge establish the reserve price seemed too cumbersome a procedure, and it was considered preferable to let the plaintiff determine the reserve price by setting a floor price equal to one-fourth of the market value of the property, subject to possible review by the judge. Finally it is useful to note that assets subject to attachment as real property include outlays on real estate improvements by the debtor on land that he or she does not own, but that was granted to him or her by the decision of an administrative authority. EPILOGUE Perceptions of the Rule of Law in Transitional Societies Dr. Mamphela Ramphele Managing Director The World Bank I am-like Amartya Sen-neither a lawyer nor a legal expert, but simply an international public servant and concerned citizen, so please indulge me while I say a few words for the next few minutes. This presentation is concerned with civil society perceptions of the rule of law in post-conflict states. Later, specific reference will be made to my coun- try South Africa. As you know South Africa was embroiled in conflict. Howev- er, my comments are equally applicable to societies in conflict and those emerging from it. Specifically, those with a history of being directly oppressed by the apparatus of the state and its rules-the recently toppled kleptocracy in Zaire being a prime example. What about the youth of Nigeria, bom to a society where corruption is the rule rather than the exception? Where, during the Abacha era, 125 million people were held hostage by an autocrat? Where the rule of law was deter- mined and hence undermined by one individual? How do you heal societies where the youth see greater value in being big chiefs rather than productive citizens? Bad governance and corruption are pandemic in the states and civil societies of Africa-and these factors, along with deadly conflict, are chiefly responsible for the ineffectiveness of the rule of law on the African continent. That said, there are some "citable" though not seminal examples of post- war states that have managed to rebuild civil society confidence in the rule of law and simultaneously yet slowly reconstruct their own legal and judicial systems. As the ombudswoman has already stated, post-1991 Namibia is a good example. Others are post-1993 Ethiopia and Eritrea, and post-1994 Mozambique. Although Namibia is moving forward in this regard, Ethiopia and Eritrea have been engaged in a disheartening war that has stifled their 429 430 Dr. Mamphela Ramphele Epilogue development processes, and Mozambique is struggling to rebuild its basic in- frastructure in the wake of the horrific floods that ravaged it earlier this year. I am hard pressed to identify one African state that can be referenced as a seminal example. How does Africa teach its children to respect authority and the rule of law and to be productive citizens when the state does not respect them? How does one teach young people to respect the rule of law when they have no experi- ence of it working in their interests? Even outside the scope of the postwar context, can you imagine rural African women in many countries today, bringing claims against their em- ployers for sexual harassment-let alone influence the state to institute claims against men for rape, or bring civil suits themselves? If during peace- time, women cannot find a venue to adjudicate their grievances, what about the hundreds of thousands in Africa who have been victims of war crimes? A society that respects its government and the rule of law will continue to do so amidst chaos or crises. For example, the people of Mozambique have dealt with the crises of flooding in spite of the chaos around them with great dignity. Likewise, the people of Sierra Leone were so troubled with the coup d'etat that toppled the democratically elected government of Tijan Kabbah in 1997 that they held mass protests and even militarily challenged the illegal junta. The key issue is, how do we inculcate respect for and adherence to the rule of law, and for that matter liberal democracy, in societies that have a history of-or are emerging from-authoritarian, autocratic, clientelistic, dictatorial, and corrupt regimes, or mass civil war? How can post conflict civil societies respect the rule of law when the state has been the referent of their oppression? Similarly, how can they embrace and respect popular notions of liberal democracy as espoused by the West/North, when the West/North applies a double standard to Africa? For example, in my country, it was clear that the system of apartheid was not only illegal under international law but custom- ary international law, as defined by Nuremberg. Why did not the inter- national community fulfill its international obligations and take decisive action against South Africa's racist apartheid regimes, as opposed to selling them weapons, for example? Or, why was the international community lethargic in responding to the crises in Rwanda and Sierra Leone, yet it acted Perceptions of the Rule of Law in Transitional Societies 431 expeditiously to the crisis in Kosovo? If the international rule of law were applied equally in both cases, perhaps, today, Sierra Leone would not be in a state of crisis. If African leaders do not respect international law owing to such dispari- ties, or for any other reason, how can we expect them to govern under its auspices? And how can we expect African civil society to know about, under- stand, and respect international law? Do you see the pattern? If African leaders ignore international law and best practices, how do you think they view their domestic law or vice versa? How can societies pull themselves out of poverty without strong legal sys- tems and frameworks? Amartya Sen's analysis of development as freedom makes the case for entrenching democracy and the rule of law. These are important questions because, today, domestic and international law are deeply intertwined, and in small and weak states, international law and best practices, whether economic or human rights law, have a strong im- pact on the character of states and hence civil society. It is in recognition of this impact, that donor countries tie liberal democratic development- whether it is political, economic, or legal-to aid. We know that in democratic countries the law is the glue of society. It holds everything firmly together in a systematic fashion. It serves as society's equalizer, especially when a respectable judiciary complements it. Yet, how can we expect post-conflict societies to embrace and respect the rule of law, when the law-whether traditional, national, or international-has not brought them justice? Stated differently, how can the international community expect victims of unjust laws to be productive citizens and defend and uphold the rule of law? What are the roles of the judiciary, lawyers, legal academics and the like in this regard? It is always easy to discuss what others can and should do, but what are each of you going to do differently when you get back to your home bases and places of employment, to help advance these ideals? Yes, it is true that I have many questions! But that is because throughout the years, I have heard so few answers! Answers that, today, are needed more than at any other time! Allow me to discuss the case of South Africa for a moment. During apartheid, black South Africans were deeply affected by a four- tiered legal system. We lived under (1) traditional law; (2) apartheid law, 432 Dr. Mamphela Ramphele Epilogue which at the time was the national law; (3) regional law and policy, as es- poused by the Organization of African Unity (OAU) and other independent free African countries, which sought to end apartheid; and (4) (in my view a defunct) international legal regime. During this period and even today, black South Africans pondered the question, if apartheid is wrong, if it is il- legal, then how did the "civilized" world allow it to continue? All of these legal regimes greatly affected how the laws of apartheid were established and nurtured, some with contradictory effects. While white rulers in South Africa did not have to adhere to the rule of law, and in fact were above the law, black people were forced to coexist with their white fellow cit- izens under a barbarous system. Today, the new democratic South Africa is forced to contend with the lega- cy and experiences of citizenship and subjugation. The implications of ongo- ing white privilege and the need for black empowerment in the context of so- cietal imperatives for the development and entrenchment of a free and democratic civic culture are enormous. How does one get a people with a "protest culture," and legitimate historical disregard for the state apparatus to adhere to, and respect the rule of law under the new dispensation? How does one get them to see themselves as "citizens" with responsibilities beyond their own lifetimes? It is easy to have free and fair elections, and subsequent- ly declare democracy, but what about all of the obligations and privileges that democratization demands? How does one create a civic culture? Not only for civil society, but also for the military and political leaders-who, by the way, should be a part of civil society? For example, in 1995, during the anti-apartheid struggle, a prominent African National Congress (ANC) member and provincial leader from the Western Cape, was accused of embezzling large amounts of money donated for poverty reduction for the poorest of poor people. He was stripped of his ambassadorship to Geneva, and has been criminally prosecuted, found guilty and jailed. It is a tribute to South Africa's criminal justice system that it acted firmly against this disgraced leader in spite of protests from the ANC leadership. Yes, crime occurs in every society, however, the rationale behind why crimes are committed may vary. There appears to be a nexus of circular causa- tion between the general disdain for the rule of law in South Africa, which persists to date, and the black population's experiences during apartheid. The Perceptions of the Rule of Law in Transitional Societies 433 survival strategies essential for that period are dysfunctional to the culture appropriate for democracy. Other countries-such as Nigeria, Liberia, Guinea-Bissau, and the Democratic Republic of Congo-will and are having to deal with similar legacies. The Way Forward So what can be done to assist such countries to foster strong legal systems and build respect for the rule of law and hence a responsible citizenry? On a structural level, more resources are needed for capacity building. In most Aftican countries the judiciary is nonfunctional in rural areas. Justice must be available to pOOr people beyond the urban core. And even in the ur- ban core, poor people suffer in this regard. Information technology is crucial in this respect. The Red Tenfor Trials in Ethiopia provide a good point of departure here. The state is prosecuting over 6,000 persons from the Mengistu regime for genocide under the 1957 Ethiopian Penal Code, which by the way is one of the most comprehensive penal codes in the world. However, only one-sixth of the cases have gone to trial and several of the regional courts that have jurisdiction to adjudicate cases are not functional. At this pace, this process could take another 10 years before all of the cases are disposed. This is notwithstanding the fact that sev- eral donor govemments have provided some technological assistance (com- puters, typewriters, recording equipment, and so on) and other resources to the Ethiopian judiciary. Greater international support for Ethiopia's judiciary would certainly make it more efficient. The international community, including donor states and the multilateral institutions, must commit more resources for building and strengthening le- gal systems in the developing world. The World Bank has begun to engage in this capacity-building process. This conference is a visible sign of our com- mitment. What needs to be done? Courts must be built and properly equipped. Lawyers and judges must be trained, not just in domestic law, but in inter- national law as well. In this regard, such organizations as the National Judi- cial College, which trains American judges and foreign judges from across the globe, should be studied closely and supported, and their experiences used to assist the developing world, to develop appropriate institutions. 434 Dr. Mamphela Ramphele Epilogue Civil society must be educated about the rule of law and have better access to the judiciary; it should not be a mystery to them. Poor people, especially women and children, must be exposed to information about where they can be advised about their rights and responsibilities. Advice offices in poor com- munities are a good investment in this regard. And finally, Africa and other developing countries must harness and insti- tutionalize the strengths of customary law and do away with exploitive chau- vinistic practices. There cannot be authentic democratization and hence development with- out adherence to, and respect for the rule of law. The law permeates every facet of society, it is the glue that holds the apparatus of the state together, and the latter accountable to the people. Without it, lawlessness and corrup- tion become endemic and taint the cultural fabric of society. Only just and impartial institutions steeped in the rule of law can revive a civic culture and turn victims, non-believers, and pessimists into CITIZENS. APPENDIX Biographies of Authors Martin Abregai Martin Abregu is the rights and citizenship program officer for the Andean and Southern Cone Regions at the Ford Foundation. Formerly, he was the executive director of the Center for Legal and Social Studies in Buenos Aires, as well as the representative in Argentina of the Center for Justice and Inter- national Law located in Washington, D.C. He has also been a foreign consul- tant at the School of Judicial Training of El Salvador and a dean's fellow at the American University Washington College of Law in Washington, D.C. Mr. Abregfu earned his law degree from the School of Law at the University of Buenos Aires, where he focused on international public law and criminal law, and later received a Master of Laws from the American University Wash- ington College of Law, where he specialized in international protection of human rights. Mr. Abregfi has also authored many articles on human rights, criminal law and democracy and has lectured frequently both in Argentina and abroad. Omar Azziman Omar Azziman is the minister of justice of Morocco. He earned his law degree from the Mohamed V University of Rabat and a certificate in business law in Paris, and later received his doctorate degree in private law. Dr. Azziman sub- sequently served as a professor at the University of Rabat Faculty of Law. Dr. Azziman is also the president of the Hassan 1I Foundation for the Moroccan Community Living Abroad and a member of the Arab-Portuguese Chamber of Commerce and Industry Arbitration Council and of the Euro- Arab Superior Council of Conciliation and Arbitration in Paris. Dr. Azziman also represents Morocco at United Nations annual sessions on international trade and has served as a delegate minister to the prime minister in charge of human rights in government. Moreover, Dr Azziman has authored several books, focusing on the juridical structure of banks in Morocco and the legal profession in Morocco. 437 438 Appendix Lado Chanturia Lado Chanturia is the chairman of the Supreme Court of Georgia and has been a key player in drafting national legislation for Georgia. He was a member of the State Commission in Charge of Drafting the Constitution of Georgia and of the Editorial Group in Charge of Drafting the Civil Code of Georgia. In his position as a member of the Council of Justice and as the Minister of Justice of Georgia, he made numerous contributions to imple- mentation of judicial reform in Georgia. Dr. Chanturia graduated from the Faculty of Law at the Iv. Javakshvili State University in Georgia and pursued post-graduate work at the Moscow Legislation Institute. As a grant holder of DAAD, he studied at the Faculty of Law at the Goettingen University in Germany. Dr. Chanturia is a professor of law at Tbilisi State University and has authored extensive publications, focusing primarily on Georgian law and legal reform. Julio Faundez Julio Faundez obtained his LLB degree from the Catholic University of Chile and his LLM and SJD degrees from Harvard University. He established the postgraduate program in Intemational Economic Law at Warwick University, where he teaches courses on various aspects of international law. His recent books include Governance, Development and Globalization (co-editor) (Black- stone Press, 2000), Good Govemment and Law (editor) (Macmillan Press, 1997) and Acciones Positivas en el Empleo y la Ocupaci6n: Perspectivas Internacionales (ILO/OIT, Lima, 2000). Prof. Faundez has advised the Governments of South Africa and Namibia on affirmative action in employment. He acted as advocate and counsel for Namibia before the Intemational Court of Justice in the Case Concerning Kasikili/Sedudu Island and is a legal consultant to Denton Wilde Sapte, a Lon- don-based law firm. He is currently conducting a major evaluation of legal and judicial reform projects for the Inter-American Development Bank. Biographies of Authors 439 Alfredo Fuentes Hernandez Alfredo Fuentes Hemandez is the executive director of the Corporation for Judiciary Excellence in Colombia. Prior to this, he served as the technical co- ordinator of the National Trade Union Council, adviser to the High Council on Foreign Trade in Colombia, and chief executive officer of the Colombian- Venezuelan Chamber of Commerce and Integration. Dr. Fuentes earned his undergraduate degree from the Gimnasio Moderno and his Doctor of Laws from the University of the Andes in Bogota. He received his Master of Laws from Harvard University Law School and his Master of Arts in Economics from Boston University. DL Fuentes has published extensive articles and books on economics in Colombia, integration, development, and the administration of justice in Latin America. Denis Galligan Denis Galligan is a professor of socio-legal studies at the Faculty of Law at the University of Oxford, as well as the director of the Centre for Socio-Legal Studies at Wolfson College at the University of Oxford and a fellow of Wolf- son College. Prof. Galligan is also a frequent visiting professor at the Central European University. Prof. Galligan earned his Bachelor of Laws from the University of Queens- land and his Bachelor of Civil Law from the University of Oxford, where he graduated with first class honors and later went on to pursue both his Master of Arts and Doctorate of Civil Law degrees. Prof. Galligan has also been a Rhodes scholaL Prof. Galligan has authored various publications, focusing primarily on administrative justice and law, particularly in Central and Eastern Europe. 440 Appendix Bryant G. Garth Bryant G. Garth has served as the director of the American Bar Foundation since August 1990. Prior to this, Dr. Garth pursued a career in academia, as a professor of civil procedure, the legal profession, intemational and compara- tive law, and human rights at the Indiana University School of Law, Uppsala University in Sweden, the University of Michigan School of Law, and the European University Institute. He later became dean of the Indiana Univ- ersity School of Law. Dr. Garth received his Bachelor of Arts in American Studies with highest honors from Yale University and his Juris Doctor from Stanford Law School, where he was also the editor-in-chief of the Stanford Journal of Intemational Studies. He subsequently eamed his Doctor in Laws from the European University Institute. Dr. Garth has also authored and co-authored numerous publications, primarily focusing on intemational legal concerns and access to justice. Bience Gawanas Bience Gawanas is the ombudswoman of the Republic of Namibia and is actively involved in advocating and lobbying for the promotion of human rights and gender-sensitive policies, programs, and laws. Prior to this post, she lectured on gender in law at the Law Faculty of the University of Namib- ia. Ms. Gawanas also served as the secretary general of the Namibia National Women's Organization for several years. Ms. Gawanas eamed her Bachelor of Laws from the University of Warwick in the United Kingdom, where she graduated with honors, and qualified as a barrister from the Inns of Court, School of Law in the United Kingdom. Ms. Gawanas does a great deal of national and intemational public speak- ing on issues focusing on women, law, gender, govemance, and develop- ment. She has also authored works on these same issues and is active in radio and television. Biographies ofAuthors 441 Kathryn Hendley Kathryn Hendley is an associate professor of law and political science at the University of Wisconsin in the United States, as well as the Director of the Center for Russia, East Europe and Central Asia at that same university. She has also served as a scholar-in-residence at the Law Library of the U.S. Library of Congress and as a visiting scholar at the Documentation Office for East European Law at the University of Leiden in the Netherlands. Dr. Hendley received her Bachelor of Arts in history from Indiana Univer- sity and her Juris Doctor from the UCLA School of Law. She subsequently earned a Master of Arts in Russian Area Studies and a PhD from the Univer- sity of Califomia at Berkley in political science. In addition, she has been awarded numerous fellowships and grants, the most recent being a research grant from the National Council for Eurasian and East European Research. Dr. Hendley is the author of many publications and book reviews. She is currently studying contractual relations among Russian enterprises during the transition and working to develop a theory on the role of law in the context of transition. Irshad Hasan Khan Irshad Hasan Khan is the chief justice of Pakistan. In this capacity, he also serves as the ex-officio chairman of the Supreme Judicial Council, the Chief Justices' Committee, the Pakistan Law Commission (the federal statutory institution responsible for the systematic reform and modernization of the legal system and the administration of justice), and the Judicial Policy Body (entity responsible for strengthening institutional capacities for judicial and legal reform). Chief Justice Khan is also on the Panel of Arbitrators at the International Center for Settlement of Investment Disputes in Wash- ington, D.C. Chief Justice Khan received his law education from University Law College in Lahore and was a visiting professor at the Himayat-e-Islam Law College. At present, he is a member of the Board of Governors at the International Islamic University in Islamabad. Chief Justice Khan has participated in various symposia, workshops, con- ferences, and seminars, including, for example, the World Peace Through Law Conference, the Seminar on the Role of Government in Industrial Rela- tions, and the Islamic Conference. 442 Appendix Akua Kuenyehia Akua Kuenyehia is the dean of the Faculty of Law at the University of Ghana in Legon. She has taught a variety of subjects at the Faculty, including crimi- nal law, labor law, and international law. She currently teaches the subjects of gender and the law, and international human rights law. Dr. Kuenyehia received her education from the University of Ghana and Oxford University. Her research focuses primarily on family law, where she explores legal issues of interest to women such as property rights of married couples, partic- ularly following divorce. Dr. Kuenyehia currently directs a research project on women and law in West Africa, which encompasses Ghana, Gambia, Nigeria, and Sierra Leone. DL Kuenyehia has also been involved in the legal sector reform process currently underway in Ghana. In this vein, she has coordinated and synthe- sized reports from various consultants regarding different aspects of the legal system, facilitated a stakeholders conference, and prepared a strategic plan to move forward with the reform process. David K. Malcolm David K. Malcolm is the chief justice and lieutenant governor of Western Australia, as well as a companion of the Order of Australia. He is also the chairman of the Judicial Section of the Law Association for Asia and the Pacific, chairman of the Advisory Board of the Crime Research Center at the University of Western Australia, president of the Western Australian Branch of the International Commission of Jurists, and a member of the Board of Directors of the Society for the Reform of Criminal Law. Chief Justice Malcolm earned his Bachelor of Laws from the University of Western Australia where he graduated with first class honors. Chief Justice Malcolm was subsequently a Rhodes Scholar and received his BCL at Oxford with first class honors. He has practiced in many areas of law including com- mercial and corporate law, mining, media, shipping, and administrative law. Biographies of Authors 443 Shahdeen Malik Shahdeen Malik works primarily with the Bangladesh Legal Aid and Services Trust, the largest legal aid organization in Bangladesh. He is also closely asso- ciated with Adarpur Legal Aid Association, which resolves the disputes of the poor and marginalized rural people through mediation. Dr. Malik earned his Bachelor of Laws from City Law College in Dhaka, Bangladesh. He received a Master of Laws from both Patrice Lumumba University in Moscow and from the University of Pennsylvania Law School in Philadelphia, and his PhD from the School of Oriental and African Studies at London University. He currently works as an adjunct professor at the Inde- pendent University of Bangladesh in Dhaka. Moreover, Dr. Malik has worked as a consultant for a number of national and international organizations and has published articles in law journals in Bangladesh, India, and Germany. He is the editor of the Bangladesh Journal of Law, published by the Bangladesh Institute of Law and International Affairs. Grizelda Mayo-Anda Grizelda Mayo-Anda is the assistant executive director of the Environmental Legal Assistance Center in the Philippines. In this capacity, Ms. Mayo-Anda has focused on environmental litigation, staff supervision and coordination, policy advocacy, environmental research and fact-finding, and building rela- tionships among both Philippine and international govemmental and non- governmental groups. Ms. Mayo-Anda has also been a representative of the Pala'wan NGO Network to the Pala'wan Council for Sustainable Development, a member of the Committee on Forestry Affairs at this same council, and a member of the Prosecution and Adjudication Committee of the Bantay Pala'wan Program, a provincial environmental program. Ms. Mayo-Anda earned her Bachelor of Laws from the University of San Jose Recoletos in Cebu City, graduating cum laude. She received a Bachelor of Commerce from St. Theresa's College in Cebu City, where she also graduated cum laude. 444 Appendix Swithin J. Munyantwali Swithin J. Munyantwali is the executive director of the International Law Institute at the Uganda Legal Center of Excellence, a regional center that trains lawyers and related professionals in sub-Saharan Africa and works in regional technical assistance in the field of commercial law reform. Mr. Munyantwali is responsible for the overall management of the Center, including acting as a liaison with regional and international organizations such as the African Development Bank, the Common Market for East and Central Africa, UNCTAD, and UNITAR. Mr. Munyantwali received his law education in the United States, eaming his Master of Laws in international and comparative law from the George- town University Law Center in Washington, D.C. and his Juris Doctor from the Case Westem Reserve Law in Cleveland, Ohio. Mr. Munyantwali has presented papers at numerous conferences on sub- jects such as trade and competition policy, privatization, governance and accountability, corporate governance and the importance of capacity build- ing in the region. Sandra E. Oxner Sandra E. Oxner is a retired judge of the Nova Scotia Provincial Court in Canada, where she served for 25 years. Throughout her career she has been a leader in judicial education at the provincial, national, and international levels. Judge Oxner was the founding director of the Canadian Institute for Advanced Legal Studies and has organized or taught in judicial education programs in Canada, the United States, England, Australia, East, South, and West Africa, the Caribbean, Yemen, China, and Russia. In addition to lecturing for nine years at the School of Journalism at the University of King's College and presenting papers at judicial education pro- grams throughout the world, Judge Oxner has been a guest lecturer at many law schools. Judge Oxner is also a judicial reform specialist and has worked on judicial reform projects in 24 countries, including the former Soviet Union, as well as countries in the Middle East, Africa, the Caribbean, and Asia. Biographies of Authors 445 Rogelio Perez-Perdomo Rogelio P&ez-Perdomo is the academic director of the program in Interna- tional Legal Studies at Stanford University in California. He is also a professor at the Instituto de Estudios Superiores de Administraci6n in Caracas. Dr. Perez completed his post-graduate work in Paris and at Harvard and has also earned a doctorate from the Universidad de Venezuela. As part of his scholarly pursuits in the issues of law and society, Dr. Perez has been active in the Research Committee on the Sociology of Law of the International Sociological Association. Moreover, he is the former director of the International Institute for the Sociology of Law, located in Spain. Dr. Perez has written extensively on the legal profession, on litigation, and, most recently, on the comparative study of governmental corruption. Mamphela Ramphele Mamphela Ramphele, a South African national, became managing director of the World Bank in May 2000. Prior to joining the Bank, Dr. Ramphele served as vice chancellor of the University of Cape Town, the first black woman to hold this position at a South African university. Dr. Ramphele has been honored widely for her contribution to the strug- gle against apartheid. She has also worked as a medical doctor, civil rights leader, community development worker, and academic researcher. Dr. Ramphele has received numerous prestigious national and international awards, including 10 honorary doctorates acknowledging her scholarship, her service to the community, and her leading role in raising development issues and spearheading projects for disadvantaged persons throughout South Africa. Dr. Ramphele qualified as a medical doctor at the University of Natal. She also holds a PhD in social anthropology from the University of Cape Town, a Bcom degree in administration from the University of South Africa, and diplomas in tropical health and hygiene, and public health from the Univer- sity of Witwatersrand. She has published various books and articles on educa- tion, health, and social development issues. 446 Appendix Geoffrey Robertson Mr. Robertson is a Queen's Counsel (leading trial lawyer) who has argued many landmark cases involving human rights and media law in England and throughout Europe and the British Commonwealth. He has served as counsel to intemational commissions investigating political corruption and arms trafficking and, most recently, the administration of justice in Trinidad. He is credited with saving the lives of hundreds of Caribbean death row prisoners through cases he has brought on their behalf in the Privy Council, and in 2001 he led the successful legal challenge to the legitimacy of the military- backed government of Fiji. A long-standing Commonwealth counsel to Dow Jones Inc., he has defended its joumalists against civil and criminal actions throughout the world. Mr. Robertson is the author of Crimes Against Humanity-The Struggle for Global Justice (Penguin/New Press, 2000). He has also published The Justice Game (Random House, 1998) and the textbook Media Law (Sweet and Maxwell, 4th Edition, 2001). He is visiting professor in human rights at the University of London (Birkbeck) and serves as a recorder (part-time judge) in London. Pierre Truche Pierre Truche is the honorary first chairman of the Court of Cassation in France. He also chairs the National Consultative Commission on Human Rights, the Reflection Commission on an International Criminal Court for ex-Yugoslavia, and the Reflection Commission on Justice, and is a member of the Criminal Justice and Human Rights Commission. Previously, Judge Truche served as the public prosecutor at the Court of Cassation, as well as the public prosecutor at the Court of Appeals of Paris. He has also been a judge and assistant public prosecutor in Dijon, Lyon, and Marseilles. Judge Truche holds a Bachelor of Laws degree and has reviewed various ar- ticles pertaining to different aspects of the legal field. His most noted work is The Anarchist and his judge. Biographies of Authors 447 Maher Abdel Wahed Maher Abdel Wahed is the attorney general of Egypt. He is also the member of various committees on legislative reform, private sector development, banking and credit laws, and administrative reform. Attorney General Wahed has headed numerous delegations, such as those in charge of negotiating a cooperation agreement on legal affairs with Tunisia, a treaty on legal and judicial cooperation with Bahrain, and a cooperation agreement on legal affairs with France. Attorney General Wahed holds a Bachelor of Laws, as well as diplomas in administrative sciences and public law, and has lectured on civil and com- mercial procedure law at Wahran University in Algeria. Attorney General Wahed has also published several works and reviews on a variety of topics, including civil law, maritime concerns, and rights. S. Amos Wako S. Amos Wako is the attorney general of Kenya. Prior to this post, he was a partner at Kaplan & Stratton and has also served as the chairman of the Law Society of Kenya and of the Association of Professional Societies in East Africa, and as secretary general of the African Bar Association. Attorney General Wako earned his Bachelor of Science in Economics from the University of London, specializing in international affairs. He graduated from the University of East Africa with a Bachelor of Laws degree and from the University of London with a Master of Laws degree. He is also a fellow of both the International Academy of Trial Lawyers and the Chartered Institute of Arbitrators, as well as an advocate of the High Court of Kenya. Attorney General Wako has been a member of various committees and commissions working in the field of human rights and has also participated in numerous legal and judicial panels and boards. Editor's Note: Regrettably, it was not possible to obtain biographical information for all the authors at the time of publication. COMPREHENSIVE L E G A L AND J U D I C I A L DEVELOPMENT Toward an Agenda for a Just and Equitable Society in the 21st Century EDITED By Rudolf V. Van Puymbroeck This book presents a selection of papers discussed at a global conference on comprehensive legal and judicial development sponsored by the World Bank in June 2000, in partnership with the African Development Bank, the Asian Development Bank, the-European Bank for Reconstruction and Development, the Inter-American Development Bank, the International Monetary Fund, and the United Nations Development Programme. This was the first truly global symposium of its kind, uniting practitioners and experts in legal and judicial development in the broadest cross-disciplinary sense-including over 600 judges, government officials, academics, managers of economic assistance agencies, and representatives of nongovernmental organizations from all over the world. The questions they addressed are of universal concern, and the papers collected here show the diversity of possible answers according to the needs and circumstances of individual countries. "In legal and judicial reform there is the "I am among those who, for a long added challenge that this must be done in time, have been advocating recognition a way that protects the independence of of the role played by law and justice in the bar and the judiciary while creating or development, and I am delighted with what strengthening the accountability and I heard here ... on the subject of comprehen- transparency of their processes and sive development, interdependence, procedures." and the link between social, economic, political, legal and judicial factors." THE HON. JUDGE SANDRA E. OXNER, President, Commonwealth Judicial THE HON. OMAR AZZIMAN, Education Institute, Canada. mister of Justice, Kingdom of Morocco. 188 reet NW Washington, DC 20433 USA Telephone: 202.477,1234 u Facsimile: 202.477.6391 Internet: www.worldbank.org E-mail: feedback@vworldbanK.org ISBN 0-8213-48884