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p. 13 of 22 BACK | NEXT Introduction List of Participants Welcoming Remarks Emerging Trends and Issues in Legal and Judicial Reform in Development Bank Legal Frameworks for Private Sector Development in the Asia Pacific Region Legal Frameworks for Private Sector Development of Infrastructure in the Asia Pacific Region Collateral Security Reforms Panel Presentations and Discussion Governance: Sound Development Management Strengthening Judicial Institutions Training of Government Lawyers and Judges Lessons Learned: Legal Reform and Technical Assistance 1960-95 Panel Representation and Discussion An Introduction to Project DIAL Concluding Remarks Country Statements

Roundtable Meeting of Chief Justices and Ministers of Justice

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Training of Government Lawyers and Judges

Eveline N. Fischer
Senior Counsel
Office of the General Counsel
Asian Development Bank

This morning we talked about the importance of development and reform of legal frameworks to support economic growth. In particular the countries that are moving from a centrally- led economy to a market economy (the so-called transition economies) have enacted an impressive number of new laws and regulations in the past few years in order to make that move. But also countries that already have a well-developed legal framework have introduced important pieces of legislation in response to the needs of the economy and to adapt to the requirements of ever-fast changing societies. However, legislative change by itself is not enough. Legal reforms will only be effective if the societies live by their new rules, and societies will only take rules seriously if they can see that the rules are followed and enforced by their governments. Thus, governments need to ensure that their civil servants are aware of the rules, comply with the rules, and if necessary interpret the rules and enforce the rules. This is where the subject of training of government lawyers and judges comes in. I would like to talk with you about training requirements, how the Asian Development Bank is assisting in the process of training government lawyers and judges, and finally, I shall raise a number of issues on training for further plenary discussion.

I. Training Requirements

There are some basic practical legal skills that every legal professional needs, whether he or she is a judge, a government lawyer or a lawyer working in a private company or in private practice. Those are the capabilities of legal analysis and legal drafting. I call these basic skills because without them a person cannot function properly as a lawyer. In particular, the ability to analyze facts and to categorize those facts according to the legal rule that applies to them is a crucial skill that every lawyer must have. Then there are also some more general skills that every lawyer should develop - listening skills, negotiating skills, call it people skills. These basic legal skills and the accompanying people skills can be acquired and actually should be acquired to a certain extent in law school. But it depends very much on the teaching methods followed in the law school whether or not the students will have the opportunity to develop these basic legal skills. As all skills, these can only be acquired by doing. When law is taught through lectures, in other words passive learning methods, rather than by using participatory training techniques that require the active participation and input from the students, chances are that the law school graduates will know the law, but will not quite know how to apply it. Of course, law school is not the only possible place to acquire basic legal skills and, conversely, there is a limit to the amount of practical skills that one can develop in law school. The point is that somewhere along the road, and sooner rather than later, every lawyer must develop and hone these practical skills.

Once one has acquired the basic legal capabilities and skills, one has to keep practicing them, but for that legal professionals have ample opportunity. It soon becomes second nature to think in a certain way and to approach and resolve problems in a certain way. In other words, training in basic legal skills needs to be given only once and after that, it becomes a matter of self-training through continuous practice.

This is different from the other main part of the baggage that every legal professional needs to bring to the job - a solid and up-to-date knowledge of the law. While one's basic legal skills only get better over time through experience and practice, it is very hard to keep up to date with new legislation and legal precedents when there is already barely enough time to cope with the daily workload. But to come back to my earlier point that judges and government lawyers need to lead the way in properly applying and enforcing new legislation, it is essential that their knowledge of the law remains current. This is why continuing legal education for judges and government lawyers is indispensable, perhaps even more so than for private practitioners. If a private practitioner does not keep up with new legal developments, his or her client will suffer. If government lawyers or judges do not keep up, the credibility of the whole legal system is at risk.

Because it is so difficult to take time out of already overloaded work schedules, which we can safely assume to be a fact of life for all of you, governments must make continuing legal education mandatory for all government lawyers and judges and schedule time outside of the work program to participate in training courses. The need for legal training can be tackled in different ways. One way is to organize ad hoc programs, such as short-term workshops or seminars. One can call that the "fire-fighter approach". It is a quick way to address pressing training needs, for instance to inform the target audience quickly about a new piece of legislation. One can also take a more systematic approach and institutionalize legal training, that is, first setting up the institutional framework for continuing legal education and then, within that framework, offering a program of training courses. Creating an institutional framework requires the establishment of the institution that is responsible for providing the training, the staffing of that institution on a permanent basis, creating curricula, standardizing training materials, and making logistical arrangements. While this approach is more costly and requires a much greater and longer-term input from the government concerned, it is clearly superior to the firefighter approach. In fact, short-term training on specific new legal developments will always be needed as well, but such training can also be offered through the permanent training institution.

An interesting new trend is the use of computer-based instruction materials, such as CD-roms and Internet courses, as well as training videos. These new technologies clearly have an important role to play in providing continuing legal education. However, a CD-rom or a video cannot take the place of classroom interaction. Especially, those tools can never substitute for participatory training in basic legal skills. They can be useful substitutes for classroom training in a particular subject of substantive law, when one cannot attend classroom training. But ideally, these new teaching tools should be used to supplement classroom training, not to replace it.

II. Assistance by the Asian Development Bank in the Area of Legal Training

Now I should like to mention some of the efforts that are being undertaken by the Asian Development Bank to assist the Bank's developing member countries in the area of training government lawyers and judges.

One point to stress at the outset is that training of government lawyers and judges should primarily be a national effort. The Bank's role is to assist in supporting these efforts and, if the government seeks our input, to help in formulating and implementing a training program. So far, this assistance has been given in the form of so-called technical assistance projects, that is, grant financing of experts who provide advice and/or training to government agencies of developing member countries. In countries with a well-developed legal framework - India, Pakistan, Bangladesh, Sri Lanka and the Philippines, to name a few - the Bank's legal training projects generally focus on training in specific subjects of substantive law. Examples are projects for training in environmental legislation, or on-the-job training in drafting and negotiating documentation for BOT projects. On the other hand, as my colleague Mr. Clendon mentioned earlier, the Bank has also provided assistance to India to develop a training program for alternate dispute resolution practitioners. But in any event, in those countries there is only limited need for the Bank's assistance in legal training efforts.

This is different in countries which do not have such a strong legal tradition or whose legal framework is subject to a complete overhaul as a result of a change in political or economic perspectives. Thus, in countries like Viet Nam after the introduction of the economic renovation policy, Mongolia and the Central Asian Republics, there is a need for much more comprehensive assistance. For Viet Nam and Mongolia, the Bank has provided technical assistance to carry out an in-depth analysis of the training needs of government lawyers, including the judiciary. For both these countries, it has been determined that the training needs are extensive, both in terms of basic legal skills training and training in substantive law, so as to catch up with all new concepts that are introduced with the transition to market economies. The Bank is now preparing long-term technical assistance projects for both Viet Nam and Mongolia to help their governments set up the institutional framework to provide continuing legal education to all government lawyers. For each country, a local institution has been selected to be responsible for the delivery of continuing legal education. The Bank's projects will involve an intensive training program of the people who will make up the faculty of these local institutions. After they have been trained, the faculty will, in the years to come, deliver participatory training courses to all government lawyers. Projects like these require a major commitment from the governments concerned and this raises the issue of sustainability of such efforts.

III. Issues

This brings us to the last portion of this presentation - the issues involved in the Bank's assistance for legal training.

Sustainability is one issue. Obviously, in designing comprehensive training programs, such as the ones in Viet Nam and Mongolia, an effort has been made to ensure that once the Bank's involvement has ended, the government is able to continue the program. Only time will tell how realistic this expectation is. But we are keen to hear about experiences in other countries with donor-financed long-term efforts involving training of trainers, and in particular whether such efforts have proven sustainable in the long run.

Another question is - and this is crucial for all training activities - what is the impact of the various types of training? Do certain training approaches prove to have more impact than others? Is it in the end more effective to train large groups in-country or to send a core group overseas on a degree program? Again, your views will be most appreciated.

So far, the Asian Development Bank has mainly focused on training of government lawyers; there have only been limited and short-term training programs targeting judges. This is partly so because in some countries training of judges is covered by programs financed by other, often bilateral, donors. The question arises whether there is a need for the Bank to get more involved in training of judges and, if so, whether in principle training courses for judges should be combined with training courses for other government lawyers or if the training needs of judges are so different from those of other government lawyers that separate training should be given.

With very few exceptions, training programs financed by the Bank are national programs. Is that the right approach or is there perhaps a need for more regional interaction among government lawyers and judges in training activities?

These are some of the questions that arise when looking at what the Asian Development Bank is doing to support legal training programs in its developing member countries. We see this Roundtable Meeting as an opportunity to have a frank discussion with you on these issues, and we are keen to hear your views and suggestions.

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