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Last Updated: 27 June 2014
This article was first published in the Hague Journal on the Rule of Law, Volume
5, Issue 1, 2013
Local Accounts of Rule of Law Aid: Implications for donors
Pip Nicholson and Sally
Low*
Law and development has a very long history. The export of
legal reforms based on Western legal models to enable trade and commerce
thrived
in the colonial period. During the 1960s and 1970s the USA led a then
‘new’ law and development movement exporting
American law,
ostensibly to foster liberalism and democratic institutions, and forestall the
spread of communism. [1] Although the
Cold War was essentially a contest between two economic systems and this first
moment in law and development was highly
ideological, it was arguably not
immediately ‘concerned with any specifically economic functions of law. It
reflected a broader,
more socially than economically inflected, conception of
the importance of law in modernization
processes.’[2] After its robust
critique, as a failed political experiment, and after the end of the Cold War,
law and development was reclaimed
and openly acknowledged as a strategy critical
to the development of markets. By the 1990s law and development was
‘explicitly’
linked to market-led development, and later social
ambitions were introduced.[3]
Concurrently, many donors adopted the rule of law as the focus of their
projects, aiming to see legal systems reformed to include
independent courts
capable of protecting businesses and citizens from discretionary use of
power.[4]
More recent law and
development scholarship analyses the local experience of
aid[5] and the role of bilateral
donors in legal assistance,[6] whereas
once the focus was on the major international institutions, such as the World
Bank and also more recently, the Asian Development
Bank.[7] There is also much written
about legal empowerment and access to
justice.[8] There is also on-going
substantial critique, including: the western centric orientation of law and
development[9]; the under-recognition
of the context and plurality of
laws[10]; and, more fundamentally,
its failure to deliver economic growth or constraints on the use of
power.[11] We also suggest that the
current law and development literature fails sufficiently to analyse the
recipients’ experiences of
legal development, particularly in the context
of rule of law activity.[12] This
has been characterised as analysis of the ‘conversion’ dynamic of
rule of law export where the ‘decisive role
of reception of
concepts’ is the
focus.[13]
There is also a related and long-standing debate within the comparative legal
studies and legal transfer literatures about the relevance
and impacts of local
factors to legal transplants.[14]
Generally, in the case of court-oriented legal reform, the donor focus is on the
effective transplant of Western-inspired notions
of the rule of law,
[15] however
defined.[16] To avoid protracted
debate about definitions, we adopt Tamanaha’s workable definition of the
rule of law ‘that government
officials and citizens are bound by and
generally abide by law.’[17]
We note that in the context of exploring local perceptions of court-oriented
legal reform it is possible to revisit the live question,
also raised in the
mid-1970s, of the relative significance of diverse factors in legal
transplants.[18] Kahn Freund argued
it was essential to take account of societal influences on legal transfers,
[19] ultimately suggesting that political
orientation and openness to liberal ideas were critical to legal
transfers.[20] In 1998, La Porta et
al suggest that the source of the transplant affects its take-up in a new
location, particularly whether the
transplant has its genesis in a common law or
civil law country.[21] Berkowitz,
Pistor and Richard disagree, arguing that how a law is transplanted and received
has more impact on its take up than its
source, arguably a variation on Kahn
Freund.[22]
This paper
contributes to the debates about law and development, and the rule of law
‘project’ as transfer-based in three
ways. First, it demonstrates
the very real need to identify and listen to local experiences of court-oriented
legal reform.[23] The failure to
listen to local stakeholders means law-focussed aid remains ethnocentric,
self-referential, neo-colonial and possibly
destructive.[24] Secondly, our
research offers insights into what works and why within court-oriented legal
reform, through analysis of the local
experience of multilateral and bilateral
donors. [25] This is important
because the law and development literature, focussing on rule of law aid,
frequently remains abstracted from the
reality of its implementation,
particularly by bilateral donors. Therefore we suggest our exploration of
court-oriented legal reform
in Cambodia and Vietnam contributes to the analysis
of rule of law, but also has implications for legal technical assistance.
Further,
that disaggregating these two activities assists to identify how legal
technical assistance might be transformed or adapted. Thirdly,
the paper
reiterates the connection between aid-funded legal development for reform and
the analysis of legal transfers in the context
of rule of law-inspired
activity.
In Part I we describe the legal and court reform landscapes and the experiences of aid in general terms in each of the two countries studied here: Vietnam and Cambodia. In Part II we focus on both local and international visions of who ‘owns’ and/or leads the local court reform agenda and how. In Part III we further explore local perceptions of ownership, vision and implementation by examining local demand for court-oriented reform comparatively via local stories of international legal assistance, focussing on court reform. As noted, this local focus is all too often under-explored in stories of aid. In Part IV we briefly set out donors’ accounts of court-oriented legal reform in Vietnam and Cambodia to enable comparison with local accounts elicited in parts II and III. Finally we raise several fundamental questions: Are there limits on assistance? Do some strategies work better than others? Is changing or reverting to technical assistance regressive if it involves renouncing rule of law aid, as currently conceived in the West? And is harm perpetrated by court-oriented legal reform in these two countries?
This study identifies that unsurprisingly donors and locals do not share a vision for court-oriented legal reform, at least not in Cambodia and Vietnam, and we expect more widely.[26] Our findings also confirm the work of scholars writing of the profound limitations of rule of law to development, whether this is on the basis of the plurality of law[27] or the fundamental and fatal Western-centric assumptions about the transferability of law. However, as a consequence of the identified tension over ideologies and agendas between donors and locals in both Vietnam and Cambodia, it emerges that particular donors are better received locally than others and seen as more effective. This has implications, we suggest, for aid practice in these two countries and perhaps also in other states.
A note on method
Our research compares and contrasts local and non-local perspectives about ‘court-oriented legal reform’ to inform wider rule of law debates in the context of aid. This approach excludes the study of, for example, human rights projects and administrative law reform, which would be caught within a general rule of law study. This narrower focus was chosen to enable close analysis of one key aspect of rule of law activity.
Yet within our limit of court-oriented legal reform we explicitly cast a wide
definitional net. This term does not separate court-specific
reforms, such as
development of a Benchbook or publication of judgments, from related legislative
drafting initiatives, such as the
development of criminal and civil procedure
codes. It also includes projects informed by the stated ideals of donors to
introduce
an ‘independent and transparent judiciary’ through
training and related legislative developments. Our inquiry is about
the
experience of aid-assisted court projects, and about obtaining a more nuanced
understanding of this activity, the changes it
aims to produce, and local and
donor perceptions of those changes.
We commenced with a review of
court-related project activities in both locations through available websites
and reports.[28] In each country we
then interviewed donors and their consultants, local lawyers and judges, local
officials whose work touches in
some way on court reform issues, and where
available, non-governmental organisations involved in these activities. Between
2008 and
2012 we conducted 32 interviews in Vietnam and 36 in
Cambodia.[29] The same basic
questionnaire was used in both countries for all interviews and the data from
both countries was analysed by both
authors. In Vietnam, we have also been
assisted by a 2012 survey of 100 Judges and court staff and further interviews
by a locally
engaged researcher with ten
judges.[30] Also in Vietnam,
Nicholson participated in a roundtable with court reform stakeholders in October
2012. All interviewees have been
guaranteed anonymity.
In Vietnam,
Nicholson interviewed 8 donor agencies, including expatriate and local staff (14
interviews) and international consultants
(4), 7 local lawyers, 1 judge, and
several local officials. In Vietnam, we suggest donors’ local employees
act as interlocutors
between foreign donors and the Vietnamese State, giving
donors insights into what does and does not work. Arguably these contributors
are in some ways equivalent to the NGO sector in other localities. Yet the
distinctions between these categories were sometimes blurred.
Several of the
private lawyers and academics also worked or work for government law agencies,
donors or government advisory boards.
In Cambodia, we interviewed
Cambodian state employees (5), representatives of civil society (academics, NGO
employees and private
lawyers – 10 Cambodian and 6 foreign) and employees
of donors and donor funded projects (3 Cambodian and 12 foreign). As in
Vietnam,
there are interviewees who wear more than one hat.
In both countries we
sought to interview a representative selection of those involved with court
related development assistance. However,
in both countries the importance of
personal trust and contacts to the research was a determining factor in
obtaining interviews.
Cambodia’s often highly critical NGO sector is
represented, but we also sought the opinions of those who engage with the
Cambodian
state with less opposition. In Cambodia judges and prosecutors were
often reluctant to speak on the record and their voices are thus
under-represented in the data. However, several off the record discussions with
judicial officers confirmed the conclusions offered
here.
Why compare?
This paper compares the rule of law engagement through court-oriented legal reform in Vietnam and Cambodia, two post-colonial states. We note the colonial influence was French in each case, although the impacts were different. Cambodia can be called post-socialist, having officially adopted market economics and multi-party democracy. Vietnam retains a socialist government, while transitioning to a socialist-oriented market economy. In each case the countries have suffered protracted wars, with different impacts, and are not wealthy. Vietnam is ranked by the World Bank as a lower middle income country and Cambodia as a low income country.[31] Cambodia is also regarded as aid dependent (although decreasingly so), whereas Vietnam is not.[32] Bluntly essentialising, we saw this comparison as affording insights into the impacts of court-oriented legal reform in countries differently placed on a continuum from socialist to post-socialist or allegedly democratising nations where donors have been active in court reform for at least 20 years. This comparison therefore affords a scrutiny of the impacts of recipient and donor political orientation on court-focussed aid particularly and the rule of law project generally.
In conclusion, we locate a divide between the rule of law literature (as a sub set of the law and development literature) and the analysis of legal technical assistance in the context of court-oriented legal reform. Like Newton, we argue that there is a case to increase legal technical assistance of a particular type and reduce the investment in rule of law aid which presupposes particular political choices.[33] We suggest this is particularly the case where there is ideological conflict (either in terms of political orientation and/or aspirations) between the donor and the aid recipient. We use the term ‘‘technical assistance’’ in a specific way, emphasising comparative legal knowledge transfer and to capture this have coined the term ‘‘comparative technical assistance’’. We distinguish our notion of comparative technical assistance from the more overtly political/ideological nature of much rule of law assistance. The technical assistance we advocate does not necessarily preclude longer term institution building if requested by the recipient government/institution. [34] However, it assumes local ownership of the knowledge acquired through comparative technical assistance, which technical assistance is often criticised for lacking.[35]
I LANDSCAPES: Legal Reform and Aid
Vietnamese Legal and Court Reform
Before the protracted civil war (1945 - 1975), Vietnam experienced Chinese influence, then French colonial influence, over the development of local legal codes and customs. The impact of the French varied throughout Vietnam with annexation in the south, but only protectorates in the north and centre of Vietnam.[36] Throughout the long period of Chinese and French influence,[37] local customs and practices also circulated widely, producing a potent mix of Taoist, Confucian and animist moral tenets, by which people lived.[38]
The division of Vietnam between 1954 and 1975 produced divergent legal landscapes. The Democratic Republic of Vietnam, established in 1954 in the northern part of the country, was a post-colonial, socialist-based legal system that borrowed heavily from the Soviet Union.[39] Experts with excellent political and moral revolutionary credentials led legal activity.[40] Lawyers did not require law degrees to practice.[41] In contrast, the Republic of Vietnam maintained law schools and French-inspired formal sources of law continued.[42] The unification of Vietnam in 1975 saw an attempt by the northern leadership to establish socialist-style courts nationally, although arguably two distinct court cultures exist in the north and south of the country.[43]
Post unification in 1975, Vietnam’s adoption of the doi-moi (renovation) policies in 1987 commenced a national transition to a socialist-oriented market economy. This policy change sought to increase private sector activity, decrease state-owned enterprise and reduce state management of the economy.[44] Law reforming activity also gradually increased through the 1990s, focussing on developing substantive laws to support the marketisation of the economy, without a vision for legal institutional reform.[45]
In 1991 the Communist Party of Vietnam (the ‘Party’) adopted a policy to construct a law-based state (nha nuoc phap quyen). This change resulted in the constitutional reforms of 1992.[46] Critical among the constitutional changes was an amendment to Article 2 of the Constitution requiring the people and the Party to be bound by law.[47] This promotion of the role of law to one that binds the Party and the State did not herald any architectural changes to the constitutional role ascribed to courts. Courts remained accountable to the National Assembly, which retained the constitutional authority to supervise the executive and the judiciary. The Party’s authority remained constitutionally entrenched.[48] Further, with about 90% of all institutional officers being party members, the constitutionally-mandated political leadership of the country keeps a tight rein on the implementation of new policies and laws.[49]
In Western terms, Vietnam has committed to a thin rule of law.[50] In its own terms the Party, expressing the will of the people, has committed to a socialist law-based state (nha nuoc phap quyen xa hoi chu nghia), predicated on a unification of powers and strong one-party political leadership.[51]
The 2002 Vietnamese court reforms assisted to make the courts more self-managing rather than independent.[52] Power to appoint and remove district and provincial judges was moved from the National Assembly to the Supreme People’s Court (‘SPC’), working with local appointing authorities. Additionally, the SPC became responsible for managing its own budget and leading technology reforms.[53] More generally, appointees to the court were to have graduated with an LLB (or acquire a degree post-appointment) and to have the requisite moral fibre. Candidates are vetted through inspection of their party credentials.[54]
In 2005, the CPV issued Resolution 49 outlining the Judicial Reform Strategy (‘Resolution 49’).[55] In its introductory section on ‘Basic Principles’ Resolution 49 states that
2.1 Judicial reform must be put under the leadership of the Party and aim to maintain political stability and firmly preserve the nature of our State as a socialist rule-of-law State of the people, by the people, and for the people, as well as to ensure the unified power of the State, along with the distributions and collaboration between state bodies in the exercise of legislative, executive and judicial powers.
Judicial reform (here a reference to courts, police, procuracy and investigative agencies) is therefore a reform of state power to entrench political stability and to preclude any one arm of the justice sector acquiring power.[56] The leadership of the Party is not to be compromised.
In conclusion, the contemporary Vietnamese court system is beset by lack of resources (including challenges in attracting judges), allegations of corruption, and an under-educated workforce needing additional training in what the law is and to apply it.[57] These criticisms need to be tempered by acknowledging the extraordinary developments witnessed in the courts over the last twenty years. Lawyers are today experimenting by litigating in courts (particularly in the Economic Court in Ho Chi Minh City).[58] Judges are developing a nascent legal discourse.[59] Further, some lawyers agitate for more nuanced interpretations of the law, relying at least in part on legal argument, rather than on their relationships (quan he), to secure judgments.[60] And there is great activity reforming substantive laws,[61] even while the bedrock issue of constitutional architecture and how to afford independent decision-making, while not compromising Party-state power, remains debated at the highest level.[62]
Cambodian Legal and Court Reforms
Current dialogue around court reform in Cambodia emerged against, and arguably continues to be affected by, the bitter divisions of the 1980s[63] and the subsequently charged atmosphere during the United Nations Transitional Authority on Cambodia (‘UNTAC’ 1991-1993). Under the international peace agreement of 1991, the government of the 1980s, led by the Cambodian People’s Party (CPP), was threatened with the prospect of relinquishing a large amount of its power[64] to the supervision of a UN force led by the major western countries that had, along with China, denied its legitimacy during the 1980s and arguably ensured the political and military survival of its opponents.[65] In practice the CPP worked to maintain its control of the state apparatus, often against the wishes of the UN forces. Lack of judicial independence -- failure to prosecute alleged human rights abuses by Party cadre -- was one area in which UNTAC challenged the Party’s control.[66] Thirty years on, judicial reform remains a catchcry of opposition political parties, NGOs and other critics of the (still ruling) Cambodian People’s Party, as well as western donors.
The 1993 constitution embraces democracy, [67] an independent judiciary[68] and respect for human rights:[69] all tenets mandated by the 1991 Peace Agreement.[70] It is frequently argued that Cambodia’s leaders are not committed to these western standards of democracy.[71] The country also lacked historical experience of an independent judiciary as well as the necessary human and physical resources.[72]
The Cambodian Government remains formally committed to court reform. Its key policy document pledges to promote judicial independence and neutrality, the rule of law and the ‘primacy of law.’[73] The Government acknowledges that there is still a long way to go to achieve these goals.[74] The challenges are significant. Analyses of Cambodia’s courts highlight a range of problems including: poor physical infrastructure; [75] lack of material resources; poorly trained judges;[76] bribery and unofficial fee taking by court officials; and political interference in key cases.[77] Parallel ‘neo-patrimonial’[78] power structures leave courts subject to corruption and political interference,[79] and can inhibit Government decision making. [80]
Nevertheless, in addition to the 1993 Constitution, some important reforms have been introduced. A school for judges and prosecutors was formed in 2002 and there are reported improvements in judges’ legal knowledge.[81] The drafting and enactment of Criminal and Civil Codes and related procedural codes has updated basic laws.[82] A bar association was formed in 1995 and many universities now offer law degrees.[83]
The Extraordinary Chambers in the Courts of Cambodia (ECCC), the
internationally (and nationally) funded and jointly managed tribunal
set up to
try senior leaders and those most
responsible[84] for crimes committed
during the Khmer Rouge period (April 1975- January 1979) may prove a catalyst
for further reform. Detractors
of the ECCC see it as infected by local politics,
albeit different in kind from the entrenched elite patrimonialism affecting
other
local courts.[85] However, the
trials have attracted strong domestic public interest and even some critics
acknowledge that the tribunal is providing
the Cambodian public and legal
profession with first- hand experience of relatively high standards of due
process, case management
and trial
procedure.[86]
Many of our
interviewees doubt the Government’s commitment to the rule of
law.[87] Another argument is that,
considering the country’s history and the many challenges it faces, there
has been remarkable progress
and that to expect rapid implementation of
standards found in wealthy Western nations is
unrealistic.[88] In either case
Cambodia appears to be evolving as a ‘corporatist state’ in which
personal relationship networks are key
to the exercise of
power.[89] According to
Jayasuriya, such a model may support a ‘thin’ rule by laws,
in which the judiciary plays a relatively important role, but acts in
collaboration with the
executive.[90] Alternatively,
Cambodia may maintain an undeveloped legal system enabling the growth of
personal networks and entrenching powerful
interests.[91]
Court-focussed Aid in Vietnam
After the adoption of doi moi in 1986, Western donors commenced legal sector activity in northern Vietnam (the Soviets having been active through the period 1959 - 1975). In addition, Western donors resumed or commenced limited activity in the south, as a result of a controlling hand in the north impacting the distribution of aid.[92] Court-targetted aid to Vietnam flowed primarily from bilateral donors, either working alone or in concert, sometimes under the auspices of the UNDP.[93] More recently, the donors have moved to work alone, with the exception of the European Union project commenced in 2008 targeting 3 areas, one of which is legal and judicial reform, in which the Danish International Development Agency (DANIDA) and the Swedish International Development Agency (SIDA) are also involved.[94]
The volume of aid to the legal sector is significant and in 2010 bilateral
aid agencies alone contributed USD 12.9 million to legal
sector reform including
courts, the three largest donors being the USA, Sweden and
Canada.[95] The most consistent
donors between 2002 and 2010, both in terms of activity and money spent, have
been Canada, Sweden, Denmark and
Japan.[96] There has also been a
radical increase in funds spent over this period from USD 1.7 million in 2002 to
nearly USD 13 million in 2010.
[97]
Multilateral aid has
increased more than tenfold over the period 2002 –
2010.[98] In large part this is
attributable to the large European Union, Joint Partnership Program launched in
2008. It publicly committed
EUR 18.7 Million over five and a half
years.[99] The World Bank’s
International Development Association, is also a major player, lends credits or
‘concessional loans’
disbursed across a range of projects, including
in 2009 to major
projects.[100]
Recent
figures do not capture the fluctuating relationships between donors and their
Vietnamese counterparts. This story is taken
up below. However since 1992, when
Western aid to court-oriented legal reform was first
discussed,[101] the nature and
targets of aid have changed.[102]
Initially the focus was on technical assistance enabling development of laws,
human resources and physical infrastructure (an example
of which is
computers).[103] Over time donor
ambitions increased and the emphasis moved to projects which took as their aim
implementing a particular vision of
court reform. To this end donors moved to
fund publication of judgments, bench-books, and human and childrens’
rights training
for judges. Donors also moved to fund local lawyers’
associations, with a view to strengthening them, and legal aid. Few donors,
with
the possible exception of JICA, about which more will be said below, remained
primarily focussed on legislative reform and technical
skills.
Donor
coordination has waxed and waned in Vietnam. Through the 1990s there was little
need for coordination about aid to courts as
the UNDP (along with Denmark) and
JICA were the only active
agencies.[104] Increasingly
coordination between donors was discussed, culminating in the UNDP hosting donor
coordination meetings, where, it is
suggested that currently the discussions
focus on reports of activity, rather than debate of substantive
issues.[105] As early as 2002, the
Ministry of Justice was summarising the activity of donors in the legal
sector.[106] As noted above,
Vietnam is not considered aid dependent.
The role of NGOs in
court-oriented legal reform is limited in Vietnam, Sidel noting that to date
only Legal Aid has attracted foreign
donor funds, and arguably that aid is not
directly linked to court-oriented legal
reform.[107] As a determinedly one
party socialist state the Vietnam has a tradition of coopting NGOs and thus
constraining and enabling only
approved activities. NGOs in the legal sector are
not necessarily activists for change.
Court-focussed Aid in Cambodia
Since the UNTAC period,
donors have funded a wide range of legal and judicial reform programs, some of
which have included: drafting
the four basic codes; establishing a judicial
training institution; forming the Bar Association of Cambodia; drafting the
Legal and Judicial Reform Strategy and Action Plan; prison reform;
strategic planning and budgeting with the Ministry of Justice; and refining a
code of conduct for judges. Donors
have also assisted legal aid, legal education
and alternative dispute resolution. There have been several unsuccessful
attempts to
encourage more transparent publication of judgments and
legislation.[108] Since 1993 donor
funded advisors have drafted a plethora of legislation related to economic
reform, environmental protection and
social issues such as gender-based violence
and human trafficking. [109]
Assistance to the law and justice sector in the years following the 1993
elections was reportedly
chaotic.[110] It also gave rise to
significant competition between donors, often in the form of clashes over civil
law and common law based approaches.
In the early 1990s French advisors
reportedly attempted to exclude the English language from the main law
school.[111] In 2004 JICA and the
ADB clashed over contradictory clauses on land registration in the draft Civil
Code (assisted by JICA) and the
2001 Land Law (assisted by
ADB).[112] Cambodian interviewees
stated that lack of cooperation among donors, and inflexibility by consultants
from different jurisdictions,
have resulted in a lack of coherence between laws
that would challenge even a well functioning
judiciary.[113] Interviewees
sympathetic to the government were particularly critical of ‘‘cut
and paste’’ legislative drafting
by foreign
experts.[114]
OECD figures indicate relatively large amounts of aid to the sector,
(over US$15 million in 2010).
[115] However, program details
available on the OECD web site indicate little direct engagement with the
courts. [116] In 2010, three of
the donors supporting work with judges and courts (Germany, Spain and UNICEF)
were concentrating on specific issues
such as prevention of violence against
women or juvenile justice. At least four of the nine listed bilateral donors
provided considerable
proportions of their assistance through NGOs.
[117] This possibly confirms a trend
away from ‘supply’ to ‘demand side’
assistance,[118] exemplified by
the World Bank which in 2005 cancelled a planned legal and judicial reform
loan,[119] and called for
‘interventions to help strengthen the capacity of non-state actors
effectively to demand state delivery of the
rule of
law.’[120] Over the several
years during which interviews were conducted, a proposed Model Court Project, to
be jointly funded by Danish and
Australian assistance, stalled due to an impasse
over government
co-funding.[121]
Despite unwillingness or lack of opportunity for donors to engage directly
with the courts, most continue to push the Government for
judicial
reform.[122] From around 2000 to
2010, donors called for the enactment of eight key laws (the four codes, two
laws on organisation and status
of the judiciary, an anti-corruption law and
reforms to the law on the Supreme Council of the Magistracy), all of which are
directly
or indirectly related to judicial
performance.[123]
Some donor
criticisms are quite blunt, contrasting sharply with practices within Vietnam.
For example, in a 2002 meeting, the Word
Bank representative reminded the
Government, on behalf of all donors, ‘that progress on anti-corruption and
legal and judicial
reform has been very slow, and this is a major source of
concern.’[124] Others such
as France and Japan have tended to adopt a less confrontational manner. Thus in
2006 the French Ambassador urged the
Government to
[p]lease understand that any impatience that you may sense on the part of
donors does not imply any wish to interfere in matters which,
more than any
other, belong to the national sovereignty of Cambodia. Donors ought to give
support not give
lessons.[125]
At the same
meeting, the Japanese Ambassador reportedly chastised some donors for their use
of short –term consultants, reminding
them that it took the British 300
years to develop their legal
system.[126]
Unlike in
Vietnam, in Cambodia local and international NGOs in the court reform landscape,
human Rights and some other NGOs vocally
criticise the government’s record
in the justice sector.[127] The
sheer number of NGOs in
Cambodia,[128] supported by donor
funds, has given them a loud voice in court reform discourse. NGO activity
arouses strong resentment in government
circles on several counts. First, they
challenge the government. Secondly, NGOs are seen as pushing the agendas of
their donors and
as undermining government authority. Thirdly, government
structures can be emasculated in favour of parallel, unregulated and sometimes
unaccountable, NGO
services.[129]
As in
Vietnam, there are multiple views about the future evolution of Cambodia’s
judicial system. However, one factor that distinguishes
Cambodia from Vietnam is
the rationale invoked to forestall donor activity. In Vietnam a political
rationale, socialism, exists for
the adoption of only incremental court-focussed
reforms, supported by Party-state policy documents. In Cambodia constitutional
changes
adopted in 1993 can be invoked by donors to challenge government
incrementalism in legal and court-oriented reforms.
II. Court-Oriented Legal Reform Ownership and Local Visions: Vietnam and Cambodia
In this section we ask ‘who owns court-oriented legal reform in Cambodia and Vietnam?’ We adopt Shimomura and and Ohno’s definition of ‘ownership’, which includes both ‘managing donors and owning policy.’[130] More specifically Shimomura and Ohno argue three elements of policy ‘ownership’: policy development that enables ‘exit’ from aid dependency; ‘policy autonomy’ (as opposed to managing donors); and the principle, not only of autonomous development of policy, but the design and implementation of practices that are locally relevant (also called ‘translative adaptation’).[131]
Overall we agree with Shimomura and and Ohno, whose comments were made in the context of aid generally, that Vietnam manages donors and has retained policy autonomy in terms of court-oriented legal reform. However, as we outline below, the autonomy successfully staked and protected in Vietnam (compare with Cambodia) has to date produced inertia about major institutional reforms. Whether this is the result of deliberate policy inertia or reflects a limited imagination for actual reform or ‘translative adaptation’ is less clear. We also generally agree with Shimomura and Ohno that Cambodia has exhibited less donor management than Vietnam, but that this is improving.[132] Their assessment that locals tend to leave some development decisions to donors,[133] contrasts with a more nuanced situation identified by our local interviewees, that policies may be adopted at the urging of donors, but are only implemented when their ownership is assumed locally.
Who Owns the Vietnamese Court Reform Agenda?
Without exception, we were told by locals that the ‘Party’, or more particularly its Politburo, was the institution responsible for the organisation and functioning of the justice sector, including courts in Vietnam. As foreshadowed above, the Vietnamese Party-state drives and manages legal sector aid development (much of the responsibility devolved to the Ministry of Justice and the SPC International Department), even if the policy autonomy demanded by the Party produces inertia and/or indecision.
However, and here again we draw largely on local accounts, our interviewees characterised Party management of policy development in this area differently. Until 2006, the Ban Noi Trinh (Party Internal Affairs Committee) had the task of coordinating and implementing Politburo decisions concerning court reform. This powerful party committee comprised high-ranking party members, some of whom were also from the Procuracy, Courts, Police and Inspectorate. It was also suggested that the Internal Affairs Committee was better funded and staffed than its replacement the Judicial Reform Steering Committee (JRSC), which assumed responsibility for implementation of Politburo law reform directives after the Party Congress of 2006.[134]
Yet while the Internal Affairs Committee or the JRSC had some authority they were at ‘arms length’ from donors. With few exceptions, donors through the 1990s and well into the twenty-first century largely worked through the Ministry of Justice and the Supreme Peoples’ Court in the design and delivery of court assistance. The Swedish Agency, worked with the Internal Affairs Committee in the development of Resolution 49.[135] In 2009, the United Nations Development Program (UNDP) commenced discrete ‘unofficial’ discussions with the JRSC, seeking to see how the UNDP could assist the JRSC with policy formulation. Currently the field (whether local or donor) is divided on the benefits of developing a collaboration with the JRSC. The JRSC is characterised as poorly resourced, largely ad hoc, and responsive to the Politburo rather than a catalyst for legal reforms.[136]
Like donors, locals reported frustration at the cumbersome power structures which determine court-sector reform policy within Vietnam. Yet they noted that they were accustomed to a complex web of liaisons culminating, when they obtained access, with the ultimate decision-maker (the Politburo and its JRSC). [137]
It was also suggested that there are different capacities to solicit and manage aid projects in the Vietnamese SPC and the Ministry of Justice. The Ministry of Justice has assisted donors since 1987 and has a broader field of project activity into which those initiatives can be channelled. For example, it oversees projects relating to legal aid, legislative drafting and professional training, all areas of relatively little controversy and where the law reform trajectory is not innately controversial. Compare this with the relatively less resourced International Cooperation Department of the SPC which became active in the mid 1990s,[138] which only has court-oriented projects as its focus, relatively fewer English speakers able to cooperate with non-Vietnamese speakers, and very little room to negotiate potentially politically sensitive projects. As we shall see, the SPC department attracts criticism for being rigid, unresponsive and slow.[139] These criticisms arise because of its institutional place within the constitutional and political architecture of Vietnam. Yet the SPC’s limitations are often incorrectly ascribed by donors to a lack of vision, poor technical skills and obstinate refusal to embrace reform. As set out below, there was a period of constructive collaboration between donors and the SPC, but this was when the focus was ostensibly, at least, technical cooperation rather than legal reform premised upon ideological change.
This centralisation of aid has not precluded some local initiatives, discussed below.
Aid and Power in Cambodia: Aid Dependency
Like Vietnam, our Cambodian interviews indicate that reforms are not implemented without government commitment.[140] However, given Cambodia’s aid dependence, donors have had a considerable impact, on the substance and prioritization of new legislation for example, as well as the development of some policy documents such as the Legal and Judicial Reform Strategy.[141] Donor influence was illustrated when interviewees in Cambodia (local and foreign) invariably interpreted the question on ownership as meaning ‘do donors or the Government drive reform?’ This contrasts with Vietnamese interviewees who interpreted the question as being about which Government or Party body drives reform.
Cambodian (local) interviewees stated that implementing reforms, as opposed to policy development, depends on Government support. Essentially, the Cambodian informants indicated that the Executive will not countenance reforms that may threaten the hold of the ruling party.[142] To this extent there are some parallels with Vietnam, however, the issue is arguably marked more by an elite determination to maintain power than by ideological considerations. Some critics of the Vietnamese leadership would allege similar practices in Vietnam. One Cambodian interviewee noted that, ultimately anyone working in the legal sector must understand that ‘if changes reduce the gains for the Party themselves, they are not likely to be implemented.’[143]
While Cambodian interviewees generally agreed that the Executive has control of the reform agenda, there was less consensus about who drives formal governmental policy. In reference to the Council for Legal and Judicial Reform, one local NGO activist stated that, ‘[d]onors and NGOs are the drivers of reform, not the government.’[144] Another interviewee suggested that the Government had a formalistic attitude towards its reform strategy, suggesting a desire to be seen to meet donor reform requirements. [145] A (foreign) donor employee similarly viewed the Strategy as a list of projects that could be added to if donors wished and that fails to prioritise aspects of reform.[146]
While the Cambodian Government today may be able largely to control which reforms are implemented, they do not always control donor support in the sense of selecting or designing what assistance donors should offer. Despite improved aid management, local and some international interviewees view donor programs as still reflecting donor priorities.[147] Locals and foreigners also note Government failure to control donors.[148] According to one Cambodian, as late as 2008, the secretariat of the Council for Legal and Judicial Reform did not have a comprehensive database of donor-funded initiatives.[149]
Lack of central Cambodian government ownership has allowed donor priorities to dominate, with some distortionary effects. The most obvious of the latter is the drafting of contradictory pieces of legislation.[150] This situation has also created the space for some donors to push their own rule of law agendas, frequently partnering NGOs to this end. [151]
Vietnamese Court Reform Aspirations: Fragmented?
Party control of the court reform does not preclude competing local aspirations for court reform. As noted, CPV Resolution 49, which guides the interpretation of relevant laws, sets out the official reform line. It advocates strong Party control of courts. It also calls for independent decision-making (best interpreted as independence from the influence of local and provincial councils and peoples’ committees[152]), training for judges, publication of judgments and reforms needed for integration into the world economy.[153] It also notes that Vietnamese reforms can be informed by comparative practice.[154] It does not endorse modelling Vietnamese court reforms on any one comparator. It does not support transition to a thick rule of law.[155]
Other locals support more far reaching reforms[156] with, for example, commentators calling for constitutional courts and the power of the courts to interpret the law.[157] The legal profession appears most impatient to see wholesale reform of the courts, including the capacity of courts to judge the legality of Party-state action without fear of retribution. Those local lawyers who have loudly, openly and consistently criticised the government have been tried and detained for a range of misdeeds.[158] Other local lawyers are much more discrete (and the Party would say more ‘constructive’), working with the State to contribute to incremental reform of the judicial sector. In short, there are different aspirations for Vietnamese court reform locally.[159] However, most understand that to talk of an independent court system in Vietnam (as it is understood in the West) is to question the authority of a one-party state. Understanding these limits on the reform discourse, these locals avoid upsetting the administration by putting currently contentious matters on the agenda.[160]
Yet the dynamic of collaboration with donors creates a complex local-donor relationship around court-oriented legal reform. Given the ideological schism between some donors and the Party-state in Vietnam, Vietnamese collaboration with donors takes many forms including: individuals assisting or blocking Western-styled reform to the extent they are able and local leaders experimenting with projects, particularly beyond the SPC.[161] In the latter case it is not entirely clear whether the leadership is supporting these experiments or local actors do not feel the constraints placed on centrally-located courts, particularly in Hanoi, although the former seems more likely.
Cambodian Visions for Court Reform
As indicated above, it is difficult to discern the Cambodian Government’s real vision for court reform. It cannot be assumed that there is consensus or even consistency within the ruling elite. For example, in 2002 the President of the Supreme Court predicted imminent action on a range of reforms[162] while in 2004 a Deputy Prime Minister reminded donors that ‘Angkor Watt was built stone by stone.’ [163]
Cambodian interviewees who criticised the Government tended to accuse it of manipulating the law and the courts to claim legal legitimacy.[164] These critics aspire to western rule of law reform.[165] Our interviews confirmed earlier findings of Un Kheang that Cambodian judges and prosecutors have varying understandings of Western concepts of independence and of corruption, but that many resent political interference and the dearth of material resources that encourages corrupt practices.[166]
Other Cambodians detect a desire within government circles to move towards a more rule-based society with a competent and credible judiciary, but stress this will be a gradual process compatible with the interests of ruling elites.[167] In these circumstances locals suggested reform tactics ranging from working with receptive individuals, to improving legal education and encouraging a spirit of critical thinking and fair mindedness among younger generations.[168]
III. Beyond Ownership: Other Local Accounts of Donors and Court
Reform
A three-phase periodisation of donor activity with the Vietnamese courts over the last 15 years explains different donor and local visions for court-oriented legal reform. Interviewee L explains that during the early years of 1990 -1995 the court was ‘hesitant’ in its legal assistance collaborations, and worked to understand the donors. In particular, it is suggested that those working under the auspices of the UNDP, strengthening court activity project VIE 013, which included DANIDA, came to know the SPC well and generated a productive relationship.[169] The next ten years saw a radical increase in donor activity with the courts and this was attributed to ‘strong consensus’ or shared goals.[170] As explained, the courts sought technical assistance to work on the development of a range of substantive laws perceived greatly to assist Vietnam, while also being politically uncontroversial.[171] The third phase of cooperation between donors and locals has been beset by lack of common goals.[172] This was explained as donors seeking actively to implement Resolutions 48 and 49 (wrongly interpreted according to the Vietnamese as offering a platform for the development of a thick rule of law), while the Court and its Party leaders have yet to determine the pace and trajectory of reforms in those Resolutions. [173] Given the donor focus on court independence, the scope for cooperation is reduced. Put another way, there is limited consensus between Vietnamese officials and donors about the aims for court assistance. This has produced open competition between donors that is, at times, anything but collegial.[174]
In effect, mooted reforms that go beyond technical training or development of the law collide with Vietnamese sovereignty to determine by which principles and ideologies it will develop its legal institutions. For example, the AusAID sponsored bench book was cited by many as an excellent legal assistance project.[175] One of its key strengths was that the project design did not interfere with the ideological orientation of the courts,[176] rather, it produced a manual, reflecting court practices: not politically controversial.[177] Compare this activity with the STAR-funded ‘Publication of Judgments’ project, which struggled for years to obtain counterpart cooperation.[178] Publication of judgments, while explicitly called for in Resolution 49, remains controversial in Vietnam. Arguably the Party-state was not yet ready to publicise all material and lacked the technical competency to do this.
The local interviewees did not speak with one voice about donors. At least one interviewee celebrated the UNDP approach to legal assistance, noting it had in-country advisers that came to know Vietnam well, as well as its language.[179] Additionally, the UNDP was cast as beyond politics and this bolstered its image as a donor without an agenda.[180] This was identified because of the UNDP’s migration to fostering comparative research, in conjunction with the Party’s Judicial Reform Steering Committee, among others, rather than court-based projects. In effect, the UNDP was seen as supporting Vietnamese knowledge acquisition, rather than pushing a particular ideological line. Other Vietnamese did not see the UNDP as politically neutral, instead preferring to praise the Japanese International Cooperation Agency (JICA), for not strongly advocating judicial independence and the rule of law in its approach to legal assistance.[181]
In addition to reviling the lack of understanding of the vexed nature of court reform, Vietnamese commentators were critical about donors’ project cycles.[182] They commented adversely on projects being of short duration, with tight time-lines and dependent on ‘fly in’ consultants who knew little about Vietnam.[183] Here again JICA was singled out for a different delivery style that saw long term facilitators based within the court assisted by a stable team of experts who would return regularly to Vietnam.[184]
Locals noted that there is very little cooperation between donors, where there once was collegial support. Interviewee L’s characterisation of the phases of donor activity in Vietnam, mentioned earlier, appear to explain much of the antagonism. Donors face complex pressures from their constituents (governments and taxpayers at ‘home’), and these impose accountability measures. Facing an apparently uncommitted or uncertain SPC frustrates their objectives and does little to foster inter-agency cooperation.
In the course of interviews with local stakeholders several factors were also identified that enabled court-sector development. More specifically, it was remarked that where aid aimed to replicate features of Western courts in Vietnam, it was fraught.[185] However, the comment was made consistently that technical assistance in the style delivered in the 1990s might well have a future. For example, as already noted, JICA was favourably reviewed for not strongly advocating judicial and court independence in Vietnam,[186] although the Vietnamese understood that the Japanese seek to reap the economic benefits of aid.[187]
Not surprisingly those donors who could work in Vietnamese were also praised by locals. Additionally, technical advisers fluent in Vietnamese were characterised as more effective partners. Again it was suggested that most often it was JICA’s technical experts who were fluent in Vietnamese. It was also noted that even when the Vietnamese counterparts have the relevant foreign language (such as English or Japanese, for example), it was extremely helpful when legal reforms could be debated in Vietnamese as well.[188] It was also noted that projects could also be assisted by consultants who knew the Vietnamese system, even if not the language.
It was also suggested that court-oriented legal assistance between Asian nations is probably easier than where one party to an aid project is Western. The Koreans, along with the Japanese, were singled out as likely to be easier counterparts for the Vietnamese for this reason.[189] It was explained that the cultural gap ‘is not so wide as it is for westerners’.[190] More particularly, it was noted that Korea, Japan and Vietnam were historically connected to China and shared foundational influences, like Buddhism, Confucianism and ‘chopsticks’.[191] Interviewees mentioned that socialising at restaurants, drinks and karaoke were all good for project morale and this happened naturally between Asian consultants and the Vietnamese counterparts. That said, it is possible for western advisers also to have a constructive working relationship in Vietnam and our local interviewees gave examples of this.[192]
There was one agency consistently singled out for its long terms commitment to Vietnamese legal development and its approach to the delivery of that aid: JICA. More particularly, the Japanese approach to the Vietnamese because it avoided the ‘fly in, fly out’ consultant. There was much praise for the Japanese employment of long-term experts, based within the court. There was also praise for the Japanese practice of having a stable team of experts, based in Japan, who returned regularly to Vietnam to advise on ongoing projects. [193] A few people also suggested that partnering courts with courts, and prosecutors with prosecutors, assists the implementation of court-oriented legal assistance. The sharing of specific technical experience was seen to be enhanced through this arrangement, [194] although the consistency of personnel was as important to this activity as its inter-institutional nature. The Locals interviewed also mentioned the UNDP, and to a lesser extent USAID, as good long term donors.[195]
Other Cambodian Responses to Donor Reform Activity
Several Cambodian interviewees indicated that only a few donors have been able to understand and work with the Government’s mindset.[196] Essentially, those perceived to be most successful refrained from what another Cambodian referred to as ‘confrontation’[197] with the Government.
Several Cambodian interviewees referred to a tendency for donors to focus on short term outcomes in order to satisfy domestic requirements to demonstrate results,[198] preventing a longer term embrace of Cambodian needs.[199]
As in Vietnam, JICA’s ability to work harmoniously with Cambodian state institutions and its long term commitment were favourably noted.[200] There were also some criticisms, for example of the complexity of the Civil Code[201] and noted some inflexibility on the part of Japanese advisors.[202] JICA was seen as one of those donors who are ‘less politically driven’[203] and therefore more able to engage with the Government.
The efforts of the Danish Institute for Human Rights (DIHR) in drafting the Government’s Legal and Judicial Reform Strategy were also praised:
The other donors,[ ...] fight from outside, but DIHR they work from inside. [... ]It is output based. If they want to do something they just present the idea and then they try to get the government official to support. [204]
Arguably this success was due to the DIHR’s approach to the Cambodian Government: evidencing respect for Cambodian ownership. This emphasis on ownership[205] of aid, and the need to de-politicise aid, came from both supporters and some critics of the Cambodian government. One local critic stated that large amounts of donor funding both impedes ownership and allows the Government to claim to be reforming when it is not. [206] This interviewee suggested that less but better targeted aid – ‘investing in a group of people who care and will effect change within their own sphere of influence’ [207] – would be more effective. ‘Don’t politicize the issue. The moment you do you lose. The regime will politicize it.’[208]
IV Donor Accounts
Vietnam
We group donors’ concerns about: lack of shared vision for court reform, including lack of access to those leading it; corrosive competition between donors; and the challenges of engaging other players to assist with court reform, noting that personalities and relationships are dynamic and that the field is constantly changing. We see that these stories vary widely in Vietnam and Cambodia and suggest some explanations for this in our conclusion. But first we briefly summarise the tales of court assistance from donors.
Donors noted that the lack of consensus over court-oriented legal reform has produced a competitive ‘field’ of actors, seeking to succeed where others have failed. In 2011, many donors were critical of the recently launched European Union project, for example, particularly because project design injected large sums of money into court aid without conditions.[209] Others bemoaned the lack of cooperation, yet did little to rectify this. Those that attended the UNDP-facilitated donor meetings indicated they reported on activities rather than ‘sharing’ their donor experiences,[210] although by 2012 more cooperation was apparent between donors. Nonetheless, real dialogue between donors, it was suggested, was exchanged between trusted affiliates at lunch.[211]
Competition between donors was criticised as inefficient as projects could overlap and duplicate each others’ efforts.[212] However, several donors suggested that competition between donors stimulated new and innovative practices, and perhaps greater reflection on what succeeds and fails,[213] one interviewee suggesting that the Vietnamese authorities could call for tenders on projects they sought to implement.[214] The real negative it was suggested, lay in the rivalry about political advantage brokered off the back of aid money.[215]
As with the local accounts, donors noted the lack of access to those leading reform and the challenges this raised for effective project design and delivery. While the Vietnamese understood their own political constraints, donors were not happy talking to Vietnamese counterparts without decision-making power. This frustration came through in comments about the need for patience.[216] As has been mentioned, donors also talked about the frustration of working with the SPC on court reform projects.[217] Donors also struggled with judges who cannot act as catalysts for change, except in small ways.[218]
JICA and AusAID reported relatively easier working relationships with the Supreme People’s Court. As noted above AusAID’s most recent uncontroversial engagement was in the preparation of two editions of the Benchbook,[219] which engaged a former Supreme People’s Court employee as a consultant successfully to facilitate dialogue with the Court.[220] It was suggested that establishing a relationship between the Federal Court of Australia and the SPC gave inter-institutional support to the project. It was alleged that this elevated the project from mere technical assistance to international legal cooperation.[221] This latter suggestion was not widely adopted as a basis for the success of the project. [222]
As mentioned above, the Japanese were celebrated for long term commitment, Vietnam expertise, a genuine commitment to Vietnamese ownership of reform and a focus on teaching and informing the Vietnamese of relevant comparative experience to enable their reform choices.[223] This latter approach also prompted praise of the recent UNDP effort.[224]
In Vietnam, donors were disappointed in the lack of opportunity to work on court reform with other players, non-governmental organisations in particular.[225] In the law and development literature there is a move to grass roots activity to spur institutional reform by instigating pressure from below for change, which some cast as new.[226] This strategy, we suggest, has little scope in a one-party socialist state, which has openly admitted that it does not intend to relinquish power (see above).[227] That said, some donors report constructive engagement with Vietnamese Legal Aid, albeit projects’ have a long gestation.[228]
Engaging the legal profession to agitate for reform has, on one view, also been largely stymied in Vietnam.[229] Yet, it is possible to see a real change in professional practice over time.[230] This brings with it, as noted above, the incarceration of agitants for change, but also incremental changes also noted above. On balance donors noted that informal cooperation with other legal actors is not easy in Vietnam and they wished it were otherwise.[231]
Donor Accounts: Cambodia
Donor interviewees frequently referred to political constraints to legal and judicial reform in Cambodia.[232] We were told that this is a common lament at informal donor meetings.[233] As a result, donors were sceptical about the impact of their support for judicial reform. Several felt that assistance for court reform and legal aid had helped to defend human rights and to maintain a space for political opposition.[234] However, there was a common view that substantial change to justice outcomes and political will would require systemic change.[235]
Even more so than in Vietnam, a frequent donor reaction to perceived lack of political will has been to concentrate on ‘building momentum for justice sector reform.’[236] Some, such as USAID channel a large proportion of their support to NGOs and civil society groups that advocate for reform.[237] As noted above, the World Bank has taken this view and now funds the ‘Demand for Good Governance’ project.[238] In December 2010 the Bank temporarily ceased approving new loans to Cambodia as a result of forced evictions from a location that comes under the Bank’s Land Management and Administration Project.[239] Predictably, this attracted strong resentment in government circles and support from government critics.[240]
By 2010, UNDP[241] and the French[242] government had scaled back their involvement or withdrawn from assistance to the sector. Other donors remained cautiously optimistic that their programs could contribute to worthwhile, although slow and incremental, improvements in the current system.[243] There was a tendency to see court administration reform, for example, as a way to expose the need for further changes.[244]
Frustration with the political barriers is sometimes exacerbated by donors’ own need to demonstrate concrete outcomes within their project cycles.[245] Two donors said they would, or would consider, working outside the central government system, albeit still engaging with local or provincial level officials on single issues, partly because this would produce immediately tangible results.[246]
Foreign advisors who were more optimistic about the possibilities for change referred to their ability to develop good working relations with counterparts and to make progress on particular issues.[247] Others were critical of donors for changing course when, in their view, the necessary work to build Cambodian ownership and support had just started to bear fruit, or when both donors and government officials had invested time in preparing for an activity.[248]
Again JICA stands out, with various donor employees acknowledging JICA’s ability to win the trust of the Government.[249] An employee of another donor noted JICA’s reluctance to openly criticise the government’s political agenda, even in donor-only fora.[250]
It was generally agreed that donor coordination has improved since the 1990s.[251] However, the benchmark was low and advances limited to the lessening of duplication and increased centralisation of information on donors’ activities.[252] DANIDA stands out as having been willing to pool funds with another donor (AusAID).[253] In the lead up to government donor technical working group meetings, donors meet separately but even in these fora, meaningful information exchange appears to be limited.[254] One donor suggested that the Government may have an interest in keeping the donors in ‘silos.’[255]
V. Lessons for Rule of Law Aid: Political Contests and Commitment to Court-oriented Legal Reform
The Vietnamese and Cambodian accounts of court-oriented legal reform confirm that political orientation and reform commitment impact whether there can be a shared vision for imported laws and legal institutions, at least in these case studies. This confirms Kahn Freund’s thesis of the relevance of politics to legal transfer and demonstrates the Pistor, Berkowitz and Richard thesis that a central part of the story of transfer take-up or traction lies in the receptivity to the proposed reform, noting that diverse local stakeholders have different preferences, the impact of which is mediated by local power structures.[256]
The research also reveals just how tenacious administrations can be in the face of donor enthusiasm for a particular vision of court reform. Each of the Cambodian and Vietnamese authorities articulate their sovereignty from donor reach, albeit differently. The Cambodians allow NGO activity, which means that impediments to reform agitation occur differently from within Vietnam: more often at implementation, rather than precluding open debate. Donors also feel much freer to criticise and prescribe reform in Cambodia than they do in Vietnam. In Vietnam, where the politics are centrally mandated and directed, discussions are internal to the Party. That said, dissident groups, and arguably some main stream personnel, embrace donor aspirations for reform in the face of the Vietnamese Party-state. Also the Party-state in Vietnam is not homogenous and includes within its ranks divergent views about the reform objectives and timing, as is the case in Cambodia.
We argue that there is more scope for comparative technical assistance than rule of law aid. Traditional technical assistance usually involves offering skills, training and knowledge by donors to aid recipients in four areas: legislative development, judicialisation, legal education, public administration reform and alternative dispute resolution.[257] Traditionally, technical assistance is offered at the inception of legal sector aid in a new location.[258] We suggest this activity ought not instil a particular vision for reform, instead offering a genuinely comparative approach to choice in legal reform. Contrast this with rule of law aid where the donors’ activity is based upon an ambition to instil the rule of law in the new location. This call for a plural approach to law reform has been made by others on the basis of historical and theoretical analyses.[259] Here we suggest it arises from our empirical studies.
Are there limits on assistance?
In Vietnam there is currently an impasse on the trajectory for legal change. The majority of donors seek rule of law-styled reforms, while the Party-state has not determined its direction. As a result, the Vietnamese accounts indicate scope for comparative technical assistance, education and training, development of law and infrastructure as opposed to the struggles faced by donors seeking to assist Vietnam to build an independent court system (although projects with transparency and citizens’ access to justice as a focus may have some traction). JICA, as already discussed, was seen as epitomising this approach and congratulated for it. The identified tension arose only in the face of donor agitation for more rule of law oriented reforms, such as publication of judgments or separation of powers. And yet some of these have been at least partially realised.[260]
In Cambodia it is less clear whether there are formal limits on court-oriented legal reform. This arises partly, it is suggested, because where Vietnam has a political rationale for its position on legal reform, the Cambodian leadership has endorsed some reforms (even constitutionally), and then passively resisted or delayed their implementation. As with Vietnam, debate within ruling party circles is not public, leaving donors, NGOs and opposition parties free to draw their own conclusions about the government’s vision. Rather than settle for a technical assistance approach, several key donors are seeking to encourage popular demand for reform, thus exacerbating the political tensions inherent in court reform. This approach often involves less direct engagement with courts and other central state institutions in favour of advocacy-oriented NGOs and civil society.
In both localities then the question of donor agitation for rule of law inspired reforms becomes a political question. To what extent do donors believe that they are entitled to agitate for a particular vision of reform? Whatever the answer to that question, and JICA certainly has a different response to other donors explored here,[261] that is widely criticised by some donors, the longer term impact of technical assistance that does not have an overt political reform agenda may at least be as significant as assistance predicated on a particular world view.
The great challenge here is how to evaluate the relative merits of comparative technical assistance compared with rule of law reform. The current donor trend favours the latter. Donors’ stakeholders wish to hear of development of human rights, strengthening good governance and assisting to construct independent courts.[262] But in perpetrating these aspirations and subscribing to them the issue of local sovereignty is glossed over.[263] In effect, the demand side of development is marginalised and the supply side privileged.[264] And also insufficient regard is paid to the issue of sequencing reforms and recipient (in)capacity to construct courts based on foreign models.[265]
As set out initially this is a paper about local perceptions of court-oriented legal reform. In Vietnam there is widespread, but not universal, support for donors to resume technical assistance, although a focus on transparency and access to justice is countenanced, rather than rule of law assistance,[266] if indeed a distinction can be so neatly drawn. In Cambodia, views are split on this issue, with some donors and NGOs calling for overt pressure for rule of law reform accompanied by assistance to mobilise public opinion, essentially in opposition to the government.
Do some strategies work better than others?
Given that JICA in both countries was praised, is it the case that there should be a move to imitate its approach? Key to JICA’s apparent local endorsement is its commitment to allow local ownership of aid to the extent that JICA do not openly call for politically controversial reforms. That said, it is not clear to what extent JICA’s local Vietnamese endorsement benefits from Japan’s role in the region as exemplar of the fusion of Asian and Western values. None of our local interviewees referred to JICA’s funding of seminar participants and flexible accountability as the bases of its endorsement.[267] Rhetorically, at least, other donors also endorse ownership.[268] Yet the locals to whom we spoke distinguish the attitudes of Japan from those of other donors, with the exception of the UNDP in Vietnam and possibly the Danish Institute for Human Rights in Cambodia.
One strategy that appears to produce more constructive aid partnerships then requires bilateral donors to adopt a non proselytising approach, or to put it more strongly, allow ownership of policy and intellectual freedom genuinely to explore options rather than merely rhetorically committing to this. However, the call here for technical assistance is not a call to reinstate traditional technical assistance, which, in turn presupposed education that privileged Western conceptions of the rule of law and the liberal, democratic and capitalist concepts underpinning it. Nor is it a call for over-reliance on foreign expertise at the expense of building local capacity. Rather here we call for the reinvention of legal technical assistance with a focus that is genuinely comparative and dialogical or what we call comparative legal technical assistance.[269] As Newton explained, by way of example, teach trade law complete with the ‘variety of available scholarly perspectives’ on it and avoid curricula that is ‘collapsed and narrowed’ by donors.[270] In the context of court-oriented legal reform, legal technical assistance should involve ‘dialogical law making where the partners to the dialogue are donors and recipients, self-critical and aware of the dynamism and uncertainty of legal reform.’[271] UNDPs activity of fostering comparative research, which has been common in the development of Vietnamese legislation previously, but less common in rule of law reform projects, is an example of comparative legal technical assistance. To adopt this approach distinguishes new technical assistance targeting court-oriented reform from rule of law aid because it eschews the long history of Western legal development ‘monologue.’[272]
It also seems that the employment of technically qualified consultants over the long-term, who work in equivalent institutions in their own jurisdictions and/or become literate in the relevant legal system over-time is sensible practice: as JICA has done. And with some variation, the current UNDP approach employs experts in Vietnam and China to augment its local expertise, although those experts are not always based in equivalent institutions in their home countries. This counsels donors against the use of short term contract consultants, without local expertise, who also seek uncritically to instil a particular vision of the rule of law as a part of their project work.[273] It also suggests that using pools of common consultants, as JICA does, builds long term relationships and trust in a way that the current practice of tender and contracting used by most Western donors does not.
The upshot of this analysis is that in both countries donor funding of comparative legal technical assistance may be more capable of implementation and cost-effective than the variants, where donors support development of new principles for the legal system rather than skills and technical capacity to work within a system of local design.
Do donors see it as regressive exclusively to support technical Assistance?
Some donors will claim that a move to the funding of technical assistance, even if comparative, is regressive.[274] If donors conceive of their work as promoting the Western rule of law as a public good to be built around the globe, it is regressive to put that mission aside. However, if one believes either that donors do not have an entitlement to advocate a particular rule of law vision for reform, or that the rule of law vision is not infallible, then donors should focus on assisting a nation to realise nationally preferred reforms. We are aware of the dangers of this approach if it leads, for example, to uncritical support for drafting repressive legislation. We raise an ethical question not capable of one answer. We suggest, however, that employing comparative legal technical assistance (training overseas, as just one example) also has the potential to produce ideological contests between nationals, with less intrusion on national sovereignty. Ironically, comparative technical assistance may be as effective as rule of law focussed aid, without the added dollars wasted on trying to broker agreement on controversial rule of law projects.
Where donors subscribe to the view that they lead reform through provoking debate, another question arises, does the move to comparative legal technical assistance reduce incentives locally for legal reform, given that some of the current legal assistance sparks discussion of reform possibilities, precisely because it presupposes some political reform? The research is ambivalent about the impact of donors agitating for a particular vision of reform, at least in the case of Vietnam. It was pointed out that ‘information sharing’ with locals has brought about changes within the judiciary, including ‘openness’ and a ‘motivation for change.’[275] Further, donor-funded court projects were seen as ultimately beneficial, even if unhappy during development and implementation, one interviewee stating
But if we do not have donor projects with the courts we would be worse off [...] They [donors] are slowly changing the SPC to be more open, more transparent. If they suffer, that is the court, a pressure, that their activities will be reviewed by the people and the international community it does affect their thinking and they have to be more careful in their work.[276]
Contrast this account with another local voice that opined ‘As long as we have the current political system, I do not think there is any significant change to the court system in Vietnam’.[277]
The answer to whether such a shift is regressive therefore at least in part depends again on attitudes towards a local leadership’s entitlement to ‘own’ the reform process. And the pressure donors apply to the pace of reform.
In Cambodia, the ‘non-confrontational’ approaches referred to by some locals, as exemplified by JICA’s assistance with the civil codes and the Danish Institute of Human Rights’ assistance in drafting the reform strategy, equate closely with the idea of comparative technical assistance spoken of in Vietnam. Thus there are some similarities in the debate over strategies for assistance to the sector. However, differences arise from Cambodia’s relative aid dependency, its public accession to rule of law in the 1993 constitution and the existence of a political opposition and advocacy NGOs . Arguably donors have more latitude to be ‘confrontational’ when a State has publicly accepted a reform principle.[278] However, we would query the efficacy of some donor pronouncements that take on neo-colonial overtones.
NGOs, and their supporters among donor domestic constituencies, may regard a less confrontational approach as a betrayal in Cambodia.[279] This again raises moral/political dilemmas that cannot be answered here. However, perhaps Cambodia needs less aid and more ownership.[280] Further, perhaps Cambodian legal reform will also be better advanced if the legal sector aid focuses on imparting skills, the bedrock for effective ownership.[281]
Is harm perpetrated by court-oriented legal reform in these two countries?
There is an argument that law reform generally, and rule of law reform
particularly, may strengthen authoritarian states and/or entrench
legal
elites.[282] Put at its most
extreme the argument contends that rule of law reform is destructive as it can
shore-up the hold on power of one
party or a governing elite. It has also been
argued that at least some notion of the rule of law can coexist with an
authoritarian
regime.[283] This
thesis must be tested locally to see how it resonates. It is one thing to say
that transfers permute and can have unintended
consequences, it is another to
assert that they are inevitably harmful. However, this question remains alive
and cannot be answered
here, in part because the answer is context
specific.
Another ‘harm’ identified here is aid dependency,
evident in Cambodia. Some scholars writing on aid dependency argue that
among
other problems, high aid flows can adversely affect government accountability by
reducing reliance on locally raised revenue
(taxation).[284] Donor strategies
for dealing with unaccountable governments range from giving aid only to those
countries that have already demonstrated
political will and some institutional
capacity for reform at one extreme, to increasing aid relative to the perceived
weaknesses
of a country’s institutions at the
other.[285]
Aid dependence
can also encourage
‘laziness’[286] or
‘intellectual aid
dependency’[287] in the
development of reform policies. Drafting of Cambodia’s Legal and Judicial
Reform Strategy could be viewed in this way
-- the Government acceded to donor
demands for a reform strategy by allowing a cooperative donor to draft one. Some
Japanese scholars
argue eloquently for recipient countries to be allowed the
time and the leeway to internalise and adapt external models through a
process
of trial and error.[288]
Similarly, other scholars have argued that developing countries should be able
to choose their own paths of economic development,
rather than being forced to
conform to current orthodoxies.
The examples of JICA’s technical
assistance set out here, arguably demonstrate at least some of the features
necessary to allow
greater ownership. In particular, a willingness to
acknowledge that reform progress will be slow and will require a long term
commitment,
based on relations of trust.
[289] As noted above, JICA has
been criticised by some for a lack of flexibility in Cambodia, suggesting
openness to choice has not always
been
achieved.[290] In Cambodia JICA
also reportedly encountered far less local capacity and ownership than in
Vietnam.[291] Nevertheless,
JICA’s willingness to provide long-term, highly qualified support for
implementation as well as for drafting
of the Civil Codes, has arguably been
more successful in building capacity and ownership, and generally better
received by locals,
than most other legislative drafting technical assistance.
Criticisms of JICA’s work underlines the fact that the approach
we
advocate is not necessarily an easy one and suggests that comparative technical
assistance involves context specific principles,
rather than the roll out of yet
another aid model universally. Considerations include: genuine respect and
commitment to affording
local ownership and a non-proselytising approach; use of
consultants with local knowledge; and support for informed choice with a
realistic time-frame.
Part of the answer to the question of comparative legal technical assistance versus rule of law aid is whether the aid dollar currently invested in court-oriented legal reform in each country is wasted. Could it be better spent? Our interviewees tells us contests over ideological change are frustrating, whether donor or local. Perhaps the opportunity cost is too high. However, donors seeking to maximise their impact might wish to learn from Japan and also to invest heavily in fostering and supporting the development of sophisticated intellectual development, through greater technical support of training, for example: adopting a paradigm of empowering local choice rather than seeking to instil ‘Western best practice’.[292] In Cambodia such an approach would not necessarily preclude assistance to NGOs and support for grassroots voices. However, our research suggests that the perils of aid dependence exist here too.[293] Extreme caution is needed to avoid imposition of donor agendas and undermining genuine, self-reliant, reform momentum which has its foundation in investment in intellectual capital and choice.
* This paper was developed with the support of Australian Research Council Grant DPO880036. We would like to acknowledge the contribution to research and analysis made by our colleague Professor Camille Cameron, now Dean, Faculty of Law, University of Windsor, Canada. Our thanks also to: Rebecca Apostolopoulos for research assistance; Nimmith Men for his participation in several interviews in Cambodia; and Teilee Kuong for comments on an earlier draft of this paper.
1 David M. Trubek and Marc Galanter, ‘Scholars in Self-Estrangement: Some Reflections on the Crisis in Law and Development Studies in the United States’, in: 4 Wisconsin Law Review (1974), p. 1062.
[2] Scott Newton, ‘Law and Development, Law and Economic and the Fate of Legal Technical Assistance,’ in Julia Arnscheidt, Benjamin van Rooij, and Jan Michiel Otto (eds.), Lawmaking for Development, 2004, at p.3
[3] Katie Willis, Theories and Practices of Development (2005); Des Gasper, ‘Human Rights, Human Needs, Human Development, Human Security: Relationships between Four International ‘Human’ Discourses,’ in The Hague: Institute of Social Studies ISS Working Paper 2007, at p. 19; Kerry Rittich, ‘The Future of Law and Development: Second-Generation Reforms and the Incorporation of the Social,’ in David M. Trubek and Alvaro Santos (eds.), The New Law and Economic Development: A Critical Appraisal; Alvaro Santos, ‘The World Bank’s Uses of the ‘Rule of Law’ Promise,’ in David M. Trubek and Alvaro Santos (eds.), The New Law and Economic Development: A Critical Appraisal, at pp. 268, 75.
[4] Newton, ‘Law and Development’, at pp. 4 – 5.
[5] United Nations Development Program, New Voices: National Perspectives on Rule of Law Assistance, 2011; Linn Hammergren, ‘Uses of Empirical Research in Refocusing Judicial Reforms: Lessons from Five Countries’ <http://siteresources.worldbank.org/INTLAWJUSTINST/Resources/uses OfER.pdf> (accessed Sep 2007); Linn Hammergren, The Politics of Justice and Justice Reform in Latin America 2006; International Council on Human Rights, Local perspectives: foreign aid to the justice sector 2000.
[6] Frank Schimmelfennig, ’A Comparison of Rule of Law Promotion Policies of Major Western Powers’ in Michael Zurn, Andre Nolkaemper, Randall Peerenboon (eds.) Rule of law Dynamics, Cambridge University Press, 2012, p. 111; Pip Nicholson and Simon Pitt, ‘Vietnamese Legal Reform: The Discourses of Aid?’ in Per Bergling, Jenny Ederlof, and Veronica Taylor (eds.) Rule of Law Promotion: Global Perspectives, Local Applications, 2011, p. 287; Pip Nicholson with Simon Pitt, ‘Official Discourses and Court-Oriented Legal Reform in Vietnam’ in John Gillespie and Pip Nicholson (eds.), Law and Development and the Global Discourses of Legal Transfers, 2012; Peter Schraeder, Steven Hook and Bruce Taylor, ‘Clarifying the Foreign Aid Puzzle: A Comparison of American, Japanese, French, and Swedish Aid Flows’, in: 50(2) World Politics (1998), p. 294; Alberto Alesina and David Dollar, ‘Who Gives Foreign Aid to Whom and Why’ in: 5 Journal of Economic Growth (2000), p. 33; Eric Neumayer, ‘Do Human Rights Matter in Bilateral Aid Allocation? A Quantitative Analysis of 21 Donor Countries’ in: 84(3) Social Science Quarterly (2003), p. 650; and, Ryan Macdonald and John Hoddinott, ‘Determinants of Canadian Bilateral Aid Allocations: Humanitarian, Commercial or Political?’ in: 37(2) Canadian Journal of Economics (2004), p. 294.
[7] Santos, ‘The World Bank’s Uses of the ‘Rule of Law’ Promise’, at p. 268. See also Livingstone Armytage ‘Judicial reform in Asia Case Study of ADB’S Experience 1990—2007’ in: 3(1) Hague Journal on the Rule of Law 2011, pp. 70 – 105.
[8] See for example, Stephen Golub, ‘The Legal Empowerment Alternative’ in Thomas Carothers (ed.), Promoting the Rule of Law Abroad: In Search of Knowledge 2006, p. 161.
[9] Thomas Carothers, ‘The Rule of Law Revival’ in T. Carrothers (ed) Promoting the Rule of Law Abroad, in Search of Knowledge, (2006), p. 3; Stephen Golub ‘A House Without Foundation’ in T. Carrothers (ed) Promoting the Rule of Law Abroad, in Search of Knowledge, (2006), p.105. See also, Pip Nicholson, Borrowing Court Systems: the Experience of Socialist Vietnam, 2007; J. Beard, The Political Economy of Desire: International Law, Development and the Nation State, 2007;
[10] See for example, H Patrick Glenn, ‘Sustainable Diversity in Law’ in: 3(1) Hague Journal on the Rule of Law (2011), pp. 39 – 56.
[11] Richard E. Messick, ‘Judicial Reform and Economic Development: A Survey of the Issues’ in: 14 The World Bank Research Observer (1999), p. 132; Mushtaq H. Khan, ‘Governance and Anti-Corruption Reforms in Developing Countries: Policies, Evidence and Ways Forward’ in G-24 Discussion Paper Series No. 42 (2006) and Carol A. G. Jones, ‘Capitalism, Globalisation and Rule of Law: An Alternative Trajectory of legal Change in China’ in: 3 Society and Legal Studies, (1994), p. 195.
[12] John Gillespie and Pip Nicholson ‘Taking the interpretation of legal transfers seriously: the challenge for law and development’ in John Gillespie and Pip Nicholson (eds) Law and Development and the Global Discourses of Legal Transfers’ CUP, pp. 1 – 7.
[13]Michael Zurn, Andre Nolkaemper, Randall Peerenboon ‘Rule of Law Dynamics in an Era of International and Transnational Governance’ in Rule of law Dynamics, p. 5.
[14] Some might debate whether overseas development assistance is a legal transfer. We argue that many court-oriented legal reforms, conducted by donors, are transfers. One example is the development of procedure codes, where many of the reforms proposed and adopted are ‘borrowed’ from other jurisdictions. Similarly, reform initiatives targeting publication of court judgments or reform of judicial appointments, terms and conditions are also exercises in legal transfers.
[15] The literature studying the rule of law and development is extensive. Key references include: Zurn, Nolkaemper, Peerenboon (eds.) Rule of law Dynamics, CUP, 2012; Gillespie and Nicholson (eds) Law and Development and the Global Discourses of Legal Transfers, CUP, 2012; Brian Z. Tamanaha , Caroline Sage and Michael Woolcock Legal Pluralism and Development, CUP, 2012; David K Linnan (ed) Legitimacy, legal Development and Change, Ashgate, 2012; John Ohnesorge, ‘The Rule of Law’ in: 3 Annual Review of Law and Society (2007), p. 99; Thomas Carothers, ‘The Rule of Law Revival’ in Thomas Carothers (ed.), Promoting the Rule of Law Abroad, in Search of Knowledge, p. 3; Erik G. Jensen, ‘The Rule of Law and Judicial Reform: The Political Economy of Diverse Institutional Patterns and Reformers’ Responses’ in Erik G. Jensen and Thomas C. Heller (eds.), Beyond Common Knowledge, Empirical Approaches to the Rule of Law, p. 336; David M. Trubek, ‘The ‘Rule of Law’ in Development Assistance: Past, Present and Future’ in David M. Trubek and Alvaro Santos (eds.), The New Law and Economic Development: A Critical Appraisal, p. 74. On the lack of attention to the plurality of legal systems see Brian Z. Tamanaha, ‘The Rule of Law and Legal Pluralism in Development’, at p. 1.
[16] Rachel Kleinfeld, ‘Competing Definitions of the Rule of Law’ in Thomas Carothers (ed.), Promoting the Rule of Law Abroad: In Search of Knowledge 2006, p. 31.
[17] Tamanaha, ‘The Rule of Law and Legal Pluralism in Development’, p. 1 at p. 2.
[18] This literature is reviewed by David Nelken and Johannes Feest (eds.), Adapting Legal Cultures, 2001. See also: Alan Watson, ‘Comparative Law and Legal Change’, in: 37(2) Cambridge Law Journal (1978), p. 313; Pierre Legrand, ‘The Impossibility of Legal Transplants’, in: 4 Maastricht Journal of European Comparative Law (1997), p. 111; Pierre Legrand, ‘Against a European Civil Code’, in: 60 Modern Law Review (1997), p. 44; Pierre Legrand, ‘European Legal Systems Are Not Converging’, in: 45 International Comparative Law Quarterly (1996); and, Pierre Legrand ‘What ‘Legal Transplants’?’ in David Nelken and Johannes Feest (eds.), Adapting Legal Cultures, 2001.
[19] Otto Kahn-Freund, ‘On Uses and Misuses of Comparative Law’, in: 37 The Modern Law Review (1974), p. 1.
[20] Otto Kahn-Freund, Selected Writings 1978, p. 300. We put overseas development assistance for court reform in the category of ‘legal transfer’ as that term was used by Kahn-Freund. See more recently the work of Gunther Teubner: Law as an Autopoietic System 1993; and, the theory’s analysis in Sean Cooney and Richard Mitchell, ‘What Is Labour Law Doing in East Asia?’ in Sean Cooney et al. (eds.), Law and Labour Market Regulation in East Asia, 2002, pp. 246–274.
[21] Raphael La Porta et al., ‘Law and Finance’ in: 106(6) Journal of Political Economy (1998), p. 1113. For an overview of this literature see Kevin E. Davis and Michael J. Trebilcock, ‘The Relation between Law and Development: Optimists Versus Skeptics’ in: 56 American Journal of Comparative Law (2008), p. 895; see also, Kenneth W. Dam, The Law-Growth Nexus: The Rule of Law and Economic Development 2006.
[22] Daniel Berkowitz, Katharina Pistor and Jean-Francois Richard, ‘The Transplant Effect’ in: 51(1) The American Journal of Comparative Law (2003), p. 163.
[23] United Nations Development Program, New Voices: National Perspectives on Rule of Law Assistance 2011; International Council on Human Rights, Local perspectives: foreign aid to the justice sector 2000. John Gillespie and Pip Nicholson ‘Taking the interpretation of legal transfers seriously: the challenge for law and development’.
[24] See the oft-cited critique
of law and development where these criticisms were first set out, Trubek and
Galanter, ‘Scholars
in
Self-Estrangement’.
[25]
Newton suggests that it is useful analytically to distinguish between law and
development scholarship and the ‘practice of
Legal Technical
Assistance’: contrasting commentary on law in the name of development with
the project activity undertaken
in the name of legal reform. We adopt this
divide explicitly here to explore rule of law initiatives. Newton, ‘Law
and Development’,
at p. 5.
[26] See Linn Hammergren, The Politics of Justice and Justice Reform in Latin America, the Peruvian Case in Comparative Perspective 1998.
[27] Glenn, ‘Sustainable Diversity in Law’, pp. 39 – 56; and, Brian Tamanaha, ‘The Rule of Law and Legal Pluralism in Development’ in: 3(2) Hague Journal on the Rule of Law (2011), pp. 1 – 17.
[28] While court-oriented legal reform project documents are plentiful, they are hard to access, as the documents are often not public. For example, we identified in excess of sixty-five court-oriented legal reform projects in Vietnam, including within that definition legal reform projects with a court reform component, over a ten-year period. Yet our holding of project documents (consultancy reports or evaluations) is a mere fraction of that available. That said, we do have a sample that exceeds the anecdotal, while not being comprehensive over this period.
[29] Interviews in Vietnam were conducted by the lead author. The majority of interviews in Cambodia were conducted jointly by the co-author and Professor Camille Cameron (see footnote 1). The co-author then conducted additional Cambodian interviews alone.
[30] Anonymous, Report on Understanding of Vietnamese Judges’ and Court Staff’s Understanding of Donor-Court Cooperation, October 2012.
[31] Cambodia has a Gross National Income per capita of US$750 and Vietnam of $1,160. See <www.data.worldbank.org/country> (accessed 11 June 2012).
[32] In 2002 Cambodia’s aid accounted for 11.2% of its GNI, in 2010 only for 6.9%. Comparatively, Vietnam’s aid made up 5.5% of its GNI in 2000 and 2.9% in 2010. See <http://databank.worldbank.org/data/home.aspx> (accessed 4 July, 2012).
[33] Pip Nicholson, Borrowing Court Systems: The Experience of Socialist Vietnam 2007; and, Newton, ‘Law and Development’. See also John Gillespie, ‘Rethinking the Role of Judicial Independence in Socialist-Transforming East Asia’ in: 4 International Comparative Law Quarterly (2007), p. 837.
[34] Godfrey et. al., ‘Technical Assistance and Capacity Development in an Aid-dependent Economy’.
[35] See, e.g., Martin Godfrey et al., ‘Technical Assistance and Capacity Development in an Aid-dependent Economy: The Experience of Cambodia’ Cambodia Development Resource Institute Working Paper 15, 2000. <http://www.cdri.org.kh/webdata/download/wp/wp15e.pdf> , (accessed 15 August, 2012).
[36] Milton Osborne, The French Presence in Cochinchina and Cambodia 1969; Michael B. Hooker (ed.), Laws of South-East Asia 1986; Michael B. Hooker, A Concise Legal History of South-East Asia 1978 ;and, Michael B. Hooker, Legal Pluralism: An Introduction to Colonial and Neo-Colonial Laws 1975.
[37] David Marr, Vietnam 1945: The Quest for Power 1995; and, David Marr, Vietnamese Tradition on Trial, 1981.
[38] Nicholson, Borrowing Court Systems, pp. 201 – 218.
[39] Ibid, pp. 85 – 139 and pp. 177 - 191.
[40] Ibid, pp. 115 – 136.
[41] Ibid, 115 – 119.
[42] Ibid, pp. 241 – 252.
[43] Ibid, pp. 241 – 252; Pip Nicholson and Minh Duong, ‘Legitimacy and the Vietnamese Economic Courts’ in Andrew Harding and Pip Nicholson (eds.) New Courts in Asia, p.31 at pp. 44 – 47; and, Pip Nicholson, ‘Asian Courts in Context: A comparative study, Vietnam’ Paper delivered at Taiwan University, 2012 [copy on file with author].
[44] Adam Fforde and Stefan de Vylder, From Plan to Market: The Economic Transition in Vietnam 1996.
[45] For example, foreign investment laws, land, bankruptcy, banking, company and economic laws developed over this period.
[46] For a discussion of the Seventh Party Congress, see John Gillespie, ‘Concepts of Law in Vietnam: Transforming Statist Socialism’, in Randall Peerenboon (ed.), Asian Discourses of the Rule of Law, p. 146.
[47] SRVN Constitution, 1992, Article 2. The National Assembly’s has been described as ‘mother-organ of the Vietnamese people’s other organs’. To Van Hoa, Judicial independence: A legal research on its theoretical aspects, practices from Germany, the United States of America, France, Vietnam, and recommendations for Vietnam 2006, at p.367.
[48] SRVN Constitution, Article 4. See also, To Van Hoa, Judicial independence, p. 368.
[49] Statute of the Communist Party of Vietnam, 2001, article 1.
[50] Gillespie, ‘Concepts of Law in Vietnam’; Pip Nicholson, Borrowing Court Systems, at pp. 243–247.
[51] There are debates over the unification of powers doctrine today among members of Vietnam’s academic and policy elite. See, Gillespie, ‘The Juridification of State Regulation in Vietnam’. See also Nicholson with Pitt, ‘Official Discourses and Court-Oriented Legal Reform in Vietnam’.
[52] Nicholson, Borrowing Court Systems, pp. 241 - 273. See also Nicholson and Quang , ‘The Vietnamese Judiciary: The Politics of Appointment and Promotion’, Pacific Rim Law and Policy Journal, Vol 14 (1), 2005, pp. 1-34. More recently, see Pip Nicholson, ‘Asian Courts in Context: Vietnam’.
[53] Nicholson, Borrowing Court Systems, pp. 247 - 252 ; Nicholson and Quang ‘The Vietnamese Judiciary’; Brian J. M. Quinn, ‘Legal Reform and its Context in Vietnam’; Brian J. M. Quinn, ‘Vietnam’s Continuing Legal Reforms’ p. 432; Gary Chan, ‘Judicial Immunity and Independence of Vietnamese Judges’, in 7 Australian Journal of Asian Law (2005), p. 143.
[54] Circular 05, 15 October 1993; See also Nicholson and Quang, ‘The Vietnamese Judiciary’.
[55] Resolution 49/NQ-TW of the CPV, 2 June 2005, Judicial reform Strategy to 2020. See also, its more general precursor, Resolution No. 8 of the CPV, 2 February 2002.
[56] Nicholson with Pitt, ‘Official Discourses and Court-Oriented Legal Reform in Vietnam’.
[57] United Nations Development Program, Survey of Vietnamese District Courts, Hanoi, Vietnam, 2007. See also Pip Nicholson, ‘Asian Courts in Context: Vietnam’.
[58] Nicholson and Duong, ‘Legitimacy and the Vietnamese Economic Courts’, pp. 31 – 55.
[59] John Gillespie, ‘Rethinking the Role of Judicial Independence in Socialist Transforming East Asia’ in: 4 International and Comparative Law Quarterly (2007), p. 837.
[60] Gillespie, ‘The Juridification of State Regulation in Vietnam’, at pp. 78–102; Nicholson and Duong , ‘Legitimacy and the Vietnamese Economic Courts’, pp. 31 – 55; Nguyen Thi Minh, Legal and Professional Challenges Confronting Practising Lawyers in Contemporary Vietnam, Doctor of Philosophy thesis, The University of New South Wales (2008); and, Mark Sidel, Law and Society in Vietnam, 2008.
[61] See for example, Criminal Procedure Law 2006.
[62] Resolutions 8, 48, 49.
[63] Laws and courts were abolished during the years of Democratic Kampuchea, (Khmer Rouge 1975 and 1979). (see, e.g., Dolores A. Donovan, ‘Cambodia: Building a Legal System from Scratch,’ in: 27(2) International Lawyer (1993), p. 445, at p. 445. From 1979, a Vietnamese backed regime built a rudimentary socialist judicial system which remained weak in the face of ongoing civil war . Concurrently, military and security agencies built strong power bases that remain today. See, Evan Gottesman, Cambodia After the Khmer Rouge: inside the Politics of Nation Building Silkworm Books, Chiang Mai 2004, at pp. 229-231, 254-5, 331-332; See also, Kheang Un, ‘The Judicial system and Democratization in Post-Conflict Cambodia,’ in Joakim Ojendal and Monal Lilja (eds.), Beyond Democracy in Cambodia’ Political Reconstruction in a Post-Conflict Society, p.70, at pp. 79-80.
[64] ‘Agreements on a Comprehensive Political Settlement of the Cambodia Conflict, Paris, 23 October 1991’ <http://www.usip.org/files/file/resources/collections/peace_agreements/agree_comppol_10231991.pdf> (accessed 4 July 2012), section b, paragraph 1.
[65] See, e.g. Eva Mysliwiec, Punishing the Poor: The International Isolation of Kampuchea 1988.
[66] Vishakan Krishnadasan, ‘A Legal Perspective on UNTAC – An Overview,’ in The United Nations Transitional Authority in Cambodia (UNTAC): Debriefing and Lessons Report of the 1994 Singapore Conference 1995, p. 191, at pp. 195-197.
[67] Constitution of the Kingdom of Cambodia, 1993 preamble, also Article 1.
[68] Constitution of the Kingdom of Cambodia, 1993 preamble, also Article 128 (formerly 109).
[69] Constitution of the Kingdom of Cambodia, 1993 preamble, also Article 31. However, it should be noted that the Constitution reflects Cambodian society and history, for example, by mandating the King to play ‘the august role of arbitrator to ensure faithful execution of public powers’(Art 9). He is also the guarantor of judicial independence (Art 132, formerly 113). Chapter XIV mandates the King to chair an annual national congress (Art 148), open to Khmer citizens (Art 147). However, the congress is to be convoked by the Prime Minister (Art 148) and none have so far taken place.
[70] ‘Agreements on a Comprehensive Political Settlement of the Cambodia Conflict, Paris, 23 October 1991’ <http://www.usip.org/files/file/resources/collections/peace_agreements/agree_comppol_10231991.pdf> (accessed 4 July 2012), Annex 5.
[71] See, e.g., Gottesman, Cambodia After the Khmer Rouge, at p. 341, 347. See also the discussion of post-conflict democratisation by Joachim Ojendal and Mona Lilja, ‘Beyond Democracy in Cambodia: Political Reconstruction in a Post-Conflict Society?’ in Joachim Ojendal and Monal Lilja (eds), Beyond Democracy in Cambodia: Political Reconstruction in a Post-Conflict Society, Nordic Institute of Asian Studies, 2009, at p. 1, 3-20.
[72] Donovan, ‘Cambodia’, at pp. 445, 445-446.
[73] ‘Rectangular Strategy for Growth, Employment, Equity and Efficiency in Cambodia,’ presented by Prime Minister Hun Sen to the first cabinet meeting of the third legislature, July 2004, p.7.
[74] ‘Rectangular Strategy for Growth, Employment, Equity and Efficiency in Cambodia, Phase II,’ presented by Prime Minister Hun Sen to the first cabinet meeting of the fourth legislature, September 2008. <http://www.cdc-crdb.gov.kh/cdc/aid_management/Rectangular%20Strategy%20-%20Phase%20II.pdf> (accessed 15 August 2012), section 1.2, para. 11.
[75] Un, ‘The Judicial system and Democratization in Post-Conflict Cambodia,’ at pp. 75-79.
[76] In the 1980s the lack of qualified jurists meant that school teachers, for example, were appointed as judges and some continue to serve today. See UNDP and Ministry of Justice, Pathways to Justice: Access to Justice with a Focus on Poor, Women and Indigenous People 2005, p. 124. During the 1980s, a number of judges trained in Vietnam and Soviet Bloc countries, e.g., of the 15 Cambodian judges and prosecutors seconded to the Extraordinary Chambers of the Courts of Cambodia, 12 received legal training in communist countries. See <http://www.eccc.gov.kh/en/judicial-chamber> , (accessed 31 May 2012).
[77] See, e.g. Un, ‘The Judicial system and Democratization in Post-Conflict Cambodia’, at p. 70.
[78] Pak Kimchoeun et al., ‘Accountability and Neopatrimonialism in Cambodia: A Critical Literature Review,’ Cambodia Development Resource Institute, Woking Paper 34 2007.
[79] Un, ‘The Judicial system and Democratization in Post-Conflict Cambodia,’ at pp. 84-85.
[80] Interviewees 119, Jan 2010, & 204 Aug 2010.
[81] Sathavy Kim and Tayseng Ly, ‘Judicial Education and Skills Development for Judges and Court Staff – the Cambodian Experience,’ in Judicial Reform Handbook (draft), a project of the Asia Pacific Judicial Reform Forum <http://www.apjrf.com/publications.html> (accessed 20 May 2010), pp. 4- 5.
[82] Civil Procedure Code promulgated 2006; Civil Code, promulgated 2007; Criminal Procedure Code promulgated 2007; and, The Criminal Code enacted in 2009, substantive clauses took effect late 2010.
[83] The Royal University of Law and Economic (RULE) grew out of the National Institute of Law, Politics and Economics which was originally established in 1948 <http://www.rule.edu.kh/Dep_Law.htm> Private universities have been established since 1993. Some of those offering law degrees are: Paññāsāstra University of Cambodia (foundation date not provided) <http://www.puc.edu.kh/index.html> Build Bright University, (established 2002) <http://www.bbu.edu.kh/> University of Cambodia (established 2003) <http://www.uc.edu.kh/sub/general/2/> Cambodian Mekong University,(establishment date not provided) <http://www.mekong.edu.kh/faculties/ug.php?f=law> Chamroeun University of Poly-Technology, (established 2002), <http://www.cup.edu.kh/Home/Vision/tabid/96/language/en/Default.aspx> .
[84] Law on the Establishment of the Extraordinary Chambers, with inclusion of amendments as promulgated on 27 October 2004 (NS/RKM/1004/006), Article 1.
[85] Critiques of the ECCC are numerous. See, e.g., papers produced by the Open Society Justice Initiative since 2004, http://www.soros.org/search?key=Cambodia (accessed 5 July, 2012); Kuong Teilee, ‘Transitional Justice in Cambodia: A New Challenge to the Development of Rule of Law?’ in Per Bergling, Jenny Ederlof, and Veronica Taylor (eds.) Rule of Law Promotion: Global Perspectives, Local Applications, at p. 151.
[86] Interviewee 204, August 2010.
[87] For example, Cambodian interviewees: 104, December 2008; 116, February 2010; 204, August 2010; 207, August 2010.
[88] Interviewee 205, interviewed August 2010. See also Un, ‘The Judicial system and Democratization in Post-Conflict Cambodia,’ at p. 95.
[89] Jayasuriya, Kanishka ‘Introduction: A framework for the analysis of legal institutions in East Asia,’ in Kanishka Jayasuriya (ed.), Law, Capitalism and Power in Asia: the rule of Law and legal institutions, 1999 p. 1, at pp. 8-9.
[90] Ibid.
[91] Ibid.
[92] Nicholson and Duong, ‘Legitimacy and the Vietnamese Economic Courts’.
[93] The first court reform
project was under the auspices of the UNDP’s Strengthening Legal
Development commenced in 1992. Interviewee
J, September
2010.
[94] Interviewee Q, October
2011.
[95] Figures compiled from
OECD’s Creditor Reporting System, based on a search for ODA to Vietnam
under the purpose code of Legal
and Judicial Development,
<http://stats.oecd.org/index.aspx?DataSetCode=CRS1#>
(accessed 8 June 2012).
[96]
Ibid.
[97]
Ibid.
[98]
Ibid.
[99] Interviewee D,
September 2010. Programme Document, Justice Partnership Programme, Vietnam,
2010-2015, Final 27 July 2009
<http://www.jppvietnam.org/index.php/tai-lieu-jpp.html>
(accessed 27 July
2012).
[100] See <http://web.worldbank.org/WBSITE/EXTERNAL/EXTABOUTUS/IDA/0,,contentMDK:21206704~menuPK:83991~pagePK:51236175~piPK:437394~theSitePK:73154,00.html> (accessed 21 June 2012). The details of the Vietnam program are available at <http://www.worldbank.org/en/country/vietnam> (accessed 21 June 2012).
[101] The United Nations Development Program employed a legal project officer from 1992, Catherine Thuy Hoa Savage, located in Hanoi, Vietnam. Interviewee J, September 2010.
[102] Interviewee J, September 2010.
[103] Interviewee J, September 2010.
[104] Interviewee J, September 2010.
[105] Interviewee A, September 2010 and Interviewee Q, October 2011.
[106] MOJ, ‘Draft Report, General Assessment on Legal and Judicial International Cooperation and the Efficiency of Using International Assistance since 1986’ October, Hanoi.
[107] Sidel, Law and Society in Vietnam, p. 172.
[108] Interviewee 104, December 2008.
[109] In 1998, proceedings of a conference on legal and judicial reform listed 17 law related projects, of which eight involved assistance with the drafting of specific legislation or sub-decrees and one provided training in legislative drafting. Five of the seventeen involved assistance or training for court personnel, three focussed on access to justice (legal aid and dissemination of laws, Bar Association) and three involved support for human rights. Sok Siphana (ed.), International Conference on ‘Cambodian Legal and Judicial Reform in the Context of Sustainable Development 1998, p. 320.
[110] Interviewee 120, August 2010.
[111] Interviewee 104, December 08.
[112] Interviewees 108, December 08; 211 August 2010. Also Yuka Kaneko, ‘Catalistic Role of Legal Assistance: between Formal law and Social Norms: Hints from Japanese Assistance,’ in: 15(3) Journal of International Cooperation Studies (2008), p. 49.
[113] Interviewees: 119, January 2010; 207 August 2010.
[114] Interviewee 113, November 2008.
[115] <http://stats.oecd.org/index.aspx?DataSetCode=CRS1#> (accessed 8 June 2012). There may be some inconsistency in the OECD data, e.g. with some donors including their assistance to the Extraordinary Chambers of Cambodia and others not. As with Vietnam, the European Union launched a grant mechanism in 2008, of which support to implementation of aspects of the legal and judicial reform strategy is a component. A wide variety of assistance falls within this OECD definition, ranging from training of judges on certain aspects of law to support for NGO advocacy or support for legislative drafting to broader governance related programs.
[116] <http://stats.oecd.org/index.aspx?DataSetCode=CRS1#> (accessed 8 June 2012).
[117] Canada, Denmark, German,
United States of America.
[118]
Camille Cameron and Sally Low, “Aid Effectiveness and Donor Coordination
from Paris to Busan: a Cambodian Case Study,”
Law and Development Review,
Issue 2, (Dec 2012), p.167 at p. 181.
[119] World Bank ‘Country Assistance Completion Report, 2005’, in Country Assistance Strategy for the Kingdom of Cambodia 2005-2008, International Finance Corporation East Asia and Pacific Department, April 2005, at p. 52, 54.
[120] World Bank, ‘Country Assistance Completion Report, 2005’, at p. 52, 54.
[121] Interviewee 201, Aug 2010.
[122] See, e.g., World Bank, Country Assistance Strategy for the Kingdom of Cambodia 2005-2008, International Finance Corporation East Asia and Pacific Department, paras 21 & 22; and, Kato et al., Cambodia; See also, reports of donor-government coordination meetings at <http://www.cdc-crdb.gov.kh/cdc/gdcc/default.htm> (viewed 4 July 2012).
[123] Interviewee 120, June 2008.
[124] Cambodia — Consultative Group Meeting, Closing Remarks by the Co-Chair, Mr. Ian C. Porter, Phnom Penh, June 19-21, 2002, <http://www.cdc-crdb.gov.kh/cdc/closing_remark_cochair.htm> , (accessed 15 August 2012). Consultative Group Meetings were annual meetings between the Cambodian Government and its major donors. The Consultative Group was replaced by the Cambodia Development Cooperation Forum in 2007.
[125] ‘Joint donors’ statement on legal and judicial reform’, delivered by the French Ambassador, Cambodian Consultative Group Meeting, Phnom Penh, March 2-3 2006, (English translation).
[126] Charles McDermid and Cheang Sokha, ‘Struggling for a fair judiciary,’ Phnom Penh Post, Friday, 10 March 2006.
[127] See, e.g., the websites of: Cambodian League for Defence and Promotion of Human Rights <http://www.licadho-cambodia.org/> , (accessed 13 July, 2012); Cambodian Human Rights Action Committee <http://www.chrac.org/eng/> , (accessed 13 July, 2012); Also more broadly, statements of the NGO Forum on Cambodia, a coalition of national and international NGOs <http://www.ngoforum.org.kh/eng/en_view_state_by_year.php> , (accessed 13 July, 2012).
[128] According to a 2012 report, in 2011 there were 3,492 NGOs and civil society organizations registered with either the Ministry of Interior or the Ministry of Foreign Affairs, of which 1,226 are estimated to be active. See Cooperation Committee for Cambodia, CSO Contributions to the Development of Cambodia 2011 2012, p. 21.
[129] Interviewees: 205 August 2010; 207 August 2010.
[130] Yasutami Shimomura and Izumi Ohno, ‘Introduction and Overview,’ in Izumi Ohno (ed.), True Ownership and Policy Autonomy: Managing Donors and Owning Policies, p. 1.
[131] Shimomura and Ohno, ‘Introduction and Overview,’ pp. 2 – 9.
[132] Ibid. pp. 13-14. For a recent discussion of Cambodian ownership of aid in the context of aid effectiveness see, Camille Cameron and Sally Low, ‘Aid Effectiveness and Donor Coordination from Paris to Busan: a Cambodian Case Study’ Law and Development Review, Issue 2, (Dec 2012), 167.
[133] Shimomura and Ohno, Ibid. See also Cameron and Low, ‘Aid Effectiveness’.
[134] Interviewee L, interview June 2011.
[135] Interviewee L, interview June 2011.
[136] Interviewee L, interview June 2011 compared with Interviewees D and E, interviews July 2010.
[137] Interviewee O, interview September 2011.
[138] There was not agreement between interviewees as to the capacity of the SPC’s International Cooperation Department.
[139] Interviewees B and C, September 2010.
[140] Interviewees: 104, December 2008; 116, February 2010; 207, August 2010.
[141] Interviewees: 119, January 2010; 113, Nov 2008; 112, Nov 2008; 111, Dec 2008.
[142] See also Cameron and Low, ‘Aid Effectiveness’, at p. 176.
[143] Interviewee 116, February 2010.
[144] Interviewee 111 (a), December 2008.
[145] Interviewee 104, December 2008.
[146] Interviewee 114, interviewed January 2010. See also Cameron and Low, ‘Aid Effectiveness’, at p. 183.
[147] Interviewee 103, December 08.
[148] Interviewees: 207, August 2010; 119, Jan 2010; 108, November 08.
[149] Interviewees 112, November 2008.
[150] Interviewee 108, November 08.
[151] Interviewee 117, February 2010.
[152] Interviewee O, September 2011.
[153] Nicholson with Pitt, ‘Official Discourses and Court-Oriented Legal Reform in Vietnam’, pp. 223 – 224.
[154] Ibid, pp. 231 – 232.
[155] Interviewee A, September 2010; Nicholson and Pitt, ‘Official Discourses and Court-Oriented Legal Reform in Vietnam’, pp. 202 - 236.
[156] Interviewees B, E, and I, September 2010.
[157] See for example, Le Cong Dinh, ‘Role of precedent in judicial interpretation’ paper presented at International Seminar on Legal Interpretation, Supported by Joint Programme Support Office, Hanoi, 21-22 February 2008; and, Luu Tien Dzung, ‘Law application and interpretation in judgments in Vietnam’ paper presented at International Seminar on Legal Interpretation, Supported by Joint Programme Support Office, Hanoi, 21-22 February 2008.
[158]Human Rights Watch, ‘The Party vs. Legal Activist’, Cu Huy Ha Vu, May 2011, <http://www.hrw.org/reports/2011/05/26/vietnam-party-vs-legal-activist-cu-huy-ha-vu-0> (accessed 23 February 2012), pp. 4 – 5. See also the arrest and trial of lawyer Le Cong Dinh, details of which are set out Human Rights Watch, ‘Rights Defenders Face Ongoing Harassment and Arrest’, June 16, 2009, <http://www.hrw.org/news/2009/06/23/vietnam-free-prominent-rights-lawyer-le-cong-dinh> (accessed 23 February 2012).
[159] Interviewee L, April 2011.
[160] Interviewee L, April 2011.
[161] Both CIDA and JICA have projects based with provincial courts, beyond Hanoi. Many donors train local court functionaries, but these two projects are run locally and this distinguishes them from much of the activity.
[162] Dith Munty, Speech to Consultative Group Meeting, June 20 and 21, 2002 — Phnom Penh (English Translation), <http://www.cdc-crdb.gov.kh/cdc/dithmunty_speech.htm> (accessed 5 July 2012).
[163] Sok An, Deputy Prime Minister, Speaking Notes for Consultative Group Meeting, December 6, 2004 <http://saatsaam.info/kh/images/stories/NonMedia/2008/June/n-247-en.pdf> (accessed 5 July 2012).
[164] Interviewee 104, interviewed Dec 2008.
[165] Interviewees 104, interviewed Dec 2008; 204 interviewed Aug 2010; 111 (b) interviewed December 2008.
[166] Un, ‘The Judicial system and Democratization in Post-Conflict Cambodia,’ at pp. 81-84.
[167] Interviewees: 119, January 2010; 116, February 2010; 207, August 2010.
[168] Interviewees: 104, December 2008; 204, August 2010; 207, August 2010.
[169] Interviewee L, April 2011 and Interviewee O, September 2011.
[170] Interviewee L, April 2011.
[171] Interviewee L, April 2011.
[172] Interviewee L, April 2011.
[173] Interviewee L, April 2011 and Interviewee O, September 2011.
[174] Interviewees D and I, April 2011 and Interviewee L, April 2011.
[175] Interviewees: A and D, September 2010; K and L, June 2011; N, August 2011; and O, September 2011 commented favourably about the bench book. While Interviewee U, October 2011 was critical.
[176] Interviewee M, June 2011.
[177] Ibid.
[178] Interviewee C, September 2010.
[179] Interviewee B, April 2011.
[180] Interviewee B, April 2011.
[181] Interviewees K, L and M April 2011 and Interviewee O, interview September 2011. For a Japanese discussion of JICA’s role generally and also in Vietnam see Terutoshi Yamashita, The 10th Anniversary of the International Cooperation Department, October 6, 2011, (copy of English translation in author’s possession); Taro Morinaga, ‘Legal Technical Cooperation by Japan’ in ICD News: Law for Development, December 2010, p. 1; Public Policy Department, Capacity Development for Legal and Judicial Sectors in Developing Countries, JICA’s Support for ‘Rule of Law’ Promotion, JICA, 2009, June. Foreign commentary on Japanese aid in the legal sector includes: Herbert Kupper, Structures of Japanese and German International Legal Co-operation with Formerly Socialist Countries Compared, CALE Discussion Paper, No 5, 2011, March; Veronica Taylor, ‘Frequently Asked Questions About Rule of Law Assistance (And Why Better Answers Matter)’, in: 1 Hague Journal on the Rule of Law (2009), p. 46; and, Veronica Taylor, ‘Rule-of-law assistance discourse and practice: Japanese inflections’ in Amanda Perry-Kessaris (ed.), Law in the Pursuit of Development: Principles into Practice? p. 160.
[182] Interviewee B, September 2010; Interviewees E F, G and I, September 2010; Interviewee L, June 2011; and Interviewee O, September 2011.
[183] Interviewee D, September 2010, Interviewee I September 2010, Interviewee L, June 2011, and Interviewee P, October 2011.
[184] Interviewee O, September 2011.
[185] Interviewee L, June 2011.
[186] Interviewees K, L and M June 2011 and Interviewee O, September 2011.
[187] Interviewee K, June 2011, and Interviewee O, September 2011.
[188] Interviewee O, September 2011.
[189] Interviewee V, October 2011. See also Iain Watson, ‘Governments and NGOs in Asian Overseas Development Assistance: Assessing South Korea’s Model of Foreign Aid’, in: 36(1) Asian Studies Review (2012), p. 70.
[190] Interviewee O, September 2011.
[191] Interviewee V, October 2011.
[192] Interviewees T October 2011; B and E, September 2010.
[193] Interviewee O, September 2011.
[194] Interviewee N, August 2011.
[195] Interviewee V, October 2011.
[196] Interviewee 112, November 2008.
[197] Interviewee 111 (a), December 2008.
[198] Interviewee 207, August 2010.
[199] Informant 202 (a), August 2010. See also Cameron and Low, ‘Aid Effectiveness’, at p. 177.
[200] Interviewee 119, January 2010. See also Cameron and Low, ‘Aid Effectiveness’, at p. 181.
[201] Interviewees 119, January 2010; 111 (b), December 2008. See also Cameron and Low, ‘Aid Effectiveness’, at p. 182.
[202] Interviewee 207, August 2010.
[203] Interviewee 207, interviewed August 2010.
[204] Interviewee 112, November 2008. See also Cameron and Low, ‘Aid Effectiveness’, at p. 183, note 99.
[205] Cameron and Low, ‘Aid Effectiveness’, at p. 183
[206] Interviewee 207, August 2010.
[207] Interviewee 207, August 2010.
[208] Interviewee 207, August 2010.
[209] Interviewee D, September 2010, Interviewee J, September, 2010 and Interviewee Q, October 2011.
[210] Interviewee Q, October 2011.
[211] Interviewee Q, October 2011.
[212] Interviewee C, September
2010; Interviewee L, June
2011.
[213] Interviewee D,
September 2010.
[214] Interviewee J, September 2010.
[215] Interviewee D, September 2010.
[216] Interviewee P, October 2011.
[217] Interviewee J September 2010; Interviewee Q, October 2011; Interviewee Z, December 2011.
[218] Interviewee A, September 2010.
[219] Interviewees: A and D, September 2010; K and L, June 2011; N, August 2011; and O, September 2011 commented favourably about the bench book.
[220] Interviewee A, September 2010 and Interviewee N, August 2011.
[221] Interviewee N, August 2011.
[222] Interviewee O, September 2011.
[223] Interviewees B, D, F, G and I September 2010; Interviewee L and M, June 2011; Interviewee O, September2011 compare with negative assessment offered by Interviewee P, October 2011 and interviewee Z, December 2011.
[224] Interviewee A, B, E, G September 2010; Interviewee R, October 2011.
[225] On the lack of opportunities for donors to fund NGO activity in Vietnam Sidel who alleges donors seeking to assist grass roots organisations can only really hope to fund legal aid in Vietnam. Sidel, Law and Society in Vietnam, p. 172.
[226] Asian Development Bank, Law and Policy Reform at the Asian Development Bank: Legal Empowerment ― Advancing Good Governance and Poverty Reduction 2000; Asian Development Bank, Law and Policy Reform at the Asian Development Bank 2001; Daniel Manning, The Role of Legal Services Organizations in Attacking Poverty 1999; Mary E. McClymont and Stephen Golub, Many Roads to Justice: The Law Related Work of the Ford Foundation Grantees around the World 2000; and, Golub, ‘The Legal Empowerment Alternative’, at p. 161. Compare with Jayasuriya who argues this is not a new strategy. Kanishka Jayasuriya ‘Institutional Hybrids and the Rule of Law as a Regulatory Project’ in Brian Z. Tamanaha, Caroline Sage and Michael Woolcock (eds) Legal Pluralism and Development, CUP, 2012, pp. 145 – 161.
[227] Compare with Bronwen Morgan, ‘Rights and regulation as a framework for exploring reverse legal transfers: hegemony and counter-hegemony in the Bolivian water sector’ in John Gillespie and Pip Nicholson (eds.), Law and Development and the Global Discourses of Legal Transfer, p. 82. Morgan does not argue that socialist states preclude the exercise of rights, albeit perhaps differently,
[228]Interviewee J, September 2010 and Interviewee A, September 2010; Interviewee N, August 2011.
[229] Pip Nicholson ‘Access to Justice in Vietnam’, pp. 191 - 193. See also Sidel, Law and Society in Vietnam, pp. 175 – 191.
[230] Pip Nicholson ‘Access to Justice in Vietnam’), pp. 204 - 205. See also Gillespie, ‘The Juridification of State Regulation in Vietnam’, at pp. 78–102.
[231] Interviewee J, September 2010.
[232] Interviewees 201 (b) and (c), August 2010; 203, August 2010; Interviewee 114, January 2010; Interviewee 201, August 2010; Interviewee 110, November 2008.
[233] Interviewee 202 (b), interviewed August 2010.
[234] Interviewees 203 August 2010; 110 interviewed Nov 2008.
[235] Interviewees 114 interviewed Jan 2010; 203 August 2010; 110 interviewed Nov 2008.
[236] Interviewee 203 interviewed Aug 2010.
[237] For example, of the US $1.601043 allocated to the sector in 2010 in Table Two above, US $1.456212 million was allocated to national NGOs <http://stats.oecd.org/index.aspx?DataSetCode=CRS1#> (accessed 8 June 2012). However, it should be noted that in 2010, USAID had recently resumed small levels of assistance to government agencies in the sector, having cancelled more extensive engagement following a 1997armed confrontation between the parties that had governed in coalition since the 1993 elections. The Cambodian People’s Party re-consolidated its hold on power as a result of the confrontation (Interviewees 203, & 212, Aug 2010). See Gottesman, Cambodia After the Khmer Rouge, at p. 353 for a brief summary of the 1997 events, which he refers to as a coup.
[238] See: <http://web.worldbank.org/external/projects/main?Projectid=P101156 & theSitePK=40941 & pagePK=64283627 & menuPK=228424 & piPK=73230> (accessed 4 July 2012).
[239] <http://www.worldbank.org/en/country/cambodia/overview> (accessed 12 June 2012).
[240] Mark Tran, ‘World Bank suspends new lending to Cambodia over eviction of landowners: Relations fray as thousands of residents are evicted to make way for Phnom Penh property development,’ guardian.co.uk, Wednesday 10 August 2011 <http://www.guardian.co.uk/global-development/2011/aug/10/world-bank-suspends-cambodia-lending> (accessed 4 July 2012). Open Letter to World Bank President Robert Zoellick and President-Elect Jim Yong Kim, Inclusive Development, May 30, 2012, <http://www.inclusivedevelopment.net/open-letter-to-world-bank/> (accessed 4 July 2012); and, ‘Boeung Kak disgrace prompts renewed lobbying of World Bank,’ Phnom Penh Post, Tuesday, 05 June 2012 <http://www.phnompenhpost.com/index.php/2012060556600/Special-Reports/boeung-kak-disgrace-prompts-renewed-lobbying-of-world-bank.html> (accessed 4 July 2012).
[241] See Table Two above. <http://stats.oecd.org/index.aspx?DataSetCode=CRS1#> (accessed 8 June 2012).
[242] In 2006, representatives of France were listed as co-chairs of the government/donor Technical Working Group on Legal and Judicial Reform (see: ‘The Government-Donor Coordination Committee (GDCC) and Technical Working Groups (TWGs) in Cambodia; a Review,’ Royal Government of Cambodia, 2006 <http://www.cdc-crdb.gov.kh/cdc/aid_management/GDCC-TWG-Review-FINAL-(Oct-2006).pdf> (accessed 4 July 2012)), suggesting a very active role. They reportedly played a key role in supporting the formation of the judicial training institution, but no longer lend it support (Interviewee 113, Nov 08). Their support to the Criminal Code has also reportedly finished (interviewees 201, 208 Aug 2010). OECD statistics summarised above in Table 2 describe French support as contributing to police training. See <http://stats.oecd.org/index.aspx?DataSetCode=CRS1#> (accessed 8 June 2012).
[243] Interviewees 203, Aug 2010; Interviewee 212, August 2010; Interviewee 109, November 08.
[244] Interviewee 120, August 2010.
[245] Interviewees 202 (a), August 2010; Interviewee 210 (b), August 2010.
[246] Interviewee 210 (b) interviewed August 2010; Interviewee 201, August 2010.
[247] Interviewee 212, August 2010; Interviewee 109, November 2008.
[248] Interviewee 207, August 2010; Interviewee 201, Aug 2010 .
[249] Interviewee 202 (c) interviewed August 2010.
[250] Interviewee 207, interviewed August 2010; 201 interviewed Aug 2010.
[251] Interviewee 120 , interviewed June 2008.
[252] Interviewee 210 (b), interviewed August 2010. See also Cameron and Low, ‘Aid Effectiveness’.
[253] Interviewee 201, interviewed August 2010.
[254] Interviewee 210 (b), interviewed August 2010.
[255] Interviewee 210 (b), interviewed August 2010. See also Cameron and Low, ‘Aid Effectiveness’, at p. 179.
[256] Berkowitz et al., ‘The Transplant Effect’. See also Rolf Knieper ‘Pulls and Pushes of Legal Reform in Post Communist States’ Hague Journal for the Rule of Law, 2010, Vol 2, pp. 120 – 122.
[257] Scott Newton, ‘Law and Development’, pp. 15 – 22.
[258] Interviewee J, September 2010.
[259]H Patrick Glenn, ‘Sustainable Diversity in Law’, p. 39; and, Tamanaha, ‘The Rule of Law and Legal Pluralism in Development’.
[260] USAID publication of selected Supreme People’s Court cassational judgments, an initiative of its STAR program: Toa An Nhan Dan Toi Cao (2008) Quyet Dinh Giam Doc Tham Cua Hoi Dong Tham Phan Toa An Nhan Dan Toi Cao 2006, Hanoi, [Supreme People’s Court, (2008) Cassational Review Decisions of the Supreme People’s Court Justice Council 2006]; Toa An Nhan Dan Toi Cao (2008) Quyet Dinh Giam Doc Tham Cua Hoi Dong Tham Phan Toa An Nhan Dan Toi Cao 2005, Hanoi, [Supreme People’s Court, (2008) Cassational Review Decisions of the Supreme People’s Court Justice Council 2005]; and, Toa An Nhan Dan Toi Cao (2004) Quyet Dinh Giam Doc Tham Cua Hoi Dong Tham Phan Toa An Nhan Dan Toi Cao 2003-2004, Quyen 1 va 2, Hanoi, [Supreme People’s Court, (2004) Cassational Review Decisions of the Supreme People’s Court Justice Council 2003-2004, Volumes I and 2].
[261] Interviewee Z, December 2011 compared with Interviewee V October 2011.
[262] Nicholson and Pitt analysed the discourses donors use to rationalise and defend aid in court reform in Vietnam. They found the discourse revealed that the closer the documents came to a home audience the more they revealed a democratisation and rule of law agenda, particularly in Nordic states. Nicholson and Pitt, ‘Vietnamese Legal Reform’, pp. 287-315.
[263] David Kennedy, ‘The ‘Rule of Law,’ Political Choices, and Development Common Sense’ in David Trubek and Alvaro Santos (eds.), The New Law and Development: A Critical Appraisal, p. 95.
[264] John Gillespie and Pip
Nicholson ‘Taking the interpretation of legal transfers seriously: the
challenge for law and
development’.
[265] Zurn,
Nolkaemper, Peerenboon ‘ Conclusion’, Rule of law Dynamics,
2012, p. 309 - 323.
[266] Anonymous, Report on Understanding of Vietnamese Judges’ and Court Staff’s Understanding of Donor-Court Cooperation.
[267] Disparaging comments in this vein have been made to the authors informally in the context of Japanese engagement in the international environmental field.
[268] ‘Ownership’ is one of the core principles of the 2005 Paris Declaration on Aid Effectiveness, signed by most OECD member donor countries and multi-lateral donors. The Paris Declaration is available at <http://www.oecd.org/document/18/0,3746,en_2649_3236398_35401554_1_1_1_1,00.html> (accessed 13 July 2012).
[269] Nicholson, Borrowing Court Systems, pp. 238 – 240.
[270] Newton, ‘Law and Development’, at p. 19.
[271] Nicholson, Borrowing Court Systems, p. 239.
[272] See, Paul Mus, Le
Destin de l’Union Française: De L’Indochine à
l’Afrique, Éditions du Seuil 1954, p 53 who characterises the
colonial project as a monologue in which the colonial subjects are not
engaged.
[273] G. Frankenberg,
‘Stranger than Paradise: Identity and Politics in Comparative Law’,
Utah Law Review (1997), pp. 259–74.
[274] This argument was put by Interviewee Z, December 2011, for example.
[275] Interviewee E, September 2010.
[276] Interviewee B, June 2011.
[277] Interviewee L, June 2011.
[278] Compare with Glenn, ‘Sustainable Diversity in Law’, pp. 39 – 56.
[279] Domestic and international NGOs are often highly critical of donors continuing to engage with the Cambodian government. See, e.g. the recent open letter protesting possibly moves by the World Bank to resume lending: ‘Open Letter to World Bank President Robert Zoellick and President-Elect Jim Yong Kim,’ <http://www.opendevelopmentcambodia.net/page/5/?s=boeung+kak> (accessed 9 July, 2012). Another example of NGO reliance on donor government pressure to support their disputes with the Government was the recent stand-off over a proposed law to regulate both national and international NGOs. Donors and their governments were lobbied to exert pressure on the Government to drop clauses seen as threatening NGO freedom to operate and advocate <http://www.ccc-cambodia.org/lango.html> (accessed 13 July 2012).
[280] Interviewee 207, August 2010.
[281] Interviewee 207, August 2010. See also Shimomura and Ohno, ‘Introduction and Overview’.
[282] M. Matthew Stephenson, ‘A Trojan Horse in China?’ in Thomas Carothers (ed.), Promoting the Rule of Law Abroad: In Search of Knowledge 2006, pp. 191 - 215; Stephen Golub, ‘A House without Foundation’ in Thomas Carothers (ed.), Promoting the Rule of Law Abroad: In Search of Knowledge 2006, pp. 105 - 136.
[283] Jothie Rajah, Authoritarian Rule of Law, Legislation, Discourse and Legitimacy in Singapore, 2012.
[284] Todd Moss, Gunilla Pettersson, and Nicolas van de Walle, ‘An Aid-Institutions Paradox? A Review Essay on Aid Dependency and State Building in Sub-Saharan Africa,’ Center for Global Development, Working Paper 74, 2006; and, Deborah Bräutigam, ‘Aid Dependence and Governance,’ Expert Group on Development Issues, 2000.
[285] Moss, Pettersson and van de Walle, ‘An Aid-Institutions Paradox?’, at p. 3.
[286] Interviewee 207, interviewed August 2010.
[287] Shimomura and Ohno, ‘Introduction and Overview’, at p. 9.
[288] Yamashita, The 10th Anniversary of the International Cooperation Department; Taro Morinaga, ‘Legal Technical Cooperation by Japan’.
[289] Shimomura and Ohno, ‘Introduction and Overview’, at p. 9.
[290] Interviewees 207, August 2010; 205 August 2010.
[291] Interviewee 108, November 08.
[292] Newton, ‘Law and Development’, at pp. 22 – 26.
[293] Interviewee 105, Nov 2008; Interviewee 206 August 2010; Interviewee 205 August 2010.
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