Supporting the Rule of Law in the World Today--A Personal View

By Brian C. Murphy, Esq.

Introduction

Many would agree that ours is a deeply troubled and divided world today. Many reasons can be adduced--among them insufficient support and respect for the Rule of Law [“Rule of Law” in this essay refers to the role of widely-agreed precepts for governing interrelationships among people and institutions, including governmental.  The Rule of Law dictates that law is to serve people, and that people do not serve legal authority, such as the state.  As former Harvard President Derek Bok would say to new law graduates, “These are the laws that make (people) free.”]

I shall leave to others the identification and delineation of reasons for this substantial short-fall in respect for, and adherence to, the rule of law today--by persons and institutions--and focus instead on my own experience with steps that have been taken, or that will be taken, to enhance support for the rule of law in the world

What Has Been Done

With the fall of the Former Soviet Union [FSU], efforts by donor states to provide assistance in support of the rule of law have been many.  Support has come from the U.S. Government [largely, through USAID, but also through other agencies, such as the Congressional Research Service of the Library of Congress, the departments of Agriculture, Commerce, Justice, and State, and even the Department of Defense], the Government of the United Kingdom [often through DFID, the Department for International Development], the European Union [through EU TACIS, or Technical Assistance for the Commonwealth of Independent States--another name for the FSU], other Western donor governments, and, importantly, the non-governmental sector.

Non-Governmental Support:  The FBA’s Democracy Development Initiative

One of the first such substantial efforts supporting the rule of law by the non-governmental sector following the collapse of state socialism in the world was that by the Federal Bar Association, through its Democracy Development Initiative [DDI].  DDI brought together prominent and experienced lawyers and judges, with expertise in the rule of law and commercial law reform.  Through a “talent bank” of well over one hundred lawyers and judges, DDI undertook to advise, on a pro bono publico basis, public sector authorities in many countries on the legal aspects of building workable democratic institutions.  For example, DDI sponsored the visit by a delegation of senior-level experts to Moscow and Almaty [then, the capital of Kazakhstan], to address law reform needs in the FSU.  [The delegation was led by then - U. S. Circuit Judge Kenneth Starr, and included, inter alia, the dean of U.S Administrative Law academicians, the late Professor Walter Gellhorn, of Columbia University, and then-FBA National President Alfred Belcuore.

Among its early initiatives, DDI co-sponsored, along with the American Bar Association [whose Central and East European Law Initiative, or CEELI, which was just getting underway, and with which DDI closely collaborated in those “early days”] a live, real-time analytic review of the provisions of the proposed Russian Constitution.  Eminent U.S. judges, legal academicians and legal practitioners discussed with members of the Russian Duma specific provisions of the proposed constitution.

DDI was run entirely by FBA volunteers, with a board of directors, advisory board, and executive director.  Many requests for law reform assistance were received and were addressed by the volunteer “talent bank.”

My own work with DDI [as co-founder, with William K. Ince, Esq.] led directly to my service in Bulgaria, as lecturer in law on behalf of the U.S. Fulbright Program.  I taught Administrative Law and Commercial Law for the faculties of Law and Economics and Business Administration of the University of Sofia, and I worked closely with the courts and the National Assembly [parliament].  The culmination of this came with my being requested by the Chairperson of the Bulgarian Supreme Court, Ivan Grigorov, to invite and escort the U.S. Chief Justice, the late William Rehnquist, for his first-ever visit to a newly-democratic state, Bulgaria.  I did so, and Chief Justice Rehnquist met with Bulgarian judges from many courts.  The visit inspired followup visits to the U.S.A. by many Bulgarian judges [such as that by Dr. Mario Bobatinov, of the Bulgarian Supreme Court, who concurrently held a Fulbright appointment and a fellowship from the U.S. Federal Judicial Center.

Governmental Support for the Rule of Law--the Iraqi Experience

Within the U.S. Government, the U.S. Agency for International Development [USAID] has had principal responsibility for rule of law initiatives in the world, since the end of State Socialism.

Increasingly, however, the U.S. Department of State [through the International Narcotics and Law Enforcement Bureau, or INL] has come to play a significant role, as has the U.S. Department of Justice, the U.S. Department of Defense [through Civil Affairs advisors, JAG officers and others], the U.S. Department of Commerce [through the Foreign Commercial Service], and the U.S. Derpartment of Agriculture [through the Foreign Agricultural Service].  Other U.S. Government agencies have made notable contributions, as well, such as the Congressional Research Service and the offices of Legislative Counsel, of the U.S. House and Senate, especially with regard to legislative drafting.

In Iraq, for example, INL supports the work of  investigators working on behalf of the Commission on Integrity in Iraq.  The U.S. Department of Justice has played a signal role in Iraq, with the appointment of a Rule of Law Coordinator, who is responsible for some 100 law-enforcement staff members, from deputy U.S. Marshalls, to those working with Iraqi prisons.

Other active governmental actors in Iraq have included DFID [for example, supporting the use of alternate dispute resolution, or ADR, in the resolution of claims for real property confiscated by the former Ba’athist Regime] and the European Union [providing judicial training and court reforms].

Governmental support for the rule of law by many countries has included contracts cooperative agreements and grants to support the work of non-governmental groups in Iraq.

Approaches and Results:  One Observer's Experiences

I shall leave for others, at least for now, the delineation of systemic “lessons learned” from efforts to support the rule of law in these many contexts and countries.  Rather, I shall focus on my own experiences and insights, drawn from my work in several countries.

Over a nearly 20-year period, I worked in support of the rule of law and market reforms, in:  Armenia, Bulgaria, Eritrea, Ethiopia, Haiti, Iraq, Kenya, Kyrgyzstan, Liberia, Rwanda, Tanzania, and Ukraine, among other places.

My service abroad came as a direct outgrowth of my work with the DDI, as discussed above.  At that time, in the early nineties, the Republic of Bulgaria seemed especially receptive to Western concepts of the rule of law.

Working closely with the Embassy of the Republic of Bulgaria, and, by extension, with the Office of the Prime Minister of Bulgaria, DDI provided legal analysis and counsel on a broad range of issues, from Civil Service Reform, to revision in the legislative drafting process in the National Assembly of Bulgaria, to court reforms. and legal education reforms.

While teaching on behalf of the University of Sofia, when students, faculty and staff members of the University of Sofia joined together in a strike for greater recompense and lower fees, I wished to use my time well and so I began working with the courts of Bulgaria.  I brought distinguished judges to the attention of the U.S. Embassy authorities and several of the judges were selected for judicial exchange visits to the
U.S.A.  My work also extended to the Supreme Court of Bulgaria, where I came to know a number of prominent jurists, including Chairperson Ivan Grigorov, and Vice Chairperson Dimitar [Mitko] Gotchev, as well as Alexander Arabajjiev, of the Constitutional Court.  I found myself invited, as the only U.S. lawyer in attendance, to the first-ever International Conference of Highest Court judges, convened in Strasbourg, France [sponsored by the U.S.- based Center for Democracy, and underwritten by the Fred Furth Foundation].  It was the first of several such fora for highest court judges from newly-democratic states.

When I returned to the USA, after I escorted the U.S. Chief Justice, the late William Rehnquist, on his first visit to Bulgaria, I was informed that my employing agency, the Administrative  Conference of the United States [ACUS, which had been established by Congress some 25 years’ earlier to promote fairness and efficiency in governmental administrative processes], was being abolished.  So, unexpectedly, I found myself free to support the rule of law in new ways.

I was selected as USAID’s first-ever Democracy Fellow, based in Nairobi, Kenya, supporting the White House Greater Horn of Africa initiative [GHAI], focusing on the development of a strategy to support conflict prevention, management and resolution in the Horn of Africa.  This work took me throughout Kenya and to Eritrea, Ethiopia, Tanzania, and South Africa, meeting with governmental and non-governmental [often, church-related]] institutions, focusing on peace and reconciliation efforts.  My greatest surprise was that, it was not governmental resources, but, rather, private groups [often those that were church-related] that were being listened to and making a difference among needy groups, in the quest for peace and a reconciliation and support for the rule of law.

In Kenya, I came to know and respect the work of Dr. Hizkias Asefa, director of the Nairobi Peace Initiative, for his work of reconciliation among tribal and rebel groups.  I worked also with the International Commission of Jurists, many judges [showing them the publications of the Federal Bar Association as exemplars of what groups of lawyers have done to support judges in the U.S.A.], and many other non-governmental groups.   This work led to my selection, in turn, as a visiting research fellow of the Refugee Studies Program of the University of Oxford, with the goal of conducting a comparative study of the work of the United Nations International Criminal Tribunal for Rwanda and the Former Yugoslavia, in the context of fairness and efficiency.

This led me to the sites of the UN Tribunal, in Arusha, Tanzania, and The Hague, Netherlands, as well as to Belgrade, to interview lead counsel for Former Yugoslav President Slobodan Milosovic, as well as United Nations representatives and those of the Serbian Bar Association.  My report brought favorable commentary by judges and other  representatives of the Tribunal.

I also worked in support of the rule of law in Haiti, Kyrgyzstan, Liberia, and Ukraine, before my selection as a commercial law advisor for Iraq  In 2003, I was selected as commercial law advisor to the Coalition Provisional Authority [CPA] in the Republic of Iraq, focusing on support for Iraq’s accession to the WTO [Iraq was accorded Observer Status in the WTO].  I also sought to support foreign investment in Iraq by identifying barriers posed by laws, regulations and practices.

My Support for the Rule of Law in Iraq

I later transferred to the CPA Ministry of Justice, serving as the senior legal advisor for the resolution of claims for real property that had been confiscated by the former Ba’athist Regime.  In this role, I trained judges and others throughout Iraq involved in the adjudication of real property claims under the nascent Iraq Property Claims Commission Statute.

In my current role in Iraq, I serve as Program Manager for the Anti-Corruption Coordination Office [ACCO] of the U.S. Embassy, with responsibility for managing  and coordinating anti-corruption initiatives on the part of the U.S. Government [e.g., through the TATWEER Project of USAID, efforts by the United Nationsl Development Program, the International Republican Institute, and the University of Utah School of Law.]  This has included efforts to keep abreast of anti-corruption efforts by other embassies and international organizations.  ACCO is a small office, headed by Career U. S. Ambassador Joseph D. Stafford.

Summary and Conclusion:  “Lessons Learned”

In my work supporting the rule of law in some dozen countries, I can attest to the importance of trying to ensure that the legal advice offered “fits” the context available.  What is unarguable is that all peoples deserve a legal system that supports citizen needs, encourages entrepreneurs to become confident that business disputes will find a fair forum for resolution, and that laws will be equibably enforced for all.  This means that judges and other adjudicators should be well-educated and well-trained and fairly compensated [to discourage unauthorized “dipping” beyond official salary levels].

What is indisputable is that the peoples of the world deserve access to the rule of law that is fair, broadly available, timely, and reflecting high standards of professional training for the actors making up the rule of law mechanisms.

More can and should be done.

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*  Brian C. Murphy, Esq. has worked in support of the rule of law in some dozen countries, including in:  Armenia, Bulgaria, Eritreea, Ethiopia, Haiti, Iraq, Kenya, Kyrgyzstan, Liberia, Rwanda,Tanzania, and Ukraine.  In these states, he has worked with courts, ministries of Justice, Commerce and Trade, and with parliaments.  He holds the A.B. Degree, with honors, from Harvard University and the J.D. Degree from the University of Virginia School of Law, with post-graduate study of Public International Law at the London School of Economics and Political Science and the University of Oxford  He has long been an active member of the Federal Bar. Association.