This week, the Senate prepares to vote on House Bill No. 6052 which will lower the age of criminal liability in the nation from 15 to 12 years old.

With the absence of a juvenile justice system, this means that children in conflict with the law (CICLs) as young as 12 will be susceptible to the same judgment and punishment under the law as 30- and 40-year-olds.

This bill will amend Republic Act 9433 or the Juvenile Justice Act passed in 2006. RA 9433 sets 15 as the age for criminal liability. It also prescribes other rehabilitative measures to help reform the behavior of youth who engage in crime and assist their integration in society as responsible citizens.

I consider the 2006 Act arguably to be one of the most progressive, triumphant stances this nation has taken on behalf of its most vulnerable members.

Prior to the passage of this Act, children as young as 9 were legislatively susceptible to the same judgment and punishment as adults. Many were imprisoned with adults – raped, tortured, starved, and abused. Some of these abuses were highlighted in the Ditsi Carolino documentary, “Bunso.”

Many of those who support the amendment are concerned children are increasingly being used by syndicates to commit crimes, and believe that incarcerating these children will deter syndicates from conspiring with them.

I would argue there is an issue deeper than the involvement of syndicates. This is an issue of values, and how much we value this nation’s children and their futures. As fiercely as we stand for the lives and futures of the unborn, so should we stand for the futures of children after their birth. Even if you label the little Juan “The Problem” and throw “The Problem” behind bars, one truth will remain: The Filipino child is not dispensable.

Joshua’s story

Children in poverty fight to traverse a dangerous landscape every day.

Children do not select their families. Children are unable to choose where they live and what kind of education they can afford. Children do not have the ability to decide on their socio-economic status. But when they step inside a courtroom, the consequences from all of these variables come weighing down on their shoulders with the swift stroke of a gavel. This is the end result of a life with little-to-no options that many CICLs faced before 2006.

Last week, I interviewed a young Filipino boy named Joshua from Barangay Batasan Hills. His story put a face on just how bright the futures of our Filipino youth are when they are given the chance to change – when we invest in their potential with communal support, rehabilitation, and opportunity.

Joshua is a soft-spoken, kind, sweet, and generous boy. The eldest, Joshua works several jobs to help with the finances. Abandoned by his birth father, instead of going to school, Joshua helps his stepfather with waste picking. It was among the mounds of waste that Joshua was befriended by boys who introduced him to theft.

Joshua explained that when he was offered the chance to make an honest living by working at a car shop, he jumped at the opportunity and was promised P10,500 for 3 months of labor. Excited about his new income, Joshua exerted all of his time, energy, and effort for his new boss.

At the end of his 3-month commitment, Joshua was dismayed when his boss paid him only P3,500 and refused to pay him the promised income. With the weight of supporting his siblings on his shoulders, desperation and rage seared his heart.

Joshua had been cheated.

With no adults to advocate for him, Joshua took matters into his own hands and stole two car parts to trade in for additional money. He was caught in the act.

Under the 2006 juvenile code, Joshua was paired with a social worker, linked to a barangay mentor, served a month in a youth home, enrolled in an Alternative Learning program, and completed 45 hours of community service that changed his life for the better.

Discernment vs. desperation

Joshua’s story personalizes who will be affected if this amendment is approved. The amendment says, “A child above twelve years old to fifteen years of age shall likewise be exempt from criminal liability…However, if the child has acted with discernment, in which case, such child shall be subjected to appropriate proceedings in accordance with this Act.”

When Joshua stole the car parts he knew that what he was doing was wrong. Joshua had discernment, so under the new bill he would have been punished as an adult.

However, what is also evident in Joshua’s case is that a lack of options due to poverty, exploitation, and the absence of adult support, left him in a desperate situation.

Morals become hazy in moments of desperation. Through the full implementation of the Juvenile Justice Act of 2006, support, rehabilitation, and access to education mitigate the desperate circumstances many CICLs face, so that they can seize positive opportunities.

Invest in the youth

The best investment any nation can make, to secure a brighter future, is to invest in its youth.

The Philippines has an undeniable love for children. Early in October, President Benigno Aquino III highlighted this commitment by establishing Juvenile Justice and Welfare Consciousness Week. However aside from a groundswell of consciousness, we need a groundswell of investment.

We need mentors, barangay leaders, social workers, and political leaders, who are willing to invest their time, talents, and energy into providing support and guidance to help reform our children in conflict with the law. Doing so will encourage them to value their own futures, thus becoming valuable contributors to the nation.

Communal support

Another former CICL Francis Francisco from Barangay Bagbag in Novaliches, is another example of the transformative power of mentors and communal support.

When Francis was 17 he had a murder case filed against him. Although the case was eventually dropped due to lack of evidence, a local church reached out to Francis who was deeply steeped in a hopeless life of drugs and crime.

The pastor of the church was also a former CICL, and under his mentorship Francis submitted his life to Christ.

Although Francis’ tattoos prevent him from securing a job, he fills his time singing with the worship team at his church, and serving as a mentor for other at-risk youth in his community.

I know that not all children in conflict with the law will be success stories like Joshua and Francis, but I believe it is worth fighting for the futures of children who do have the capacity to change.

Jail is not the answer

The Filipino child is not dispensable.

Prison sentences are finite but their effects aren’t. Our communities will eventually have to face these broken children when they are released back into society as broken adults. Rehabilitation is not the goal of a prison cell.

We need to move forward with the full implementation of the Juvenile Justice Act of 2006 to ensure that the core needs of CICLs are addressed. These children need to be reformed and reintegrated as productive citizens.

Criminal acts cost the Philippines unknown millions of pesos in incarceration costs, and bring lost human capital, lost talent, lost labor, and losses to victims.

Rehabilitative measures for our youth, as established under the original Juvenile Justice Act of 2006, have the potential to restore these millions to the public sphere. Allow this potential to be realized.

This article was originally published on Rappler.com.

Amber Koonce is a 2012-1013 Luce Scholar working with the Humanitarian Legal Assistance Foundation in Manila. The views and opinions expressed here are those of the individual author and not those of The Asia Foundation.

Having worked with Indonesia’s higher education sector since 2000, I have come to believe that studying abroad is as close as one may come to a “sure thing” in Indonesian developmental assistance. Indonesian students and professors studying abroad are exposed to new educational techniques and knowledge, and will take that expertise home with them either (as graduates) to their new workplace or (as professors) to an educational system sorely in need of innovation. The likelihood that those individuals become leaders in their fields rises exponentially – and, as a result, they have the potential to bring great economic and intellectual benefit to Indonesia. In fact, almost 50 percent of the ministers in President Susilo Bambang Yudhoyono’s current cabinet spent some time studying overseas.

Above, students mingle after class at Syarif Hidayatullah State Islamic University. Indonesia's student population in higher education has witnessed an explosive 35 percent increase in just six years.

Indonesians who study overseas, most of whom do so in the United States, Australia, the UK, or the Netherlands, carry their experiences – the vast majority of them overwhelmingly positive – with them for the rest of their lives. It is reflected in their work and their conversations; it becomes a part of them and thus the environment they interact with. It is arguably the ideal of what we mean when we speak of long-term impact and sustainability. Absent such exposure, perceptions of the West are often left to be derived from some combination of anti-Western rhetoric, syndicated TV shows, and internet conspiracy theories.

Yet the number of Indonesian students studying in the United States has fallen to half of what it was 10 years ago. That number, and the number of visiting professors, should ideally be increasing dramatically every year, and developmental projects should be making sure that happens. But despite some recent efforts, such as an increase in funds for U.S.-Indonesian Fulbright exchanges, the majority of these developmental opportunities remain untapped.
It has been difficult to witness such educational development opportunities with Indonesia being overlooked, especially at a time when the United States is refocusing on the Asia-Pacific region. Indonesia is huge in every way: with a population of 240 million people, Indonesia is the fourth most populous country in the world; flying direct from Banda Aceh to Jayapura (if one could do so) would take longer than Seattle to Miami or Edinburgh to Amman; its economy grew at a rate of over 6 percent for four of the last five years; it’s the most populous Muslim country in the world, and a vital young democracy; and the student population in higher education has witnessed an explosive 35 percent increase in just six years. Despite this, study abroad opportunities in the United States are declining rather than increasing.

The Asia Foundation is working on a solution to this challenge through our new legal education program, which is funded by USAID and designed to benefit the nation’s justice sector. The program includes a large study abroad component, and is also currently assisting eight law faculties in Indonesia to develop clinical legal education so that students have the opportunity to use the law in a real-life, real-time environment. Students work and study under the guidance of their professors and a partner institution, such as a civil society organization or a government office such as the court. It is a response to a problem that Supreme Court justices, attorney generals, and even law faculty deans have expressed to me: that law faculty graduates need to do more than just memorize the law for four years; they need to know how to use it. The program will make them better lawyers, and that means better justice and thus increased political stability.

To help develop clinical legal education in Indonesia, the program will also send 10 professionals, eight of whom will be professors, to the University of Washington School of Law for one year to study for a master of laws in clinical legal education. The professors will then return to Indonesia where they can pass on to their university and their students the educational benefits they received and the increased global outlook that they gained.

There are five million students and professors in higher education in Indonesia. Our legal education program will undoubtedly have a significant impact, but is just a single drop in what should be a wellspring of study abroad programs. For it is this type of partnership that can ultimately deliver a pan-institutional increase in Indonesia’s capacity, and stronger, deeper bonds of understanding, economy, and security among the countries participating.

Eric James Graham Putzig is chief of party for The Asia Foundation’s Educating and Equipping Tomorrow’s Justice Reformers program in Indonesia. He can be reached at eputzig@asiafound.org. The views and opinions expressed here are those of the individual author and not those of The Asia Foundation.

Law has little meaning when it is not widely understood. Concepts like “conflict of interest” or “integrity” are used repeatedly in theories and explanations of law, but they are not self-explanatory. Perhaps nowhere is this more the case than in Timor-Leste, where rule of law is in the early stages of institutionalization and not well-understood by most citizens. And, until now, there were no legal texts focused on the laws of Timor-Leste. Professors were dependent on foreign law texts, primarily from Portugal or Indonesia.

Attendees at the launch of Timor-Leste's first law text focused on the laws of Timor-Leste in both official languages – Portuguese and Tetum – and the working language, English. Until now, there were no legal texts focused on the laws of Timor-Leste. Professors were dependent on foreign law texts, primarily from Portugal or Indonesia.

Last month, The Asia Foundation, in partnership with Stanford Law School, the National University of Timor-Leste (UNTL), and USAID, launched the new nation’s first law text focused on the laws of Timor-Leste in both official languages – Portuguese and Tetum – and the working language, English.

The launch of the text, An Introduction to Professional Responsibility in Timor-Leste, is a culmination of a two-year-long program, the Timor-Leste Legal Education Partnership (TLLEP), which aims to make Timor-Leste’s laws more broadly understood, clear, and equally binding to the governing and governed alike through texts that clarify existing law. It is the first in a series of texts, some of which are already completed in draft form. The texts explain legal concepts in clear, simple language (in local languages) with real-life examples that allow citizens to understand often-complex legal concepts, and give the next generation of leaders the tools to strengthen the rule of law. The content carefully analyzes the regulations of civil servants, public prosecutors, public defenders, magistrates, and private lawyers.

Over a hundred people attended the launch, including Stanford Law School Dean Larry Kramer and TLLEP’s faculty adviser at Stanford and Asia Foundation Senior Law and Governance Adviser Erik Jensen, as well as leading figures in academia, government, the legal profession, international organizations, and most of the currently enrolled law students from UNTL.

Dean Kramer’s keynote address seemed to resonate with the audience, in particular those involved in teaching law and guiding the overall development of the legal profession. He stressed that all lawyers, even private lawyers, as well as government officials have an inherent obligation to uphold the rule of law in a democratic society. He said it was the job of lawyers to improve society and he stressed that education in law school is particularly important as it could help instill democratic values in the students of today and, by extension, in the leaders of tomorrow.

Two years ago, Timor-Leste’s Court of Appeals president, Claudio Ximenes, suggested that the first volume in the text series focus on professional ethics. At the launch, Ximenes explained that the completed text enhanced the ability of judges, lawyers, and government officials to respect their constitutional and legislative mandates. He told the audience that the texts would be immensely helpful both in Dili and in the districts where access to the law is constrained by a lack of understanding. As part of the vetting process, the draft versions of the texts have in fact been used in class by UNTL professors for months. Professors have noted that the textbook works well in the classroom because they address important issues in a simple and clear way, enabling students to think critically about the ideas and concepts behind the law, not just memorize the text of the law.

The Asia Foundation, Stanford, and UNTL are together working to streamline cooperation in areas such as law texts, academic exchanges, and student internships at legal aid organizations. As UNTL Rector Aurelio Guterres observed, “textbooks on the laws of Timor-Leste in Portuguese and Tetum significantly build the capacity of students and the larger university.”

The partnership, which comes at a time of considerable growth for UNTL as it embarks on an ambitious multi-year expansion strategy, has lead to ongoing academic exchanges. Each year, Stanford Law students travel to Timor-Leste to support and develop the project, receive feedback on current and future texts, and integrate the local legal context into their research and writing. Two prominent UNTL law faculty members traveled to Stanford in May 2011 to observe U.S. legal education and provide guidance to TLLEP members.

Challenges remain, but the future of legal education in Timor-Leste looks promising. We have already started distributing the textbook widely to lawyers, government officials, NGOs, students, professors, and international organizations. The finalized Professional Responsibility book is just the first in a series that also includes draft texts on Civics and Contracts currently undergoing review. All of the texts in the series will be updated regularly, and the latest copies of the text in all three languages will be available on The Asia Foundation’s website and the TLLEP website.

Geoffrey Swenson is law program manager for The Asia Foundation’s Access Justice Program in Timor-Leste. He can be reached at gswenson@asiafound.org. The views and opinions expressed here are those of the individual author and not those of The Asia Foundation.

During my recent visit to Laos, I couldn’t help but notice the abundance of newspaper headlines proclaiming the country’s economic success stories. Firm phrases such as “World Bank predicts Lao economic growth at 8.6 percent,” “Vietnam & Laos boost rubber cooperation,” and “New Laos airline preparing for takeoff,” stood out at stands and shops everywhere I passed.

In recent years, Laos has experienced steady economic growth and development. Above, the Lao capital Vientiane buzzes with nighttime activity. Photo by Michelle Chang.

While this is positive news anywhere these days, and certainly for one of the world’s few remaining Communist-run countries, what seemed to be missing from the front pages altogether was any mention of Laos’ progress in governance and law – imperative for continued progression in economic and social developments. Much progress has been made in legal and judicial reform, but the current capacity of the Lao legal system has some room for improvement.

With the passage and formalization in 2010 of the “Master Plan on Development of the Rule of Law in Laos toward 2020,” Laos has begun building the legal framework necessary for addressing citizen freedoms and social justice. Still, rule of law in Laos is at an embryonic stage, and where written, legal frameworks or policies may exist, they still sometimes lack the effective mechanisms in place for successful, real implementation. Even where well-constructed laws exist, very few Lao citizens are aware of them or lack the knowledge, confidence, and trust in the system to utilize it to address their problems. Programs that help educate citizens about the legal system have helped, but education alone cannot give vulnerable people the confidence and trust they need to speak up about legal problems and claim their rights. Data show that villagers often do not access legal resources that are in fact available for various reasons, including partial knowledge of their rights and the law as well as low levels of trust in the system.

In other country contexts, these concerns are often addressed by civil society organizations. Civil society, however, is still just developing in Laos. Few mechanisms exist that enable Lao citizens to collectively express their concerns, share experiences, and access their rights. Since the passage of the Decree on Associations in 2009, some space has opened for the emergence of a Lao civil society. Yet significant barriers for civil society organizations working in Laos still exist, including the lack of ease and clarity around understanding their roles, functions, and capacity. In Lao culture, initial steps to establish trust and build relationships around crucial societal issues are necessary to move forward. At present, there are few ways for this type of communication to transpire, making it even more difficult for new civil society organizations to emerge.

Despite such challenges, a few legal aid projects are recently up and running in Laos. For example, The Asia Foundation began an access to justice program in conjunction with the Lao Bar Association (LBA) and Ministry of Justice (MoJ) in 2007 to provide poor and rural Lao populations with greater access to the legal aid system.

The Lao Bar Association has made significant achievements in recent years in building Laos’ legal professional capacity and educating citizens on the law. Above, citizens wait to speak with lawyers at the LBA offices in Vientiane to get legal aid advice. Photo by Marco Ryan.

The LBA, which is supervised by the MoJ, has made significant achievements in recent years in building Laos’ legal professional capacity and educating citizens on the law. Since 2007, it has established three legal aid clinics across even remote areas of Laos, with a budding paralegal program made up of volunteers from local villages in place and thriving.

Legal education and outreach under this legal aid program has brought to justice those who have violated the law as well as compensated and recognized victims of these incidences. In Vientiane province, for example, a villager asked about being compensated for factory work, as a number of villagers reported working for nearly half a year in a factory without compensation. Lao lawyers who were serving these villages were able to provide villagers with information on Lao labor laws, and instructed the villager on how to seek compensation. Consequently, all the factory workers were eventually paid for their work. In a different case, a young girl alleged that she was deceived and trafficked by a woman, being falsely offered a highly paid job in Vientiane as her maid. Upon her arrival to the capital, the young girl was picked up by a stranger and raped. Eventually, the young girl reported this to her father, who then spoke to the LBA legal aid clinic, with the eventual arrest of both the trafficker and rapist. These stories further demonstrate the need for the appropriate legal mechanisms and awareness raising to be in place to support these poor, rural, and mistreated populations’ access to justice and legal resources.

Volunteer paralegals from the legal aid clinic in Pakse, in southern Laos, consult with clients about their legal concerns. Photo by Marco Ryan.

While the legal system is still quite nascent, Laos has made achievements at the grassroots level. However, many challenges still go unaddressed. Although the LBA’s capacity is developing, only a few legal aid clinics have been set up around the country to support the tens of thousands of Lao citizens that come with cases such as the compensation and rape cases, as well as those ranging from land disputes, domestic abuse, and inheritance disputes, among others. The harder to reach rural poor in Laos still only have limited access to legal services – services that need to extend to minority groups, women’s networks, and other marginalized populations.

Orchestrated and sustained support of local village-level governments from the central Lao government, increased capacity of organizations such as the LBA, development of a more robust Lao civil society, and an educated public is needed for Laos’ legal system to stand as a foundation for good governance. Only through a well-conceived, well-informed, and sound legal system and capacity can economic growth success stories continue to appear on the front pages – of both Lao papers and international ones alike.

Michelle Chang is a program officer for The Asia Foundation’s Governance and Law program. She can be reached at mchang@asiafound.org. The views and opinions expressed here are those of the individual author and not those of The Asia Foundation.

Last month, Timor-Leste took a commendable step toward institutionalizing free legal assistance for its citizens who cannot afford it. Although the exact shape of legal assistance for the disadvantaged here remains uncertain, the unveiling of an eagerly awaited revised draft legal aid law by the Ministry of Justice on July 15 marked a significant step forward.

Above, community members consult legal aid workers in rural Oecussi. Legal aid organizations work in isolated communities that are still out of the reach of the formal justice sector.

The Ministry then held an official comment period that lasted until Aug. 5, 2011. Perhaps most importantly, the draft law shows that Timor-Leste takes its constitutional commitment to provide equal access to the courts, regardless of economic background, seriously.

The law deserves praise for generally upholding international standards relating to access to justice. For example, the draft legislation provides for wide legal aid coverage for court representation in criminal, civil, and administrative matters, availability of legal aid at all stages of the process, and payment of related expenses for participants in judicial proceedings.

Fully understanding the draft legal aid law requires a bit of background, however. Timor-Leste has long demonstrated a commitment to providing legal aid services. It created the Public Defenders’ Office in 2001, but the newly independent nation’s capacity remains limited and cannot meet all of its legitimate legal needs, particularly in rural areas where 70 percent of the population resides. As a result, legal aid organizations, including those supported by The Asia Foundation’s Access to Justice Program funded by USAID – such as Fundasaun Edukasaun Comunidade Matebian, Fundasaun Fatu Sinai Oecusse, LBH-Liberta, and the Justice System Monitoring Program’s Victim Support Service – fill this void. These non-governmental organizations defend suspects in court in the absence of a state public defender. They offer invaluable support in the nation’s effort to meet its obligations to protect and defend its citizen’s rights by representing victims’ interests and assisting with civil matters.

The active participation of legal aid organizations during the comment period was a particularly welcome development. The joint submission from the organizations to the Ministry of Justice effectively detailed the strengths of the draft law and areas of concern. While generally very positive, the legal aid lawyers noted some key challenges with the draft legislation:

• Ongoing shortage of qualified private lawyers. Timor-Leste is still in the process of implementing regulations and professional standards for private lawyers. Under the 2008 Private Lawyers Law, currently practicing lawyers must attend a 15-month theoretical and a nine-month supervised practical training. The law established a four-year grace period to complete the course, which is set to expire in July 2012. The potential impact of the current draft, coupled with the impending deadline for currently practicing lawyers to complete training at the Judicial Training Centre under the 2008 Private Lawyers Law, means that legal aid services will decrease dramatically after the July 2012 deadline. This leaves an extremely small group of private lawyers eligible to supplement the legal aid services provided by the Public Defender’s Office. Unless the Private Lawyers Law is amended to extend the time period for lawyers to qualify, there will be at most 14 qualified or trainee private lawyers by July 2012. Without state support for the supervision of trainee private lawyers outside Dili during their nine months of practical training required to qualify, it is likely that the small pool of qualified lawyers or trainee lawyers will be concentrated almost exclusively in the capital city.

• The draft law does not provide any state support for legal advice by private lawyers or legal aid organizations unless linked with a preexisting formal court proceeding. Instead, the draft legislation relies on the proposed Bar Association, an organization that has yet to be established. The fact that the law does not provide state funding for legal advice by private lawyers significantly limits the community’s access to legal services that would not amount to formal legal representation in court. Thus, the cumulative impact of the draft legal aid law and the Private Lawyers Bill will result in a very limited number of lawyers being eligible to apply for grants of legal aid under the law.

• The resources provided by the law will be heavily focused on the capital Dili where roughly 33 percent of the population resides. While provision of legal services in Dili is vital, it is also by far the easiest place to secure legal assistance. In fact, Dili already enjoys a disproportionate share of resources. The legal aid lawyers feel it is essential that the law does not inadvertently establish a situation where the legal aid law provides for less legal assistance outside Dili rather than more.

The government should be commended for its openness to input on the draft law. With the benefit of comments from legal aid organization and other observers, the Ministry of Justice will now start revising the legal aid law. While it will take some time before the final bill is unveiled, a new legal aid law will no doubt radically transform the provision of legal aid in Timor-Leste.

The Asia Foundation, through its Access to Justice Program supported by USAID, has been actively involved in helping ensure the legal aid law provides a meaningful avenue to justice. At the request of the Ministry of Justice, the Foundation has provided technical assistance in supporting the creation of a viable legal aid system that is sustainable, cost-effective, and successfully protects the rights of all East Timorese, especially vulnerable groups such as women and economically disadvantaged persons. Read more about The Asia Foundation in Timor-Leste.

Geoffrey Swenson is The Asia Foundation’s legal adviser in Timor-Leste. He can be reached at gswenson@asiafound.org. The views and opinions expressed here are those of the individual author and not those of The Asia Foundation.

In Timor-Leste’s nascent formal justice sector, legal aid organizations play a key role in ensuring access to justice for the country’s most disadvantaged citizens. Located in remote corners of the country, legal aid organizations work in isolated communities that are still out of the reach of the formal justice sector. Legal aid organizations deliver free legal assistance to victims of gender-based violence, represent criminal defendants, and litigate or mediate civil disputes on behalf of those who can’t afford to pay for a private lawyer.

Bucao resident Louis Bello shows Lino Lopez, the director of the legal aid provider Fundasaun Edukasaun Comunidade Matebian (ECM), land that he claims was taken from his family during Indonesian rule. Photo by Conor Ashleigh.

However, this work on behalf of access to justice for Timor-Leste’s most disadvantaged citizens may soon come to an end. In 2008, Timor-Leste’s government passed a law that requires all private lawyers (including those who work in legal aid organizations) to complete a two-year certification training program to continue practicing. The deadline to complete this training is July 30, 2012. However, the training program was not established until June 2010 and, so far, no one has completed the training.

Since 2003, The Asia Foundation has supported five legal aid organizations across Timor-Leste that employ about 35 legal aid lawyers. These legal aid organizations operate in four district court jurisdictions: Dili, Baucau, Suai, and Oecusse. As the legal sector has largely been unregulated until now, legal aid organizations only required that lawyers possess law degrees. While lawyers recognize the importance of training and the need for a professional qualification process, the ambitious training requirements present a serious obstacle for many legal aid lawyers.

The first obstacle is distance. The certification training program is held in Dili at the national Legal Training Centre. Most legal aid lawyers live in the rural districts of the country and must travel a day or more over undeveloped roads to get to Dili. Travel from Oecusse requires a 12-hour ferry trip. In order to attend the full-time, two-year training, lawyers have no choice but to relocate to Dili. This means leaving their legal aid organizations and for some, their families behind in the districts. In Timor-Leste, where one family member often supports a large household that includes extended relatives, the loss of income will place a considerable burden on families. For women lawyers, such a move is made even more difficult by social and family pressure to remain within their traditional role as the primary caretaker of children and the household.

Even when a decision is made to attend the certification training program in Dili, lawyers have to pass an admission process, which can be grueling. To gain admission, prospective trainees must pass a series of written examinations and an oral examination before a selection panel. The admission process assumes an understanding of Timorese law and Portuguese language skills. For many Timorese, this alone has been a barrier to admission. Timor-Leste’s legal education infrastructure is still in its infancy. Many East Timorese receive their legal education from Indonesian universities. Only 7 percent of the population can speak Portuguese. As a result, law graduates have struggled to pass the admission process at the Legal Training Centre.

Based in Baucau district, ECM covers the eastern districts of Timor-Leste. Four lawyers from ECM have been awarded financial scholarships by The Asia Foundation to attend the mandatory private lawyers' training at the national Legal Training Centre.

In the first admission round in June 2010, 16 trainees passed the selection examination out of 51 applicants, and only 14 were able to actually start the training. This included three lawyers from legal aid organizations, including the director of a Dili-based legal aid provider. A second group of 40 trainees started their training in May this year, nine of whom come from legal aid organizations.

Despite the fact that training will undoubtedly support the lawyers’ professional development, doing so will seriously impact the capacity of legal aid organizations, which already face increasing staff turnover and the constant need to retrain new legal staff.

Therefore, legal aid organizations face a dilemma – if they do not send their legal staff to attend the training, then they will face the prospect of their staff having not completed the training by the deadline, and thus, not legally qualified to practice law. On the other hand, the entry of legal aid lawyers into the Legal Training Centre will severely drain crucial management and legal capacity.

In response to this challenge, The Asia Foundation, through its USAID-funded Access to Justice Program, just launched a scholarship program to provide financial support to legal aid lawyers to complete the certification training program. Last week, the first scholarships were awarded to six new trainees, including four women. As a condition of the scholarship, recipients must return to work for a legal aid organization once they complete the training and qualify as private lawyers. Based on individual needs, scholarship recipients will receive allowances for living, study, and family support. Scholarship winners said they look forward to completing the course so that they can return to their legal aid work in their districts.

Alexandrina de Sousa Soares, a legal aid lawyer from Baucau district, explains, “I chose to be a legal aid lawyer in order to serve the community and help the most vulnerable people. I help people guarantee their rights, particularly vulnerable women.”

It is important to ensure that those committed to social justice, like Alexandrina de Sousa Soares, are able to continue to serve as private lawyers. These scholarships are a way of supporting and incentivizing lawyers to be able to return to legal aid work. In the end, Timor-Leste will benefit from a diverse legal profession that draws on individuals from different backgrounds.

Lillian Dang is The Asia Foundation’s legal training officer in Timor-Leste. She can be reached at ldang@asiafound.org.  The views and opinions expressed here are those of the individual author and not those of The Asia Foundation.

Legal professionals are indispensable for the rule of law; they draft laws, shape government policy, ensure compliance with legitimate rules and regulations, and inculcate respect for individual rights. Education dramatically affects a lawyer’s performance, how law is disseminated to society, and, perhaps most importantly, individual and organizational behavioral norms. Construction and maintenance of democratic institutions requires sound knowledge and consistent access to the law. Nowhere is this more true than in Timor-Leste, Asia’s newest state.

During its decade of independence, Timor-Leste has made significant strides in university education. The growth of domestic educational institutions and the recent passage of the organizational law of the National University in October 2010 support this claim. Nevertheless, there are still no legal texts focused on the laws of Timor-Leste. And professors remain dependent on foreign law texts, primarily from Portugal or Indonesia.

Above, a local shop seller in Timor-Leste's Emera district. The National University of Timor-Leste, the nation’s only state university, officially teaches law exclusively in Portuguese – one of Timor-Leste’s two official languages. But Portuguese is understood by less than 10 percent of the population. Photo by Conor Ashleigh.

Prior to independence, Timor-Leste possessed scant legal education infrastructure, and the few East Timorese who did obtain legal education primarily did so at universities elsewhere in Indonesia. When the country achieved independence, it lacked an established legal learning center within its borders. Since then, the limited legal education institutions have been constructed from scratch and remain in nascent stages. The National University of Timor-Leste, the nation’s only state university, officially teaches law exclusively in Portuguese – one of Timor-Leste’s two official languages. But Portuguese is understood by less than 10 percent of the population. Tetum, the official language spoken by the vast majority of the population, is still developing the sophisticated legal terminology required for an effective modern justice system. Perhaps most strikingly, no textbooks currently address the laws of Timor-Leste in either official language. That, however, is beginning to change.

Launched under the broader Access to Justice Program in March 2010, the Timor-Leste Legal Education Project (TLLEP) is a partnership between The Asia Foundation and Stanford University Law School, funded by USAID. TLLEP provides accessible, dynamic educational textbooks to help build knowledge in Timorese universities, government institutions, and non-governmental organizations. Written in clear, concise prose, the text draws on hypotheticals, discussion questions, and current events to make it accessible to the broadest possible audience. Asia Foundation experts provide local knowledge and background research, while Stanford students participating in TLLEP as part of the Rule of Law Program take the lead on drafting the materials reflecting local priorities that are then thoroughly vetted by civil law experts and local stakeholders, including NGOs, private lawyers, justice sector officials, and prominent legal scholars.

After extensive consultations, the project initially decided to focus on the professional responsibilities, or ethics, of the legal profession, on the recommendation of a number of individuals and organizations, including the President of the Court of Appeals Claudio Ximenes, UNTL professors and administrators, justice sector officials, and legal aid lawyers.

A comprehensive draft textbook that examines relevant law in clear, accessible format to reach the broadest possible audience has been completed and was translated into Portuguese and Tetum in October 2010. The draft is currently being updated to reflect constructive feedback from national and international reviewers. The final draft is scheduled for a summer 2011 release. The text will be printed and distributed free of charge to universities, NGOs, private lawyers, magistrates, government lawyers, civil servants, and international organizations, and will be updated periodically with the latest edition available online.

The project’s transformative potential is already apparent. For example, Dr. Tome Xavier Geronimo, UNTL’s Law Faculty dean, has observed that these materials promote understanding and ethical behavior within an institutional context so that students and professionals alike understand their roles clearly and act in accordance with the law in those roles.

In the long-term, TLLEP seeks to institutionalize ways for educators and activists alike to positively influence the development of legal education in Timor-Leste. In light of the program’s success, the number of Stanford participants has already risen from three to 14 in less than a year. Students have already started drafting texts addressing civics and contracts under Timorese law.

A Stanford law student works with UNTL law students to review the draft professional responsibility text during their visit to Timor in October 2010.

TLLEP recognizes that lasting success hinges on a reciprocal flow of information and ideas. In September 2010, Stanford students traveled to Timor-Leste to further integrate the local legal context into the educational materials, with additional visits planned for 2011 to meet with key actors inside and outside the justice sector as well as to gain first-hand information about education in Timor-Leste. Similar plans are underway to send a delegation of Timorese legal academics to visit Stanford.

Strengthening legal education takes time. Yet, positive change is clearly visible on the horizon. Citizens will soon have ready access to a clear, concise text explaining the rights and responsibilities of magistrates, prosecutors, public defenders, civil servants, and private lawyers. The textbooks are already being explored for use in continuing education or judicial training to help current professionals. As Lino Lopes, director of Fundasaun Edukasaun Comunidade Matebian (which provides free legal aid services in Baucau, Manatuto, Lautem, and Viqueque districts) explains, “Texts in Tetum are very important for legal aid lawyers to understand their role in enforcing the laws, as well as allowing ECM and other legal aid lawyers to better uphold individual rights through both courts and community education.”

While much work needs to be done, the texts have the potential to spur a virtuous cycle by giving the Timorese people the means to empower themselves in both official languages. When people understand their laws, they can make the law work as a tool for a more just society. And when misconduct occurs, government or civil society can step in to help ensure the law is upheld.

Geoffrey Swenson is The Asia Foundation’s legal adviser in Timor-Leste. He can be reached at gswenson@asiafound.org.

This piece, written by Stanford Daily‘s desk editor Marwa Farag and published on March 9, features The Asia Foundation’s law and governance advisor Erik Jensen‘s recent trip to Kabul where he led a group of Stanford law students to work on the Afghanistan Legal Education Project, which helps develop the legal curricula there in partnership with the American University of Afghanistan.

Armed only with law textbooks, six Stanford law students and faculty advisor and senior research scholar Erik Jensen landed in Kabul, Afghanistan on Feb. 6 on a mission that would last six days. The group made up Stanford’s Afghanistan Legal Education Project (ALEP), a student-led law school project funded by the U.S. State Department that creates textbooks on Afghanistan’s legal system specifically for the instruction of Afghan students.

Stanford Professor Haroon Mutasem teaches American University of Afghanistan students Introduction to Afghan Law.

Working with the American University of Afghanistan (AUAF), the project is creating a new generation of lawyers to shape Afghanistan’s future. Since it was founded in 2007 by Stanford law alums Alexander Benard J.D. ’08 and Eli Sugarman J.D. ’09, the project has published four textbooks. These include an introductory text to the laws of Afghanistan and textbooks on commercial, criminal and international law. Students are currently writing a textbook on constitutional law.

“The whole project is indigenously oriented,” Jensen said. “The textbooks are written in response to needs and demands of Afghan students, and we try to contextualize our work as much as we can to the politics, economics and social order in Afghanistan.”

The purpose of the recent trip to Kabul was to explore the future and progress of the project. Students attended classes that are currently taught using ALEP textbooks, got feedback from Afghani students and professors and interacted with administrators at the AUAF to see where the project is headed.

“Sitting in on the classes and meeting with the students was for us a priority, because that’s the best way we can get feedback on our books and make the project better,” said Daniel Lewis LAW ’12 and ALEP co-executive director.

After meeting with the president of AUAF, the group agreed that the ultimate goal for the project is to build a complete law school curriculum. “The time frame is uncertain, but we’re expanding really quickly,” Lewis said.

In addition to rolling out the new textbook, ALEP plans to introduce new classes in the fall on Islamic law and the informal justice system in Afghanistan, taught by a collaborating Afghan professor and an affiliated postdoctoral fellow. Workshops on practical skills such as negotiation and writing are also on the horizon, as well as translations of the books into Dari and Pashto.

The group met other notable Afghan and American officials, including the dean at the Kabul University School of Law, university professors from the most populated provinces and Ambassador Hans Klemm, coordinating director of rule of law and law enforcement at the Embassy of the United States in Kabul.

“All the high officials we met with were extraordinarily supportive of the project,” Jensen said. “We’d gone over there expecting it wouldn’t really be easy getting our books out there [past AUAF], or that there would be some hostility,” Lewis said. “But that really wasn’t the case. The feedback was that they were excited to have another resource that was new and updated.”

Other universities are not the only other audiences attracted to the project’s textbooks, which are available publicly, and for free, online. “Over the past year or so, people have been downloading them [the books] and using them, some of which we know about and some of which we don’t,” said Rose Ehler LAW ‘12, another ALEP co-executive director.

The U.S. military has also used the textbooks to familiarize officers with Afghani law. According to Jensen, retired Gen. Stanley McChrystal was “very familiar” with the textbooks. The Afghan Ministry of Justice, leading judges and legal academics have also expressed interest in the project, according to Lewis.

“It was fascinating to be [in Kabul] as Stanford law students talking to these really important people in Afghanistan…in a knowledgeable way,” Lewis said.

But strengthening the AUAF law school and spreading legal education are only the beginning of ALEP’s goals. “The development of the rule of law is historical process. It takes time; there are fits and starts,” Jenson said. “The problem is when you are at Afghanistan’s level of development, it will go through years and years of fits and starts…and as society goes through these episodes, it will need a new cadre of leaders to lead to positive episodes,” he added.

ALEP seeks to contribute to the formation of these future leaders, not only in the legal profession but also in the country as a whole. By using analytical methods to teach students critical thinking, they hope to bridge the gap between American style legal education and the Afghan reality.

“They [the Afghan students] will see opportunities that we can’t see from Stanford, but they can see on the ground in Afghanistan,” Jensen said, describing the project as one that is about imagining alternatives so as to prevent oppression.

The law students’ person-to-person contact with the Afghani students made it clear that this project extends far beyond what can be seen on paper. “The passion that we all saw in the students in Afghanistan just increased our passion for the project at Stanford…the heart and soul of the Stanford group is derived from the heart and soul of the Afghan students.”

“Everybody on the trip came away saying, ‘Wow, we’re actually doing something that’s useful here,’” Lewis said.
The trip left the group optimistic about the project’s future. “Student demand is high; we’ve been successful at retaining some of the best faculty, and we hope that that the [AUAF] law school becomes a center of educational excellence,” Jensen said.

Despite the fact that ALEP is no longer the “sole source” of Afghan law textbooks, Jensen is confident about the books’ prospects. “I look forward to the marketplace of competition…I think our books will show themselves to be the best.”

In the larger debate about the relationship of development assistance to security, the gap between normative assertions and empirical evidence yawns. Since the 1990s, the concept of “rule of law” has been enthusiastically embraced by international development actors and touted as the key to consolidating peace in post-conflict societies. Rhetorical overuse of the term has been matched by a proliferation of rule of law programs purporting to cover everything from legislative, judicial, and police reforms to land and property administration and market reforms. These programs, with their oversized ambitions, rely on a contested definition of what constitutes rule of law and what can be accomplished through international assistance. Such cookie-cutter, pre-packaged rule of law programs are unfortunately routinely favored over more strategic and carefully designed programs that apply very specifically to country and local-level environments and people’s needs on the ground. And much of development funding tends to go to formal institutions like judiciaries that are assumed to have the capacity and strength to deliver positive development outcomes. Unfortunately, that’s often not the case, especially in many developing countries where formal institutions are run by the elite, and local conflicts are more reliably resolved in informal institutions.

These expectations and assumptions about rule of law have led to a patchy record of performance in rule of law projects. The development industry expects too much from technical assistance projects that install formal laws and legal institutions. These expectations are driven by a set of faulty assumptions about the number of outcomes that can be achieved through rule of law assistance and when they can be achieved. The number is unrealistically high and the timing unrealistically short. We expect too much, too soon, with too little money, too much emphasis on technical precision, and too little on the embedded political, economic, and cultural dynamics that surround institutional change. In the worst cases, we support the wrong institutions to achieve the articulated goals and objectives.

When this happens, institutional support to strengthen rule of law mimics the drunk looking under the lamppost for his keys, not because he lost his keys there, but because that is where the light is. This poor record of performance led the World Bank to conclude that “less overall progress has been made in judicial reform and strengthening than in almost any other area of policy or institutional reform.” If goals and objectives were more realistically based on the historical evolution of existing institutions, perhaps funding would be more proportionate and our record of performance better.

So, given all of these complexities and shortcomings, what can be done?  First, we can put more emphasis on research and problem analysis, and resist the gravitational forces in policy circles for overly-simple answers. For example, American politicians and policy experts frequently assert that communities in Afghanistan and Pakistan, disillusioned by slow or non-existent secular courts, are won over by Taliban-styled fast justice. Indeed, disillusionment with the slowness of the secular courts was cited as a major cause for the success of the Taliban offensive in the Swat Valley in the winter and spring of 2009. Yet better research and analysis may reveal that the causal connections between institutional inefficiency and support for insurgency are not nearly as clear and simple as this. A closer look at people in the Malakand district reveals their restiveness and support for “sharia” in 1995, long before 2009. (Sharia in quotes because sharia and custom are often confused, and what constitutes “sharia” is highly contested even among experts.)

In 1995, one reason extremists resisted the secular courts was because criminal cases were pending against them in those courts. Moreover, an examination of court records in the Malakand district before the Taliban surge in early 2009 shows that the secular courts were working reasonably well by South Asian standards. These data points don’t prove that there is no causal connection between court performance and Taliban legitimacy. But they do suggest a need for more careful investigation into the factors that led to the movement against the civil courts by extremists in the first place, and then an investigation into the true extent of public support for the insurgents’ agenda.

Second, and related to the first, we can consider starting small programs while testing empirically causal connections, rather than starting big with unsubstantiated assertions. Starting big has two problems. One, it may completely miss the mark on helping people solve the problem that the assistance is purported to resolve. Two, rapid, “scaled-up” development assistance from organizations not truly grasping the complexity of the situation often runs the risk of creating new problems. Rather, if we keep experimenting wisely with small amounts of assistance at a local level, we are more likely to find optimal, nuanced solutions that are replicable.

Not surprisingly, ambitious projects based on broad, normative assertions should be met with scrutiny. Smaller projects based on specific knowledge, and that experiment, test empirical questions, and try to shed light on how development assistance can work most effectively in the long term should be encouraged. There is still much to be learned about how to best provide aid and assistance in the manner it is most needed.

Erik Jensen is The Asia Foundation’s senior advisor for governance and law, co-director of the Rule of Law Program at Stanford Law School, and a senior research scholar at Stanford’s Center on Democracy, Development, and the Rule of Law. He can be reached at ejensen@asiafound.org.