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USAID Program and Operations Assessment Report No. 7

Weighing in on the Scales of Justice: Strategic Approaches forDonor-Supported Rule of Law Programs

by Harry Blair, U.S. Agency for International DevelopmentGary Hansen, U.S. Agency for International Development

February 1994

Preface

In May 1992, the U.S. Agency for International Development(USAID) Center for Development Information and Evaluation (CDIE)initiated an assessment of donor-supported Rule of Law programsin Argentina, Columbia, Honduras, the Philippines, Sri Lanka, andUruguay. During the subsequent 18 months CDIE teams of three tofive people spent 1 month in each country {Footnote 1}collecting data and interviewing observers of and participants in

judicial reform efforts sponsored by USAID and the Asia and FordFoundations.

The study drew on the energies, goodwill, patience, and expertiseof many people too numerous to mention here. However, a fewdeserve special acknowledgment. We are especially grateful for

the enthusiastic cooperation and assistance of the AsiaFoundation, which allowed us to include as part of this studytheir project experience in the Philippines and Sri Lanka. TheFoundation's long history of support of judicial reform greatlyenriched our understanding of the art and craft of strategicthinking in law and development.

Richard Fuller, Stephen Claborne, and Jennifer Thambayah of theAsia Foundation staff in Sri Lanka; Erik Jensen of theFoundation's office in Manila; and Gordon Hein of the home officein San Francisco gave generously of their time and wisdom aboutthe process of reform in both countries. The Foundation and ErikJensen in particular deserve special recognition for their

pioneering roles in developing constituency building and accesscreation strategies; we have learned much from them. TerrenceGeorge of the Ford Foundation office in Manila gave us much helpin these areas as well.

Within USAID, Pamela Baldwin in Sri Lanka, Emily Leonard andKaren Otto in Honduras, James Smith and Ana Maria Salazar inColombia, David Nelson and Darlene Pridmore in the Philippines,and Robert Asselin and Juliana Abella in Argentina and Uruguaywere the source of immeasurable knowledge and insights and were


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instrumental in orchestrating logistical and program supportduring the team visits.

We also thank for their time and services the members of the sixstudy teams: William Millsap (Colombia and Honduras); ArthurMudge (Colombia); Ralph Smith (Honduras); Sidney Silliman (thePhilippines); Robert Oberst and Jacki Vavre (Sri Lanka); andRichard Martin, Chris Sabatini, and Joseph Thome (Argentina andUruguay). Mary Said served on all six teams. In addition, WilliamDavis, Joel Jutkowitz, David Steinberg, and Malcolm Youngcontributed substantially to the study design and preparation andto the final review of reports. Finally, we would like to thankFarah Ebrahimi, Ursula Paquette, and Kathryn Becker for theireditorial and production assistance in preparing this report forpublication.

Full responsibility for errors of omission and commission in theanalysis and conclusions of this report rests on the shoulders ofHarry Blair and Gary Hansen. The authors hope that any sucherrors will not detract from the valuable contributions of the

individuals mentioned here.

Summary

Support for the Rule of Law (ROL) has emerged recently as a majorcomponent of an expanding portfolio of U.S. Agency forInternational Development (USAID) democracy programs. USAIDinvestments in law programs date to the 1960s, but the currentresurgence of activit ies in this area began in the mid-1980s withUSAID's initiation of the Administration of Justice program inLatin America. Since the early 1990s, USAID ROL programs havespread to Asia and are starting up in Africa and in EasternEurope and the Newly Independent States.

In 1992, USAID's Center for Development Information andEvaluation (CDIE) assessed donor-supported ROL programs in sixcountries: Argentina, Colombia, Honduras, the Philippines, SriLanka, and Uruguay. The assessment was both prospective andretrospective, with its central purposes to Assess recent donor experience in ROL Develop criteria for initiating ROL programs Propose a strategic framework for setting ROL priorities and

designing country programs

Criteria for Country Investments

A range of generic criteria for determining whether a country'senvironment might support ROL reform emerged from the six casestudies. For example, knowing the level of potential support oropposition among political elites and organized constituencies(such as bar associations, commercial organizations, andnongovernmental organizations [NGOs]) is especially crucial fordeciding whether investments in legal and judicial reform canyield significant positive results. Similarly, such factors as

judicial autonomy, corruption, media freedom, and donor leverageare critical in determining the prospects for successful


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donor-supported reform.

A Framework for Strategy Design

The case studies also facilitated the development of ananalytical framework for USAID planners to use to identify andsequence investment priorities and strategies for effectingsustainable ROL reforms. As shown in Figure 1 and Table 2 of thereport, the studies identified four essential needs and matchingstrategies for addressing these needs. In sequential order theseneeds and strategies are: Host country political leadership in support of ROL reforms.

If political leadership is weak and fragmented, donors will needto support constituency and coalition building strategies tostrengthen political and public pressure for reform.

Adequate legal system structures. If sufficient politicalsupport exists but the legal system structures are weak, donorswill need to emphasize a structural reform strategy.

Accessible and equitable legal system. Where political willand legal structures are relatively adequate but the

accessibility and equity of the legal system are deficient,donors will need to focus on access creation strategies.

Institutional capacity. Once the first three strategicconditions are judged favorably, emphasis should be placed on theinstitutional capacity of existing legal structures to performtheir intended functions. Where capacity is inadequate, donorswill need to engage in legal system strengthening strategies,which generally include the kinds of institution building effortsthat USAID traditionally has supported.

The analytical framework is intended as a tool to help donors setprogram priorities. Because, in reality, answers to the questionsposed here are seldom simply or completely a "yes" or "no,"

donors will likely pursue more than one ROL strategy at anyparticular moment. The value of the framework is in helping todetermine when each of the four strategies should predominate.The experiences in the six countries studied suggest that aproper sequencing of the four strategies is very important. Forexample, in many countries building constituencies and coalitionsto create demand for structural reform should take place beforeearly and heavy investments are made in supply or legal systemstrengthening endeavors.

Other characteristics of the framework should be highlighted aswell. First, the framework indicates that the formulation of ROLstrategies should be problem driven; that is, program planners

should identify the host country weaknesses in ROL that seriouslyconstrain democratic development. Second, the framework definesreform as a political process that cannot simply be reduced toconventional technical assistance or to institutional developmentstrategies. Third, because ROL reforms are political, donors mustoften devote more attention to designing strategies thatfacilitate host country demand for reform instead of the moretraditional supply-side assistance strategies.

Lessons on Strategy Effectiveness


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The case studies shed light on issues and offer insights aboutthe strategies' application and effectiveness. Thus a coalitionbuilding strategy to forge elite commitment to reform was triedin several countries but was successful in only one. Constituencybuilding efforts to mobilize support in the nongovernment sectorwere undertaken in several countries but thus far have met withmixed success.

From the countries' limited experience with constituency andcoalition building strategies, several important lessons can bedrawn. First, this strategy is critically important forgenerating demand for reform, and donors must emphasize moreactivities in this area. Second, potential constituencies, suchas bar associations and the commercial sector, vary considerablyas sources of support for reform. Third, free and effective mediaare needed to implement a successful coalition- andconstituency-building effort.

Structural reform strategies refer to the rules governing the

legal system, which usually are reflected in constitutionalprovisions and laws. Undertaking a donor-supported structuralreform strategy can be rewarding, although it often presents aformidable challenge, because legal rules frequently emanate frompolitical sources outside of the judicial system. In several ofthe countries studied, USAID found opportunities to support theintroduction of merit-based career systems in the judiciary andof oral trial procedures.

In the review of how well structural reform strategies perform,several lessons emerged. First, once structural reforms areconsummated, enforcement mechanisms must be made strong enough toensure that governments are held accountable in carrying through

promised reforms. Second, because structural reforms mayencounter strong resistance from entrenched interests, donorinvestments to help create new institutions may yield greaterreturns than attempts to reform existing institutions. Forexample, in five of the six countries, governments, with somedonor assistance, are creating mechanisms for alternative disputeresolution (ADR) to bypass court systems that are frequentlyunresponsive to reforms.

In several countries donor-supported access creation strategieswere used to make legal services more available and affordable tolow-income people who lack the means and knowledge for seekingresolution of disputes or redress of grievances when their rights

have been violated. These efforts have included providing legalaid, strengthening public defender staff, training paralegals,creating ADR mechanisms, conducting legal literacy campaigns, andsupporting legal advocacy NGOs.

A range of lessons emanate from the review of access creationstrategies. First, the reach and impact of conventional legal aidactivities, legal literacy campaigns, and paralegal training areoften quite limited if the strategies are pursued as discreteefforts. When integrated around specific needs and issues, these


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activities become much more effective. Legal advocacy NGOs aredemonstrating good results from using an integrated accessstrategy and therefore show promise for donor investment. Second,the introduction of ADR mechanisms can provide a valued andwell-used service but one requiring close and continuousmanagement supervision for quality control.

Legal system strengthening was supported by USAID and otherdonors in all six countries. This strategy generally comprisesthe traditional institution building activities, including theintroduction of new systems for court administration,recordkeeping, and budget and personnel management; the designand conduct of pre- and post-entry training programs for judges,court staff, and lawyers; and the acquisition of moderntechnology such as computers for case tracking.

The most important lesson concerning legal system strengtheningis that it is not necessarily the best place to begin an ROLdevelopment program. Rather, this strategy is most effective whenthe conditions that the initial three strategies sought to

achieve are sufficiently in place. A second lesson is thatgetting a firm grip on quantitative aspects of court delay is avery difficult task. Collecting such data is only the first stepin understanding where and why bottlenecks, delays, and backlogsoccur.

Crosscutting Lessons

The assessment highlighted several implications that crosscut thefour strategies: Preconditions for undertaking an effective ROL program may

be marginally present at best in many countries; thus ROLdevelopment efforts are not appropriate everywhere. Of course in

some cases, donors may be directed to invest in ROL programswithout such preconditions; where this occurs, the risk offailure must be judged high.

In countries with both favorable and unfavorable conditionsfor reform, an initial strategy of constituency and coalitionbuilding may be needed before other strategies are emphasized.

Where ROL programs find themselves constrained to engage inlegal system strengthening efforts, even though political willappears weak or absent, such efforts may be a transaction cost ofinitiating constituency and coalition building activities.

A hierarchy of institution building problems exists, anddifficulty increases with each ascending step. Commodity drops,human resource training, and improved management systems are

least difficult; changes in organizational structures andsubcultures are most difficult. Donor ROL projects are often cost efficient but staff

intensive. Although in many cases ROL projects do not requirelarge outlays of financial assistance, they are frequentlydemanding of donor staff in facilitating processes of dialogueand change within host country institutions.

Holding the justice system accountable for what it does isessential to democratic sustainability. The two most importantingredients in maintaining accountability in this regard are


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active constituencies and coalitions that demand a high qualityof justice and a free press that can point to lapses in thesystem.

The most popular of the strategies employed in the countriesstudied was the ADR mechanisms, with representation in five ofthe six cases. This pattern suggests that such mechanisms shouldbe given increased attention in future USAID planning in the ROLsector.

USAID can serve effectively in a pioneering or trailblazingcapacity in the ROL field, acting as an experimental, risk-takinginnovator to develop approaches that can, when proved, be takenover by multilateral donors willing to make substantialinvestments in this sector.

ROL development programs receive a considerable boost whenthere is a policy convergence between host country governmentpriorities and those of the U.S. government.

Using intermediary organizations as ROL program managers canbe highly effective. The type of intermediary used varied amongthe six countries from U.S. or host country NGOs to the UnitedNations Development Programme.

Glossary

ADC advanced developing countryADR alternative dipute resolutionCDIE Center for Development Information and Evaluation,

USAIDCERES Centro de Estudios de la Realidad Econ_mica y Social

(Center for Economic and Social Studies), UruguayFME Fundaci_n para la Modernizaci_n del Estado (Foundation

for State Modernization), ArgentinaIBP Integrated Bar of the PhilippinesICITAP International Criminal Investigative Training

Assistance ProgramLDC less developed countryMIS management information systemNGO nongovernmental organizationNJRC National Judicial Reform CommissionROL Rule of LawSAL Social Action LitigationUSAID U.S. Agency for International Development

Introduction

The development of legal systems in support of Rule of Law (ROL)has emerged as a major goal in the U.S. Agency for InternationalDevelopment's (USAID) expanding portfolio of democracy programs.USAID and other donor agencies have entered an era in which theyare generating a wider and richer base of knowledge about theprocess of effecting legal change. In this context, and inseeking to advance the state of the art about legal development,the purposes of this study are threefold:


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To assess recent donor experience in ROL To propose a strategic framework for assessing investment

priorities in ROL programs in a country context To provide guidance about how to design country program

strategies once judgment has been made that such investments arewarranted

The proposals and analyses contained in this paper are based onfield studies of six countries-Argentina, Colombia, Honduras, thePhilippines, Sri Lanka, and Uruguay-undertaken by USAID's Centerfor Development Information and Evaluation (CDIE). CDIE selectedthe countries on the basis of two criteria. First, each countryhad a recent history of USAID, Asia Foundation, or FordFoundation investment in legal development. {Footnote 2} Amongthe bilateral and international donors, USAID and the Asia andFord Foundations have the longest standing and most extensiveexperience with justice sector programs. The study includesinsights drawn from this rich base of experience.

For comparative purposes, the second criterion included

differentiation of the sample according to the level ofdevelopment in each country. Thus three of the countries(Honduras, the Philippines, and Sri Lanka) are what most donorswould consider less developed countries (LDCs) and three(Colombia, Argentina, and Uruguay) are designated as advanceddeveloping countries (ADCs). {Footnote 3} This distinction isimportant because USAID will be investing more resources inEastern Europe and the Newly Independent States, which moreclosely resemble ADCs in such areas as institutionalinfrastructure and human development.

The report is structured to provide the following: Some initial background information on USAID support of

democracy and law programs An analytical framework for investment in ROL programs Four alternative (although often complementary) strategies

for legal development Some important USAID crosscutting issues and recommendations

for ROL programs

2. A Historical Overview of ROL Programs

First Generation: The Law and Development DecadeLaw has been a longstanding focus of interest and investment inUSAID's history of support for projects involving democracyobjectives. Indeed, USAID's experience in this area is

sufficiently broad to encompass four generations of ROLdevelopment efforts.

The first generation of activities, the "Law and DevelopmentDecade," began in the early 1960s, when the Ford Foundation andUSAID helped develop faculties of law in a wide array of African,

Asian, and Latin American countries. Law faculty from many of themajor law schools in the United States taught and advisedstudents abroad, and faculty from developing countries were inturn sent to the United States to learn the most advanced


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approaches in legal education. The Law and Development program'sobjective was to enhance the capacities of law schools indeveloping countries to train cadres of lawyers who, schooled inconcepts and practices of Western law, would spearhead thepolitical and economic modernization process.

But by the early 1970s the Law and Development program had becomean object of increasing controversy. From within and without theprogram came the criticism that the program was imperious andethnocentric in its effort to transplant Western notions of lawinto non-Western settings. By the mid-1970s the Law andDevelopment program had ended and the popularity of themodernization theory on which much of the program was premisedhad diminished.

Second Generation: The New Directions Mandate

The Law and Development program was succeeded in the mid-1970s bythe New Directions mandate, which ushered in a second generationof legal development efforts. The new era emphasized alleviating

poverty by meeting basic needs and giving the poor a larger voicein the development process. One activity carried out under NewDirections focused on making legal services accessible to thepoor through legal aid projects.

In the late 1970s, USAID's legal development efforts assumed alarger focus on human rights, particularly on people whose rightswere violated because they had voiced political dissent. Inaddition, the promotion of women's rights as part of the Agency'snew Women in Development program assumed priority in the legaldevelopment agenda as well.

Although USAID supported legal aid projects in a number of

countries, the effort was not given high priority in many USAIDMissions. However, the Ford and Asia Foundations did pursue legalaid as an important objective and continued to refine theirstrategies in this sector throughout the 1970s and 1980s. Thusboth Foundations have actively supported legal aid, mediationboards, law education, and legal advocacy organizations. Inaddition, the Foundations have assisted organizations that seekto generate policy dialogue and public pressure for judicialreform. Accordingly, strengthening thinks tanks, investigative

journalism, and public opinion polling have been targets ofFoundation investments.

Third Generation: Administration of Justice

A third generation of USAID investment in the legal sector beganin the early to mid-1980s with the initiation of court reformefforts in Central America. The move toward court reform startedafter the murder of nuns in El Salvador, which had prompted theU.S. Congress to allocate funds for improving Salvadoran courtsand police. Subsequently, in response to recommendations of theKissinger Commission, judicial and police improvement programswere initiated throughout Central America and the Caribbean.

Also, in the mid-1980s and late 1980s judicial projects were


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started to support the emergence of more democratic regimes inSouth America.

Judicial improvement projects in Latin America, carried outthrough the Administration of Justice program (widely known byits acronym [AOJ]), constitute a major component ofUSAID-sponsored democracy programs in the region. The primaryemphasis of this effort has been on enhancing the stature of the

judiciary to strengthen new and fledgling democratic regimes inthe region. For various reasons, in many Latin Americancountries, public confidence in the efficacy of the courts hasbeen eroding.

The authority and autonomy of the courts in Latin America wereseriously compromised during the interregnum of authoritarian andmilitary rule in the period between the mid-1960s and mid-1980s.In addition, inefficiencies in court administration and procedureproduced enormous case congestion and delays in case processing.The courts have also been frequently ineffective in criminalprosecutions because prosecutors and the police lack the training

and scientific capacity for gathering and analyzing evidence.Finally, the courts' integrity has been compromised by thepoliticization of judicial appointments and public perceptions ofcorrupt practices within the judiciary.

In addressing these problems, most USAID legal system programs inLatin America have focused on improving the courts' effectivenessand efficiency. Project activities have included modernizingcourt administration, including automating case processing, legalcodes, personnel systems, and budget and planning systems;training judges; hiring more judges, public defenders, and publicprosecutors; expanding and strengthening the role of publicdefenders; reforming penal codes; and introducing career and

merit appointments for judges and other judicial personnel.

The Latin America program has also emphasized theprofessionalization of police forces. Most of these efforts havebeen carried out by the Department of Justice under theInternational Criminal Investigative Training Assistance Program(ICITAP). National and regional training courses have focused onimproving police skills in criminal investigation, forensics,case management, judicial protection, ethics and professionalstandards, and police management. In response to citizencomplaints, the program has helped police units investigateimproper police behavior.

Fourth Generation: ROL

In the early 1990s, USAID broadened the geographic and analyticperspectives of its law programs. Because support for democracyis emerging as a major Agency objective, USAID Missions worldwideare including law projects in the design and implementation ofcountry democracy programs. Furthermore, the programmatic focusand content of these efforts are encompassing a wider array ofobjectives, strategies, and activities. In some countries USAID'sapproach involves focusing on issues of access, legal aid, and


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mobilization of public demand for legal reform. In otherinstances more emphasis is on institution building within theformal judicial system.

Because USAID is entering an era in which a wider array ofapproaches to law and democracy programs is being used, a moresystemic perspective is required than that implied by the olderterm "Administration of Justice." Therefore, this report refersto USAID activities involving legal development as "ROL programsand projects." {Footnote 4}

Using the term "rule of law" suggests that USAID is moving into afourth generation of program activities. Building on experiencebut moving beyond it as well, work in this new era isdistinguished by the application of a broader range of strategiesto enhance ROL and by corresponding refinements in ourunderstanding of what strategies are appropriate under variablesociopolitical conditions. Accordingly, this evaluation synthesisis intended to advance the process of strategic thinking on howto design fourth generation ROL programs.

3. Initiating ROL Programs

A first order question to explore is whether USAID should investin an ROL program in a particular country context. The need forinvestment is clear in many LDCs and ADCs. They frequently sharea common litany of deficiencies, including court congestion,antiquated laws and legal procedures, inadequate facilities andbudgets, and undertrained court staff, judges, prosecutors, andpublic defenders.

In addition to such constraints to efficiency and effectiveness,the judicial system is often inaccessible to an impoverished

population that is outside the protection of the law. Many courtsare in urban areas, which the poor can reach only by travelinglong distances often over nearly impassable roads. Lawyers' feesare far above what an average citizen can afford. And a generallack of legal literacy and trust in the judicial systemdiscourages most people from seeking legal services.

These problems are largely an outgrowth of governmentalstructures and political environments that relegate the judicialsystem to a minor and deliberately underfunded appendage of theexecutive or legislative branch of government, thus keeping thecourts from making their rightful contribution to goodgovernance. Patronage in judicial appointments, outside

interference in judicial proceedings, and corruption throughoutthe legal system prevent the courts from becoming a fair andobjective arbiter of disputes.

Problems concerning the role of the judicial system becomeespecially formidable where the executive branch, politicalfactions, paramilitary groups, the military, or the police canand do act with impunity in harassing, torturing, and murderingtheir political opponents and in suppressing dissent on the partof individuals or vulnerable minorities. Where civilian and


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military authorities arbitrarily deprive individuals of theirbasic rights, a climate of fear prevails in which citizensneither exercise their rights nor use the courts when theirrights have been violated.

How then does a donor decide if a country might be receptive tojudicial reform and thus warrant investment in strengthening ROL?Results of country studies conducted for this assessment suggestthat the judicial environment frequently appears quite receptiveto technical interventions. Judges and court staff are usuallyinterested in securing technical training and acquiring thelatest technology, such as computers for use in managing casetracking, personnel, and budgets. However, the studies alsosuggest that, in the absence of political commitment, suchinterventions may have little impact on improving judicialperformance.

Examples from Sri Lanka and the Philippines suggest that, withoutreforming dysfunctional institutional processes and perverseorganizational incentives, changes in technology alone may yield

only marginal improvements in judicial performance. In Sri Lankathe effective use of new computer technology first required aredefining of the role of the clerical staff in the Supreme Courtand removal of their power and control over caseload management.In the Philippines a project for new computerized trackingsystems did not fulfill its intended purpose of improving theprosecutorial function. More fundamental structural changes wouldhave been required to improve performance_changes that frequentlyare resisted by vested interests who benefit from perpetuatingthe status quo.

Resistance to structural change in the courts is particularlyunyielding where rent seeking opportunities are endangered.

Inefficiencies in court procedures and management often translateinto higher transaction costs for litigants and produce incomebenefits for court personnel in the form of legal or illegalfees. The power to delay case processing in particular provides

judges or court staff with considerable leverage in exacting rentfrom litigants or parties who might have an interest inprolonging or expediting a case.

Opportunities to reconfigure structures and incentives to makethe judiciary more vital and effective are not determined solelyby the inclinations of the judicial system. Rather, the largersociopolitical environment within which the judiciary is embeddedcan also impede or abet efforts at court and legal reform. In

particular, judicial reforms can be more easily initiated andconsummated where pressures for reform emanate from within thepolitical elite or from constituencies in society at large.

In light of these observations, what indicators might be helpfulin judging whether a country's environment makes it a goodcandidate for ROL investments? Table 1 includes criteria drawnfrom the case studies for making such judgments. The table ranksthe extent to which each criterion was present in each of thecountries studied. {Footnote 5}


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The first row of the table identifies potential sources ofsupport within the political elite, that is, from within theexecutive branch (generally the Ministry of Justice but also thesenior political officeholders in general), the court system, orthe legislature. If party systems are well established, theleaders of the political opposition would be included as sourcesas well.

In many instances, there may be l ittle support and perhaps evenopposition from components of the political elite. However, asindicated in the second row of the table, there may bepotentially important impulses and proclivities emanating fromreformist constituencies in the wider civil society, such as barassociations, business groups, and coalitions of NGOs.

The third row refers to the courts' level of autonomy from thepolitical system. Reformist measures probably have little chanceof success where the executive branch, political parties, ormilitary or police can manipulate the justice system for their

own partisan or institutional interests.

The fourth row is a reminder that endemic and pervasive judicialcorruption can act as a formidable deterrent to reform. Asindicated in the fifth row, freedom of speech, especially throughthe media and use of polling, is critically important forallowing issues of judicial performance to be aired in public.Without public discourse, societal pressures for reform arelikely to remain embryonic at best. Few countries will scorefavorably on all of these measures. Donors must thereforeconsider whether they can bring into play sufficient resourcesand leverage to compensate for inadequacies in one or morecriteria.

This leads to the sixth criterion, donor leverage and influence,which differs from the first five in that it is essentially afunction of donor orientation rather than a characteristic of thehost country environment. Accordingly, the topic warrantsslightly extended discussion.

Donor leverage and influence comprises several somewhatoverlapping elements:

Conditionality can move judicial reform issues higher on thepolitical agenda of a host government if support for the judicialprogram is linked to specific performance criteria (or better yet

if more ample program assistance in other sectors is madecontingent on judicial reform). The levels of donor resources committed can have similar

effects, although high levels may result in an ROL program forwhich ownership lies more with the donor in fact than with thehost country--as appears to have been true in Honduras.

A convergence of policy objectives between the host countrygovernment and donor can have powerful effects in harnessing theenergies of both parties to the cause of ROL reform, as happenedin Colombia.


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Although its vigor will depend on how high ROL is on theU.S. bilateral policy agenda, policy dialogue with the hostcountry government can assist materially in concentrating thegovernment's attention on judicial reform.

As evident in Table 1, only Uruguay scored high on the fivehost-country-related criteria, which meant in effect that thesixth criterion_donor leverage and influence_did not have to becalled into play. Conditions were already very receptive to aUSAID initiative in judicial development. The other countriespresent a mosaic, scoring variously higher or lower on specificcriteria, with Colombia, for example, being relatively wellpositioned to undertake judicial reform and Honduras beingconsiderably less favorably situated.

At the outset, then, it can be predicted that some countries willbe found more appropriate than others for ROL programs. Still,where the first five criteria shown in Table 1 do not present apromising picture, it may be possible to adjust the environmentthrough adroit use of donor leverage and influence. But where

these five criteria score too low, even the most heroic donorefforts may not be redemptive.

4. Crafting ROL Program Strategies

If there is a need for strengthening ROL in a particular countryand the institutional and political environments are relativelyfavorable to donor investments in this area, how then does onedevelop an ROL program to support this goal? The analytical treein Figure 1 outlines a series of steps for selecting andcombining ROL country development strategies as part of overallROL programs. The design of the analytical tree evolved from ananalysis of the six country studies.

The decision process starts with the question, Should USAID offerROL support? That is, Does the state meet the minimal criteriafor even contemplating an ROL effort? In particular, Are basicstandards of human rights in place? This criterion would have tobe a precondition for any ROL development assistance. The use oftorture as state policy, for example, would clearly indicate thata country is inappropriate for ROL support, as would theessential absence of the writ of habeas corpus or its proceduralequivalent. Some justice systems are just so corrupt there is ineffect no rule of law, and attempting to improve such systemsbefore basic minimal integrity is established would be senseless.

Policy dialogue may induce a host country government to establishbasic conditions for ROL support, but the tools of developmentdiplomacy are not always effective. The only alternative would beabandoning ROL efforts in the country as shown in the "give up"box in the analytical tree.

If a donor determines that a country meets the minimal conditionsand decides to engage in an ROL effort, its attention should thenshift to the first major ROL question: Is host country politicalleadership supportive of ROL? If support is adequate, the donor


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should consider the next major question in the sequence: Is thelegal structure adequate? If so, the third and fourth importantqueries are asked: Is there full and equitable access to the

justice system? and Is the state's capacity and performanceadequate in operating the justice system?

If the answer to any of the four questions in the center columnof the analytical tree is "no," the process moves to the right.Here the boxes indicate four dif ferent ROL strategies that can beused to remedy deficiencies. Thus if political leadership is

judged to be insufficiently supportive of ROL, then theappropriate strategy would be constituency and coalitionbuilding. Similarly, if no adequate legal structure exists, thena structural reform strategy would be appropriate, and so on,down through the tree. {Footnote 6}

Three things must be emphasized at this point. First, it must bestated emphatically that the analytical-tree model depicted inFigure 1 is inherently a simplification of reality, as is anymodel. The basic purpose of models such as this one is to

facilitate concentration on the crucial elements of a process bysimplifying it to its essential core. The price of doing so, ofcourse, is to eliminate the wealth of detail and the accuracythat characterize a full depiction of the process in question. Amodel can be expanded, to be sure, and the more it is expanded,the closer it approaches reality. But at the same time the focuson critical factors becomes increasingly fuzzy and even confusingas the subtleties of the minor branches take on more visibility.

This kind of trade-off can be appreciated through a glance at themuch more complex analytical tree offered in Figure 1 of theappendix, which provides considerably more detail, but at thecost of clear and direct delineation of the key elements in ROL

decision-making. For these reasons, we use the simpler figure inthis section, fleshing out the main aspects of the successivesteps through discussion in the text rather than yielding to thetemptations offered by computer software graphics packages toconstruct ever more complex diagrams.

Second, it should be understood that the analytical tree inFigure 1 is an analytical construct meant to informdecision-making, not to determine it in a rigidly sequentialmanner. It is not meant to imply or require that any given stepshould be completely satisfied before moving to the next one.Indeed, rarely if ever will the answer to any of the questions inFigure 1 be an emphatic "yes" or "no." For example, when the

Asia Foundation's effort in ROL support began in the Philippinesduring the mid-1980s, there was very little interest at the upperlevels (see question in analytical tree concerning politicalleadership). Yet even in these inauspicious circumstances, theGovernment was able to introduce a basic change in trialprocedures from a "piecemeal" basis to a "continuous trial"approach. Although the reform encountered much resistance andproved to be considerably less than an unqualified success, itdid make some progress in improving the justice system.


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Similarly in Uruguay, where a broad consensus existed among thepolitical elite in favor of structural reform, there wasnonetheless opposition from within both bench and bar stemmingfrom concern that new oral trial procedures would be toocumbersome and time consuming. In summary, the composition of theanswer to each successive question-that is, the extent to whichthe answer to the question is more affirmative thannegative-should determine whether to pursue a given strategy(move to the right in the analytical tree), to proceed to thenext strategy (descend the analytical tree), or to undertake somecombination of both approaches. In sum, the underlying idea ofthe analytical tree is to guide thinking in ROL programming, notto provide a blueprint to structure ROL projects.

Third, there is the question of how robust the analytical treeapproach is, how tolerant of the often widely differingconditions that are found in various countries. The cases areadmittedly limited to six countries and two regions, but withinthis sample it has been possible to survey a wide variety of ROLprogram environments, as is shown in the appendix to this report.

Table 1 of the appendix indicates the scope of ROL assistancemodalities analyzed in this review, which range from a USAIDstand-alone project to several types of intermediary (includingthe United Nations Development Programme) and Ford Foundationefforts (which are quite independent of USAID activity). Table 2in the appendix shows the scale of ROL programs, which rangesfrom relatively large projects in Colombia and Honduras to asmall series of grants in Uruguay. And finally, Table 3 in theappendix presents the variety in income and human developmentindicators across the six countries, as well as political freedomratings and legal systems. Surely there are ROL programs andcountry settings that fall outside the range covered here, butthe range surveyed is broad enough to encompass the parameters of

most legal systems.

The fruit of the analytical tree approach is the ROL goal ofbetter justice (see Figure 1). The definition of "justice" has ofcourse been controversial in Western culture at least sincePlato's Republic, and it has a long history of controversy inother cultural settings as well (see, for example, Steinberg1992). For purposes of this assessment, however, "better justice"lies in a justice system characterized by Legitimacy in the perception of a country's citizens Accountability to the citizenry_a process dependent on

freedom of speech to allow public attention and debate to focuson lapses in the justice system

Constant attention to due process, particularly in the areaof human rights Autonomy from control, manipulation, or interference from

other branches of the state or other elements in the society Equity or fairness for all citizens in the justice it

provides Effectiveness in using resources to provide a high quality

of justice

The characteristics of the analytical tree strategies are


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depicted in more detail in Table 2. Eight parameters of the fourstrategies are compared in the rows of the table; countryexamples are listed in the last row.

Row 1, supply or demand strategy, indicates whether the majoremphasis of the strategy is on creating a greater supply of

judicial services or generating greater public demand andaccessibility to such services. Thus, strategies I and III focuson demand for judicial reforms and services, whereas strategiesII and IV concern their supply. The strategies depicted assupply- or demand-oriented can also be thought of as either moretechnical or more political in their thrust. Strategy IV inparticular, and strategy II to some extent, often resembletraditional donor approaches in their focus on technologytransfer: proven practices and technologies are transplanted tonew settings, often with little conscious attention to thepolitical aspects involved.

Strategy I and much of strategy III are essentially political:donors are supporting efforts to change important political

aspects of the host country environment. That is, strategy IVencourages donors to "think bureaucratically," whereas strategy Irecommends "thinking politically" in pursuing ROL developmentefforts. Indeed, a central argument in this paper is that donors,long accustomed to thinking bureaucratically, should learn tothink more politically in designing and implementing ROLprograms.

Tracing strategy I through the remaining rows (2-7) willillustrate the utility of the table. Row 2 lays out majordevelopment problem(s) that each strategy seeks to address.Strategy I addresses the challenge of insufficient poli tical willfor judicial reform, and strategy II takes on structural

deficiencies in the justice system that are too severe to beremedied through traditional institution-building projectefforts. By focusing on development problems to help guideprogramming, the decision-tree approach facili tates ROL planningto address specific problem areas.

The longer term objective (Row 3) of strategy I is to producesustainable political commitment for the judicial system. Theintermediate objective (Row 4) is to foster stronger publicbacking of the judicial system, and the shorter term objective(Row 5) is to generate greater public pressure on the politicalelite for reform.

Some possible program activities are listed in Row 6 that couldbe used to support the four strategies. For example, candidateprogram elements for strategy I could include cultivatingcoalitions of key political and bureaucratic elites, supportingmedia reporting on the judicial system, and strengthening legaladvocacy NGOs seeking to pressure the political elite for

judicial reform. The advocacy activity could include, forexample, an anticorruption campaign or a "court watch" effort, aswas observed in the Philippines.


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Row 7 offers some performance indicators that might be used tomeasure program progress, and Row 8 indicates some problems thateach of the strategies will likely encounter duringimplementation. For example, strategy I may face the test ofsustaining public interest in judicial reform and the problem ofholding together coalitions that begin to divide over fractiouspolicy issues.

Finally, in Row 9, the table offers prominent examples from studycountries where the strategy has been used. Thus in Colombia,Honduras, and Uruguay the legal system strengthening strategy hasbeen emphasized, whereas the Philippines and Sri Lanka provideexamples of the access creation strategy.

Although one strategy may dominate donor ROL programming in aparticular country, elements of the other strategies may alsofind support there. Furthermore, evidence from the six countriesindicates that emphasis on any one strategy may shift over timeto emphasis on another strategy.

Changes in strategic emphasis may come in response to success orfailure in pursuing a particular strategy. The experience in thecountries studied suggests that proper sequencing of strategiesis important. Success was achieved in Colombia with an initialfocus on coalition building (demand) followed by investments instructural reform and legal system strengthening (supply). In thePhilippines an unsuccessful effort in supply side strategies hasbeen replaced by a demand driven approach. These lessons onsequencing are reflected in the analytical tree.

A change may also be a product of new opportunities in thejudicial system opening the door to new investments. In Uruguay,for example, the Government launched judicial reform with a

fundamental change in trial procedures (strategy II), whichprovided an opportunity for USAID assistance in legal systemstrengthening (strategy IV).

There is, as noted in Section 2, an emerging fourth generation oflegal development programs, which will require a more systemicperspective on legal development, embracing demand-creating aswell as supply-providing activities and incorporating donorpolitical support as well as the more traditional technicalsupport that has tended to characterize USAID programs in thepast. This wider view is required in order to comprehend the fullrange of strategies being pursued by donors and to extract thelessons to be gleaned from their experience.

ROL programs in the countries studied began in the early andmid-1980s. The ROL program in Honduras-the Administration ofJustice program {Footnote 7}-was designed in 1987 but itsimplementation began in 1990. Colombia's ROL program started in1986, Argentina's in 1989, and Uruguay's in 1990. As indicated inappendix Table 2, considerable variation exists in the magnitudeof USAID funding devoted to each of these country endeavors.

In Sri Lanka and the Philippines, the Asia Foundation has a


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longer history of support for ROL activ ities than does USAID. TheFoundation's ROL efforts in Sri Lanka started in the early 1980swith modest funding but expanded considerably in the late 1980s,when annual funding moved above $200,000. In 1991, USAID providedan additional $241,000 to support the Foundation's ROLactivities. In the Philippines, both the Ford and AsiaFoundations have been active in the legal sector for some time,with USAID only recently beginning to target funds directly inthis area.

5. Constituency and Coalition Building Strategies

Lessons Learned A strong civil society is an effective base for launching

efforts to mobilize constituencies to support ROL development. There are few examples of bar associations serving as major

sources for reform initiatives. The commercial sector can be an important reform

constituency. Although NGO-based coalitions may prove difficult to build,

they can form a strong force for legal reform. Free and effective media are needed to support constituency

building. Reliable court statistics are needed to inform public debate

on ROL. Opinion surveys are invaluable for assessing public demand

for judicial reform. USAID has more to learn about crafting coalition building

strategies.

The Challenge of Mobilizing Demand

Although constituency and coalition building is the first of the

four ROL strategies discussed in the previous section-and wasused eventually in five of the six countries studied-it wascarried out as the first ROL strategy in only one case-Colombia(see Table 3). Projects in Argentina and the Philippines adoptedconstituency and coalition building as a fallback strategy onlyafter other approaches proved unworkable. In Honduras and SriLanka some elements of the strategy appeared during the course ofthe ROL enterprise, but they were not major parts of the ef fortto mold constituencies for reform. The argument made here-thatthe constituency and coalition building strategy should beconsidered first even if it is not always tried at theoutset-constitutes one of the study's major conclusions and isexplored at several points in the report.

Why was constituency and coalition building not considered as theinitial ROL strategy in most of the sample countries? The late1980s were a time of great optimism for democracy as a way ofpolitical life. Argentina, Honduras, the Philippines, and Uruguaywere just emerging from periods of sustained dictatorship orauthoritarian government with legacies of serious human rightsabuses and with judiciaries whose independence had long beencompromised. A newly elected political leadership in each countryseemed to manifest a renewed interest in democratization and in


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energizing enervated judicial systems. It was a time of greathope for ROL development.

The political leadership in these four countries were willing tobegin structural reform (strategy II in the analytical tree andin Table 2), and accordingly donors concluded that suff icientpolitical will was in place to support serious ROL development.Specifically, donors believed it would be feasible to movedirectly to legal system strengthening, which in this report isdiscussed as strategy IV but which donors in the late 1980stended to think of as the logical follow-on to structural reform.In short, an initial willingness to undertake structural reformwas considered adequate evidence that a host country governmentwas committed to ROL development. It was therefore thoughtappropriate to move into the public sector institution buildingapproaches that have long characterized so much of internationaldonor activity. More problematic and more obviously "political"approaches, such as constituency building, did not seemsuitable. {Footnote 8} Or, given the long experience of donorsin institution building, perhaps such unconventional approaches

simply did not occur to planners accustomed to thinkingbureaucratically rather than politically.

As things turned out, however, in only one of the fourcases-Uruguauy-was there sufficient political will to proceeddirectly with a legal system strengthening strategy. In Argentinaand the Philippines, legal system strengthening efforts did notfare well; donors in these two countries adapted to programreverses by shifting to constituency and coalition buildingapproaches that might have been better adopted at the outset. InHonduras an emphasis was placed on coalition building throughforming and supporting a quasi-governmental National JudicialReform Commission (NJRC). However, the commission has yet to

attain the stature and influence necessary for exercising strongleadership in support of reform. With hindsight, it can besurmised that the best course probably would have been to couplethis coalition strategy with investments in constituencybuilding.

The other two countries-Colombia and Sri Lanka-lacked theebullience of newly restored democracy that characterized thefirst four during the late 1980s. In fact, the politicalenvironment in both countries appeared to be taking a seriousturn for the worse. Colombia by the mid-1980s was under siege byguerilla bands and narcotics traffickers determined to eliminateall opposition to their activ ities. Sri Lanka was caught in an

escalating cycle of violence and atrocity involving militantsfrom the Tamil minority and extremist Sinhalese groups. Inneither country could the assumption be made that sufficientpolitical will was present to begin ROL development with a legalsystem strengthening strategy. Thus from the outset it wasnecessary to try other approaches to ROL development.

Constituency and Coalition Building in Six Countries

The Philippines experience illustrates most clearly the


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evolutionary transition of strategies. The new democraticGovernment under President Corazon Aquino did undertake somestructural reforms (strategy II), and the situation seemedpropitious to support a legal system strengthening strategy. Butby the beginning of the 1990s it had become clear to the Asia andFord Foundations that the legal system strengthening activitiesthey had launched earlier were not promoting significant changein the legal system. {Footnote 9} Support for efforts such astraining for judges, expansion of law libraries, or aid for lawschools did not seem to be yielding positive results in a legalsystem with little political will to change. A judicial structurethat had for many decades served to reinforce oligarchicalcontrol of society and to exclude large classes of people fromaccess to the justice system-and that had arguably become ascorrupt as the rest of the polity-was not going to change soeasily.

Accordingly, in the late 1980s and early 1990s, the Asia and FordFoundations decided to focus on mobilizing new constituencies topressure the political leadership to favor ROL development.

Assistance was provided for several kinds of activities inconstituency and coalition building (see Table 3) including Investigative journalism and enhanced legal reporting to

make the justice system more transparent to the citizenry so thatcorruption and malfeasance would become more difficult toconceal.

People's advocacy NGOs (which already existed to mobilizeand promote the cause of various marginalized groups) to advancethe legal components in their programs (e.g., rights to ancestrallands for indigenous peoples, leasehold titles for sugarcanesharecroppers, land purchase schemes for urban squatters, a rapelaw revision).

Elite advocacy NGOs to publicly monitor the court system and

promote ADR mechanisms in commercial law. Umbrella NGO coordinating groups to support the use of a new

government provision allocating representation to NGOs onmunicipal bodies to further a legal reform agenda at the locallevel. (This particular approach was pursued by USAID rather thanby the two foundations).

Public opinion surveys to provide empirical evi-dence of lowpublic esteem for the judicial system.

In Argentina, matters were rather less distinct than in thePhilippines. Here also a new democratic regime showed itselfsupportive of a degree of structural reform by instituting oraltrial procedures in the federal criminal courts and a new system

for judicial appointments. Assuming that these reformsdemonstrated significant government commitment to ROLdevelopment, USAID began legal system strengthening activities(as shown in the last row of Table 3). In particular, USAIDsupported a national judicial school that would meet the trainingneeds of the federal court system. {Footnote 10}Unfortunately, political and personal differences on the nationalSupreme Court (which had to approve the project) proved toointense {Footnote 11} to launch the school, and, in the wake ofthis conflict, other planned activities proved ineffective as


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well. Federal court studies were never implemented (or evenseriously considered) and a proposed judicial studies centernever began to function.

It became evident in Argentina over time that there was neithersufficient will nor coherence at the top of the federal judicialsystem for undertaking reform or even for devoting serious energyto considering it. Nor was national political leadership outsidethe court under President Carlos Menem seized with the importanceof reforming the judiciary.

As in the Philippines, the response in Argentina (in this casefrom USAID rather than from the Asia and Ford Foundations) was toshift to a constituency and coalition building strategy. Thisfollowup approach included several activities (see first row ofTable 3): A public interest NGO (Poder Ciudadano) to publicize

corruption issues and integrity in government through the mediaand other channels

Another NGO (Conciencia) to implement a civic education

campaign largely among the middle classes stressingresponsiveness in government

A corporate-oriented NGO to undertake a comprehensiveanalysis of judicial reform needs

Public opinion surveys to provide empirical evidence of thelow esteem in which the citizenry held the justice system

The options followed here were like those pursued in thePhilippines, with a similar concentration on media coverage andcorruption, elite mobilization efforts, and public opinionsurveys.

Whereas the Agency's Argentina ROL strategy moved toward

emphasizing constituency building, the legal system strengtheningand structural reform approaches took on a differentconfiguration. Argentina's federal system offered an opportunityfor ROL assistance that was absent in the more unitaryPhilippines, because in Argentina legal system strengtheningstrategies that failed at the federal level could be tried at theprovincial level. Thus when USAID found a receptive audience atthe Supreme Court of Buenos Aires Province, {Footnote 12} itcould begin working on some of the same activities that had foundlittle enthusiasm at a higher level-in particular the judicialschool concept. Some of the constituency building endeavors, suchas civic education and media reporting, were also replicated atthe provincial level. Argentina's federal system thus encouraged

a two-track approach to ROL development that was not possible inthe Philippines.

Colombia offers a third variant on the constituency and coalitionbuilding approach. In this case, constituencies for ROL reformwere already present in a country so beset by violence that therewas widespread agreement on the need for drastic change. USAID'srole was thus not to support the mobilization of constituenciesbut to nurture the building of a coalition to bring existingconstituencies together. This was done largely through the


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establishment of a management committee (Comit_ Asesor) withinthe intermediary NGO (La Fundaci_n para la Educaci_n Superior)selected to implement the ROL program in Colombia. The committeeincluded key ROL players from the judiciary, the JusticeMinistry, and law schools in a neutral setting that fostered anew cooperation among agencies that had previously worked largelyin isolation from each other.

In the other three countries, a somewhat less concerted emphasiswas placed on constituency and coalition building. In Honduras aneffort was made to build a coalition of elites through the NJRCwhose members represented the government agencies involved in the

judicial system. Although this commission has fostered somecoordination among the USAID project activities, its conservativeorientation has not led to innovative leadership. For example,initially there was a public awareness component in the USAID ROLproject to inform citizens of their rights under the law andcreate a public constituency to press for improved judicialservices. But NJRC persuaded USAID to postpone implementing thiscomponent until further improvements could be made in the courts

to meet growing public demand for their services.

In the absence of public pressure, how resolutely the HonduranGovernment will hold to its judicial reform agenda is stillunclear. The CDIE team found that many new career appointees inthe judicial system felt that, without public pressure to supportthe career service, there would be a gradual reversion to thepatronage system. In summary, what worked in Colombian coalitionbuilding has yet to succeed in the Honduran case, probablybecause the critical constituencies in Colombia were alreadyenergized to undertake serious judicial reforms. The election ofCarlos Roberto Reina as president of Honduras in late 1993, withhis human rights background, may augur well for bringing stronger

government commitment to the judicial reform effort.

In Sri Lanka, except for a commitment to expanding a program forADR, judicial reform issues have not ranked high on theGovernment's agenda. Consequently, the Asia Foundation and USAIDhave worked together to mobilize a constituency for reform,although their ROL work did not begin with this strategy. Theconstituency and coalition building effort in Sri Lanka istargeted primarily on strengthening the bar association as aprofessional resource for lawyers and as a forum for vettingreform issues.

Finally, in Uruguay it seemed clear that the political leadership

was very much committed to legal reform at the outset. Thedemocratic leadership that had emerged in the early 1980s haddecided to make legal reform a centerpiece of its efforts torestore a democratic polity. It expanded the number of judges byabout 30 percent and laid the groundwork for introducing oraltrial procedures into the traditional Uruguayan civil codesystem. Thus not only the constituencies for change but also aneffective coalition for ROL development were in place.

In summary, the six cases reveal a variety of conditions that


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gave rise to a diversity of ROL strategies. In Uruguay an elitecoalition autonomously exercised the political leadership neededto undertake judicial reform. USAID was then able to step in andsupport institution building work to implement that reform. InColombia, where the constituencies for reform existed but had notyet formed a viable coalition, USAID has been instrumental innurturing such a coalition. In the other four countries,constituencies to support judicial reform were at best incipient;certainly they were not ready to begin forming coalitions, so itbecame necessary for USAID and the Asia and Ford Foundations tosupport endeavors both to mobilize constituencies and forgecoalitions among those constituencies. These observations aresummarized in Table 4.

Lessons in Constituency and Coalition Building

What lessons can be learned about constituency building? Insightsin this area must be tentative because in many cases constituencybuilding as an ROL strategy is a relatively recent development.The first lesson is that having a strong and vigorous civil

society in place helps as a foundation for mobilizingconstituency support.

Because the Philippines is well known for its robust NGOenvironment, the ROL challenge was mostly to inspire active NGOsto take on new work. In Argentina a vibrant civil society hadbecome well established between the restoration of democracy in1983 and the beginnings of USAID assistance for ROL developmenttoward the end of the decade. Again the task was to redirectenergies already in use. But in both Honduras and Sri Lanka,civil society is much weaker, particularly in Honduras;constituency building therefore becomes more difficult.

What sectors might be the most responsive to constituencybuilding? Four stand out immediately: bar associations, thecommercial sector, the NGO community, and the media. A review ofthe characteristics of these sectors in the six countries revealsa mixed picture regarding their potential contributions to

judicial reform.

To many observers, host country bar associations would seem animportant constituency to press for legal reform. For example,the Integrated Bar of the Philippines (IBP) has proposedreferring all commercial cases to arbitration instead of to thecourts to avoid the delays and corruption encumbering litigationin the courts. But IBP is the only example of such efforts on the

part of bar associations in any of the six countries studied.Accordingly, a second lesson is that other than in thePhilippines, there are no case study examples of bar associationsserving as major sources of reform initiatives.

Bar associations have not been pacesetters for reform for severalreasons. First, because members of the bar represent a diverserange of ideological persuasions and interests, it is difficult(though as IBP demonstrates not impossible) to arrive at anyorganizational consensus on reform. Argentina is a case in point,


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where there are three bar associations in Buenos Aires, all withcompeting agendas.

Second, bar members frequently have vested interests in thecurrent system; championing innovations might jeopardize theirincome-generating opportunities. Thus in Sri Lanka the bar wasnot an active proponent of mediation boards (although it did notactively oppose them). In the Philippines lawyers are complainingthat the Government's introduction of continuous trials toexpedite case processing is reducing their income.

Third, some bar associations, such as those in Argentina andHonduras, have been highly politicized, which has diverted theirattention away from important reform issues. Finally, members ofthe bar have been reluctant to be personally associated with opendiscussions of reforms that might seem critical of the judiciaryfor fear that judges would become biased against them in futurecases. Thus in Sri Lanka, Asia Foundation efforts to arrangebar-bench conferences have not been very successful in raisingissues and reform proposals because of the prevailing distrust

between lawyers and judges. What the Foundation has successfullyarranged, however, is a first-time systematic polling of lawyers'opinions about issues that could form a reform agenda.

Another potential constituency for legal reform is the commercialsector, where there is real incentive to press for property- andcontract-rights enforcement as a cornerstone of an effectivelegal system. Here the country studies provide a mixed picture.In Honduras the business community has not actively promotedlegal reform, largely because the more sizeable firms_with theirpolitical and economic clout_have not been inconvenienced by aweak legal system. In Sri Lanka large businesses avoid the courtsat all costs and frequently use political connections to evade

litigation. Thus in both countries the business community remainsat the margin of the legal reform arena.

The situation is somewhat different in the Philippines, where inManila the Makati Business Club, with assistance from the AsiaFoundation, has started a "court watch" project. Observers attendMetro Manila courts to monitor and study court performance andreport to the Supreme Court any violations of judicial ethics andprocedure that they observe. The information gathered from theseobservations is published in the hope that it will stimulatereform and improvement.

The court watch project started in late 1992, and it is too early

to know if it will move the courts to higher standards ofefficiency and probity. Reports from several sources indicatethat judges are altering their conduct because of the watchproject and are ordering their staff to be on their bestbehavior. (The monitors are not known to the judges and there isno way of knowing when the monitors might be present in thecourt.)

In Argentina, the Fundaci_n para la Modernizaci_n del Estado(FME, or Foundation for State Modernization), representing


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approximately 80 major national corporations, has activelypressed for state reforms. FME financed a study advocatingradical restructuring of state administration and then lobbiedfor its recommendations (including such reforms as steep payrollreductions in what had become over the years a vastly bloatedpublic sector). FME is now backing a similar study of the

judiciary, which has been supported by USAID. The report, beingundertaken by Arthur Anderson Associates, is scheduled forpublication in late 1993.

In Uruguay, the Centro de Estudios de la Realidad Econ_mica ySocial (CERES, or Center for Economic and Social Studies) is athink tank supported by the private sector, USAID, and otherdonors. CERES has undertaken a series of research projects onderegulation and market liberalization, including proposals forchanges in commercial law.

In addition to the efforts of the domestic businessconstituencies to focus attention on judicial improvement, theforeign business sector has served as a constituency for reform.

In the Philippines, where there has been a longstanding foreigninvestment sector particularly from the United States, the

American Chamber of Commerce has been working with USAID andother private organizations to improve the adjudication ofintellectual property rights cases. In Uruguay the Chamber ofCommerce Uruguay-U.S.A. has been moving in a similar direction,although more cautiously.

A third lesson therefore is that the commercial sector, whetherforeign or domestic, can be a constituency for judicial reform.It is not clear, however, whether such pressure can be translatedeffectively into legal improvements, because the commercialsector is not uniformly reformist. Countervailing forces may

exist whose interests lie in maintaining the courts as they are,where litigants can be entwined in a labyrinth of delays andambiguous procedures and where corruption, contradictory orunclear legal codes, and faulty judgments produce an environmentof uncertainty. For domestic businesses profiting from a moreclosed economy, an inefficient and unreliable judicial systemconstitutes a useful barrier keeping out potential foreign anddomestic competitors, whose investments would be at risk withoutadequate legal safeguards.

For example, in both Argentina and the Philippines in recentyears, the business community has been quite divided. One factionpresses to open markets to outside participation, to pursue

export opportunities, and to create a level legal playing fieldfor all, while another faction prefers to continue with heavilyregulated trade and protected internal markets, sees littlepromise in exports, and has become accustomed to dealing with aninefficient and corrupt legal sector. The former group has astrong incentive for legal reform, whereas the latter has verylittle. Conditions such as this explain why a USAID project inSri Lanka, intended to build a coalition of businessconfederations into a broad-based lobbying group for commercialreform, faces a difficult challenge.


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In addition to bar associations and commercial groups, yetanother potential constituency for legal reform is that portionof the NGO sector engaged in legal aid and legal advocacy.

Although the NGO community in many countries represents a richand important resource for extending access to legal services,there are often several factors inhibiting its emergence as amajor constituency for legal reform.

First, given their limited size, NGOs generally representrelatively small constituencies. Thus, even if they are vocal andactive, individual NGOs exercise very little leverage on behalfof a reform agenda. Moreover, because of financial and managementresource constraints, most NGOs have difficulty expanding theirreach to include a larger constituency. For example, in SriLanka, Sarvodaya became overextended and had to undertake a majorretrenchment to reduce its outreach programs.

Second, for several reasons NGOs frequently find it difficult toform coalitions to champion reform agendas. Constraints to

collective action vary but focus largely on policy issues andleadership styles. In Sri Lanka, for example, women's rights NGOswere split over whether to liberalize the male-biased divorcelaws in the direction of "no-fault" divorce. In the Philippines,some of the major legal-service and legal-advocacy NGOs weredivided over whether they should act more independently or morecollaboratively in working with government agencies on behalf oftheir constituents. The source of this conflict is the classicaldilemma or trade-off between seeking more accommodative ties withstate authorities and the concern that closer cooperation maylead to cooptation and compromised integrity.

Leadership styles can also impede the development of NGO

coalitions. Many NGOs are personal expressions of dynamic leaderswho, having founded an organization, are reluctant to share powerwith or subordinate their identity to a coalition involving otherNGOs. Sri Lankan NGO activists repeatedly mentioned this as aconstraint to forging ties.

Although problems in building NGO constituencies and coalitionscan be discouraging, donors should not shy away from supportingsuch efforts. The power of a coalition in achieving basic reformshas been well demonstrated in the Philippines. For example, anNGO coalition representing the urban poor leveraged its influencein a vigorous lobbying campaign to win legislative support forprograms in housing and basic services-programs that the

Philippine Constitution has specified as rights of the urbanpoor. The coalition received help from a legal resource NGO (arecipient of Asia Foundation support) in drafting legislationthat under heavy NGO pressure was adopted by the nationallegislature. A fourth lesson, then, is that NGO-based coalitionscan be a strong force for legal reform, but building suchcoalitions can prove difficult_even when (or perhaps especiallywhen) vigorous NGOs are already at work in a given sector.

A fifth lesson is that free and effective media are needed for


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constituencies to build their base of support and to generatepublic pressure for legal reform. In the absence of effectivemedia, coalitions and constituencies advocating reform worklargely in isolation and so are deprived of the opportunity toinfluence and mobilize public pressure. Media that are free andhave the professional capacity to investigate and report ondeficiencies in judicial performance and the legal system aregenerally a critical ingredient of the reform process.

In the three LDC case-study countries-the Philippines, Sri Lanka,and Honduras-government exercises direct or indirect control overtelevision broadcasts and limits the broadcasting of reports thatmight reflect poorly on the legal system or highlight majorsocial issues that touch on legal matters. The regulation ofradio broadcasts is somewhat different. Strict controls on thecontent of radio broadcasting exist in Sri Lanka, but in Hondurasand the Philippines radio stations, particularly talk shows, haveassumed an important role in allowing citizens to voice theiropinions about government programs and services. In thePhilippines some of the talk shows have been hosted by legal

resource NGOs. Radio journalism is not without risks, however;more than 30 broadcast journalists have been killed in thePhilippines during the last decade.

The print media are another matter. In the three LDC countriesnewspaper reporting has been short on substantive reporting andlong on sensational or superficial journalism. In Honduras andSri Lanka (as well as in the Philippines during the Marcos era),newspapers have been careful not to report on items that mightreflect negatively on the government and particularly on morepowerful public figures, because the government can ration orwithhold newsprint or advertising. (The latter is particularlyinjurious where commercial advertisers are few.) And if these

measures prove ineffective, intolerant governments can resort tointimidation or worse against offending journalists. All threecountries have a history of this type of government behavior.

In addition to formal and informal limitations on effectivereporting, many journalists simply lack the professional skillsand resource base needed to undertake serious investigativereporting. In Sri Lanka the Asia Foundation is supporting thedevelopment of a university degree program in journalism, and inthe Philippines the Foundation is assisting the Center forInvestigative Journalism. The Center has sponsored investigativepress reports and has been instrumental in exposing judicialmalfeasance. One such investigation was instrumental in bringing

about the early retirement of a Supreme Court justice.

In Argentina, Colombia, and Uruguay the press has considerablymore freedom. These ADCs have essentially uninhibited printmedia, with judicial matters often commanding a higher proportionof newspaper and newsweekly editorial space than in the UnitedStates. Although the skills of investigative journalists could beimproved in these countries-especially with respect to reportingon corruption (which is the focus of an ROL program component in

Argentina)-current levels of coverage are impressive.


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A sixth lesson concerns the need for reliable statistics on courtmanagement. One crucial foundation for informed public debate ona justice system is sound data and analyses on the system's innerworkings. The impact of investigative journalism and legalanalyses will necessarily be limited if no one has a firm idea ofthe actual dimensions of court congestion, average time toprocess a case through the legal system, and so on. The problemhere is scarcely confined to developing countries. Only in recentyears has such applied research been undertaken in the UnitedStates, and in none of the three sample LDCs has much researchbeen initiated, {Footnote 13} while in the other three it is ofquite recent origin. Accordingly, as was the case in the UnitedStates, misconceptions can evolve on what is wrong with the

judicial system, and prescriptions proffered that may beirrelevant and wasteful of public resources, such as hiring more

judges to ease court congestion when in fact the problem lieselsewhere.

Universities are natural candidates for undertaking research, but

the study of judicial systems has not commanded much attention inthe social science disciplines or in academic law. All three LDCshave institutes attached to universities that could serve asbases for supporting such research. Other candidates include

judicial training institutes. USAID has supported the developmentof a judges' training institute in Honduras, as has the AsiaFoundation in Sri Lanka, but neither institute has acquired thekind of stature and domestic poli tical support necessary to takeon a dynamic role in a judicial reform effort or for that matterto undertake research on judicial issues.

In the three ADCs, analytical research on case tracking and courtcongestion is already underway. In Colombia such work is by now

well established at the Instituto SER, which has issued severalstudies on the topic (e.g., Velez et al. 1987). In Argentina andUruguay similar efforts have begun more recently with USAIDassistance (see, for example, Poder Judicial 1993 and Gregorio1993 for Argentina).

A seventh lesson is that polling can be an invaluable adjunct toan ROL program in assessing public demand for reform. In thePhilippines national opinion polling, which has received supportfrom the Asia and Ford Foundations, has become a powerful toolfor capturing the attention of government authorities andelevating issues of public concern on the policymaking agenda. Ina recent development the Government in Sri Lanka has allowed the

Bar Association, supported by the Asia Foundation, to poll itsmembers concerning their opinions on how to improve the judicialsystem.

Given the constraints under which the media operate, thefrequently unrepresentative nature of legislative processes, andthe general inaccessibility of the political system to thegeneral citizenry, polling is one of the few means by which thebroader public can voice their concerns and preferences. Theinformation from polling can then be used by coalitions and


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constituencies to buttress their agendas in pressing forparticular reforms. This lesson is well demonstrated in thePhilippines and Argentine cases.

Opinion surveys show a mixed public esteem for the legal systemin the Philippines. A poll taken in early 1993 among themembership of the country's premier business association foundthe Supreme Court and the court system ranked among the fivelowest public sector agencies. {Footnote 14} Mass publicopinion seems somewhat less jaded, with more people expressingsatisfaction than dissatisfaction with the justice system at theend of 1992 (although the balance in Metropolitan Manila, whichis more politically articulate than the rest of the country, wasnegative) (Social Weather Report Survey 1992). {Footnote 15}

In Argentina, recent opinion has been more pointed. In 1984, justafter the democratic restoration, 57 percent of respondents toldpoll interviewers that they had confidence in the justicesystem; by 1991 the percentage had fallen to 26 and by 1993 toonly 17. The proportion responding negatively rose from 42

percent in 1984 to 83 percent in 1993. {Footnote 16}

How do public opinion surveys affect political leadership?Generally, they reveal little that is not already known orstrongly suspected, certainly by leaders who make some effort tokeep in touch with the public. But such surveys do make knownopinions about public issues in a way that is difficult forleaders to deny or ignore. The open existence of the Argentinepoll data and the Philippine business community opinionsurvey, for example, make it harder for the Supreme Courts ofthese two countries to act as if they enjoyed complete publicsupport. Such data alone cannot force reform, but they contributeto a climate in which political will for reform is easier to

find.

Will such an enhanced climate move the political leadershiptoward legal reform? Although firm predictions here areimpossible, it can be said that in democratic systems publicopinion working simultaneously through elite and mass levels andmanifesting itself in lobbying, opinion polls, and voting is thebasic force for change. If democracy endures in Argentina and thePhilippines, these two countries can be expected to follow thispath too.

One last lesson offers a cautious though positive note. AlthoughUSAID, along with the Asia and Ford Foundations, has learned a

good deal about building constituencies and coalitions forjudicial reform, there is still much to learn, particularly inthe coalition building sphere.

Conditions were favorable to coalition building in Colombia,although apparently less so in the other countries. Wherecoalitions did not form, it is frequently unclear whether theproblem was a consequence of unfavorable conditions or a functionof deficiencies in USAID's approach. For instance, in Honduras,overseas educational visits could have been instrumental in


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forging a reform coalition but had little success in doing so. Itmay be that the visits themselves should have been more sharplyfocused, or alternatively that more Hondurans sent would havebuilt a critical mass of interest in reform.

Coalition building is clearly labor intensive for the donor andtherefore requires that donors be prepared to provide enoughstaff to support such an endeavor. This is demonstrated in thesuccessful USAID coalition-building effort in Colombia.{Footnote 17} In conclusion, donor agencies could benefit fromfurther analysis of the range of strategies for coalitionbuilding and the attendant level and kinds of support that mightbe needed. Analysis of coalition building strategies should be asignificant element in future USAID-assisted efforts in ROLdevelopment.

6. Structural Reform Strategies

Lessons Learned Structural reform is the boldest and most difficult ROL

strategy to undertake. The impact of structural reform is frequently diluted by the

absence of pressures for accountability and enforcement. Introducing new structures may provide more returns than

reform of older, entrenched institutions.

The Structural Reform Approach

When there is sufficient political will and the politicalleadership is ready to support legal reform, it is appropriate toconsider the remaining strategies depicted in Figure 1 and Table2. The question now becomes, Is the legal structure adequate toproceed further with reform? And, if not, What changes (i.e.,

strategy II in the analytical tree) are needed before access tothe system can be widened (strategy III) and the system'soperations can be strengthened (strategy IV)?

As noted earlier, the issue here about structure concerns therules of the legal system, that is, the basic ways in which the

justice sector conducts its business. In some situations, thesystem may require fundamental constitutional change, whereas inother circumstances just tinkering with procedures may be allthat is needed. In still other justice systems, the structure maybe so sound that no changes are needed, but none of the six casesstudied fell into this category (and most likely, given theunending spate of suggestion for structural reform in the world's

most advanced legal system, {Footnote 18} this category may beonly the theoretical end point on a spectrum). In any event, foreach of the six cases, at least some structural reform wasundertaken, as indicated in Table 5. To put the matter anotherway, the answer to the study question, "Is the legal structureadequate?" is in no instance an unequivocal "yes."

A few of the reforms listed in Table 5 were part of programssupported by USAID or other donors, but most were identifiedindependently by the host country governments. Specifically,


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donors helped to create most of the alternative disputeresolution (ADR) mechanisms, but had virtually no directinvolvement in any of the other innovations. Does it make sensethen to include structural reform strategies as part of an ROLdevelopment program? It does so for several reasons.

First, structur

usaid rule of law 1

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