Hukuk Öğretiminde Yeni Yaklaşımlar: Hukuk Klinikleri
Law School Clinics: A Model For All Seasons (and Places?)
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- Bu səhifədəki naviqasiya:
- Legal clinics
- Accessing justice - the principles
- Accessing justice - the case studies
Law School Clinics: A Model For All Seasons (and Places?)Richard Grimes47 Introduction This paper is about the transferability of and suitability of law school clinics in an international context. Can a model of clinic be said to have cross and inter-jurisdictional relevance? Does the clinic assist in improving access to justice? Although the debate will be widened it initially focuses on countries where cthere has been a history of conflict and where clinics have been recently established. The trials and tribulations suffered by and currently facing countries, from Afghanistan to Zimbabwe, are reported almost daily and are often, regrettably, infamous. In this article I wish to contribute to the discussion of to what extent and how countries with such historical or current difficulties are addressing the issue of access to justice.48 The thrust of this paper comes from the presumption that access to justice is a desirable end in itself and that this necessarily implies access to legal advice, as well as to other legal services, including representation before courts and tribunals. In their recent article on promoting and supporting the rule of law in ‘impoverished’ countries Soros and Abed (2010) cite the UN’s Millennium Development Goals as a vehicle for ensuring that all might have access to ‘formal justice’. Such facilities may be provided through a variety of sources. In those jurisdictions where there is little or no state subsidy, or other provision, of lawyers and a limited or non-existent culture of pro bono services, heavy reliance falls on non-governmental organisations (NGOs) and others to respond to unmet legal need. 49 Of course using lawyers is not the only, or indeed preferred, way of resolving problems. In many countries long-established effective dispute resolutions models are practised, for example in the Afghan context, the use of the jalasa or community meeting to resolve disputes (see Gang, 2010). In many countries law schools are now providing an initial port of call for people who are unable, financially and/or culturally to otherwise get a lawyer’s help. This article will focus, in particular, on the rise of the law school clinic as a significant means of addressing existing and potential need. In examining the principles and problems arising in an access to justice and conflict context I will use examples from countries of which I have personal experience – principally Afghanistan. The countries referred to in this article have suffered from varying degrees of, but in every instance, highly significant, conflict, albeit in some places longer ago than others. In each jurisdiction legal clinics have, to a lesser or greater extent, been recently established. The models used in each are, despite obvious political, cultural and socio-economic differences, remarkably similar, as are the successes reported. By looking at access to justice needs in each jurisdiction and by using a set of case studies that show how those needs are addressed I intend to assess how effective law school involvement in legal service provision may be, given the availability or lack of it, of other legal service provision. The measure of efficacy may be actual, evidenced by in-country and external evaluation, or may be potential, as supported by structures, partnerships and initiatives planned or in place. This is not an attempt to provide detailed empirical analyses but rather to assess the nature and extent of service provision that is being or can be provided. A longitudinal study would be needed to see if the actual services provided made a long-term and measurable impact. Before looking at the principles and challenges surrounding access to justice and the impact that legal clinics have had and may have, the notion of the law clinic needs to be explained.
In defining ‘clinic’ the obvious medical analogy is a helpful. If one substitutes ‘client’ for ‘patient’ one begins to see the nature of the legal clinic. ‘Clinic’ in this paper is taken to mean a service available to the public (or defined sections of the public) where those in need, regardless of economic and social obstacles, can access a lawyer’s help. Some of these clinics operate as NGOs. Others are run by government (largely through Legal Aid offices). An increasing number of clinics are based in law schools where clients receive a legal service and law students, under professional supervision, counsel the client. The law school-based clinic is the legal service equivalent of the teaching hospital, where patients receive help, medical students develop their substantive knowledge, hone their skills and grapple with the demand of acting as a competent professional through the application of theory to practice. Qualified practitioners ensure that applicable quality standards are maintained. Private practitioners may assist in the running of the clinics largely on a pro bono basis or as adjunct faculty within the university setting. To continue the medical, or at least scientific, association the clinic has been described elsewhere as a being a ‘laboratory of lawyering’ (Tarr, 2009). It will be argued that the legal clinic run through a law school provides a ‘win/win’ situation for all participants and maximises opportunities, in terms of service delivery and educational benefit, for all concerned. There are said to be 4 principal models of law school-based clinic, as described by Brayne, Duncan and Grimes (1998) and more recently, Kerrigan and Murray (2011):
The common denominator in each of these law school clinics is that a legal service is provided to individual clients or to community groups and the law students are charged with the primary responsibility of interviewing clients, and researching the relevant legal position. Once the results and any proposed advice has been checked for legal accuracy and contextual appropriateness, the clinics provide the client with the help sought. The history and subsequent development of clinics has been well documented elsewhere (see Bloch, 2010). The proposition made by this paper is that the principles of clinical legal education have been tried and tested across a variety of countries in both the civil and common law worlds and appear equally transferable to the context of conflict-affected societies. Accessing justice - the principles Before looking at the detail of legal clinics comprised in the case studies let us consider the fundamental principles behind the call for access to justice and how clinics can contribute to ‘on the ground’ provision. The means to ensure effective access to justice is as much a part of the human rights debate as the better known rights of life, limb and liberty. Indeed it might be said that access to justice is the prerequisite to the upholding of all such fundamental principles. Rights can be said to have limited value without the means by which to enforce them. The discourse surrounding the nature of rights and remedies has occupied philosophers and jurists for many years from Cicero’s early pronouncements to the expostulations of Hobbes, Rousseau and Rawls to name but a few! Hayden (2001) presents a more contemporary view which poses important questions on the nature of rights and their enforcement. The movement towards a more applied and effective sense of human rights is now evident on the overtly political stage. The UN General Assembly resolution 60/147 (December 2005) introduced what is terms as: Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law . This has been followed very recently by the UN’s adoption of an international benchmark for Legal Aid (and hence access to a lawyer). It would appear that the international community through the guise of the UN is now actively concerned with global standards impacting on access to justice (for an important and recent commentary on this development see: Namoradze (2012)). In the context of raising levels of legal awareness the UN has also been engaged in a recent and detailed study of empowerment and poverty (see UN, 2008 and 2009). This is explored further shortly. It is therefore unsurprising that access to justice remains at the forefront of public and political discussion in a multitude of jurisdictions, not just in societies with a history of conflict or ‘third world’ countries. In the UK a debate has been simmering for over 20 years on what has been described as ‘the uneasy relationship between volunteer legal activity and access to justice’ (Robins, 2010). It is not the war-torn, past and present, who have the monopoly on this debate. That said the problems caused by conflict can impact heavily on realising access to justice given the lack of legal service provision and associated privations in many of the countries affected. One might also surmise that a society that has been brutalised by fighting and unrest may have a very different take on the perception of need and the identification of individual legal ‘rights’ and seemingly appropriate solutions and remedies. There is extensive commentary available on the notions and mechanics of access to justice in jurisdictions where major conflict has occurred. The process of moving from civil unrest to a situation underpinned by concepts of, amongst other things, ‘law and order’ has been described elsewhere as ‘transitional’ justice as explained by Roht-Arriaza and Mariezcurrena (2006). This implies a move from one situation, that of discord to another, of relative peace and stability. However a contrasting and, I suggest, more helpful view, as expressed by writers such as Mertus (1998) have posited the idea of ‘transformative justice’ Here, the values of transition are questioned and the nature of change examined in a more critical way, especially in terms of movements toward a culturally relevant and sustainable justice which is recognised and valued by the communities affected.. This framework for analysis is particularly helpful in the context of access to justice. The clinics that appear in the case studies are very much part of the ‘transformative’ approach, introducing a concept and methodology for delivering legal services in a format that serves a number of agendas and is appropriate to individual needs, respecting, at the same time, the customs and culture of that country or region. In order to understand the role of legal clinics in those parts of the world that may have troubled pasts and may also have well-established means of informal dispute resolution, a ‘logic-line’ needs to be drawn. The argument for legal clinics as part of the access to justice agenda runs something like this:
What is unmet need in this context? Simply put this is any requirement for legal help that is not readily met by existing service providers. However it is generally accepted that the ‘need’ that is most prevalently ‘unmet’ is in the context of indigent people. Rhodes (2004) and Pleasance et al (2003) present extensive discussions of the nature and extent of such need and its impact of specific sectors of their respective communities. Rhodes shows that in the USA an estimated four-fifths of the legal needs of low-income Americans are said to be unmet. In the UK Pleasance’s research suggests that the cost of unresolved problems over a three and a half year period exceeds £13 billion and impacts on those least able to afford it. In those jurisdictions that have suffered from recent and/or significant conflict the legal infrastructure is often scant in both its scope and geographical presence. Access to justice problems that are commonly experienced are in the fields of both criminal and civil law (although this distinction is not always so apparent in situ). As will be seen from the case studies these include: the need of those detained and awaiting trial; women and children who suffer from domestic violence; those deprived of their rightful inheritance; and, people who are subjected to varying forms of discrimination. Following the logic line set out above the law clinic can, it will be shown, play a major role in addressing legal literacy, providing advice and assistance and, in this way, contributing to more effective access to justice. As indicated above there is a growing body of opinion and published works on the concept of legal empowerment from the aspirational statements of such influential bodies as the United Nations General Assembly to the more pragmatic concerns of activists in the field. In its working group report in 2008 on the Empowerment of the Poor, a UN Commission recognises the need to identify the ‘social realities of access to justice’ and the need for non-formal legal education. Human rights lawyers the report suggests are increasingly combining traditional forms of legal assistance with the tools for empowerment “to give communities the opportunity to learn and assert their rights and responsibilities." 52 In the substantive report that followed a year later the UN went on to say that: “Legal empowerment must be firmly anchored in the realities of poverty and exclusion” and there is a need to “build alliances with stakeholders and seek ways to overcome cultural impediments to legal empowerment of the poor”.53 Further: “strategies should include special programmes to provide free and equal access of the poor to courts….and other dispute resolution mechanisms….. (and)…..support social movements to strengthen the voice of the poor”.54 Fine words as these may be subsequent analysists have been critical, Stephens (2009) for example notes that the failures to address the political economy and to justify statements by reference to empirical evidence are likely to mean that the report will have limited impact in consequence with policymakers. This is not to suggest that the empowerment debate is dead. Far from it. Jagganath et al (2011), suggest boldly that legal empowerment is a practical and realistic alternative to Legal Aid. Lawyers can work on raising awareness of legal rights and responsibilities and in so doing obviate the need for some (if not all) more formal forms of legal intervention. As will be seen one key characteristics and strategies of the development of legal clinics discussed in the case studies below has been to use legal literacy programmes to address the issue of empowerment and unmet legal need. What is currently missing is any significant empirical studies on the impact increasing levels of legal awareness may have.55
In this section I will look at two case studies that track the development of law clinics in conflict-affected jurisdictions. If legal clinics are able to serve the interests of those with unmet need is this transferable to conflict-affected societies? Most attention is devoted in this section to the situation in Afghanistan. The nature and extent of the past and current problems in-country are well known and the presence of law clinics is sufficiently well-established to make meaningful analysis possible. I will also offer, albeit more briefly, a description of clinical developments in Georgia and make passing reference to developments in South East Asia. Although each is very different in a historical and cultural sense, the perceived role and, in some cases reported success, of law clinics is remarkably similar. The comparison of each country’s clinical programme provides valuable material for evaluation.
I will not repeat what are well publicised facts about Afghanistan. Suffice it to say, for present purposes, that as a result of civil war, external military intervention and the consequential regime changes that followed, the country was left with a very limited ‘access to justice’ infrastructure. Barfield (2008) in his extensive writings on the Afghan situation supports this view as does Tondini (2010). By 2007 there was a recognisable legal profession but no organisation representing it, such as a law society or bar association. Penal and Civil Codes existed alongside a written constitution founded on the principles of an Islamic state. At this time law schools could be found in several universities. Both Shari’a and what might be termed ‘Civil Law’ faculties existed and indeed have flourished since.. The former focus on law in an overtly Islamic context with the latter being more recognisable as ‘secular’ legal education institutions. Interestingly members of the judiciary tend to be graduates of the Shari’a faculties whereas private legal practitioners tend to come from the ‘civil law’ faculties. Within 5 years these two co-existing (and largely independent but complimentary) types of law school were functioning in 5 centres – Kabul, the capital, Herat in the extreme West, Mazar i Sharif in the North, Jalalabad in the East and Alberoni in the North East. Kandahar, the principal city in the South, currently has no law school. The establishment and growth of law schools was, and continues to be, supported by the international community through a range of governmental and donor agency initiatives. Notable amongst these is the Open Society Institute (OSI). Through its Justice Initiative a variety of programmes have been designed and delivered to promote good governance and the rule of law. Importantly, and very much in accordance with OSI’s founding principles, the lead for much of this comes from in-country personnel, in this case in the form of Open Society Afghanistan. Their staff have pioneered the development of legal clinics as part of the wider Justice Initiative. Taking advantage of local support and enthusiasm an in-house legal advice clinic was set up at the University of Herat in 2008. The Law and Shari’a Faculties at the University have contributed jointly to the clinical programme in terms of responsibility, resources and of student and staff numbers involved. Operating initially from University premises the centre offered advice, in principle, to the public on a wide range of legal matters. Enquiries were, initially, slow in filtering through despite a publicity campaign being launched through local radio and by using posters and leaflets. Cases that did come to the Clinic involved family law matters (particularly domestic violence), property problems (mainly women being denied inheritance rights) and criminal cases (unrepresented detainees and trials in absentia). Cases were however few and far between even though it was surmised (accurately as later increases in case loads have proven) that existing need was significant. Four major developments took place between 2008 and 2010 that fundamentally altered the nature of the Herat Clinic and provided a model for others to adopt and, in some instances, adapt. First, links were made with existing NGOs so that students and staff at the University could be placed with host organisations thus supplementing the hosts’ human resources and increasing their service capacity. In particular a criminal defence NGO known as the International Law Foundation (ILF) has now established strong links with the University and takes a regular flow of students by way of externship. Students shadow practising lawyers and engage in research and associated casework. In-house lawyers, members of the police force and doctors are involved in substantive, procedural and forensic training. Students also attended courts and prisons to assist in the case progression. The students then discuss the cases (subject to rules of confidentiality) back at the University to further their own understanding of the applicable legal rules, the legal and transferable skills involved and professional practice and wider ethical concerns. More recently placements have been arranged with other NGOs including Human Rights of Afghanistan, War Child and ASMED (a small business development organisation). As evidenced by take-up and reported successes elsewhere in Afghanistan, this ‘placement’ model has proven to be a useful one for both students, clients and host organisations. The second development to make a major impact on access to justice has been the recognition on the part of government of the importance of legal clinics in addressing unmet legal need. As may be obvious from the nature of the cases revealed above many of the enquires handled by the Herat clinic concern women either as detainees, victims of domestic violence or those financially disenfranchised in some way. Links were therefore made with the Ministry of Women’s Affairs in Herat. Referrals are now taken by the Clinic directly from the Ministry and the Ministry in turn takes students from the Clinic on placement. Building on the success of this development staff and students at the Herat University Clinic now also work with the Ministry of Justice in the courts and through the Legal Aid Department shadowing officials there and assisting with allocated tasks. Thirdly, a legal literacy or, as it is more commonly known, a Street Law programme has been developed.56 Working in 5 high schools, students from the Clinic, under the supervision of professionally qualified staff, have been presenting material on legal rights and responsibilities to school pupils. The Ministry of Education is now considering giving approval for this to become and established feature of the school curriculum. Through the Street Law sessions law students develop their own understanding of the law and the legal process through having to teach it to others. The school children stand to benefit from a set of socially and legally pertinent presentations on laws that impact on, or are likely to affect, their everyday lives – now or in the future. The Legal Aid Department of the Ministry of Justice is also keen to develop Street Law. There is an acknowledged lack of available resources within the Department to develop public legal awareness even though such work is stated to be within the remit of the organisation. The fourth major development was a simple change of venue. Rather than expecting clients to come to the law school for advice and assistance the Clinic moved premises into the city centre. This immediately resulted in an upturn in client numbers. Clearly clients felt more able to approach the Clinic in this new setting, one that is proximate to the courts and main government administrative buildings. In many countries clients are often and understandably reluctant to advertise their needs and do not want to be seen to be coming to a place where they may not normally be expected to go to. The relative anonymity of a city centre venue to a degree protects against this concern. In a country which is, by custom and reputation, deeply conservative, such perceptions and their implications are extremely important. Whilst the model developed in Herat initially followed a template common to many law school clinics in the ‘developed’ and ‘developing’ worlds it soon evolved to reflect local need and in a pertinent and pressing cultural context. As mentioned above many of the cases handled by the Clinic involve family relations. Most of the clients consulting the Clinic were (and indeed still are) women. In Afghan culture it is common on marriage for the wife to go to live with her husband, in the husband’s family home. There, an extended family might typically be found consisting of the husband’s parents, siblings and possibly grandparents and other relatives. It is not uncommon for the incoming wife to be expected to assume responsibility for a large number of household chores in her new home. Some women understandably complain that is tantamount to servitude. A compelling account of domestic life in Afghanistan for women is vividly portrayed By Lamb (2002). The Herat Law School Clinic has developed a particular expertise in addressing these problems and has used the basic in-house advice clinic as a starting point for a more customised and specialist service. Once initial advice has been researched by the students, checked by the supervisor and provided to the client, if it is appropriate to do so and if the client is in agreement, the Clinic then offers to meet the family members with whom the client lives. A personal eye witness account when I was last in Herat (2010) showed me not only the impact of the Clinic in terms of providing legal advice but also the potential of the Clinic in the context of dispute resolution. In the case I observed the woman client was in fact being allegedly abused by the husband’s grandmother (including physical beatings). The husband felt unable to intervene on account of his acknowledged divided loyalties. With their client’s consent the Clinic students and supervisor invited all of the family members to a meeting at the Clinic. They explained that although the Clinic represented the woman and the rest of the family were free to take independent advice the Clinic personnel could explain the law to the family with a view to seeing if an agreement could be reached on future behaviour towards their client. Unsurprisingly perhaps, under the Afghan Penal Code it is a criminal offence to assault another person. Divorce is also permissible under the Civil Code. For a variety of reasons – emotional, financial and cultural – the woman in question did not want to leave her husband and wanted the family situation to improve. She was however unwilling to accept a continuation of the abuse that had been taking place. Through translation I understood that the family were genuinely shocked when the law was explained to them. In a relatively short period of time they had reached agreement that the woman would not be subject to any physical harm or other ‘punishment’. The students maintained contact with the woman and from what the supervisor has since told me there have been no further reported problems. Taking this case at face value it shows how far the Clinic can provide access to justice going beyond initial advice and using the law as a lever to resolve difficulties rather than as a blunt instrument forcing parties to go to court and/or take other, major, life-changing decisions. The desirability of what in the West we term alternative dispute resolution or ADR is also underpinned in Afghanistan by a centuries-old administrative system known as Hoqooq (literally ‘rights’). According to information published by the Afghan Ministry of Justice: ‘The purpose for the establishment of the Huqooqiyah Directorate was to facilitate the adjudication of disputes and civil right cases arising between citizens and real and legal persons; to follow-up on those cases; and to effectuate resolution through tribal elders, or patriarchs, and chiefs. The resolution of said disputes were in the form of reconciliation and/or referrals to the courts in order for the cases to be equitably settled. Further, the objective behind the creation of this directorate was to pre-empt and prevent ethnic, tribal, and family disputes as well as to promote the maintenance of public order in the country’.57 On the evidence provided by the family case cited above legal clinics can clearly compliment the principles underpinning the Hoqooq system. As well as giving students the opportunity to develop their understanding of doctrinal issues through the application of theory to practice the work of the Herat Clinic enables the students to acquire and hone the skills that lawyers need to work effectively. As revealed by discussion and feedback given at law clinic meetings in the law school supervisors and students clearly appreciate the need for a range of skills in their work – some overtly legal (for example interviewing a client and drafting a an advice letter or other document) and others more transferable in nature (such as research, record keeping and working together as a team). All students are inducted into the ways of the Clinic in a compulsory preparatory programme. A Clinic manual sets out the operational rules and provides the framework for good file keeping and case management. A further, related and highly significant and positive aspect of the Herat programme is the extent to which the students also regard the experience as bolstering their employability. With practical as well as theoretical understanding, their chances of securing employment after graduation were seen by them and by their supervisors and those legal practitioners I interviewed as being greatly enhanced. It is of course too early to say whether employability rates will improve but the experience in other jurisdictions would suggest that they are likely too.58 In addition, the exposure of students to underprivileged clients should, again judging by experience elsewhere, result in more lawyers going into practice committed to addressing social justice issues.59 The lead taken by the University of Herat has provided a platform for others to use in developing clinical programmes. The NGO, ILF, mentioned above, has a national presence as does another influential NGO, Global Rights (GR). ILF and GR have actively supported the concept of law school clinics and provide both training and placement opportunities across Afghanistan. Other NGOs, notably Da Qanoon Ghushtonky (again with national coverage and specialising in raising legal awareness amongst woman and children) have been proactive in clinical work particularly in rural areas.60 As part of its funding conditions the University of Herat was expected to share established practice with others and has, since 2008, hosted visits from other organisations including law schools. In May 2012 OSI, the principal funder, brought all of the law schools in Afghanistan together to discuss progress being made and to further develop best practice. At this meeting, which was held out of Afghanistan to give delegates the opportunity to step back from the daily challenges of living and working in-country, the universities, listed in alphabetical order, reported as follows:
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