Many Roads to Justice: The Law Related Work of Ford ... - UNDP

MANYROADSTOThe LawRelated Work ofFord FoundationGranteesAround the WorldJUSTICETHE FORD FOUNDAT ION

MA N Y ROA D STO JU S T I C ETH E LAW- RE L AT E D WO R K O FFO R D FO U N DAT I O N GR A N T E E SARO U N D T H E WO R L D

MA N Y ROA D STO JU S T I C EThe Law-Related Work ofFo rd Foundation GranteesA round the Wo r l dM a ry McCly m o n tStephen GolubE d i t o rsTH E FO R D FO U N DAT I O N

Library of Congress Cataloguing-in-Publication DataMany roads to justice : the law-related work of Ford Foundationgrantees around the world / Mary McClymont, StephenGolub, editors.ISBN 0-916584-54-21. Ford Foundation. 2. Public interest law. 3. Humanr i g h t s . I. McClymont, Mary (Mary E.) II. Golub, Stephen1955 –J Z 5524 . M 36 2000323 — d c 21 99 - 088905572 February 2000© 2000 by The Ford Foundation, all rights reserved.Printed and bound in the United States of A m e r i c a

v iCO N T E N T S5 Contributing to Legal Reform in ChinaA u b rey McCutcheon 1 5 96 Participatory Justice in the PhilippinesStephen Golub 1 9 77 Eastern Europe: Funding Strategies forPublic Interest Law in Transitional SocietiesA u b rey McCutcheon 2 3 3Pa r t 2 Thematic P e r s p e c t i ve s8 University Legal Aid Clinics: A Growing InternationalPresence with Manifold BenefitsA u b rey McCutcheon 2 6 79 Public Interest Litigation: An International PerspectiveHelen Hershkoff & A u b rey McCutcheon 2 8 31 0 Nonlawyers as Legal Resources for Their CommunitiesStephen Golub 2 9 711 Laying the Groundwork: Uses of Law-Related ResearchMichael Shifter & Priscilla Hayner 3 1 51 2 Weathering the Storm: NGOs Adaptingto Major Political Tr a n s i t i o n sMichael Shifter 3 2 7A c ro n y m s / A b b re v i a t i o n s 339About the A u t h o r s 343I n d e x 347

v i i iPR E FAC Ean international team of consultants to help us document anddescribe how various law-based strategies have worked in veryd i fferent settings, to draw out connections between those eff o r t s ,and to highlight some of the insights that emerge from grantees’experiences in law-related work. We also asked them to help uslearn more about the ways the Foundation has played a role inthese efforts. Known as the Global Law Programs LearningInitiative (GLPLI), this effort is not definitive, but rather suggestive.Our goal is to contribute to more serious future reflectionand, ultimately, more effective programs in this field.We hope that the insights emerging from our review of thework of Ford and its grantees will help strengthen Foundationprogramming, suggest grantmaking directions for the considerationof other donors, and provide some strategic insights and ideasfor all those involved in using the law to build a more equitableworld.M a ry McClymontSenior Dire c t o rPeace and Social Justice Program, The Ford Foundation

AC K N OW L E D G M E N T SThe GLPLI project, and this book, reflect a collective eff o r t .Many Ford Foundation grantee partners engaged in public interestlaw work generously shared their insights, experiences, and time,without which this book would simply not have been possible.Too numerous to list here, they are cited in the contributors’ l i s t sfollowing the case studies, which are chapters in Part 1.At the core of GLPLI was a thirteen-member team. T h eauthors (listed elsewhere in this volume) not only bear primaryresponsibility for their individual papers; they also reviewed eacho t h e r’s drafts, posed questions, and formulated ideas that wereconsidered by other members of the group. The collaborativeprocess included meeting as a team and discussing virtually everyfacet of the project. Apart from the authors, the core team includedseveral other individuals. Anthony Romero, the Foundation’sdirector of the Human Rights and International Cooperation unit,o ffered critical perspectives and suggestions that enriched andadvanced team discussions. Editorial advisors Tom Lansner andSara Bullard skillfully shepherded this text from inception to production.Daria Caliguire diligently performed key research tasks.Monica Ly n n ’s unfailing administrative support and editorialassistance were essential at all levels of the project.GLPLI benefited as well from current Ford Foundation staff ,who shared useful information and valuable ideas at variousstages of the project. Those staff members, who undertake lawix

xAC K N OW L E D G M E N T Srelated programming in offices around the world, includedAkwasi Aidoo, Fateh Azzam, Aaron Back, Alice Brown, PhyllisChang, David Chiel, Larry Cox, Mallika Dutt, Joseph Gitari,Irena Grudzinska Gross, Gary Hawes, Taryn Higashi, A l a nJenkins, Mary McAuley, Helen Neuborne, Edward Te l l e s ,Augusto Varas, and Alex Wilde. Ford program assistants LoriMann and Hisham Elkoustaf, and senior communications advisorThea Lurie, also provided useful contributions. Miriam A u k e r m a ngave helpful comments on the manuscript.A number of former Ford Foundation staff helpfully recountedtheir experiences as well. They are cited in or listed after theindividual case studies in Part 1. Thanks to William Carmichael,Shepard Forman, Lynn Huntley, and Franklin Thomas, who providedhistorical perspectives that benefited the entire project.Several other people played important roles in making thisbook a reality. GLPLI profited from the knowledge of severalexternal specialists, who were asked to critically review some orall of the papers. Their frank appraisals substantially helpedsharpen and improve the final product. The outside expertsincluded José Zalaquett, Professor of Law, University of Chile;Terrence George, Chief Program Off i c e r, Consuelo Zobel A l g e rFoundation; and Rick Messick, Senior Public Sector Specialistand codirector of the World Bank’s Thematic Group in LegalInstitutions. Of course, any inaccuracies in the text are the responsibilityof the Ford Foundation alone.As vice president of the Foundation’s Peace and SocialJustice program, Bradford Smith provided thoughtful guidanceduring the GLPLI process. And the project would not have beenpossible without Ford Foundation President Susan Berresford’sstimulus toward greater institutional learning, and her continuingcommitment to public interest law work around the world.M a ry McClymont

I n t ro d u c t i o n :A Guide to This Vo l u m eST E P H E N GO L U B & MA RY MCCLY M O N TFor more than forty years, the Ford Foundation has supportedgroups that use the law to secure human rights and improve thelives of people in vastly different settings around the world.Funding for law-related projects began in the 1950s in the UnitedStates and by the 1970s had been extended to parts of LatinAmerica and South Africa. As we enter the year 2000, theFoundation is involved in sustained grantmaking for public interestlaw groups in over twenty-five countries through its New Yo r kheadquarters and eleven of its overseas offices around the globe.The activities of Ford grantees vary with the diverse contextsof their work. But, in large part, groups cited in this volume andothers like them share a common goal: they use law as an instrumentto promote the rights and advancement of disadvantagedpopulations and to further social justice. For simplicity’s sake,grantee efforts are referred to in this volume as “public interestlaw” or “law-related work,” although in the context of somecountries these activities may go by other names: social action litigation,legal services, or developmental legal aid, for example.The bulk of Foundation support for law-related work goes tonongovernmental organizations (including university-based bodies),although some funding goes to governmental or other institutions.Nongovernmental organizations (NGOs) build individuals’legal awareness and train paralegals to use the law individuallyand collectively. They offer legal aid and expand the opportunities1

2 IN T RO D U C T I O Nof underrepresented people to use the justice system. Groupsbring test case or “impact” litigation geared to change legal doctrineor public attitudes, and to benefit large populations. T h e yundertake law-related research and advocacy to further legalreform efforts, pursue administrative change, and seek enforcementof laws. Community mobilization and media efforts oftencomplement their work.The Global Law Programs Learning InitiativeThis volume comprises papers produced under the FordF o u n d a t i o n ’s Global Law Programs Learning Initiative (GLPLI),an effort to derive and disseminate insights flowing from the lawrelatedwork of the Foundation and its grantees around the world.The impetus for GLPLI stems in part from an internal Foundationlearning agenda that cuts across all of Ford’s programs, aiming tohelp improve grantee efforts and Ford grantmaking. Of equalimportance, as the field of public interest law has developedworldwide, so has the need for better understanding of the variousstrategies used in this work. In particular, the increased salienceof this field has generated requests for more information aboutF o r d ’s programming from other donors, NGOs, and the legalcommunity at large. Until now, however, the Foundation has notcarried out a wide-ranging review of this work.In early 1998, the Foundation’s Peace and Social Justice program,which provides most of the Foundation’s law-orientedfunding, brought together the authors of the chapters of this volume:an international team of legal scholars, activists, and socialscientists. They were asked to undertake an eighteen-month documentationof the activities of Ford and its grantees in selectedareas of the legal field. These GLPLI consultants were notrequested to conduct an evaluation or objective scientific study, orto precisely measure the impact of law-related work. Rather, theirtask, working closely with Ford staff, was to collect and report onthe experiences of one donor and its grantees in this area. T h ehope was to convey some of the challenges that grantees havefaced around the world and provide a sense of how they haveused particular legal strategies in very different settings. Ford also

A GU I D E TO TH I S VO L U M E 3invited the consultants to help draw lessons about the Foundati o n ’s grantmaking approaches and consider where improvementwas needed. This dual focus on grantees and the Foundationaimed to provide a resource for legal practitioners and advocates,for analysts and scholars, and for fellow donors.Given the often experimental nature of many of these activities,there have been failures along with successes. The failuresthemselves yield important lessons, and some of them are notedin these papers. The focus in this volume, however, is primarilyon successful models of law-related work, with the hope thatsome strategies might prove useful to broad and varied audiences.Virtually all of the groups discussed in the book are or have beenFord Foundation grantees. (Many also, of course, receive substantialsupport from other donors.)GLPLI team members conducted interviews, documentreviews, and on-site visits in a total of sixteen countries wheregrantees are at work: A rgentina, Bangladesh, Chile, China,Colombia, the Czech Republic, Hungary, India, Namibia, Peru,the Philippines, Poland, Russia, Slovakia, South Africa, and theUnited States. The team relied primarily on reflections and analysisdrawn from past and present grantees and Ford staff, supplementedby occasional observations from independent parties(such as journalists, social scientists, and development professionals)familiar with their efforts. Given the extensive backgroundsof team members in some of the countries and regionsstudied, the project inevitably also drew on their personal experience.An attempt to summarize all of the law-related efforts fundedby the Foundation, even just in the selected communities andregions profiled here, would require several volumes. This bookinstead offers the experiences and insights from a sampling ofgrantee activities that reflect a variety of geographic settings andstrategic approaches.Even within this limited scope, the task of offering a balancedportrait of public interest law work is daunting. Perspectives andpriorities vary widely from one setting to another; the same terminologymeans different things in different places; and developmentsin the field rapidly change. They take a broad view, knowingthat the stories they tell here will not answer all questions or

4 IN T RO D U C T I O Nmeet all needs. The authors present their own perspectives onFord and its grantees’ e fforts, informed primarily by those theyinterviewed. Unless otherwise noted, the activities and developmentsthe chapters herein describe were current as of A u g u s t1999, when the project’s research phase came to a close.U l t i m a t e l y, the GLPLI endeavor resulted in the set of paperscontained in this volume—case studies and thematic perspectives.Together they describe and reflect on grantee strategies and activities,as well as on some of the Foundation’s own fundingapproaches.The seven case studies, Part 1, trace the stream of law-relatedprograms the Foundation has supported in specific contexts,mostly through grants made out of Ford offices based in countriesaround the world: South Africa, South A m e r i c a ’s Andean Regionand Southern Cone, the United States, Bangladesh, China, thePhilippines, and Eastern Europe. (The Foundation has also supportedsignificant law efforts in places not covered in the casestudies, including Brazil, Mexico, India, Russia, and countries inthe Middle East, and North, West, and East Africa.) These casestudies were selected to demonstrate geographical diversity aswell as differing histories and durations of Ford’s law programs.South Africa, the United States, and the Andean Region/SouthernCone reflect long-standing activity, for example, whereasFoundation engagement with Bangladesh and Eastern Europe isconsiderably more recent.The five thematic perspectives, Part 2, deal with selectedaspects of law-related work, including strategies and approachesused by grantees in a range of national, regional, and internationalsettings: university legal aid clinics, public interest litigation,nonlawyers as community legal resources, policy-relatedresearch, and NGO adaptations to major political transitions. Toillustrate these themes, examples are drawn from activities ofgrantees that depict some of the breadth and diversity of Fordsupportedprojects. These examples do not by any means representthe full range of work in a particular thematic area, but areselected from dozens of comparable projects, with the majorityfrom the countries where case studies were done.Many Roads to Justice is just a first step in coming to understandthe diverse ways that Ford grantees put law to work in the

A GU I D ETOTH I SVO L U M E 5interest of human rights and social justice. This introduction nowhighlights key goals of Foundation-supported law work, and illuminatessome significant aspects of Ford/grantee partnerships thatguide the work. Brief descriptions of chapter contents follow.G o a l sFe a t u res of Fo u n d a t i o n -S u p p orted Public Interest Law Wo r kAs the accounts in this volume make clear, law-based strategiesserve as an important tool of Ford grantees for advancinghuman rights, equitable and sustainable development, civic participation,and government accountability. The most fundamentalof these goals is the promotion and protection of human rights,often on behalf of disadvantaged groups. Law used in this wayhas challenged repressive governments, won systemic change forvulnerable populations, and protected individuals from humanrights violations. Grantees are increasingly employing legalstrategies to address social, cultural, and economic rights in additionto civil and political rights.Human rights–related law efforts are, at bottom, about concreteimprovements in people’s lives, improvements that, evenwhen incremental, can make a tremendous difference to that larg eslice of humanity that lives on the margins of economic and physicalsecurity. Advancing human rights and achieving concretebenefits for individuals and groups often include advocating formore equitable institutional processes and practices, so as not toleave the poor and vulnerable behind.Law can also promote the goal of equitable and sustainabledevelopment, which aims to secure overall economic progress fora society, as well as political, social, and economic changes thatbuild the capacities of disadvantaged populations, eliminate barriersto their participation in community and government decisionmaking,and improve their material and social circumstances.Such phenomena cannot be measured in strict economic terms.They reflect a broader, more holistic conception of developmentthat extends beyond economic growth to embrace a healthy envi-

6 IN T RO D U C T I O Nronment, equal status for women, and other dimensions of humanwell-being.Viewed through this lens, law is a tool not only for the vitalgoals of bringing concrete benefits to marginalized groups,advancing their human rights, and promoting their development,but for raising their capacities to generate, participate in, and sustainsocial change on their own. Some change occurs on the formallevel of laws, regulations, and policies, but takes on addedvalue when it flows from the contributions of affected groups previouslyexcluded from involvement in such decisionmaking. T h evalue is in the substance of the resulting laws, of course, but alsoin the process of civic participation. For example, women whocombat societal and cultural notions of inferiority can utilizelaws—international and domestic—to assert their equality.Communities that feel powerless to stop livelihood-destroyingenvironmental damage can take first steps toward combating it bylearning that it is illegal, and organizing around this knowledge.Increasing government accountability is another goal ofgrantee law-related work. Foundation-supported research, litigation,and legal aid efforts have sought to hold government off i-cials accountable. In some instances, NGOs can help build thesei n d i v i d u a l s ’ skills or broaden their perspectives so they may bemore effective in responding to community needs. In others, howev e r, NGOs challenge government personnel who may be eitheri n d i fferent or resistant to doing their jobs. This has involved lawsuitsand formal grievances to higher officials, as well as resort tomore informal, political channels. In addition, paralegals andother nonlawyers utilize the law on a community level to pressgovernment to be more responsive.In their efforts to reach these goals, activists and practitionersface significant and varied obstacles. One difficulty faced byalmost all such groups, however, is the problem of legal implementation:getting laws on the books enforced on the ground.This challenge cuts across most societies and issues. In suchfields as human rights, gender equity, and the environment, eventhe best laws (and sometimes especially the best laws) all too typicallygo unenforced in the absence of pressure from NGOsand/or affected communities. The same applies to ministerial regulationsand high court rulings. The roots of poor legal implemen-

A GU I D E TO TH I S VO L U M E 7tation are deep and diverse. They include forces that may bias thedecisions of judges and other officials, the related problems ofpower imbalances that weigh against women and other disadvantagedgroups, courts that function poorly or lack independence,and the paucity of legal aid.NGOs can, and frequently do, play an important role in helpingto assure legal implementation. Their functions vary, sometimeschallenging and at other times cooperating closely withgovernment. In some societies, legal services NGOs even assumesuch traditional governmental functions as training judges or conductingspecialized seminars. Quite often, NGOs bring to lawrelatedwork considerable familiarity with community problems.Indeed, NGO leaders who cut their teeth on community-basedadvocacy sometimes go on to join or advise government in positionsthat can help implement or influence policy.Fo rd / G rantee Pa rt n e rs h i p sVarious insights emerge in this volume regarding the Foundati o n ’s partnerships with grantees. One of the most important hasto do with the value of creativity and adaptability of NGOs andtheir funders. To make the law work for disadvantaged people,activists must be ready to respond with the most appropriatestrategies, devise new ones, or shift them as challenges andopportunities emerge. In South Africa, for example, law-orientedo rganizations that were built around the goal of challengingapartheid have been able to adjust their operations to tackle otherissues after apartheid’s demise.M o r e o v e r, many of the most successful law-related operationsemploy a mix of strategies to achieve their goals. In societies asdiverse as India, A rgentina, and the United States, grantees haveintegrated legal approaches with community organizing, civiceducation, and media campaigns, operating at both grassroots andnational levels. In the process, they have developed sometimesunlikely allies to serve as critical partners in achieving their goals.The chapters in this volume also suggest that the eff e c t i v e n e s sof donors may be further enhanced by a willingness to providesupport that is flexible, sustained, and guided by the judgments ofgrantees themselves. More specifically, under the right circum-

8 IN T RO D U C T I O Nstances offering institutional support (covering such essentials ass a l a r y, office rent, and travel, etc.), and not only project support,can be a useful device. Grantees maintain that this flexible supporthas practical benefits. More narrow, donor-generated projects,although often a mechanism both grantees and donors usewell, can sometimes impose upon grantees a time-consuming andcounterproductive array of directions.Much significant social change happens slowly, challenginggrantees as well as funders to sustain their efforts over long periodsof time without balking at occasional setbacks. T h eFoundation has funded some grantees for several years beforetheir efforts were able to bear fruit. To the extent possible,Foundation personnel have sought to distinguish between thosefunding recipients who encounter problems because of insurmountable,internally generated obstacles, and the many otherswho exhibit considerable potential and just need more timeto build their capacities, adjust their operations, or achieveresults.Foundation law-related programming attempts to be guidedby the judgment of those on the ground, those closest to the problem.Grantees and the people they serve are typically in betterpositions than the Foundation to assess the opportunities andobstacles coming their way. At the same time, however, theFoundation has often been proactive in its grantmaking in suchareas as facilitating peer networking, urging strategic planning,encouraging staff and board diversity, and building bridgesbetween groups across organizational and geographical boundaries.C h apter Prev i ew s : Pa rt 1,Case Studies1 .Battling A p a rt h e i d ,Building a New South A f r i c aThe partnership between the Ford Foundation and law-relatedgroups in South Africa has been the most sustained—and, at itsheight, the largest—undertaking of Foundation law programmingoutside the United States. During the apartheid era, South A f r i c a ngrantees mounted successful court challenges that persuaded

A GU I D E TO TH I S VO L U M E 9judges to overturn key provisions of apartheid on the grounds ofregulatory improprieties. University-based institutes aided theantiapartheid struggle through a variety of activities that includedundertaking legal research, working with the labor movement,and organizing seminars that familiarized judges with humanrights perspectives. Scholars based at these institutes played keyroles in helping to develop the country’s interim and permanentconstitutions as apartheid was ending. With the transition tod e m o c r a c y, many new and continuing grantees have focused onsocial and economic rights, including land issues and the status ofwomen. The Foundation has further sought to help increaseaccess to the legal system by supporting university legal aid clinics—improvingstudent skills and client services, and ultimately,it is hoped, diversifying the legal profession.2 . From Dictatorship to Democra c y : Law and Social Changein the Andean Region and the Southern Cone of South A m e r i c aThe Foundation has supported law-related activities inA rgentina, Chile, Colombia, and Peru through thirty years of dramaticpolitical upheavals. After an early, largely unsuccessfulattempt to transform legal education using U.S. methodologiesduring the 1960s, the Foundation in the 1970s began to focus itsresources on local partners’ initiatives. In the wake of militarycoups and political violence, Foundation support first helpedendangered activists to find safe haven and intellectual independenceat institutions overseas. Later, human rights grantees mountedcourt challenges and documented abuses of these repressiveregimes, increasing international pressure on governments andproviding a historical record of violations. With the return ofdemocracy to Chile and A rgentina and with new programmingopportunities arising in Colombia and Peru, Ford in the 1990ssupported efforts to use law to address a broader variety ofissues—including government accountability, social justice, andenvironmental degradation. Grantees in the region have alsodeveloped innovative litigation strategies, including the use ofnew and previously ignored legal devices, suits to expand thel a w ’s boundaries, actions before regional tribunals like the Inter-American Commission on Human Rights, and effective media

1 0 IN T RO D U C T I O Noutreach to spread knowledge of significant cases in judicial circlesand among the wider public.3 . Rights into A c t i o n : Public InterestL i t i gation in the United StatesFord Foundation support for law work started in the UnitedStates in the late 1950s, with funding f o r legal education, indigentdefense, and legal services for the poor; it later focused on civilrights litigation on behalf of minorities, women, and immigrants.While grantees have employed a full range of strategies in theirlaw-related work, this case study limits its focus to litigatione fforts of Ford grantees during the last two decades. Despite itsdrawbacks, litigation has proven to be a powerful agent forchange in the United States. It has addressed racial discrimination,reproductive health rights, inequities in educational opportunitiesand school financing, voting rights, immigration policy,Native American treaty obligations, and many other issues. Wi t hchanges in the U.S. political climate, grantees developed legalstrategies to oppose attempts to dismantle civil rights protections.They also supplemented litigation with public education and communitymobilization efforts, and began to forge alliances withnew partners, such as business, academic, and community groupswhose activities complement courtroom efforts.4 . From the Village to the Unive rs i t y :L e gal Activism in BangladeshHigh rates of poverty and illiteracy in Bangladesh made thework of law-related grantees especially challenging and theire fforts and accomplishments that much more noteworthy. In theearly 1990s, the Foundation launched a public interest law initiativeto expand NGO legal services, engage the bar in such work,and establish clinical legal education programs at the country’sthree leading law schools. The long-term aim was to help build aconstituency for human rights and law reform. A key grantees t r a t e g y, adopted by a growing number of other NGOs, has beento use grassroots mediation outside the formal legal system, bothto address economic and physical abuse of women and to help thepoor resolve disputes. This approach employs community legal

A GU I D E TO TH I S VO L U M E 1 1education and other devices to reform traditional Bangladeshiproblem-solving forums, even as it utilizes them. On a nationalscale, grantees have won a string of high court victories regardingsuch issues as the environment, consumer rights, and policea b u s e .5 . Contributing to Legal Reform in ChinaWhen Ford launched its law grantmaking program in China in1979, the country was just starting to emerge from an extendedperiod of political upheaval that had effectively disabled the legalsystem for most of the 1960s and 1970s. In this environment, theFoundation helped to build a community of legal educators andscholars that could train future generations of lawyers and enablethem to acquire new ideas and perspectives for their own thinkingon institutional and legal change. It sponsored bilateral academicexchanges and supported over two hundred Chinese scholars frommajor law faculties to study or conduct research abroad. A sChinese legal reform has continued, that community of scholarshas made important contributions. Subsequent Foundation-supportedresearch has addressed concepts of human rights and specificreforms in criminal justice and administrative law that havebeen significant for Chinese citizens. In addition, grantees havecontributed to judicial reforms and to the training of judges,which emphasizes judicial skills and values and the appropriatefunctions of the courts. Carefully targeted Foundation funding hasalso supported some of the earliest efforts to develop legal services,pursue test case litigation, monitor and improve the implementationof laws, and launch university legal aid organizations andpractical legal education efforts.6 . Pa rt i c i p a t o ry Justice in the PhilippinesAfter the 1986 fall of dictator Ferdinand Marcos, PhilippineNGOs increasingly focused on social, economic, and environmentalissues. Legal services grantees known as alternative lawgroups (ALGs) have played key roles in this trend. Ty p i c a l l yworking in partnership with other NGOs and with communityassociations, they have effected scores of legal reforms in such

1 2 IN T RO D U C T I O Nareas as urban housing, land reform, gender violence, and indigenouspeople’s rights, and have helped get those reforms implementedon the ground. These grantees focus on grassroots eff o r t smore than traditional courtroom strategies, employing paralegaldevelopment and other community-oriented approaches thatstrengthen local associations’ capacities to participate actively inlegal processes and to deal with legal issues on their own. T h e yhave also helped prepare training curricula for judges and prosecutorsregarding violence against women, and trained both governmentpersonnel and citizens concerning issues surroundingdecentralization. The Foundation today funds ALGs under itslocal governance program, reflecting the nexus of accountability,citizen participation, and human rights.7 . Eastern Euro p e : Funding Strategies forPublic Interest Law in Transitional SocietiesIn building a public interest law movement in Eastern Europeafter the democratic changes of the late 1980s, Ford grantees areworking to overcome a great degree of what could be called legalnihilism. Under communism, domestic law was the tool of repressivestates to varying degrees, and human rights activists rarelyviewed the courts and legal system as a road to justice. T h eFoundation has worked with grantees to nurture public interestlaw groups that use new practices to expand public access to justice.Several approaches were undertaken to develop this newfocus and introduce activists in the region to additional resourcesduring its transition. As awareness of the law as a tool for socialchange has grown significantly in Eastern Europe, Ford granteesare now engaged in legal services, test case litigation, public legaleducation, and advocacy around such issues as ethnic discrimination,environmental protection, police brutality, domestic violence,and the rights of refugees, prisoners, and patients.University-based legal aid clinics that work with students are alsoin place. This case study examines the funding approaches usedby the Foundation in collaboration with its grantee partners infour Eastern European countries: the Czech Republic, Hungary,Poland, and Slovakia.

A GU I D ETOTH I SVO L U M E 1 3C h apter Prev i ew s :Pa rt 2,Thematic Pe r s p e c t i ve s8 .U n i ve rsity Legal Aid Clinics:A GrowingInternational Presence with Manifold BenefitsLaw school legal aid clinics serve many purposes: they off e rfree legal assistance for impoverished citizens, provide studentswith public service opportunities and practical legal skills, andbuild the profession of public interest law by encouraging studentsto pursue such work after graduation. Clinics have becomea fundamental part of the legal infrastructure in South Africa, andare expanding in India and South A m e r i c a ’s Andean Region andSouthern Cone. In Eastern Europe, new clinics are helping tobuild a generation of public interest law professionals. They havebegun to emerge in places such as China and Russia, as well.While individual legal aid remains a central task for clinics—inmany areas, they offer the poor the only free legal assistanceavailable—a growing number undertake more ambitious work.These clinical programs litigate high-impact or test cases, andwork with community groups to strengthen their legal knowledge,skills, and advocacy efforts.9 .Public Interest Litiga t i o n :An International Pers p e c t i veFrom Chile to Nigeria, Ford grantees outside the UnitedStates have worked to expand access to the courts and achievecourt victories for social justice causes. They have used litigationto document injustice and to expose the inequities of repressiveregimes. They have repeatedly gone to court to help implementconstitutional principles and laws, and they have struggled tointegrate international human rights norms into domestic law. Inthe course of that, they have fostered the development of newjurisprudence. Grantees often blend litigation with complementarypolitical and organizing strategies to maximize impact. T h i schapter illustrates the use of litigation as a social change strategyin Nigeria, India, and parts of Latin America, the Middle East,and Eastern Europe.

1 4 IN T RO D U C T I O N1 0 .N o n l a w ye rs as Legal Resources for Their Commu n i t i e sOne of the most promising innovations in law-related workaround the world is the increasingly widespread development ofnonlawyers as vital participants in efforts to ensure governmenta c c o u n t a b i l i t y, effective implementation of laws, and equitableand sustainable development. They often are paralegals—personswith specialized training and knowledge who provide importantlegal services to disadvantaged groups and frequently are membersof those groups. Or they may simply be community residentswho use the law collectively or individually to help themselves.Grantees train laypersons about the law for several reasons, themost basic of which is to build increased legal knowledge andskills within disadvantaged communities. Especially when coupledwith community organizing, and/or with mainstream developmentefforts regarding health, livelihood, or other issues,improvements in knowledge and skills can effect attitudinalchange and galvanize action on the part of the individuals andcommunities with which grantees work.1 1 . Laying the Gro u n d w o r k : Uses of Law-Related ResearchResearch can be a powerful tool for the pursuit of socialchange. Foundation-funded research efforts around the worldhave, for instance, helped substantiate the factual bases for highimpactlegal cases, demonstrated the need for law reform, contributedto policy development, laid the groundwork for new constitutions,and helped grantees galvanize public support for policyreform. University-based institutes have proven to be importantforces for such research and resulting change. In Latin A m e r i c aand then South Africa, they provided institutional shelters thatmade it more difficult for repressive governments to quash opposition.Research does not constitute a stand-alone strategy, but intandem with advocacy, litigation, and other tools, it can pave theway for social change and the advancement of human rights.1 2 .Weathering the Storm:NGOs Adapting to Major Political TransitionsBecause of the sensitivity of legal work in changing politicalcontexts, law-related nongovernmental organizations inevitably

A GU I D E TO TH I S VO L U M E 1 5u n d e rgo significant strain at some points in their histories.Whether NGOs survive times of upheaval depends in part on theirown adaptability and their donors’ patience and flexibility.Foundation grantees have persevered through dramatic changes ofgovernment (from military dictatorships to democracy, for example)as well as more orderly shifts in political climate. Along thew a y, they have reevaluated their goals and retooled their strategiesto take advantage of new opportunities, face new challenges,and address the changing needs of their constituents. This chapterdescribes some of the ways grantees have adapted to politicaltransitions or climate changes in Russia, Eastern Europe, Peru,A rgentina, South Africa, the Philippines, and the United States.• • •An undeniable lesson emerging from GLPLI is that one size doesnot fit all, whether for grantee efforts or for the donors that supportthem. Different organizations working under different circumstancesproceed along different paths toward such commongoals as promoting human rights and development. Strategies canand should vary, depending on time, place, and organization.Public interest law work will always be more a craft than ascience. The Global Law Programs Learning Initiative and thisbook are attempts to catch just some of the successes, challenges,and innovations in action. This informal investigation points tothe need for greater examination of the processes and results ofdiverse law-related efforts. Such study could only improve thatwork, expand its impact, and strengthen those who suffer underthe burdens of poverty, prejudice, exclusion, and injustice.

PA RT 1Case Studies

1Battling A p a rt h e i d ,Building a New South A f r i c aST E P H E N GO L U BFord Foundation grantees in South Africa have contributed to aseries of momentous undertakings. They challenged apartheid’slegal apparatus in the 1980s. During the democratic transition andpostapartheid era, they played vital roles in building a new SouthAfrica by helping to craft interim and permanent constitutions andto construct an equitable legal system amid the rubble of pastr e p r e s s i o n .As a foreign organization, Ford has properly played only asupporting role in the legal battles against apartheid and forreform—battles which themselves form just a part of the broadsweep of South A f r i c a ’s continuing national transformation.Nevertheless, financial support provided by the Foundationhelped launch and strengthen lawyers’ groups, university-basedbodies, and other NGOs 1 that challenged apartheid’s laws andcontinue to be crucial in consolidating a vibrant democracy.Certain consistent goals and values run through Ford’slaw-related grantmaking in South Africa. This effort made itsfirst significant mark in 1973. By 1993, it had an in-country presencewith the opening of the Foundation’s South Africa office.As former Foundation President Franklin Thomas recalls,“ We were helping to reinforce black South A f r i c a n s ’ notionthat they had rights, that they could go to court, and thatthey could get a favorable court ruling enforced. T h a t ’s nosmall thing in a country that tells you you’re a non-person.”1 9

2 0 CA S E ST U D I E SThis grantmaking has been part of an ongoing stream of “promotinghuman rights, a human rights culture, and the rule of law, ”notes South Africa Program Officer Alice Brown. The programhas flowed within that stream, she explains, even as it has evolvedfrom helping to “fight apartheid in the 1980s to . . . working in amore targeted way today on diversity, gender, land issues, andsocial and economic rights.”This chapter by no means encompasses all of Ford’s variedfunding in South Africa. Law-related grantmaking has in factbeen a pillar of Foundation work there, but other programs havesupported higher education, community development, landreform, microenterprise development, natural resources management,and governance, sometimes in ways that have fruitfullyinterfaced with law grants. Nor does this chapter review the entirelaw-related grantmaking program. It focuses on three key areas ofsupport. They are public interest litigation, clinical legal education,and a range of policy research, advocacy, and other activitiesprimarily carried out by university-based institutes. Aside from afew more relevant exceptions, this chapter does not detailg r a n t e e s ’work in other important legal arenas, such as labor andland issues, individualized legal aid, mediation, grassroots legaleducation, diversifying the legal profession, and exporting modelsof law-oriented work beyond South Africa.The chapter unfolds in two stages. The main body presentsthe context and evolution of the Foundation’s law program inSouth Africa, emphasizing the three foci and identifying possiblelessons springing from Ford’s and grantees’work. The concludingsection sums up relevant changes in South Africa, the contributionsof Ford and its grantees to those changes, and some of thepotentially useful insights that have emerged from that experien c e .Building a Public Interest Law Move m e n tThe racial classifications and related repressive mechanismscollectively known as apartheid imposed harsh realities on mostSouth Africans. Apartheid denied the black 2 majority of the popu-

SO U T H AF R I CA 2 1lation the right to vote for the national Parliament, and to own oroccupy most land. Devices such as the notorious “pass laws”(named for identification documents, or “passes”) severelyrestricted their freedom of movement and residence rights. T h egovernment further enforced racial separation by such nominallylegal measures as displacing entire communities, demolishingunauthorized dwellings without notice or court order, and creatingartificial “homelands” for indigenous Africans (people of originalAfrican ancestry). Segregation and racially biased spending condemnednonwhites to vastly inferior public amenities, services,and education, where these were accessible at all.Security laws and actions were equally egregious. Under thecloak of its own distorted notion of legality, the government regularlydetained individuals indefinitely without trial. It regularlybanned publications, organizations, and meetings, and conductedwarrantless searches. The courts had no power of judicial reviewregarding acts of Parliament. In any event, they tended to viewrepressive legislation sympathetically. Finally, widespread off i c i a lbrutality was accorded impunity, and worked hand-in-glove withthese ostensibly “legal” vehicles.In two key respects, however, it would be misleading to paintapartheid and its oppression literally in terms of black and white.Apartheid classified the population in terms of four racial groups:White, Colored (mixed race), Indian, and African. The systemfurther divided the African population into ten actual or potential“nations” along ethno-linguistic lines. Such classificationsallowed the regime to maintain that the “white nation” was larg e rthan most black ones.Furthermore, apartheid enforced economic as well as racialinequities. The regime preached and practiced a policy of “separatedevelopment,” to the detriment of all blacks. It further aimedto relegate indigenous Africans to homelands, in terms of residenceor at least (for the many who worked for white businesseselsewhere in the country) citizenship. These homelands generallylacked natural resources, sophisticated commercial activity, andjob opportunities.Even under such circumstances, the ruling National Party(NP) government and the courts ironically boasted of upholding

2 2 CA S E ST U D I E Sthe rule of law. NP members of Parliament claimed in the 1980sthat “the South African administration of justice and the judicaturestand out as a symbol of hope and confidence” and that“every citizen of this country is assured that, whatever offence hecommits against the laws of this country, he will have a fairt r i a l . ” 3 The irony proved to be twofold as this distorted notion ofthe rule of law provided limited openings that Ford grantees andtheir allies eagerly exploited.Though South African public interest law achieved a kind ofcritical mass in the 1980s, its roots reach back at least to the1950s. Before Ford became involved other organizations wereactively using the law to oppose apartheid. The Treason Tr i a lDefense Fund enabled attorneys to successfully defend 156 antiapartheidactivists, arrested in 1956 for alleged high treason, in atrial that dragged on until 1961. Established in 1960, the SouthAfrican Defense and Aid Fund (SADAF) initially focused onexplicitly political cases, but later supported other civil and criminallitigation pertaining to apartheid. After the governmentbanned SADAF in 1966, the London-based International Defenseand Aid Fund quietly channeled external assistance to SouthAfrican lawyers fighting apartheid.Such efforts were not confined to trial work. Long beforebecoming a Ford grantee in the 1980s, the NGO Black Sash Tr u s tprovided legal advice to the population and protested unjust raciallegislation. It was among several organizations that addressedapartheid-specific problems, access to government services, andother civil and criminal matters. Where necessary, such groupstried to connect indigent clients with volunteer lawyers or to theg o v e r n m e n t ’s underfunded legal aid program.These endeavors were more than Band-Aids, but far less thana cure for South A f r i c a ’s grave legal ills. Limited pools of funds,o rganizations, and sympathetic lawyers made for a shreddedpatchwork of access to justice efforts. Black Sash Tr u s tChairperson Sheena Duncan recalls that “while we could getpolitical offenders represented,” the organization was unable toget pass laws, forced removal, and similar cases taken to court.No lawyers’ group addressed apartheid’s legal pathology in acomprehensive manner.Although the Foundation previously had engaged with pro-

SO U T H AF R I CA 2 3gressive South Africans, a Ford-funded 1973 conference on“Legal Aid in South Africa” became what many considered awatershed event. The conference at the law school of theUniversity of Natal-Durban (hereafter University of Natal)included experts on legal services and clinical legal education inthe United States, as well as South Africans like Duncan whowere or would become leading human rights activists. Conferencec o - o rganizer David McQuoid-Mason reports that the event “definitelycontributed to the growth of law clinics and new ways ofdoing legal aid here.” Two other participants, John Dugard andFelicia Kentridge, went on to help found two organizations thatwould figure in the fight for justice. Dugard helped launch theCentre for Applied Legal Studies (CALS) and Kentridge theLegal Resources Centre (LRC). Dugard views the meeting as “thestart of the idea of public interest law” in his country.One participant’s closing comments, unanimously adopted asa conference policy statement, proved particularly prescient.Sidney Kentridge, a leading commercial and progressive lawyer,noted that “we do have principles of common law which we caninvoke” to prompt landmark judicial decisions, despite parliamentarylegislation being beyond judicial review. 4 And he proposedthe formation of a South African version of the U.S.-basedL a w y e r s ’ Committee for Civil Rights Under Law—whose executivedirector had addressed the meeting—to carry out reformorientedresearch. Eventually, CALS, LRC, and other granteeswould adopt the approach identified by Sidney Kentridge. T h econference organizers and Ford did not foresee this. What theydid see and seize was the chance to bring together many of thec o u n t r y ’s best progressive legal minds, and to add some foreignintellectual seeds to those already germinating domestically.The seeds planted at the 1973 conference sprouted slowlyover the next several years. Their growth was spurred by the gover n m e n t ’s violent response to uprisings in Soweto and other blacktownships in 1976, and by the gathering storm of the antiapartheidliberation struggle. They were partly fertilized by theF o u n d a t i o n ’s decision to support South African reform moreactively in the late 1970s, by similar initiatives by the CarnegieCorporation and other donors, and by various visits that exposedSouth Africans to U.S. public interest law. “People were very

2 4 CA S E ST U D I E Sexcited by what was going on the United States,” recalls LRCcofounder Geoff Budlender.The Carnegie Corporation helped Dugard and others startCALS at the University of the Witwatersrand in 1978. Ford andthe Rockefeller Brothers Fund also provided early and ongoingsupport to this legal research and advocacy institute. The followingyear Felicia Kentridge and Ford mobilized individuals anddonors to help launch LRC, the country’s first public interest lawfirm, under the leadership of National Director A r t h u rChaskalson, already a preeminent commercial and human rightsl a w y e r. Chaskalson proved vital in recruiting other legal luminariesto LRC’s board of directors. This ensured a degree of toleranceby a conservative legal establishment and insulated thegroup against government intervention. Both within and outsideSouth Africa, where government or bar opposition looms, theinvolvement of prestigious legal talent sometimes protects politicallycontroversial groups. 5Flexible core support from Ford and other sources helped LRCand CALS adapt to evolving circumstances. Budlender praises theapproach: “Once funders pick an area in which they’d like to beactive, [they should] bank on ideas and people [who know thecountry best, and] choose key individuals and institutions and supportthem in what t h e ywant to do. Most funders come to you with aplan and you have to shift and move to accommodate them.”While South Africans deserve the credit for launching thesetwo groups, a related evolution in Foundation thinking does meritmention. Former Ford Vice President William Carmichael notesthat the Foundation’s Latin America program had long beforeabandoned any assumption that “our natural client is the host government.”The Foundation’s other overseas programs were comingto this point of view by the late 1970s. In South Africa,c e r t a i n l y, reform-minded elements would be found almost exclusivelyin civil society.Taking On A p a rt h e i dThe birth of CALS in 1978 and LRC the following year coincidedwith the start of the period historian Leonard T h o m p s o n

SO U T H AF R I CA 2 5dubbed “apartheid in crisis.” A plethora of problems plaguedapartheid. These included faltering economic growth; expensivemaintenance of the system’s multiple racial administrative structures;backlash from the brutal repression of the 1976 uprisings;and growing concern among whites (some altruistic, some selfinterested)about apartheid’s viability. Factors also included pressurefrom the ANC, the Pan African Congress, and other oppositiongroups; intensifying international isolation; a failed homelandspolicy; and an ever increasing racial imbalance due to whiteemigration and rising black birth rates.Against the dismal backdrop of the late 1970s Ford aimed, inC a r m i c h a e l ’s words, “to help black South Africans use the peculiarspace allowed by the country’s constitution to empower themselves.”Grants were made for projects where law could be a vehiclefor justice rather than just repression, helping to pave the wayfor a more democratic South A f r i c a .Foundation grantees contributed to the mounting reformistpressure by utilizing apartheid’s legal system to address and illuminateits inequities. LRC, CALS, and their allies seized on thefact that though acts of Parliament were beyond judicial review,government ministries’ implementation processes and regulationswere not. As described below, they attacked apartheid by exploitingthe system’s internal contradictions.L i t i gation at the Appellate Leve lThe pass laws were initial LRC targets. These embraced bothacts of Parliament, which were beyond judicial review, and ministerialand local implementing regulations, which could be judiciallychallenged. Their many restrictions included barring blacksfrom residing in white towns and cities unless employed there,and prohibiting family members from living with such employees.LRC successfully tackled the second provision in the 1980K o m a n i case. It represented a black woman whom local authoritiesprohibited from joining her husband in Cape Town, where helegally worked and resided. The case did not challenge the underlyingBlack (Urban Areas) Act restricting black residence in whitezones, because it was an act of Parliament. Rather, LRC convincedthe Supreme Court that the act granted the authorities no

2 6 CA S E ST U D I E Spower to issue regulations barring a wife from living with herhusband under these circumstances.LRC built on its K o m a n i victory through an appeals case onbehalf of a black person claiming permanent residence rights inJ o h a n n e s b u rg. The basis was a legislative provision that grantedsuch status to anyone who worked for one employer continuouslyfor ten years. To frustrate realization of this right, the governmenthad adopted a regulation limiting job contracts under these circumstancesto one year. It therefore argued that ten years ofsteady employment were not, under the law, continuous. In the1983 Rikhoto case, however, LRC persuaded the Supreme Courtthat a regulation could not negate a right granted by an act ofParliament, and that the substance (of ten years’ employment) wasmore important than the form (of a series of contracts).What was the upshot of the two cases? As Richard A b e lwrites in Politics by Other Means, his landmark study of antiapartheidlegal activism, “Although K o m a n i a n d R i k h o t o c e r t a i n l ywere not the only causes, they did contribute to the gradual dismantlingof the explicitly racist laws regulating movement.” 6 I n1986, for example, the government repealed the pass laws andnumerous related acts.Despite its origins as an institution devoted to legal research,policy advocacy, and capacity building, CALS also played trailblazingroles regarding public interest litigation. In the 1985 O rrcase, its attorneys represented a government doctor in asking thecourts to bar police abuse of prisoners in the Eastern Capeprovince. Buttressed by medical records the doctor had collectedthere, which documented rampant torture of detained antiapartheidactivists and others, CALS won a Supreme Court orderprohibiting the practices. The fact and allegations of abuse werenothing new in South Africa. What was new was the documentationby a white doctor employed by the government, and the lawsuitthat helped focus national and international attention on theissue. It resulted in a front-page article in the New York Ti m e s a n dongoing coverage by South African newspapers.O rr certainly did not end torture by South African securityforces. But it did demonstrate how skillful use of media could furtherlitigation and, for that matter, many other public interest lawe fforts. Abel concludes that the case created a situation in which

SO U T H AF R I CA 2 7“judiciary and media reinforced each other: litigation created anuncensored space within which the press could criticize securityforces; newspapers returned the favor by extolling the courts asthe last bastion against tyranny.” Although the police did not haveto fear punishment, he writes, “mere publication of the torturesignificantly curtailed their power.” It undermined their ability tooperate in the shadows, and bolstered detainees’ will to resistabuse. In A b e l ’s words, “Sunlight was the real deterrent.”One issue in which both CALS and LRC became embroiledwas that of the incorporation of indigenous Africans into so-calledethnic homelands. The brutal logic of the policy was to demarcateartificial entities in poor pockets of the countryside; eventuallygrant them nominal independence; revoke South African citizenshipfor persons living in or otherwise associated with them; andcreate a white majority South Africa that monopolized mineralsand related wealth. Aided by CALS, the residents of the communityof Moutse successfully challenged incorporation into whatwas to be the fifth independent homeland, KwaNdebele. In the1988 M o u t s e case, CALS ironically appealed to one of the basictenets of apartheid: ethnic exclusion. It won before the SupremeCourt by arguing that Moutse’s residents were ethnically and linguisticallydistinct from the rest of the homeland’s population.The M o u t s e case, coupled with a subsequent LRC Supreme Courtv i c t o r y, helped turn the tide against the creation of new homela n d s .The appellate victories of LRC, CALS, and their allies restedon a common strategy. They did not press judges to cut downapartheid as such. This would have failed. Rather, they exploitedthe courts’ partial independence and rule of law rhetoric by focusingon narrower issues: that the South African and KwaNdebelegovernments had exceeded their authority to interpret and implementacts of Parliament, for instance. In Dugard’s words, “Thejudiciary h a d a level of independence, but hadn’t used it due toself-imposed subordination.” CALS and LRC probed the intersticesof apartheid’s legalistic self-delusion to undermine thatself-imposed subordination. They took what victories they could,holding their tongues in court on the system’s grand injustice andinstead illuminating its regulatory improprieties.Why didn’t Parliament overturn these judicial victories? T h e

2 8 CA S E ST U D I E Sanswer is circumstance as much as strategy, but even this mayhold a lesson. When court decisions illuminated incontestablemoral issues, such as torture or family unification, they increasedthe mounting domestic and international pressure for the governmentto abide by its own rule of law rhetoric and to explore alternativesto apartheid.L i t i gation on the Gro u n dThese landmark appellate victories by LRC and CALS werelaudable, even historic. But they are best understood as part of al a rger effort involving community activists, paralegals, and antiapartheidNGOs. Community-based organizations (CBOs) 7 w e r eat the heart of M o u t s e and many other cases. Black Sash referredboth the K o m a n i and R i k h o t o p l a i n t i ffs to LRC. The two casesrepresented thousands of similar pass law problems, as well asmany thousands of other apartheid-generated legal diff i c u l t i e s ,that Black Sash and the broader paralegal movement helpedSouth Africans address.L R C ’s Budlender emphasizes that “Black Sash was our eyesand ears regarding pass laws and forced removals.” It and othero rganizations identified trends in legal problems and needs, andturned up clients best suited for impact litigation. Yet Budlenderwould be the first to admit that Black Sash’s functions did andstill do extend far beyond finding litigants. Along with otherNGOs, some Foundation funded, it trains and advises paralegalsfrom CBOs across the country. Such paralegals, and the staffs ofBlack Sash and other groups, annually handle many thousands oflegal problems that need not go to court—grievances subject toadministrative redress, for example. Where paralegal workreveals systemic shortcomings, these organizations often convertwhat they learn into policy reform proposals.Chaskalson, former LRC national director and now presidentof the new democracy’s Constitutional Court, offers an additionalinsight regarding legal advocacy: “Legal implementation is crucial.We had hundreds of follow-up cases to R i k h o t o, due to resistanceby boards and bureaucrats who would not enforce the decision[which, under the old Constitution, lacked precedential

SO U T H AF R I CA 2 9value] because of minute differences between cases.” Black Sashand other groups pursued many more on their own, throughadministrative avenues. Even in the face of such follow-up, governmentcompliance with this and other Supreme Court decisionswas far from complete. But had these organizations not doggedlysought compliance, and had the Foundation and other donors confinedsupport to high-profile cases, they would have won theappellate battle and lost the pass law war.Budlender stresses the value of selective “impact” litigationon an appellate level and follow-up compliance cases that pushthe government to implement high court decisions. But he alsoappreciates high-volume “service” litigation that more broadlyseeks implementation of favorable laws, even if it does not hingeon appellate rulings. “Service work is important because youlearn a n d you implement. And it keeps a lawyer from becomingtoo ‘smart’ or remote. The focus must be on changing social andmaterial conditions on the ground.”One of Budlender’s few regrets regarding LRC is that it failedto build a network of private practitioners that would haveexpanded the pool of legal talent available for such “on theground” advocacy. That network could have, among other activities,litigated against enforcement of unjust laws. In an instancewhere CALS mobilized private lawyers to contest trials of blacksarrested under the Group Areas Act for living illegally in “whitesonly” zones, the resulting prosecutorial workload helped force thegovernment to abandon enforcement.Viewed most broadly, litigation was part of a political strugglewaged on several levels. To various degrees in Moutse a n drelated litigation, the Transvaal Rural Action Committee, theNational Committee Against Removals, and Black Sash helpedmobilize the local population, and conducted national advocacyand publicity drives. Chris Landsberg of the Centre for PolicyStudies considers LRC’s antiapartheid service work “crucial” notjust in terms of defending detainees, but because it served as aliaison when the authorities denied families news about or accessto imprisoned activist relatives. W h a t ’s more, as former FordProgram Officer Aubrey McCutcheon points out, the lawyers’ l i t i-gation and policy work would not “have had success if it had not

3 0 CA S E ST U D I E Sbeen for the fact that they chose issues and aspects of the ‘struggl e ’ that already had great momentum within the mass liberationmovement.” An essential lesson of the pass law cases, saysRichard Abel, was that “judicial victories are embedded in politicalstruggles; they are neither self-realizing nor self-eff e c t u a t i n g ;appellate decisions are the beginning of the fight, not the end.” 8As these dramatic disputes unfolded, Ford’s South Africa staffwas of necessity based at its New York City headquarters throughthe 1980s, 9 but remained heavily engaged with the law programand other activities in South Africa. They would visit frequently,for twenty or more person-weeks per year, often for about threeweeks at a time. Though the Foundation generally prefers itsoverseas programming to be field based, its South Africa stafffound that regular and lengthy visits enabled them to make fundingdecisions with confidence in their judgment and theirg r a n t e e s . 1 0 They would discuss progress and problems withgrantees, explore potential programming opportunities, generallyassess the evolving lay of the land, and encourage grantees asthey labored under trying circumstances.Such encouragement was appreciated by LRC, for example,because the group encountered both government opposition—reliable reports indicated that some officials considered LRC acommunist front and contemplated banning it—and because itsstrategic litigation was the subject of some initial progressivescorn. There were those involved in the antiapartheid strugglewho felt that such work legitimized the courts’ i n s t i t u t i o n a l i z e dracism, and opposed LRC’s and CALS’s efforts in this regard. Forexample, the then-exiled opposition lawyer (and currentConstitutional Court Justice) Albie Sachs initially questionedL R C ’s reformist orientation, “because I feared that people wouldsee it as an alternative to the political struggle.” He and manyother skeptics later came to support this work.It would be an overstatement to place NGO lawyers at theheart of the struggle that brought down apartheid. Larger forceswere at play. And other individuals and organizations took greaterrisks. Still, time revealed the value of recognizing the authority ofthe courts in order to help undermine the foundations ofa p a r t h e i d .

SO U T H AF R I CA 3 1U n i ve rsity-Based Reform CentersCALS was by no means involved only in litigation. Likeother university-based institutes supported by Ford duringapartheid, it also was heavily engaged in legal research, otherapplied research, policy formulation, and building partner org a n i-z a t i o n s ’ capacities. As with litigation, these grantees rarely operatedin isolation. They often were part of informal or formal coalitionsorganized around important issues. Former Program Off i c e rMcCutcheon coined a term that best summarizes their roles:“reform centers.”These centers proved to be significant sources of documentationfor foreign law professors, policy analysts, and broader internationalaudiences engaged in antiapartheid activism. Their contributionsin these regards ranged from CALS’s analyses ofa p a r t h e i d ’s legal structure to a University of Cape Town (UCT)Institute of Criminology study that documented torture ofdetainees, coincidentally lending weight to LRC’s allegations inthe O rr case. These roles were noteworthy, especially given thatfor much of the 1980s the United States, Britain, and other influentialnations backed the South African regime’s self-reformings e l f - p o r t r a i t .C A L S ’s “justice and society” conferences approached humanrights protection from another angle. The idea first came toDugard in 1982 when he attended one of a series of A s p e nInstitute seminars that brought South African jurists to the UnitedStates. Partly with Foundation support, he launched an annualseries of similar conferences in South Africa the following year.Forty to fifty judges and progressive lawyers each year discussed,among other topics, how judges could interpret law in favor ofhuman rights. The conferences brought together an array of perspectives.“No point in getting people to preach to the converted,”Dugard noted. The conferences also probably represented the firsttime that some judges had met black lawyers and other reformistattorneys outside of court. While the impact of the meetings isd i fficult to ascertain, Dugard feels that they contributed to progressivedecisions by a number of judges who participated.Regardless, they hold instructive value as a model of how anNGO can possibly influence courts without taking a case to trial.

3 2 CA S E ST U D I E SUniversity-based institutes played particularly wide-rangingroles in assisting black South A f r i c a n s ’ most organized andimportant domestic political force: the labor movement. Seekingto control and regulate illegal and increasingly disruptive blacktrade unions, Parliament passed the 1979 Labor Relations A c t .This allowed unions to organize, register, strike, and take disputesto industrial courts. Though the government did not see them assuch, unions were potentially powerful agents of democraticchange. As part of a broad effort to strengthen them, theFoundation provided funds in 1980 for CALS to establish a LaborLaw Project. CALS in turn helped launch two other Ford-funded,l a b o r-oriented bodies in the mid-1980s: the Centre for Socio-Legal Studies at the University of Natal and the Labor Law Unitat UCT. 11Ford support for the labor movement might have seemedcounterintuitive in certain respects, since union members werebetter organized and better paid than most South Africans. Butworking conditions in mines and other locations were abysmal,and pay was pitifully low in an absolute sense. Of even greaterimportance, the unions represented a crucial opportunity to introduceblacks to democracy and the rule of law in a society thatpracticed neither, while strengthening organized opposition toapartheid. As City University of New York (CUNY) law professorPenelope Andrews says in her evaluation of the three reform centers,“No democratic channels for voicing dissent existed anywhere,except in the trade union structures, and to a lesser extent,the church.” 1 2Andrews concludes that the three centers’ most significantcontribution to labor “was the crucial negotiation skills that wereimparted to trade unionists.” By helping to build the unionists’skills and legal knowledge through training and advice, the centersenabled them to make use of the law. On the policy level,unions banded together to persuade the government to repeal thecontroversial 1988 Labor Relations Act. And through a kind ofparalegal training, shop stewards learned how to handle day-todaydisputes such as unfair dismissals.The centers also won notable court victories for both unionsand individual members, and made labor an important arena forlegal practice and instruction. Numerous conferences and scores

SO U T HAF R I CA 3 3of publications contributed to labor relations, law, and scholarship.Policy research and formulation were key parts of the mix.CALS studied other countries’ laws regarding unfair labor practices,industrial health and safety, and other issues, and workedwith the International Labour Organization to help integrate internationalstandards into South African law. This blend of activitieseventually contributed to a labor-management culture that includedsome consensus about the values of collective barg a i n i n g ,political stability, and economic growth. South A f r i c a ’s laborscene might have been much more chaotic and counterproductivein the 1990s if union leaders had not worked with reform centersin the 1980s. And the centers’assistance helped unions cut larg e rslices out of apartheid’s inequitable economic and political pies.The array of activities CALS undertook, notes A n d r e w s ,proved to be mutually reinforcing. Innovative litigation supportedby solid research, publications on labor law, and the educationand training of law students, lawyers, and trade unionists allhelped labor leaders set their priorities, which in turn shapedC A L S ’s further work.Building a New South A f r i c aAturning point in South African history came early in 1990,when the government revoked its ban on the African NationalCongress (ANC) and other liberation groups. It removed restrictionson numerous other organizations and freed a host of politicalprisoners, most notably ANC leader and future South A f r i c a nPresident Nelson Mandela. Operating in this more hospitable climate,the Foundation expanded its assistance to institutions thathave contributed both dramatically and subtly to the new SouthA f r i c a . 1 3C reating a New Constitutional StructureFord support for relevant research and conferences helpedimportant ANC figures and other South Africans contribute toshaping the country’s new interim and permanent constitutions,which were respectively adopted in 1994 and 1997. Through a

3 4 CA S E ST U D I E Smodest 1989 grant to London’s Institute for CommonwealthStudies, for example, exiled ANC Legal and ConstitutionalA ffairs Committee (LCAC) member Albie Sachs was able toresearch constitutionalism in South Africa. He returned home andcontinued his work. Along with other individuals and org a n i z a-tions, Sachs advocated a Bill of Rights that was substantiallyincorporated into the two constitutions.The 1990–1994 transition to democracy enabled theFoundation to provide broader, in-country support for constitutionalstudies, some carried out by returning exiles. Ford accordinglyfunded the University of the Western Cape (UWC) to hostseveral other members of the LCAC. While affiliated with UWCfor research purposes, in their private capacities they served assenior members of ANC teams negotiating constitutional andlegal aspects of the transition with the government and other bodies.At UWC’s Community Law Centre (CLC) and other units,they were afforded “time and resources to think through policiesin connection with negotiations on the constitutions,” says CLCDirector Nico Steytler. The UWC base also facilitated their meetingwith international jurists, through the Southern Africa Projectof the U.S.-based Lawyers’ Committee for Civil Rights UnderL a w, and with community groups who helped ground theirresearch in grassroots realities. The community contact served theadditional purpose of putting formerly exiled leaders in touchwith the South Africa they had been forced to leave.CLC undertook research, publications, and conferencesfocusing on issues including the planned Bill of Rights. It lookedat local, regional, and national governance, judicial authority,w o m e n ’s and children’s rights, and ways of reintegrating thebogus homelands into South Africa. CALS similarly playedimportant policy-oriented and political roles during the transition.It assisted ANC discussions and negotiations regarding the Bill ofRights, the new constitutions more generally, and the implementingregulations required by the interim constitution.Foundation-supported international conferences also facilitatedconsideration of imminent constitutional change. Meetings inthe United Kingdom and the United States in the early 1990sbrought together prominent South Africans and other participantsfrom across the political spectrum to discuss the rule of law and

SO U T H AF R I CA 3 5constitutionalism in a postapartheid South Africa. Many of thesepersons had never met before, or had done so under highly adversarialcircumstances.Expanding Fo c u s : Social and Economic RightsIn addition to laying a constitutional foundation, building anew South Africa has involved grappling with apartheid’s harmfullegacies and seizing new opportunities presented by a relativelyresponsive government. What directions would public interest lawtake in a postapartheid state? As McCutcheon puts it, “The newconstitution would come into place. Would law be used as a toolfor advancing social and economic ends, or would it just be politics?”An early exploration of this question took place at a Centerfor Constitutional Rights symposium in New York, where SouthAfricans and public interest law groups came together in 1992 toassess the next steps for their work.With the rise of democracy and demise of apartheid in the1990s, South African organizations and funding sources (includingFord) have focused work on the formulation and implementationof progressive laws, rather than challenging an unjust system.Though significant civil and political rights violations remaint o d a y, Foundation grantees and other groups continue to battleproblems such as widespread police brutality, for instance—theyare no longer condoned by the government. The broader threats top e o p l e ’s well-being and democracy’s health are in the social andeconomic spheres.In keeping with these realities, the LRC now focuses more onland, gender, and social service issues. In 1998, for example, itnegotiated a landmark settlement for twenty-five hundred familiesseeking return to, or restitution for, land from which they wereevicted under apartheid. One LRC field office successfully challengeda municipal pension scheme that was biased againstwomen; drew on client and NGO contacts to identify and take ona debt collection agency that operated illegally; and helped to getthe practice of debtor imprisonment declared unconstitutional.Over a recent eighteen-month period, typically without going totrial, another office helped gain redress for two thousand recipientsof disability, pension, and child assistance grants whose pay-

3 6 CA S E ST U D I E Sments had been reduced or delayed for months or years by a corrupt,complex bureaucracy. It still handles or monitors particularlysignificant police brutality cases, but also recognizes that off i-cial investigations and private lawyers (bringing damage suits)can help address this problem.The Foundation’s law-related grantmaking adjusted to newrealities in South Africa with targeted support for specific socialand economic initiatives, according to Program Officer A l i c eBrown. In the area of women’s rights the Foundation has workedwith an array of established and new grantees, including CALS’sGender Research Project (GRP), also supported by the CarnegieCorporation. As one of the only National Wo m e n ’s Coalitionmembers with legal expertise, GRP contributed to the successfulstruggle to prevent customary law, which in some respectsaccords women lower legal status, from being exempted fromequal treatment provisions of the final constitution. As a memberof the Reproductive Rights Alliance, it has worked successfullyon constitutional and legislative levels and pursued test case litigationto promote women’s freedom of choice. Activities of amore recent grantee, the National Institute for Public Interest Lawand Research (NIPILAR), have included serving as the legal armfor NGO coalition efforts that helped ensure the government’s1995 ratifications of the Convention on the Rights of the Childand the Convention on the Elimination of All Forms ofDiscrimination Against Women.The Foundation was instrumental in the creation of the firstnational NGO to focus exclusively on law reform, advocacy, publiceducation, and training related to gender violence. Ford identifiedand funded two South African activists, Joanne Fedler andMmatshilo Motsei, to conduct field research in South A f r i c a ,other African countries, the United States, and Canada. T h e i rstudy led to the 1997 launching of the Tshwaranang LegalAdvocacy Centre to End Violence Against Women. Foundationpersonnel also facilitated networking and capacity building forthe new group. According to Fedler, “There was lots of encouragement,providing contacts and attending to details, helping usto find people involved with similar work both within and outsideof South Africa, and then assisting Tshwaranang to find additionalsources of funding.”

SO U T H AF R I CA 3 7In contrast to their valuable exposure to other African nations,Fedler notes that their western visits led the two to conclude that“solutions that exist in First World countries are totally inappropriatefor our situation here,” citing detailed written informationand telephone hot lines. (Many members of this NGO’s targ e taudience are illiterate and without telephones.) Motsei adds that itwould have been better for the study’s fieldwork to have concentratedexclusively “on Africa, with e-mails and Internet searchesfor the United States and Canada.” In a related vein, Budlenderand others feel that greater contact with non-Western NGOswould be valuable for South A f r i c a n s .Because land tenure and natural resources management aretwo of the other main socioeconomic concerns with which Ford’sSouth Africa office is increasingly grappling, there is growingcollaboration between Brown and Ford Program Officer JamesMurombedzi, whose portfolio covers these two fields. He is supportingLRC’s Housing Unit, for example, and the two are cofundingland-oriented work by CALS and the Centre for RuralLegal Studies at Stellenbosch University. This builds on severalyears of cross-program collaboration. Such cooperation maximizesefficient use of resources. It also helps program off i c e r swith different kinds of expertise share insights and experiencesregarding both specific grantees and the fields within which Fordpersonnel work. Thus the Foundation can more easily respond toSouth Africans in handling challenges that cut across its programcategories.With such interdisciplinary work in mind, an additional stepmight be to identify fortuitous grantee overlaps and facilitateinformal grantee contact across the Foundation’s grantmaking categories.(Considerable intraprogram facilitation, both formal andinformal, already takes place.) University of Natal Legal A i dClinic Director Asha Ramgobin notes that she learned only bychance of a Ford-funded microenterprise policy project elsewhereon campus. The irony is that microenterprise development is afocus of her clinic’s work. Such overlaps among grantee eff o r t sare common to many donor programs. While it might be counterproductiveto set up burdensome systems for tracking such overlaps,greater informal attention to them could benefit donor andgrantee efforts alike.

3 8 CA S E ST U D I E SBuilding a New Legal Pro f e s s i o n : Clinical Legal EducationAnother important prong of Foundation activity has pertainedto clinical legal education programs. Based at law schools, theseblend practical classroom instruction with “law clinics” throughwhich supervised law students provide legal advice to individuals.(In South Africa, students are not permitted to represent clients incourt.) Ford began supporting South African law clinics in the late1980s. It expanded its engagement in the 1990s to a total of eightout of the twenty-one law clinics in the country. Six of these, dueto their racial compositions, received disproportionately littlegovernment funding under apartheid. The Foundation has endedthis broad assistance after a decade of support, providing a larg egrant that enables the Association of University Legal A i dInstitutions (AULAI) to selectively fund clinics’ individual andcollective proposals. But Ford has remained open to assisting thepredominantly black law schools, which generally remain short ofresources.The legal aid clinics serve four primary goals. These are tosupplement and complement other indigent legal services; toimprove legal education by providing practical skills and experience;to encourage students to pursue public interest law careers,thereby enlarging and strengthening the public interest bar; and toincrease the number and skills of black legal professionals. T h eclinics take varying approaches. Most build on practice-orientedclassroom instruction to develop students’ legal skills while servinglow-income or indigent individuals from surrounding communities.Some have periodic outreach sessions in those communities.More typically, though, they offer “walk-in” clinics oncampus, where individuals seek help regarding a wide range oflegal issues such as government benefits, contracts, and family,l a b o r, criminal, and customary law. A crucial element in successfuloperations is careful supervision of students. To be most usefuland effective, students want and need opportunities to immediatelyseek advice from supervisors, even in the middle ofmeetings with clients.A significant exception to the rule of individually orientedand broad spectrum client work is found at the University ofNatal clinic. Like the others, it trains students regarding general

SO U T H AF R I CA 3 9legal skills. But based on consultations with CBOs, Ramgobin hasset up three units for the bulk of the clinic’s work. These areadministrative and juvenile justice (police brutality, juveniledetentions); gender and children’s rights (domestic violence, customarylaw issues, maintenance); and what she calls “developmentlaw” (access to land and housing, legal issues confrontingsmall and microenterprises).The Natal clinic also builds CBOs’ legal capacities wheneverpossible. The clinic has represented groups of small businesses innegotiating rent and upkeep with the quasi-governmental corporationsthat are their landlords, while familiarizing these groupswith laws and processes they can utilize on their own in thefuture. The University of Natal approach also differs from otherclinics in the impact it seeks to have on students. Ramgobin characterizesthis as “trying to get students to redefine what thinkinglike a lawyer is. . . . So, for example, with land claims, we have toget historians and town planners and lawyers working together.”The clinic is taking this approach in helping those who standto benefit from the Restitution of Land Rights Act, which entitlesthose dispossessed under apartheid to reoccupy their land, or toreceive alternative parcels or other compensation. In one smallbusiness dispute, it successfully used the implicit threat of negativepublicity as an alternative to litigation and as a way to generatepressure on its clients’ corporate landlord. Ramgobin viewsthis as teaching “law students to think in a developmental way,instead of as a straitjacketed lawyer. This case, to a regularl a w y e r, is an eviction case. But it really is a case of economicpower and the responsibility of an administrative agency. ”Some other clinics’ personnel do not embrace this approach.They feel they have their hands full with a broad array of individualclients whom they cannot turn away. One director argues thathandling individuals’ diverse problems is what best trains studentsfor the general practice that many will undertake after gradua t i o n .The University of Natal approach nevertheless appears promisingprecisely because it widens notions of what constitutes alegal career. Its community outreach can put students much morein touch with broader social realities than does traditional legalaid. It exposes them to the world of NGOs, CBOs, and develop-

4 0 CA S E ST U D I E Sment work. And it opens up an array of strategies for thoseinclined to practice public interest law. Finally, in South Africa itcan offer opportunities to access government funds to carry outnecessary services. The Natal clinic has done exactly that in winningcontracts relating to land restitution and to policy development.This helps address the question of sustainability that lawclinics, like most NGOs, must face.In addition to building the skills of law students, the clinicshave had a significant impact on the representation and adviceavailable to South Africans. In some parts of the country, clinicsare the only or main sources of assistance, particularly in the civilsphere. In the opinion of Ts h w a r a n a n g ’s Lebo Malepe, “It wouldbe disastrous if they were cut back.”Foundation support for clinical legal education includedresearch geared toward improving clinic operations. In 1993, thelate Shanara Gilbert, a CUNY law professor, studied various clinic s ’ work to provide them and the Foundation with advice. Inanother research project, eight South Africans, mostly from historicallydisadvantaged law schools, conducted three-week missionsto study clinical programs at CUNY and the University ofMaryland. They later shared what they learned with other SouthAfrican clinical personnel at an AULAI meeting.Opinions from those involved in the United States visitsranged from ambivalent on the part of those who went there tonegative by those who did not. UWC Director Beverley Franksfound it useful to observe U.S. clinics in action and attend aUniversity of Maryland seminar on supervision techniques.Before the Gilbert visit and U.S. exposure, Franks explains, “Mybackground was in private practice and I had no idea what goeson in a clinic.” On the other hand, she adds, “More clinicianswould have been assisted in their growth by having someone visithere in an intensive way.” Some who did not participate in theU.S. visit also feel that they could benefit best from an experiencedforeign clinician’s continued in-country advice and demonstrationof techniques.Clinical legal education has encountered other difficulties inSouth Africa. Certain of the historically black universities’ p r o-grams have had trouble retaining leadership and getting their pro-

SO U T H AF R I CA 4 1grams off the ground. Given their historical neglect by theapartheid regime and the current lure of big city legal practice—many of these schools are rather rural and isolated—the problemsare understandable. Future clinical legal education assistancemight usefully invest in developing a second tier of professionalswho could easily take over in the event of directors’ d e p a r t u r e s .A third difficulty was the extensive delay in A U L A I ’s acceptanceof its large Ford grant that enables it to make subgrants tomeet programs’ individual and joint needs. Quicker action on thisassistance, which puts important funding decisions in the hands ofSouth Africans, might have occurred had a professional staff personbeen recruited to take on the organizational duties at A U L A I .A final and very positive facet of the Foundation’s clinicallegal education support is its overlap with efforts to diversify thelegal profession in general and the public interest bar in particula r. Ford has cemented the links between the two streams of fundingby supporting black “candidate attorneys” at the clinics, theConstitutional Court, and elsewhere. This helps relieve a bottleneckin black admission to the bar, particularly among those whomight move on to subsequent legal services work. Opportunitieshave historically been very limited for black graduates to passthrough the “candidate” stage required before they may independentlypractice law. The Foundation also has supported importante fforts by the Black Lawyers Association Legal Education Centreand other groups to expand black lawyers’ options and training.F i n a l l y, both through its grantmaking and through grantee diversityreporting (which Ford grantees worldwide are asked to provide),the South Africa office has strongly encouraged NGOs tointegrate their staffs and boards in terms of race and gender.C o n c l u s i o nHow have the Foundation and its grantees contributed toSouth A f r i c a ’s progress? What are some of the insights and promisingideas that have emerged over the years? What challenges dothey face today? This section offers brief answers to those questi o n s .

4 2 CA S E ST U D I E SChanges and ContributionsOf the many nations in which the Foundation operates, SouthAfrica has undergone one of the most radical and beneficial transformations.Much of the world knows the story of its transition.Perhaps LRC National Director Bongani Majola best summarizesits meaning to black South Africans: “In the minds of many people,they can now go to sleep and wake up in the morning. For along time, they would wake up in the middle of the night,” fearingthat police would barge through their doors.Ford grantees have contributed to that transformation. LRC,CALS, Black Sash, and others exploited apartheid’s legal loopholes,thus aiding the broader liberation struggle. They wonsignificant high court decisions and aided grassroots eff o r t sregarding pass laws, homelands policy, police brutality, laboro rganizing, and a host of other issues. Many persons aff i l i a t e dwith grantees have gone on to important government positions:president and several justices of the Constitutional Court; formerministers of justice and public service; numerous members ofParliament; and other senior executive posts in national andprovincial governments. Now that they are in power, they arehelping to institutionalize the respect for human rights and therule of law.Having contributed to constitutional deliberations, granteestoday are helping to formulate and implement new policies, particularlyin the social and economic spheres. For example, Fordsupportedefforts to improve the status of women are proceedingon multiple fronts. These include the work of NIPILAR regardinginternational treaties, GRP concerning reproductive rights, andTshwaranang as the first national NGO to focus on law reform,a d v o c a c y, public education, and training exclusively related togender violence. Despite some problems, support for clinicallegal education has upgraded the quality of education that manystudents receive, the quantity of legal help available to indigentSouth Africans (particularly given that few other outlets offer freelegal assistance in some parts of the country), and the opportunitiesfor black graduates to enter the bar in general and publicinterest work in particular.

SO U T H AF R I CA 4 3Lessons and InsightsPerhaps the most universal lesson stemming from SouthAfrican grantees’ experience is a cautionary one: every nation inevery era is faced with a unique set of challenges that requirevarying resources and responses. As University of Natal law professorKarthy Govender and others emphasize, an unusual arrayof circumstances came together in apartheid South A f r i c a .“Students, unions, an international economic boycott, LRC, andmany other forces applied smothering pressure on the governmentfrom every quarter,” Govender says. Within the legal sphere, thatgovernment found itself fighting a multifront war. It faced mobilizedcommunities backed by superb and well-positioned legaltalent, under the glare of domestic and international publicity.Despite its heavy-handed and even brutal tactics, the governmentwas constrained by a legal system to which it did, in fact, paymore than lip service, and was confronted by organized resistancethroughout the country. One or more of those elements is lackingin many other unjust societies around the globe. And a diff e r e n tarray of factors distinguishes today’s democratic South A f r i c afrom many other countries striving to strengthen social justice.Nevertheless, with these caveats in mind, here are some of thelessons and insights that have emerged in South A f r i c a :Public Interest Litigation1 . Public interest litigation by LRC, CALS, and other org a n i-zations often proved successful when it sought relativelymodest gains—exploiting the system’s rhetorical adherenceto the rule of law, rather than confronting apartheidd i r e c t l y. Despite some progressives’ understandable initialdoubts about working within the system, in South A f r i c athose concerns proved unfounded. The litigation lentstrength to antiapartheid activism, rather than draininge n e rgy from it.2 . The involvement of preeminent lawyers helped strengthensuch litigation efforts. These figures provided politicalinsulation against governmental and legal profession opposition.

4 4 CA S E ST U D I E S3 . A multifaceted legal services strategy, through whichl a w y e r s ’ groups have worked with other NGOs, CBOs,mass movements, unions, media, and other civil societyforces, has proven successful in South Africa on a numberof levels. These included building nonlawyers’ l e g a lknowledge and skills; basic service delivery by lawyersand paralegals; identification of widespread problems thatcan be addressed through test case litigation or other strategies;and, in turn, service delivery geared toward implementationof favorable legislation and appellate victories.4 . Mobilization of private practitioners to file large numbersof individual cases was effective in bringing pressure tobear on prosecutors seeking enforcement of unjust laws.This strategy was employed all too rarely. But whereCALS utilized it against the Group Areas Act, it increasedp r o s e c u t o r s ’ workloads to the point that the governmentabandoned enforcement.5 . Seminars for judges, such as those run by CALS, mayexemplify an avenue for NGOs to expand judicial understandingregarding human rights and other priorities inways that government-organized training often cannot.U n i v e rsity-Based Reform Centers1 . University-based institutes can be crucial havens forreformist forces. In South Africa, they provided institutionalshelters that made it more difficult for the government toquash opposition. They later contributed to framing SouthA f r i c a ’s interim and final constitutions, as well as legislationand other national policies.2 . These institutes also can partner with important org a n i z a-tions or sectors to engage more directly with reformorientedactivism in a multifaceted way. For example, atleast three South African centers have worked with thelabor movement to enhance negotiating skills, pursue litigation,contribute to law reform, and train union personnelregarding work-related legal issues.3 . Reform centers also contributed to the legal struggleagainst apartheid through research that developed data andstrategies for challenging the apartheid regime in its own

SO U T H AF R I CA 4 5courts and in the court of international opinion. Both duringand after apartheid, they provided important conduitsfor integrating international legal experience into the SouthAfrican context.Building Law Clinics1 . S t a ff development and support can be crucial. Encouragingthe growth of a second tier of leadership at a law clinic (oran NGO) could insulate it from the potential disruption ofits director’s departure.2 . A developmental approach to clinical legal education, aspracticed at the University of Natal, might serve bothSouth African students and client groups at least as well astraditional, individualized legal aid. It can broaden stude n t s ’ perspectives on legal practice and make communitiesmore legally self-suff i c i e n t .3 . In view of the constant challenge of NGO and law clinics u s t a i n a b i l i t y, the University of Natal clinic’s success insecuring government contracts merits mention. One suchcontract funds it to help process land restitution claims.This serves the community, provides students with valuablepractical experience, and substantially supplementsthe clinic’s resources. Though not detailed in this report,C A L S ’s preliminary plans to sell services (such as environmentallaw training) to the private sector also have significantpotential. Assuming it does not distort the org a n i z a-t i o n ’s priorities, such activity could provide a usefulservice, augment the group’s revenues, and enable it to payenough to retain quality personnel.Donor Prog ramming A p p ro a ch e s1 . Institutional support to grantees such as CALS and LRCproved extremely helpful in giving them the flexibility toadjust to unanticipated obstacles and opportunities.2 . Strategic grants, even if small, can yield impact far beyondtheir budgets. Limited support to an exiled ANC off i c i a lproduced research that contributed to early deliberationson a new constitution. A modest grant enabled two activiststo undertake relevant research and then to plan and launch

4 6 CA S E ST U D I E Sthe country’s first NGO focusing on the legal dimensionsof battling gender violence. Small grants also helped historicallyblack law schools initiate clinical legal educationp r o g r a m s .3 . The experience of various grantees suggests that whileU.S. exposure can be valuable, it often should not be thefirst option for expanding grantees’ capacities and horizons.Generally, it is preferable to draw on in-country orn o n - Western expertise and models. And where hands-oninstruction is helpful and local expertise is limited orstretched thin, as with clinical legal education, SouthAfricans suggest that a long-term consultant working incountrymay prove more useful than sending several SouthAfricans abroad. The general rule should be to base internationalexposure on whether a given country offers acomparative advantage regarding applicable expertise,similar constraints, and adaptable solutions.Looking A h e a dThe demise of apartheid and the evolution of South A f r i c a ’sdemocratic transition leaves the country and its NGO communityfacing a new series of challenges. None are quite as dramatic asthose South Africans faced in the past. But they are far from munda n e .One challenge is the drain of NGO talent into the government.Some of South A f r i c a ’s best minds have been drawn intothe judiciary, various ministries, and elected positions. This hasleft parts of the NGO community in a difficult spot.Funding is another challenge for NGOs: many donors haveshifted their resources to the government. One way NGOs mightdeal with this is to access government funds, as the University ofNatal clinic has done. For effective organizations with extensivetrack records, another possible approach is for donors to fundendowments. Ford provided such a grant to LRC as it closed outits nearly two decades of ongoing institutional support for thegroup. (It still makes project grants to LRC, however.) On theother hand, though an endowment can be a basis for a degree oflong-term sustainability, interest on an endowment rarely fills thel a rge hole left by the termination of annual institutional support.

SO U T H AF R I CA 4 7M o r e o v e r, it is not a feasible option for the many org a n i z a t i o n sthat have not evinced long-term stability and impact. A t h i r dapproach adopted by LRC and other NGOs is to seek projectspecificsupport. A t r a d e - o ff here is that sometimes donors’ p r o j-ect support can be very restrictive, denying NGOs the flexibilityto set their own priorities and maximize effectiveness.What does this indicate about many NGOs’ f i n a n c i a lprospects? Though they may have to become more entrepreneurialin seeking local resources, many will continue to need foreignfunding. Even in the far more affluent United States and We s t e r nEurope, few NGOs are truly self-supporting.South African NGOs merit continued support, partly becausethey continue to play important roles with respect to government.Law-oriented NGOs are an important part of this mix. A v i b r a n tNGO community can work fruitfully with the state, but also helpensure that the government fully respects democracy’s constraints.NGOs, including those with legal expertise, can cruciallycontribute to policy implementation. As LRC’s Majola points out,“ You can’t rely on the state too much, because its capacity toimplement programs and laws is limited.” Another NGO activisttakes a tougher line on the need to help or prod government off i-cials to do their jobs: “I used to think that problems with clientsobtaining pensions and disability grants were due to apartheid.But now I see the institutional culture [as an obstacle].”Even where many NGOs do not directly address importantproblems, such as the widespread crime plaguing the country, thesocial and economic progress to which NGOs contribute mayameliorate these difficulties in the long run. It is not surprisingthat South Africa faces many such problems after decades ofrepression. Yet they do not diminish the great strides the countryhas made in the 1990s. For the nation to keep taking such steps,the civil society forces that have contributed so much to date willneed to remain a central part of the democratic future.N o t e s1 . To avoid splitting possible definitional hairs, for the purposes ofthis study NGOs include university-based entities.2 . The term “black” has been employed in various ways in recent

4 8 CA S E ST U D I E SSouth African history, some more inclusive than others. As used here, itis employed interchangeably with “non white” and refers to all SouthAfricans of African, mixed race, and Asian descent.3 . As quoted by Richard L. Abel, Politics by Other Means: Law inthe Struggle Against A p a rtheid, 1980–1994 (London: Routledge, 1995),p. 13.4 . Legal Aid in South Africa: Proceedings of a Conference Held inthe Faculty of Law, University of Natal, Durban, from 2nd–6th July,1 9 7 3 (Durban, South Africa: University of Natal Faculty of Law, June1974), p. 265.5 . David McQuoid-Mason pursued a similar strategy with hiscontroversial (and eventually Foundation-funded) Street Law program.He obtained political protection for this effort, which teaches youngpeople about legal issues most pertinent to their daily lives, by securingbacking from the legal establishment and participation by a prominentj u r i s t .6 . Abel, p. 6 0 .7 . As the terms are employed here, CBOs are locally run and operatedorganizations, with personnel typically drawn from their communities.They sometimes are characterized by the voluntary natures of theirs t a ffs and by community-based memberships. In contrast, NGOs tend tobe more professional outfits with paid staffs. Some NGOs train, service,or otherwise assist CBOs. These are only rough delineations, however.The two concepts clearly can overlap.8 . Abel, pp. 6 4 – 6 5 .9 . The Foundation did not open a South Africa office until 1993for at least two reasons. It in no way wished to be beholden to or constrainedby the apartheid regime, which would have decided on whetherand under what conditions Ford could retain a presence there. And, onthe advice of South African colleagues, it held off early in the transitionto democratic rule. This was to avoid prematurely contributing to animpression that the tenuous democratic transition was proceeding in anirrevocable manner, and that the international community could lightenits pressure on the government.1 0 . Nevertheless, being based outside South Africa was diff i c u l t .During the mid to late 1980s, Foundation staff often encountered problemsand lengthy delays in obtaining visas. On at least one occasion, avisa request was denied.11 . While its orientation and operations were different and will notbe detailed here, another key Ford-supported player in the labor fieldwas the Independent Mediation Service of South A f r i c a .

SO U T HAF R I CA 4 91 2 . Penelope Andrews, “Grant Evaluation Reports Prepared for theFord Foundation,” 1994, p. 4.1 3 . In some key respects, this assistance predated the events of1990. Though not law oriented, the work of the Institute for aDemocratic Alternative in South Africa merits mention. This Foundationgrantee brought together prominent Afrikaner and ANC leaders formeetings outside the country in the mid and late 1980s.A p p e n d i x :People Interv i ewed for This StudyCatherine A l b e r t y nHead, Gender Research Project, Centre for Applied Legal Studies,J o h a n n e s b u rgPaulin BreedDean, Faculty of Law, University of the North, PietersburgAlice BrownProgram Off i c e r, The Ford Foundation, JohannesburgG e o ff BudlenderD i r e c t o r-General, Department of Land A ffairs, Pretoria andFormer National Director, Legal Resources Centre, Johannesbu rgWilliam CarmichaelFormer Vice President, The Ford Foundation, New Yo r kArthur ChaskalsonPresident, Constitutional Court, Johannesburg, and formerNational Director, Legal Resources Centre, JohannesburgMahendra R. ChettyA t t o r n e y, Legal Resources Centre, DurbanThisbe CleggFinancial Director, Black Sash Trust, Cape To w n

5 0 CA S E ST U D I E SDennis DavisFormer Director, Centre for Applied Legal Studies, JohannesburgJohn DugardFormer Director, Centre for Applied Legal Studies, JohannesburgSheena DuncanChairperson, Black Sash Trust, JohannesburgJoanne FedlerFormer Executive Director, Tshwaranang Legal Advocacy Centreto End Violence Against Women, JohannesburgBeverly-Ann FranksD i r e c t o r, Legal Aid Clinic, University of the Western Cape, CapeTo w nKarthi GovenderDeputy Director, African Centre for the Constructive Resolutionof Disputes, DurbanKarthy GovenderAssociate Professor, Faculty of Law, University of Natal-DurbanBheki GumedeStreet Law Coordinator, Centre for Socio-Legal Studies,University of Natal-DurbanGary HowardCandidate A t t o r n e y, Campus Law Clinic, University of Natal-D u r b a nVal KathuravalooA t t o r n e y, Law Clinic, University of Durban-We s t v i l l eWilliam KerfootA t t o r n e y, Legal Resources Centre, Cape To w n

SO U T H AF R I CA 5 1Bongani KhumaloD i r e c t o r, Community Law and Rural Development Centre,D u r b a nBoogie KhutsoaneHead, Gender Rights Department, National Institute for PublicInterest Law and Research, PretoriaPhilippa KrugerD i r e c t o r, Campus Law Clinic, University of the Wi t w a t e r s r a n d ,J o h a n n e s b u rgChris LandsbergDeputy Director, Centre for Policy Studies, JohannesburgPius LangaJustice, Constitutional Court, Johannesburg, and formerPresident, National Association of Democratic Lawyers,J o h a n n e s b u rgHarold LetselaParalegal, Law Clinic, University of Durban-We s t v i l l ePeggy MaiselVisiting Professor, Faculty of Law, University of Natal-D u r b a nBongani MajolaNational Director, Legal Resources Centre, JohannesburgLebogang MalapeD i r e c t o r, Legal Research and Policy, Tshwaranang LegalAdvocacy Centre to End Violence Against Women, JohannesburgErin MartinCountry Program Director, National Democratic Institute forInternational A ffairs, Cape To w n

5 2 CA S E ST U D I E SAubrey McCutcheonFormer Program Off i c e r, The Ford Foundation, JohannesburgDavid J. McQuoid-MasonP r o f e s s o r, Faculty of Law, University of Natal-DurbanAsha MoodleyO ffice A d m i n i s t r a t o r, Legal Resources Centre, DurbanRichard Thabo MolokoExecutive Director, National Institute for Public Interest Law andResearch, PretoriaMawethu MoseryD i r e c t o r, Centre for Socio-Legal Studies, University of Natal-D u r b a nMmatshilo MotseiExecutive Director, Agisanang Domestic Abuse Prevention andTraining, JohannesburgJames MurombedziProgram Off i c e r, The Ford Foundation, JohannesburgMunira OsmanS u p e r v i s o r, Administrative and Juvenile Justice Unit, CampusLaw Clinic, University of Natal-DurbanAsha RamgobinD i r e c t o r, Campus Law Clinic, University of Natal-DurbanAlbie SachsJustice, Constitutional Court, Johannesburg, and former member,Legal and Constitutional A ffairs Committee, African NationalC o n g r e s sVincent C. SaldanhaA t t o r n e y, Legal Resources Centre, Cape To w n

SO U T H AF R I CA 5 3Michael SavageExecutive Director, Open Society Foundation for South A f r i c a ,Cape To w nChuck ScottMedia and Training Off i c e r, Centre for Socio-Legal Studies,University of Natal-DurbanSiphiwe SikhakhaneD i r e c t o r, Legal Aid Clinic, University of the North, PietersburgNico SteytlerD i r e c t o r, Community Law Centre, University of the We s t e r nCape, Cape To w nFranklin A. T h o m a sFormer President, The Ford Foundation, New Yo r kAlison Ti l l e yLegislation Monitor, Black Sash Trust, Cape To w nDavid UnterhalterD i r e c t o r, Centre for Applied Legal Studies, University ofWitwatersrand, JohannesburgYousuf Va w d aD i r e c t o r, Law Clinic, University of Durban-We s t v i l l eNaomi We b s t e rD i r e c t o r, Marketing and Programs, Tshwaranang Legal A d v o c a c yCentre to End Violence Against Women, JohannesburgMarc We g e r i fD i r e c t o r, Nkuzi Development Association, PietersburgTheresa Ya t e sAssociate, Nkuzi Development Association, Pietersburg

5 4 CA S E ST U D I E SG roup Interv i ew s / A c t i v i t i e sObservation of University of Natal-Durban and University ofWitswatersrand law clinic activitiesSelected faculty members, Faculty of Law, University of theN o r t h

2F rom Dictatorship to Democracy:L aw and Social Change in the A n d e a nRegion and the Southern Coneof South A m e r i c aHU G O FR Ü H L I N GSince the 1970s, the Ford Foundation has supported org a n i z a t i o n sthat use the law to promote democracy, defend human rights, andpursue socioeconomic change in the Andean Region and theSouthern Cone of South America. With this support, along withthat of other donors, the many individuals from the region,through their courage and leadership, have expanded humanrights practice and public interest law, despite often difficult andsometimes dangerous circumstances.Through its Santiago-based office, Ford provides support togroups in Chile, A rgentina, Peru, and Colombia. Activities ofFord grantees include clinical legal education; monitoring ofhuman rights violations; and litigation combined with advocacy,research, and media outreach to ensure greater accountability ofgovernmental and societal institutions and to promote social justi c e .This chapter traces the origins and evolution of the Foundati o n ’s law-related efforts in the region through three stages ofdevelopment: the 1960s law and development movement; humanrights program work, which began in the 1970s; and the publicinterest law grantmaking program initiated in the 1990s. T h epaper discusses the linkages between these efforts and describesthe historical circumstances that shaped them. A concluding sectionoffers insights and lessons gained from the strategies implementedby grantees and by the Foundation as a donor.5 5

5 6 CA S E ST U D I E SThe Law and Development Move m e n tDuring the 1960s, the Ford Foundation first became involvedin legal activities in the developing world by supporting what wasknown as the “law and development movement.” Numerous U.S.-based institutions participated in this effort, including lawschools, foundations, and government agencies concerned withinternational development. In 1966, the Ford Foundation provided$3 million to establish the International Legal Center (ILC) inNew York City as a vehicle for mobilizing legal assistance todeveloping countries.These early activities were mostly framed as a complement toforeign development assistance. U.S. law and development scholarsperceived the need for developing countries to modernize theircourts and legal systems to respond to the growing pressures ofpoverty and underdevelopment. These legal experts believed thatthe U.S. model of the lawyer as problem solver would be particularlyuseful for developing countries. As a consequence, much ofthe Foundation’s involvement with this program focused on thereform of legal education, which some of the Foundation’s advisorssaw as the key to long-term change within the entire legals y s t e m . 1Legal experts encouraged the use of the case method, a U.S.model for legal instruction that exposes students to actual casesfrom which they identify legal rules. The Foundation’s supportcreated fellowship opportunities that allowed law professors andstudents from the region to study at American law schools or toattend summer law and development programs. Programs supportingresearch and the training of law professors were alsolaunched with Ford funding in Chile, Colombia, and Peru.For the most part, the strategy was not successful. In 1971, aFoundation review of its law and development activities returnedan appraisal critical of its impact. Moreover, several A m e r i c a nlaw professors, as well as former administrators of the program,criticized the law and development movement for its reliance on aliberal American model alien to the local legal culture.Although the movement for law school reform stalled inChile and Colombia, similar reforms produced more enduringimpact at the Catholic University Law School of Peru. Rocio

SO U T H AM E R I CA 5 7Villanueva, a former Catholic University student who now headsthe Wo m e n ’s Rights Program at the Ombudsman’s office in Lima,recalls that her law professors who studied as visiting fellows atthe University of Wisconsin Law School returned home to have apositive impact on their students. “The so-called ‘Wi s c o n s i nB o y s ’ proved to be an excellent investment for Peru,” she says.“They created new teaching materials and taught us to questiona u t h o r i t y.” Similarly, Marcial Rubio, a vice rector at CatholicU n i v e r s i t y, observes, “Look at the few, modern and functioninglegal institutions in Peru. They are staffed by lawyers from theCatholic University. ”The reform movement’s failure in Chilean law schools waspartly due to the fact that the universities suffered from militaryintervention. In 1974, backed by the new military junta, the mostconservative law professors took over the law schools. Both inChile and Colombia, reform efforts were largely resisted by thebar and the most established academics of the law schools. Incontrast, in Peru, law school reform was encouraged by the politicalclimate created by the social changes that were implementedby the military government then in power, and due to the academicfreedom that existed in the universities.M o r e o v e r, the U.S.-sponsored reform efforts had very limitedsuccess in advancing the rule of law and legal change beyond lawschools in Chile, Peru, and Colombia, because they were hamperedby misguided conceptions about the relationship betweenlegal training and Latin American legal systems. American professorstend to describe Latin American legal culture as traditionaland formalistic, that is, composed of lawyers who are trained tomechanically apply the law. The truth was that, in the case ofjudges, they sometimes justified their ideological biases by sayingthat they did not have the authority to change the law. In othercases, their formalism in applying the law was a reflection of thediminished position of the judiciary within the political system.The problem, then, was one of practical politics perhaps morethan the legal teaching methods.Despite its shortcomings, the law and development movementproduced the first studies on the functioning of the legal system inLatin America. Beyond that, some lawyers in the United Statesand Latin America who participated in the movement continued

5 8 CA S EST U D I E Scollaborating, establishing law clinics and legal services for thep o o r. One such example is the Inter-American Legal ServicesAssociation (now the Latin American Institute of A l t e r n a t i v eLegal Services), founded in Washington, D.C., in 1978. In the1980s, it moved its headquarters to Bogotá, Colombia, and fromthere provided networking services to legal services org a n i z a t i o n sin Latin America.What are the lessons from the law and development experience?Perhaps the first is that successful law-related programsshould rely on local academic and legal institutions whose capacitiescould be enhanced by adapting foreign institutions’ e x p e r i-ence. Much of the law and development movement, in unfortunatecontrast, was built around the ideas and abilities of A m e r i c a nlaw professors, who received most of the funding. This certainlyweakened internal support for legal education reform in Chile andColombia. The legal programs that the Foundation funded subsequentlyrelied much more heavily on the knowledge and participationof in-country professionals, with the aim of correctingthese perceived weaknesses of law and development programs.Another lesson from the law and development experience isthat programs aiming for substantial transformations require institutionalopenness and long-term support of people who sharecommon beliefs. The institutional hospitality, as well as thereform-minded professors, at the Catholic University Law Schoolin Peru are excellent examples. In Chile, however, the more traditionalprofessors held considerable power, and those taking part inthe reform process were sharply divided by their country’s politicalproblems, a conflict that seriously hampered their ability todefend law school reform.C o n t ext and OriginsP rotecting Human RightsAlthough A rgentina, Chile, Colombia, and Peru generallyshare a common historical and legal heritage, their levels ofsocioeconomic development differ greatly. A rgentina is the mostprosperous, followed by Chile and Colombia. Peru is the poorest

SO U T H AM E R I CA 5 9of these countries. Political violence has significantly affected allof these societies in recent decades, but their historical and politicalevolutions have differed during these times. During the 1970s,democratically elected governments in A rgentina and Chile wereoverthrown by highly repressive military regimes that suppressedpolitical pluralism and basic rights. One of the bitter legacies ofthis period is the “disappeared”—people who were assassinatedby the regimes in power but whose remains were never found.The official accounts place the number of disappeared in Chile at1046, while their number in A rgentina might be ten times higher.A rgentina moved away from authoritarianism in 1983, whileChile moved toward democratization in 1990. By then, a vigorousnongovernmental sector, which had challenged many authoritarianpolicies, was in place in both countries.Peru had been ruled by a reform-minded and much lessrepressive military regime from 1968 to 1979, when a transitionto democracy began. Soon after, in 1980, the Shining Path (aMaoist organization) initiated a terrorist campaign in theAyacucho region, assassinating local officials and communityleaders. In response, the state unleashed violent repression againstwhat it labeled as “subversives”—individuals believed to bemembers of Shining Path or its sympathizers. The country wasimmersed in a wave of unprecedented violence until Shining Pathleader Abimail Guzman was captured by police in 1992. By 1993,political violence diminished, but hundreds of people who hadbeen unfairly tried for their alleged participation in terrorist activitiesremained in jail.Whereas Peru’s insurgencies were largely suppressed,C o l o m b i a ’s decades of war have continued. Besides the violenceprovoked by long-active guerrilla groups that control half of thec o u n t r y ’s territory, Colombia also suffers human rights violationscommitted by military and paramilitary forces fighting the guerrillagroups and attacking other social and political org a n i z a t i o n s .These problems are worsened by the corrupting influence of al a rge criminal drug economy. Despite its political and institutionalcrises, however, Colombia has been ruled by constitutional civiliangovernments for the last four decades. 2C l e a r l y, the violent histories of these four countries haveraised serious obstacles to democratic development. State-

6 0 CA S E ST U D I E Ssponsored and societal violence posed serious challenges to dedicatedlawyers and other activists, who have faced threats of arrest,assault, or even death while seeking to promote human rights andsocial change.The Foundation’s human rights grantmaking in the region canbe traced back to the 1973 overthrow of democratically electedPresident Salvador Allende in Chile, and the 1976 military coupin A rgentina. Until then, Chile had been one of the region’s moststable constitutional democracies, and during the twentieth centuryit had experienced only one brief period of dictatorship, from1927 to 1931.The Foundation’s immediate response to the Chilean coupwas an emergency effort to protect threatened intellectuals. Fordincreased its budget for fellowships, enabling more individuals toundertake graduate study abroad. In subsequent years, theFoundation focused its efforts on helping to create and preservelocal research groups that were critical of governmental socialand economic policies, and which became the only independentcenters of thought and research.By the mid-1970s, the Ford Foundation had established aninternational human rights program in its New York headquarters.That program was considerably expanded after Franklin T h o m a sbecame the Foundation’s president in 1979, undertaking a reorganizationthat identified human rights as one of six priorityissues of the Foundation.By 1983, the Foundation had defined two major human rightsprogrammatic areas in the Andean Region and the Southern Cone:civil and political liberties, and access to social justice and legalservices. The main objectives of this work were to strengthen theability of local, nonpartisan human rights organizations to investigate,document, and publicize human rights abuses and to promoterights awareness among disenfranchised groups. This sectionof the case study describes only the civil and politicalliberties area, which dealt with the defense and promotion of thebasic rights to life and freedom.In the 1980s, most Ford funding for civil and political libertiesin these countries went to human rights NGOs to improvetheir abilities to monitor and document human rights violations,and to disseminate this information both domestically and to the

SO U T H AM E R I CA 6 1outside world. Because strong, credible human rights org a n i z a-tions were already functioning in A rgentina and Chile, most earlyFoundation grants were concentrated in these countries. In Chile,the Foundation supported the legal work of the Vicariate ofS o l i d a r i t y, the documentation efforts of the Chilean Commissionof Human Rights, and the research efforts of the Academy ofChristian Humanism, among others. In A rgentina, Ford gave supportto the legal program of the Center for Legal and SocialStudies (CELS), and to Grandmothers of the Plaza de Mayo. T h eGrandmothers were searching for their grandchildren, born inprison to their “disappeared” children, and given up for adoptionwithout the families’consent.One of the first grants outside the Southern Cone was made tothe International Commission of Jurists. This Geneva-basedNGO, which undertakes human rights research, training, anda d v o c a c y, organized a commission of prominent jurists from theAndean region to establish linkages among local human rightsgroups. From its headquarters in Lima, Peru, the newly establishedAndean Commission of Jurists rapidly developed researchprograms and training courses in international human rights lawfor judges and prosecutors from the region.In 1985, the first grant to a local Peruvian group was made tothe Legal Defense Institute (IDL), a group of young lawyers whoprovided legal assistance to prisoners of conscience and developedhuman rights education in rural areas. This group laterjoined with others to create the Human Rights NationalCoordinator of Peru, a network of forty-nine NGOs that publiclyrejected both governmental repression and the violent tactics ofthe Shining Path.Until 1988, no human rights grant had been made inColombia, despite the widespread and widening abuses there,because Foundation staff could not identify an independent org a n-ization that documented human rights abuses. The Foundationtook a proactive approach, helping to establish the Colombianbranch of the Andean Commission of Jurists, which sought topresent cases of human rights violations before internationalhuman rights bodies such as the Inter-American Commission ofHuman Rights. A few months after the commission started,Chilean human rights expert and former Amnesty International

6 2 CA S E ST U D I E SDeputy Secretary General José Zalaquett spent two weeks inBogotá as a Foundation consultant. He provided advice based onhis previous experience as head of the legal department at theCommittee of Cooperation for Peace in Santiago.Building Capacities, C re d i b i l i t y, andL e gal Strategies of Human Rights Gro u p sFord characteristically sought nonpartisan grantee partners,believing that attribute was critical for credibility and eff e c t i v e-ness. To increase their credibility, human rights groups emphasizedthe quality of the information they released to the media andto other groups. This information was widely disseminated byinternational human rights organizations and by the press, whichhelped raise international pressure on the A rgentine and Chileanmilitary regimes to modify their repressive policies. Reports onChile by the Inter-American Commission of Human Rights citedinformation produced by the Vicariate of Solidarity. Resolutionsof the United Nations Commission on Human Rights stating concernfor the human rights situation in the country expressly consideredreports provided by Chilean NGOs. International humanrights groups such as Americas Watch (now Human RightsWatch/Americas) made consistent and effective use of informationprovided by the Chilean Commission of Human Rights, theVicariate of Solidarity, and CELS.The development of these and other local human rightsgroups was made possible by the efforts of activists, relatives ofthe victims of repression, and, especially in Chile, leaders in theRoman Catholic Church. In the days following the September1973 coup in Chile, clandestine opposition to government repressiondeveloped, as exemplified by the individual actions ofCatholic priests who sheltered persecuted individuals and soughtasylum for them in foreign embassies. Three weeks after thecoup, with the support of other religious denominations, theCatholic Church initiated a group to defend Chilean citizens, theCommittee of Cooperation for Peace (COPA C H I ) .One of COPA C H I ’s first steps was to organize a legal aiddepartment to defend political dissidents being tried before themilitary courts. With support from the World Council of Churches

SO U T H AM E R I CA 6 3and other donors, the committee’s activities grew rapidly. Te n s i o nbetween the government and COPACHI came to a head in late1975, when government pressure forced the committee to dissolve.The Church responded by quickly creating the Vicariate ofSolidarity as an integral part of the Catholic Church. T h eC h u r c h ’s status as a national institution in the predominantlyRoman Catholic country helped shield the Vicariate from militaryrepression. The Vicariate vigorously investigated and documentedhuman rights violations and brought numerous legal actions. Itfirst received Ford funding in 1978.In A rgentina, where the Church hierarchy did not protect orpromote human rights programs, organized human rights eff o r t se m e rged more slowly. The late Emilio Mignone became involvedin the human rights movement in July 1976 when his daughterwas detained and disappeared. Soon after, he was invited to participatein the Permanent Assembly for Human Rights, anA rgentine NGO that was gathering information on disappearancesand other abuses. “At that time,” he recalled, “we met at churchesand in other places that were loaned to us.” In 1979, together withthree other friends whose sons or daughters had also disappeared,Mignone proposed that the assembly assume the legal representationof victims of repression. More cautious members rejected theidea, and in March 1980, Mignone and the others formed CELS.From its inception, CELS sought to defend victims of humanrights abuses, and it established strong international relations witho rganizations such as the International Commission of Jurists.CELS became a Ford grantee in 1981.International human rights organizations and local groupsdeveloped a mutually beneficial relationship. Efforts to build connectionsbetween various grantees also increased the impact ofhuman rights work in the region. The Foundation supportedtransnational linkages by funding regional conferences, trainingcourses, and workshops. Lawyers from A rgentina and Chile visitedPeru to provide local organizations with information aboutreporting methodologies. Conferences organized by the A c a d e m yof Christian Humanism in 1985 and 1987 brought together humanrights activists from A rgentina, Chile, Peru, Brazil, Colombia, andthe United States to discuss their work.Ronald Gamarra, head of the IDL legal department in Peru,

6 4 CA S E ST U D I E Sexplains, “When the Institute was founded, there already existedthe precedents of Chile and A rgentina. We frequently went to theVicariate. Our first evaluator was Roberto Garreton [head of thejudicial department at the Vicariate].” A lawyer at the ColombianCommission of Jurists also mentioned their long-standing andenriching relationship with Garreton.Most grantees interviewed for this study described contactswith Ford program officers as regular and open. None seemed toconsider this as intrusion in their work, nor were there manifestationsof ideological mistrust of the Foundation or its goals.As repression grew in the countries covered by this report, avariety of organizations filed legal actions on behalf of the victimsof human rights violations. These legal actions have includedlegal assistance at military court proceedings in Chile and Peru;petitions of habeas corpus for people detained under states ofsiege in A rgentina, Chile, and Peru; defense of people accused ofterrorist actions and state security violations before military andcivil courts in Chile and Peru; and presentation of cases from allfour countries before the Inter-American Commission of HumanRights, as well as UN bodies.While a detailed examination of the impact of these actions isbeyond the scope of this study, several examples illustrate a lessonfrom this experience: one of the most effective strategies inthe defense of human rights under these authoritarian and repressiveregimes was the legal representation of victims of repression.Immediately after the coup in Chile, defense lawyers supportedby the churches began providing legal defense to people triedbefore martial law tribunals for alleged crimes such as treasonand sedition. At first, these lawyers’ a rguments had very littlee ffect. Some lawyers interviewed agreed that in a few cases theymight have influenced the military judges to impose more lenientsentences. Others believed that at times their most important contributionwas giving defendants some contact with the outsideworld.H o w e v e r, arguments presented by the defense graduallyachieved greater impact. In August 1974, the Chilean army’s legaladvisor instructed all division commanders to review sentencesimposed by the military courts and to correct legal mistakes or

SO U T H AM E R I CA 6 5omissions. These reviews usually resulted in much lighter sentences.In a very different context, in 1992 IDL began to defend peopleaccused of membership in terrorist organizations beforePeruvian military courts. Gamarra describes the situation: “Ourwork in the military courts was very complicated. We had toa rgue before three different courts: the military judge, the Councilof Wa r, and the Supreme Military Council. The lawyer had nocontact with the defendant, but nevertheless we were successfulin 10 percent of the cases.” In defending people before civilcourts, IDL claimed a success rate of 90 percent.Most people affected by repression were arrested withoutc h a rges under state-of-siege regulations. Human rights groupswere not nearly as successful in any of these countries with thepresentation of habeas corpus petitions on their behalf, whichrequired authorities to release or produce in court a person whohad been detained or arrested. Between 1973 and 1983, Chile’sSupreme Court rejected all but ten of fifty-four hundred habeascorpus petitions filed by COPACHI and by its successor, theVicariate. Results in A rgentina were similar. This is not surprising,given the batteries of legal instruments with which the militaryregimes armed themselves to detain people without expressinga reason. However, in 1979, relatives of 1,542 persons whohad disappeared in A rgentina presented a collective habeas corpuspetition before the Supreme Court, explaining that previous presentationshad been rejected despite the fact that it was clear thesepeople had been detained under state authority. In Mignone’swords, “The court declared that deprivation of justice existed inA rgentina and that the judges could not apply the law due to lackof collaboration from the executive. They sent the decision toA rg e n t i n a ’s [then-President] Videla who replied with a shamefulnote saying he agreed but that no collaboration would be forthcoming.Human rights activists felt the courts became more opento human rights arguments after the incident.In Chile, habeas corpus petitions were also useful for gatheringand disseminating information about human rights abuses.Victims of repression or their families made sworn statementsabout governmental actions that were presented to the courts. T h e

6 6 CA S E ST U D I E Scomplaints gave an empirical measure of the detentions and torture.If the Vicariate simply reported the number of judicial complaintsfiled, which was a recognized part of the legal process, itcould not convincingly be accused of involvement in an “internationalsmear campaign” against the military regime. Informationcoming from these sworn testimonies was included in monthlyand annual reports that the Vicariate prepared and distributedworldwide. These reports catalogued human rights violations,changes in the forms of repression, and legal actions the Vi c a r i a t ehad filed in response. This information was widely used by internationalhuman rights organizations to increase pressure on theChilean government. On the basis of Vicariate documentation andother sources, the UN General Assembly annually condemnedhuman rights conditions in Chile from 1974 until 1988.In the late 1980s, several human rights groups began presentingindividual cases before the Inter-American Commission onHuman Rights, which could find states responsible for rights violations.The Colombian Commission of Jurists was one of thesegroups, specializing in representing victims. Its deputy director,Carlos Rodriguez, says, “When we began, the Inter- A m e r i c a nCommission had only handed down one decision concerningColombia. To d a y, and after ten years of work, there are seventeendecisions.” Bringing cases to the Inter-American Commission hashad an important impact in publicizing human rights violationsand in informing domestic judiciaries of human rights standardsthat should be applied in national courts.Adapting to Political ChangesIn 1983, dictatorship had given way to democracy inA rgentina. The transitional leadership adopted measures to prosecutemembers of the military juntas who were involved in pasthuman rights violations. A few years later, in 1987, the civiliangovernment enacted a law that suspended those prosecutions.Chile remained under the control of a military dictatorship, butrepression eased as the country prepared for a 1988 plebiscite,which voted to end the military regime. The human rights situationin Colombia and Peru was much more complex after 1985, as

SO U T H AM E R I CA 6 7civilian governments seemed unable to curtail abuses by theirown security forces and by guerrilla groups.The return of elected governments in some countries of theregion opened the door to new advocacy strategies. A 1 9 8 5Foundation-supported study concluded that human rights activistscould best respond to new developments by learning from recenttransitions from dictatorship to democracy; identifying strategiesfor confronting past human rights violations; understanding howhuman rights groups could relate to governments in a more collaborativeway; and stimulating greater interest in human rightsbeyond the human rights community.Former Ford Program Officer Michael Shifter recalls that atthe core of the Foundation’s new strategy was “to make humanrights much more central to the societies.” This was done partlyby supporting programs that helped human rights groups reachout to professional associations, the media, and intellectuals.Another route was to help organizations as they devised newstrategies toward violations that were not politically motivatedand that were committed by government officials or other societalactors in the transitional democracies.The Foundation in partnership with its grantees made severale fforts in this direction beginning in the late 1980s. In each countr y, one or two leading organizations that had built institutionalcapacity were awarded larg e r, longer-term grants to ensure theirv i a b i l i t y. These institutions produced reliable data on humanrights violations and opposed violence by all parties to variousconflicts. The so-called flagship institutions were CELS inA rgentina, the Vicariate of Solidarity and the Chilean Commissionof Human Rights in Chile, the Colombian Commission ofJurists in Colombia, and the Andean Commission of Jurists andI D L in Peru.At the same time, support for human rights research programswas expanded in two aspects. First, grants were awarded toresearch centers, universities, and bar associations not previouslyinvolved with these issues. Second, the research was now broadenedto include studies on violence, administration of justice, andpolicies addressing past human rights violations. For instance, theDiego Portales Law School in Chile received support in 1991 to

6 8 CA S E ST U D I E Sundertake studies on judicial reform processes in Latin A m e r i c aas well as on Chilean criminal justice procedure. As Jorge Correa,former dean of the school, explains, “The work we did with FordFoundation project support helped highlight the shortcomings ofthe Chilean legal system as we were trying to influence itsreform.” Members of the research team later drafted the newCriminal Procedure Code and assisted the Justice Ministry inpreparing, among other legislative measures, a law that wouldcreate a Public Prosecution Office. In Colombia, several politicalscience professors from the National University who participatedin Foundation-supported human rights research projects in thelate 1980s played a significant role in the debates leading to anew constitution in that country in 1991.Groups that advocated on the types of human rights violationsof the 1980s and early 1990s are still a small part of these societies,but human rights discussions now involve a much widervariety of people and institutions, including the universities,Congress, and even the judiciary. A considerable number ofjudges have attended national and international human rightscourses organized by grantees. In recent years the A n d e a nCommission of Jurists has received nine hundred applicationsfrom judges, prosecutors, and academics from the region to attendits annual course on International Protection of Human Rights.Ford Foundation staff also supported older human rightsgroups as they shifted their strategies from opposition to militarydictatorships to monitoring and promoting rights under the newdemocracies. This meant sustaining them through the sometimesslow process of adapting to the new context, using law and courtsto address a new range of nonpolitically motivated rights violations.The case of CELS is illustrative. CELS president Mignone,as well as Foundation staff, agreed on the need to develop newprograms even as the group remained deeply engaged in humanrights issues lingering from the military dictatorship, includingthe debate over the pardoning of military officers who had committedhuman rights violations. However, the Foundation recognizedthat CELS remained one of A rg e n t i n a ’s most importantcivil society organizations and that it deserved continuing support.In 1996, CELS began a new international human rights programto bring international standards to bear on issues such as

SO U T HAM E R I CA 6 9police violence, access to public information, violations of dueprocess, and gender discrimination. Under new leadership since1996, the group has continued to evolve and adapt its strategies topost dictatorship realities.Political changes in the region have created conditions for ahuman rights practice that goes beyond denunciation of violationsand confrontations with the government. Legal activists interviewedfor this study stressed the need to maintain open channelsof communication with all sectors of society. They hope to havean impact beyond the usual circles of supporters for human rights.Examples of this new strategy can be found in both Colombiaand Peru, where human rights organizations have engaged withgovernmental authorities in discussions on human rights. Peru’sI D L is an example. Despite its criticism of the government’santiterrorist legislation, IDL has worked closely with a specialg o v e r n m e n t commission reviewing cases of people sentenced forterrorism. By mid-1998, 438 such individuals had been pardonedby President Alberto Fujimori.Origins of a Prog ra mP u blic Interest Law GrantmakingThe rationale for increasing support for the use of legalactions to pursue human rights and social justice goals in theregion was explained in a 1997 Ford document: “To enhance probi t y, impartiality, and transparency in public functions, judicialinstitutions are being looked upon to assume new prominence inregulating the state and in mediating the whole relationshipbetween government and civil society. ” 3NGOs and activists in the region, like Foundation staff ,viewed law as an increasingly important instrument for renderingpublic institutions accountable. In recent years, a number of legalreforms passed in the four countries have recognized new constitutionalrights, allowed third parties to initiate legal actions, andcreated ombudsman offices. In 1991, Colombia approved a newconstitution which recognized the concept of “popular actions,”discussed later in this chapter. The constitution also established

7 0 CA S E ST U D I E Sthe possibility of class actions. The 1993 Peruvian constitutionr e a ffirmed traditional constitutional rights and added the right torequest information from governmental entities, the right to ahealthy environment, and the right of any person to his or her ethnicor cultural identity. The new constitution also introduced otherinstitutional reforms, such as referenda, popular legislative initiatives,and ombudsman offices. A year later, the new A rg e n t i n econstitution recognized the constitutional right to a healthy environment,the rights of consumers, and the right of protectionagainst discrimination. It also recognized the writ of a m p a ro ,which gives any person the right to file a legal action before ajudge requesting an end to any infringement of his or her constitutionalrights. Such actions can now also be presented by theombudsman or NGOs.While these constitutional amendments create new opportunitiesfor legal and social change, certain institutional and legal factorshave undermined these reforms. The most significant problemis the judiciary’s lack of legitimacy. Martin Abregu of CELSstates, “The impact of a leading case in A rgentina is not the sameas in the United States. Here, the judiciary can reach the mostunthinkable result because of ignorance or corruption.” In Peru,environmental lawyer Manuel Pulgar agrees: “Judicial corruptionand the fact the government has interfered with judicial independencecomplicate [matters] greatly. However, we do not rely on litigationalone. We use the press, present petitions to the administration,and lobby the boards of corporations investing here.”Most people involved in public interest law efforts in theregion believe that two basic activities are required to overcomethe obstacles a conservative judiciary presents: education ofjudges on public interest law concepts, as well as on specificissues being brought to court; and greater public advocacy,including media outreach and community mobilization, which canhelp define and promote public accountability and the publici n t e r e s t .The Ford Foundation’s efforts to promote these objectives—and the rule of law and democratic society they would support—are manifested in grantmaking that began in 1995 and is overseenfrom the Foundation’s Santiago office under a democratic governancerubric. That program supports community org a n i z i n g ,

SO U T H AM E R I CA 7 1a d v o c a c y, research, training, and litigation efforts that seek toensure accountability of both public and private institutions, andto defend and promote collective rights. For example, Fordgrantees are today promoting the rights of women and other vulnerablegroups, as well as the right to a clean environment. Oftenthey collaborate to create a new dynamic for change. Forinstance, the Diego Portales University is coordinating a consortiumof public interest law clinics at universities in A rg e n t i n a ,Chile, and Peru.Those familiar with Ford’s public interest law grantmakingsay it evolved from the human rights struggle of past years. “Thehuman rights movement showed that legal and social change werepossible in these countries,” says Ford’s former representative inSantiago, Alex Wilde. A rgentine political scientist CatalinaSmulovitz agrees: “The trials against the military junta showedpeople that results could be achieved through the judiciary.” T h ehuman rights efforts of the 1970s and 1980s and the more recentpublic interest law developments intersect in another way: lawprofessors from the Diego Portales Law School in Santiago, whoare very active in the human rights movement, are using law topromote rights on an increasingly broader set of issues. NGOs,such as CELS, have filed test cases in areas such as discriminationagainst vulnerable groups and access to public information.F o r d ’s public interest law grantmaking is also connected to thework addressing alternative models of legal services that hassought to strengthen civil society by promoting greater access tojustice. These groups engaged in efforts to organize excludedgroups, teach them about their rights, and help them to obtain entitlementscollectively. During the 1980s several such legal serviceso rganizations received support from the Foundation. One was theColombian Communities Foundation, which worked with indigenouscommunities to defend a range of their interests, includingrespect for indigenous culture and title to traditional lands.By the mid-1980s scholars and organizations outside of thehuman rights movement began working in other areas not coveredby the then existing legal services groups. In 1986, a group ofyoung Peruvian lawyers joined together to create the PeruvianSociety for Environmental Law (SPDA), now a Foundationgrantee. SPDA was dedicated to using the law in the service of

7 2 CA S E ST U D I E Senvironmental protection, by conducting public interest litigation,training, and public awareness campaigns. A number of legalscholars and lawyers in A rgentina, Chile, and Colombia had alsobeen exploring use of the law in the defense of the public interest.The public interest law movement in the region developedaround a strong conceptual base, demonstrating how research canlead to practical effects in seeking social justice and improvingp e o p l e ’s lives. In 1988, German Sarmiento, a well-respectedColombian lawyer, published a book arguing that the country’snineteenth-century civil code recognized the existence of “popularactions.” Any citizen could file such an action if “nationalgoods of public use” (for example, roads, public areas, and theocean) were affected by governmental or private actions.S a r m i e n t o ’s thesis inspired a group of Colombian lawyers to createan NGO, Foundation for the Defense of the Public Interest(FUNDEPUBLICO), later a Ford grantee, which gained publicattention by filing popular actions in environmental cases.Attorney Ernesto Michelsen, FUNDEPUBLICO’s director,explains: “In 1989, a very important law on urban reform that recognizedthe concept of popular actions was passed by Congress.In 1991, a new constitution expanded the concept of popularactions to include not only the protection of public spaces, butalso public health, public safety, administrative probity, and thee n v i r o n m e n t . ”Another influential thinker in the area of public interest lawwas Carlos Santiago Nino, an A rgentine constitutional law professorand philosopher who taught in A rgentina and the UnitedStates, and whose writings introduced students and lawyers to thepossibilities of using the law for social justice purposes. In 1995,a group of young A rgentine lawyers who had studied or taught atuniversities in the United States decided to establish the A s s o c i a -tion for Civil Rights, modeled after the American Civil LibertiesUnion. One hundred lawyers from Buenos Aires gathered at theinaugural meeting of the association and more than one-thirdbecame permanent members. They have since brought test casesto court in collaboration with other NGOs.Thus, by the early 1990s, some experience in the use of publicinterest litigation mechanisms already existed in the region.Strong expressions of interest were coming from other org a n i z a-tions—some of them already grantees, like the Diego Portales

SO U T H AM E R I CA 7 3Law School—that wanted to utilize litigation in the promotion ofcollective rights. Ford Program Officer (and now Representative)Augusto Varas opened a dialogue involving local grantees,lawyers, and other experts in the field. With Foundation support,academics, NGOs, and other institutions are now working closelyto produce legal research, file test cases before the courts, andcommunicate the results of those cases through the mass media.And, as described below, they are training concerned groups inthe use of new legal mechanisms that have recently emerged inthese countries.Public Interest Stra t e g i e sThis section describes four main strategies under Ford’s programframework and used by grantees of its public interest lawgrantmaking: impact litigation; fostering a public interest legalcommunity; cultivating law students; and improving communicationsand advocacy skills. All of these strategies are anchored byF o r d ’s ongoing efforts to strengthen civil society org a n i z a t i o n sthat work on behalf of the public interest. The existence of a vigorouscivil society aware of its rights and of the legal instrumentsthat can be used to ensure public accountability is seen as a prerequisiteto any public interest law project’s success. Most of theo rganizations funded have stressed the need for some form ofcommunity participation, integral to the four strategies.For example, Citizen Power, an A rgentine organization thatholds public officials accountable to citizens through monitoringand advocacy, has used community involvement to help identifycases that could have public impact. NGO representatives werepart of an advisory board that met regularly during the implementationof a project testing the usefulness of existing legal mechanismsthrough court challenges. As Roberto Saba, then director ofCitizen Power, explains, “At first, they did not come with cases,but they gave us a picture of discrimination affecting every sectorof society. Now they are providing us with a lot of cases.” In thefirst such case, Citizen Power and the Association for Civil Rightsfiled a writ of a m p a ro in 1996, demanding the enforcement of theLaw to Protect the Disabled. The case was won, and in BuenosAires, courts were made accessible to disabled people.Citizen Power also worked with NGOs to launch workshops

7 4 CA S E ST U D I E Sand training activities in the use of legal and procedural instrumentsthat could promote the public interest. It collaborated withan environmental organization and a women’s rights group to preparetwo manuals on collective actions to defend rights in thoseareas. Afterwards, training in the use of these instruments wasprovided to law students as well as activists.Public interest litigation can create conditions for public mobilization.SPDA and other organizations have provided legal supportand contacts with international organizations to stop a Chileanfirm from building a large pasta factory on the edge of the wetlandknown as Pantanos de Villa, Lima’s only protected natural areaand a haven for migratory wildfowl. In this example, SPDA’sinvolvement complemented the political protests of residents.For Corporation for Legal Training for Citizenship andDemocracy (FORJA), litigation is just one component of a multifacetedcommunity effort. First, local associations of FORJAtrainedand organized paralegals undertake an opinion poll amongthe community organizations to discover priority problems. Inone locality, for instance, the target was the poor quality of localmedical clinics. Next, actions are planned by neighborhood committeesand sometimes the problem is brought to the attention ofthe local press. In this example, local residents formed a LocalHealth Council, which is monitoring the measures taken by theauthorities to improve the management of the clinics. The matterwould be taken to court only if necessary.The community organizing aspect of these projects has facedproblems. For instance, FORJA has encountered unwillingness bysome municipal mayors to cooperate with their evaluations, aswell as passivity on the part of some local groups. Naturally, thelevel of community interest depends on the issue at stake.Strategies used by groups have become more developed overtime. The four described below have been adapted to local contexts,and continue to expand and evolve.L i t i ga t i o nVaras points out that most grantees select cases that involve apublic interest issue (usually not a conflict between two privateparties); have potential for serving as a model for the future; pri-

SO U T H AM E R I CA 7 5marily deal with the interpretation of constitutional rights; willdraw public and media attention; and utilize, where possible,interpretation of international human rights agreements.Early cases targeted relatively noncontroversial issues to generatebroad public support and to avoid negative reactions thatmight even result in legislation that could create additional obstaclesto filing of this type of legal action. The several discriminationcases involving disability filed by Citizen Power and theAssociation for Civil Rights received wide support from the publicand press because the plaintiffs inspired public sympathy.Other litigation efforts have targeted the very centers ofp o w e r. In Colombia, FUNDEPUBLICO has expanded its classaction portfolio to include cases of official corruption. These suitswere based on a Constitutional Court decision permitting suchactions in the event of collective injury, such as government corruption.FUNDEPUBLICO’s victories in this area have included anotable case involving the irregular privatization of state miningi n t e r e s t s .All lawyers interviewed recognize that they face severalobstacles in their work, such as court delays, occasional judicialignorance, and even corruption. Moreover, lawyers involved inpublic interest law issues are still a minority within the legalprofession. Their assessment, as well as that of independentobservers, is that by selecting viable test cases they are makinginroads, gaining press attention, and providing vulnerable groupswith a measure of access to justice. Rodrigo Uprimy, an auxiliaryjudge of Colombia’s Constitutional Court, states, “These types ofclass actions are significantly different from the highly partisanrhetoric used to defend human rights in Colombia. They are moreaccessible to the common citizen.”Despite the ongoing challenges, grantees have won significantcourtroom rulings. For example, A rg e n t i n a ’s CELS asked theadministrative court, a branch of the judiciary that deals principallywith reviewing the legality of governmental actions, to orderthe Minister of the Interior to release information on the numberof people detained by the Federal Police in Buenos Aires. T h epetition was granted, and the police gave all the informationrequested. In another pertinent case, CELS lawyers sought toforce the national government to fulfill its duties to make avail-

7 6 CA S E ST U D I E Sable a vaccine for an illness that could affect three million people.The lower court dismissed the case after the Ministry of Healthannounced that it would eventually produce the vaccine. CELSappealed, and the court of appeals ordered the public agenciesinvolved to keep the court informed of progress on the vaccine’sp r o d u c t i o n .Public interest lawyers hope that another benefit of their workwill be a better educated judiciary. For litigation to be successful,there is a need to familiarize judges with the concept of publicinterest law, as well as with judicial decisions in other countriesregarding new collective rights such as the right to a clean environment,consumer protections, and socioeconomic rights. T h i scan be partially achieved through the legal arguments presented tothe judges. As Michelsen explains, “We are performing an educationalrole, directed towards the judges and other public authorities.The enactment of a new constitution in 1991 and the legalrules that regulate this constitution are relatively new and complex.Sometimes even the authorities find it difficult to interpretthese rules in the right way.” Judge Uprimy maintains that actionsthat force the judges to apply constitutional norms, which mayhave various interpretations, also encourage implementation of anew methodology of interpretation that has significantly changedj u d g e s ’ perspectives on human rights.Building a Legal Commu n i t yAnother important Ford effort has been to create and expand acommunity of lawyers interested in public interest litigation.From the inception the grantmaking program on public interestlaw stressed the need to develop a multinational network of academics,institutions, and legal practitioners that shared informationregarding their practice with counterparts in the region. T h ework of this network seems to have profited because of the factthat it was established just as some members were first beginningto engage in public interest litigation. According to MartinBohmer from A rg e n t i n a ’s Palermo University Law School clinic,which is part of the network, this helps ensure the affinity andshared interest of all participants, as well as their commitment tocommon goals in countries with different political contexts.

SO U T H AM E R I CA 7 7The network effort coordinated by the Diego Portales LawSchool started with a pilot in late 1995. During its first stage, fourlocal workshops were held in Bogotá, Buenos Aires, Lima, andSantiago, while an international and comparative law seminaralso took place in Santiago. This stage was instrumental in identifyingfurther steps to involve law schools more permanentlyaround public interest law initiatives. As a result, in December1996, a second phase was initiated in A rgentina, Chile, and Peru.The program established a network of university clinics on publicinterest law, involving litigation, clinical exchange, and research.Professors and students work within each country and also interactin regional meetings with their counterparts in other countries.Professors heading these clinics are encouraged to spend three tofour weeks at a U.S. law school clinic with extensive public interestlaw experience.Abregu of CELS says that the international exchange hasbeen very productive in terms of encouraging participants toreflect on what they were doing or had accomplished. Exchangesbetween clinics have led to uniform criteria for selecting testcases and have drawn attention to the use of the international lawcovenants applicable to the issues. Bohmer believes that theseinternational linkages among law schools create a common languageamong activists, lawyers, and academics. However, onelaw professor interviewed considered the national meetings ofclinics to be more useful, given the different stage of developmentof public interest litigation in each country.At the same time, both NGOs and law schools involved in theprogram are expanding their contacts with government off i c i a l s ,as well as with lawyers in private practice. For example, theO ffice for the Defense of the Rights of Women (DEMUS), aPeruvian grantee, has developed a fruitful relationship with theMinistry of the Interior and has implemented training courses forthe police in Lima. DEMUS also collaborates closely with theo m b u d s m a n ’s office in a Ford-funded research project on genderdiscrimination in the law. In Chile, the law clinic from theCatholic University of Temuco signed agreements with governmentalorganizations such as the National Wo m e n ’s Service, theNational Consumers’ Service, and the National Corporation forthe Development of Indigenous People in order to investigate

7 8 CA S E ST U D I E Scases involving gender discrimination, consumer rights violations,and racial discrimination.Grantees have also involved private lawyers in their eff o r t s .In August 1997, the Catholic University of Lima law clinic establishedcooperative agreements with the Peruvian Society ofEnvironmental Law (another Ford grantee), and a private law firmwell known for pro bono litigation. In July 1997, Chile’s DiegoPortales law clinic organized a meeting with several lawyers inprivate practice to inform them about their work. The lawyerso ffered advice on the process of selecting cases, discussed possiblecourtroom collaborations, and suggested that the law schoolo ffer a course on public interest law for judges. In another promisingcollaboration, an agreement was developed betweenFORJA, the Chilean bar, and the National Foundation toOvercome Poverty to engage private lawyers in providing legalrepresentation in public interest law cases. Those involved havesuggested these collaborative experiences are advances in themovement to promote the rule of law in Latin America.Training Law StudentsGrantees also help fill the need for public interest lawyers byinvesting in the education of new lawyers who are better trainedand more socially aware. In contrast with the law and developmentexperience, the aim is not to transform law school teachingmethods, but to encourage the formation of public interest lawclinics that attract a small number of interested students to workwith NGOs in the preparation of test cases that could have socialimpact. Through their participation in the clinics and contact withNGOs, it is hoped that these students will remain engaged in publicinterest law, or at least become legal practitioners who areaware of the problems of poor and disadvantaged communities.As of this writing, a network of eight Foundation-supportedpublic interest legal clinics exist in A rgentina, Chile, and Peru.Although the number of students in each clinic is quite limited,professors in charge of the clinical work hope that the numberwill increase as the arena of public interest law becomes betterk n o w n .The launching of law clinics benefited from international

SO U T H AM E R I CA 7 9experiences. The Palermo University law clinic was created byMartin Bohmer, a former graduate student at Yale University LawSchool, who gained familiarity at Yale with the role and functioningof law clinics. Yale law students visiting Buenos Aires helpedBohmer plan the clinic’s launch.Many of those in the consortium of law clinics believe thatparticipants have gained useful comparative insights from theseveral decades of U.S. clinical experience to which they havebeen exposed. The U.S. participants in consortium seminars haveshared with the network members aspects of clinical org a n i z a t i o nand student involvement in litigation, as well as their own clinicalteaching methodologies.These clinics are important for several reasons, observers say.They improve access to justice by providing legal representationon important policy issues that may not receive attention fromany other public or private agency. Second, they improve the legaltraining process, since the students involved must carry out complexlegal and even interdisciplinary research in order to bring atest case to court. The teacher’s involvement in the process canalso have a positive impact on his or her teaching abilities. T h e s eclinics also provide the students with exposure to NGOs, since allthe universities have established agreements to cooperate withNGOs to bring cases with public impact.Yet the reality is that current conditions force most newlawyers into private practice with little chance of practicing whatthey learned in the field of public interest law. Few NGOs or publicinterest law firms today offer new lawyers positions after graduation.Still, the graduates’ clinical experience might at least leadthem to offer their own services on a pro bono basis in publicinterest cases.Influencing Public OpinionLawyers involved in public interest law work are aware thatthe communication component of each project is essential. In theContinental European legal systems prevalent in the region, onec o u r t ’s decision does not necessarily carry weight in other courts,so the possibility of influencing future judicial decisions comes atleast partly from public pressure.

8 0 CA S E ST U D I E SA working relationship between the mass media and suchNGOs is crucial, and many discussed here have media units,which have been successful in publicizing their work. The drawbackof press coverage is that it usually focuses on only the mostdramatic aspects of a case and educational opportunities to showcaseeffective legal remedies are sometimes lost. Members ofCitizen Power have discussed two strategies to help amelioratethe problem. One is promoting their own philosophy throughopinion pieces published in various media. Another is holdingseminars for journalists about public interest law generally andthe litigation in question, stressing the potential contribution to ademocracy of citizens who can act directly to defend and promotetheir rights.Changes and ContributionsC o n c l u s i o nThe vision and courage of Ford grantees described abovehave led to significant successes in their efforts to further humanrights and social justice. By the late 1990s, a cohesive and growingcommunity of organizations and lawyers was involved ina d v o c a c y, education, community organizing, litigation, and policywork in the public interest. Discussions about human rights issuesin these countries have become more informed and more openthan in the past. Academics, law faculties, NGOs, and professionalorganizations have joined this dialogue. More important, theseprograms have produced concrete improvements in the lives ofa ffected populations.These achievements must be balanced by considering someobstacles still faced by the grantees. The human rights and publicinterest law communities are still small, and their influence onpolicy limited. While Ford support has contributed to a better andmore frequent use of legal and social actions that demandaccountability from the government and large enterprises, manylawyers still report that citizens remain distrustful of judiciaries,and are reluctant to use all the legal instruments available.

SO U T H AM E R I CA 8 1Following are some of the insights and lessons that have emerg e dfrom this study.Lessons and InsightsLegal Stra t e g i e s1 . Even under repressive regimes, law-related NGOs canhave substantial impact in promoting democracy andhuman rights. Legal representation of victims of repressionwas one of the most important strategies under authoritarianregimes in the region. Lawyers provided support to thevictims and their relatives, gathered and disseminated factualinformation on the patterns of repression, and preparedcases to be presented before international human rightsbodies. Their work generated significant international pressurethat helped lead to diminished state repression.2 . Law-related NGOs pursuing human rights concerns can gobeyond denunciation and confrontation with the governmentand foster communication with all sectors of society. NGOscan be effective beyond their usual circles of interaction.3 . Research on controversial issues can serve several importantfunctions. It can affect policy and stimulate debate oninstitutional reform when more direct reform strategies areuntenable, as in Chile during the early 1990s. Support forresearch also broadens the community of people activelyengaged in human rights issues.4 . In the countries covered by this chapter, efforts to enhancepublic accountability have effectively combined the use ofvarious strategies. Litigation, in particular, is best accompaniedby other activities, due to the extensive timerequired and the possibility of losing the case. Moreover,even if the case is won, there is no guarantee that similarcases will be decided the same way in nonprecedent-basedlegal systems.5 . Most of the organizations funded have stressed the needfor some form of community participation. Communitybasedgroups can help legal activists and scholars identify

8 2 CA S E ST U D I E Scases and facilitate training activities to popularize the useof public interest law. Litigation can also aid public mobilizationby providing legal advice and support to communitygroups that are challenging strong commercial and politicalinterests.6 . I n i t i a l l y, lawyers bringing public interest litigation in thisregion have focused on popular causes to enhance thepotential for positive press coverage and to encouragebroad public support.7 . Despite the institutional obstacles that public interest litigationfaces in the region, the possibilities for cases to bewon on their own merits are increasing. Many cases filedby grantees discussed here have resulted in favorable rulingsor created pressure to implement reforms.8 . Public interest litigation can be one means to educate thej u d i c i a r y. Moreover, training seminars can help raisej u d g e s ’ awareness of public interest law concepts andacquaint them with court rulings in other countries regardingnew legal developments.9 . University law clinics have exposed future lawyers to publicinterest law, provided support to groups that lackresources to hire lawyers, and raised issues often neglectedby the broader legal community, such as environmentalproblems and gender discrimination. Clinics have alsoimproved the training of law students by requiring them toconduct research in support of test cases.Donor Prog ramming A p p ro a ches and Roles1 . Donors can best support law-related efforts by choosinggrantee partners who remain nonpartisan while consistentlydemonstrating commitment to causes for which theyadvocate. Those NGOs that rejected violence and producedimpartial reports on human rights conditions have earnedcredibility for their work both domestically and internati o n a l l y.2 . Donor efforts to facilitate contact among grantees at theregional level have proved useful in increasing both thelocal and regional impact of their work. The network ofregional law clinics cited in the case study particularly

SO U T HAM E R I CA 8 3benefited from participation of all members at the inceptionof the network.3 . Donors providing long-term and continued support canhelp grantee organizations through important transitions asevidenced in this region by the successful transformationsof CELS and others.The strategies pursued by Ford grantees discussed here havepromoted the rule of law and helped build a civil society moreaware of its rights and the legal instruments available to defendthem. This work is vital if countries in the region are to continueon the path toward democracy.N o t e s1 . James A. Gardner, Legal Imperialism: American Lawyers andF o reign Aid in Latin A m e r i c a (Madison, Wisconsin: University ofWisconsin Press, 1980), p. 66.2 . Michael Shifter, “Colombia at Wa r,” C u rrent History, M a r c h1999, p. 11 6 .3 . Public Interest Actions in the Andean and Southern ConeRegion: An Overview of the Emerging Field of Public Interest Law inLatin A m e r i c a(Santiago, Chile: The Ford Foundation, 1997), p. 3.A p p e n d i x :People Interv i ewed for the Case StudyMartin A b r e g uD i r e c t o r, Center for Legal and Social Studies, Buenos A i r e sEduardo A l d a n aP r o f e s s o r, Los Andes University, BogotáCarlos BasombríoFormer Director, Legal Defense Institute, LimaEnrique Bernales, Sara Sotelo, and Denisse LedgardLawyers, Andean Commission of Jurists, Lima

8 4 CA S E ST U D I E SMartin BohmerP r o f e s s o r, Palermo University Law School, Buenos A i r e sDiego Carrazco, Juan Pablo Olmedo, Pedro Vera, and SebastianC o xS t a ff, Corporation for Legal Training for Citizenship andDemocracy (FORJA), SantiagoAlejandro CarrioPresident, the A rgentine Association of Civil Rights, BuenosA i r e sCamilo CastellanosD i r e c t o r, Latin American Legal Services Association, BogotáGaston Chillier and Marcela RodriguezS t a ff, Center for Legal and Social Studies, Buenos A i r e sMarcel ClaudeD i r e c t o r, Terram Foundation, SantiagoGino CostaDeputy Ombudsman for Human Rights, Ombudsman’s Office, LimaLorena Fries and Veronica MatusS t a ff, Wo m e n ’s Development Corporation (La Morada), SantiagoRonald GamarraL a w y e r, Legal Defense Institute, LimaFelipe Gonzalez, Felipe Viveros, and Jorge CorreaLaw Professors, Diego Portales Law School, SantiagoGorki GonzálezProfessor in charge of the Public Interest Law Clinic, CatholicUniversity Law School, LimaMiguel HuertasAdjunct to the Executive Secretariat of the National Coordinatorof Human Rights, Lima

SO U T H AM E R I CA 8 5Ernesto de la JaraD i r e c t o r, Legal Defense Institute, LimaBeatriz Kohen and Roberto SabaProfessionals in charge of the Public Interest Law Program,Citizen Power, Buenos A i r e sFrancisco LealVice Rector, University of Los Andes, BogotáDesiderio Lopez and Daniel MedinaAdvisors, Defensor del Pueblo (Ombudsman), BogotáErnesto MichelsenD i r e c t o r, Foundation for the Defense of the Public Interest(FUNDEPUBLICO), BogotáEmilio MignoneFormer President, Center for Legal and Social Studies, BuenosA i r e sHector MoncayoFormer President, Latin American Institute of Alternative LegalServices Association, BogotáLuis Moreno OcampoPresident, Citizen Power, Buenos A i r e sAlicia OliveiraL a w y e r, Center for Legal and Social Studies, Buenos Aires, nowOmbudsman of the City of Buenos A i r e sJuan Pablo Olmedo and Clovis MonteroS t a ff, Terram FoundationCarlos RodriguezDeputy Director, Colombian Commission of Jurists, BogotáRosa Rosenblitt and other staffGrandmothers of Plaza de Mayo, Buenos A i r e s

8 6 CA S E ST U D I E SMarcial RubioVice Rector, Catholic University, LimaJudge Alicia Ruizand other lawyers who participated in a research project onw o m e n ’s rights directed by Haydee Birgin at the Local DevelopmentStudies Center, Buenos A i r e sMichael ShifterFormer Program Off i c e r, Andean Region and the Southern Cone,The Ford FoundationCatalina SmulovitzProfessor of Political Science, Torcuato Di Tella University,Buenos A i r e sAdolfo Tr i a n aD i r e c t o r, Colombian Communities Foundation, BogotáRodrigo UprimyAuxiliary Judge, Constitutional Court, BogotáAugusto Va r a sRepresentative, The Ford Foundation, SantiagoRoxana Va s q u e zD i r e c t o r, Office for the Defense of the Rights of Wo m e n(DEMUS), LimaManuel Pulgar Vi d a lD i r e c t o r, Peruvian Society of Environmental Law, LimaGustavo Vi l l a l o b o sFormer Chief of the Legal Department, Vicariate of Solidarity,SantiagoRocio Vi l l a n u e v aSpecialized Defender of the Rights of Women, Ombudsman’sO ffice, Lima

SO U T H AM E R I CA 8 7Alex Wi l d eFormer Representative, Andean Region and the Southern Cone,The Ford Foundation, Santiago; now, Vice President,Communications, The Ford Foundation, New Yo r kJosé ZalaquettProfessor of Law, University of Chile, Santiago

3Rights into A c t i o n :Public Interest Litigation in theUnited StatesHE L E N HE R S H KO F F & DAV I D HO L L A N D E RThis chapter examines the Ford Foundation’s support of groupsthat use litigation to promote equality and justice for racialminorities, women, and immigrants in the United States. Sincebecoming a national foundation in the 1950s, Ford has played animportant role in supporting the efforts of inspired civil rightslawyers to develop a network of organizations dedicated to usinglaw to improve conditions and to promote equality for historicallym a rginalized groups. Through seed funding, core financial support,and capacity-building grants, the Foundation has helped tosustain these organizations during the changing political climateof the late twentieth century. Although the Foundation supports abroad set of strategies in its U.S. law programming—includingpublic education, community organizing, and coalition building—this case study focuses on Ford’s support of litigation to eff e c tsocial reform. Moreover, although Ford’s promotion of law-basedwork spans the nearly half century of the Foundation’s history,this case study focuses on the 1980s and 1990s, and is current asof mid-1999.F o r d ’s support of groups undertaking public interest litigationin the United States draws on a moral commitment shared by theFoundation and its grantees to social justice and to rule of lawvalues. It also rests on the pragmatic view that judicially precipitatedreform can help to remove discriminatory barriers, toexpand opportunities, and to improve conditions for historically8 9

9 0 CA S E ST U D I E Sunderrepresented groups. The Foundation recognizes, however,that the concept of social change is ambiguous; the literature onpublic interest litigation offers no single definition of “success.”Some commentators criticize public interest litigation as a failedstrategy that short-circuits the political process and produces few,if any, long-lasting successes. Reading the same evidence, othercommentators declare victory for civil rights litigation, but urge arefocusing of effort on public education, legislative reform, andpolitical mobilization. Still others point to litigation’s unintendedadverse consequences—including bitter political opposition—andemphasize the need for consensual solutions to divisive socialproblems. Finally, some observers recognize the limits of courtinitiatedreform, but recommend its continued support as part of amultipronged strategy to expand social justice and to preservevictories against erosion and assault.This case study addresses many of these concerns. Looking atthe work of some of the Foundation’s grantees over the last twodecades, the study illustrates the process of public interest litigationin the United States and identifies some of the factors framingits strategic use. The study does not claim to be scientific orcomprehensive; it does not discuss, for example, Ford’s significantsupport of legal services for the poor during this period. Nordoes the case study provide an audit of grantee work. Rather,through a sampling of the Foundation’s law grantees—inw o m e n ’s rights, minority rights, and immigrant and refugeerights—the authors glean lessons from the use of litigation tochange public policy; to enforce, implement, and monitor change;and to mobilize and empower members of historically disadvantagedgroups. The authors conclude that public interest litigationhas been and remains integral to a holistic social change strategythat may also include community mobilization, leadership andeconomic development, media outreach, policy analysis, andempirical research.The chapter first provides a brief institutional history ofF o r d ’s support of civil rights litigation in the United States andthen describes the adjudicative campaigns of particular granteesin such diverse fields as school finance reform, reproductivechoice, and land-use planning. Within specific U.S. contexts, thestudy then discusses the strengths and weaknesses of litigation asa social change strategy and explores how grantees have used

UN I T E D STAT E S 9 1media and other public education activities to mitigate some ofthe potential risks and disadvantages of court-based activities.F i n a l l y, the study draws some general lessons that may be of useto advocates, donors, and policy analysts in considering when,w h e t h e r, and how to use public interest litigation as a way to supportsocial change. The chapter concludes with a brief look atfuture challenges, emphasizing the need for continued and sustainedphilanthropic support of public interest litigation as part ofa social change strategy for historically marginalized groups.Brief History of Fo rd ’sU. S . L aw-Related Grantmaking Prog r a mF o r d ’s support for law-based programs in the United Statesbegan in earnest in the early 1960s, with a primary focus on legalservices for the poor. During that time, the Foundation launchedits comprehensive “Gray Areas” program to combat urban povertyat the grassroots level by providing a wide array of legal, educational,medical, and other social services. The Gray Areas initiativesbecame the model for many of the Great Societyprograms, including the Legal Services Corporation. In 1965,Ford helped to establish the Center on Social Welfare Policy andL a w, with the goal of using test case litigation to precipitate systemicchange in the welfare system. Under the leadership ofEdward Sparer, later a professor of law at the University ofPennsylvania, the center had a hand in many of the landmark poorp e o p l e ’s due process cases of the late 1960s, and also providedbackup services to frontline neighborhood legal services off i c e saround the country.M c G e o rge Bundy, who became the Foundation’s president in1966, spearheaded a substantial increase in the Foundation’sgrantmaking to minority rights groups in the United States, fromonly 2.5 percent of its annual giving in 1960, to 36.5 percent in1968. A significant portion of this increase during the eight-yearperiod went to litigation designed to ensure equal access to voting,education, employment, housing, and the administration ofjustice. The increasing emphasis on civil rights litigation reflectedB u n d y ’s view that the law “must be an active, not a passive force”for social change. Substantial grants went to the National A s s o -

9 2 CA S E ST U D I E Sciation for the Advancement of Colored People Legal Defenseand Educational Fund, Inc. (LDF), and to the Mississippi office ofthe Lawyers’ Committee for Civil Rights Under Law. Litigationcomprised a key part of these groups’ multipronged strategy,which also included support for improving minority leadership;promoting policy-oriented research on race and poverty; andexpanding the availability of legal resources to disadvantagedc o m m u n i t i e s . 1Recognizing the distinct needs of other ethnic groups andinterests, Ford provided grantees start-up funds during the years1968–1972 to establish seven new civil rights groups: theMexican American Legal Defense and Educational Fund; theSouthwest Council of La Raza; the Native American Rights Fund;the Puerto Rican Legal Defense and Educational Fund; theWo m e n ’s Law Fund; the National Committee Against Discriminationin Housing; and the Legal Action Center. The Foundationalso provided a seed grant to the Center for National PolicyR e v i e w, which monitored federal agency action under civil rightsand equal opportunity legislation. In providing funds to help createthis broad civil rights network, the Foundation’s aim was tosupport organizations, rather than particular cases, leaving decisionsabout actual lawsuits and specific strategies to the granteesthemselves, a policy that continues to the present.In 1979, Franklin Thomas became president of the Foundation.His tenure coincided with internal budget reductions, causedby the recession of the 1970s, and began just one year before theelection of Ronald Reagan as U.S. president. Observing that theF o u n d a t i o n ’s law initiatives addressed some of society’s most“sensitive and unyielding problems,” Thomas emphasized that thequest for equality and justice remained “incomplete.” He reaffirmedFord’s support for civil rights groups that use law forsocial reform, focusing the Foundation’s domestic law programson three goals: to advance the substantive legal agenda of the civilrights community; to enhance legal services for the poor; and tobuild the capacity of minorities, women, refugees and immigrants,and the poor to advocate on their own behalf.During T h o m a s ’s tenure, “support for public interest lawbecame a means to impact the lives of vulnerable groups in whichthe Foundation had a growing interest, rather than an end in and

UN I T E D STAT E S 9 3of itself,” explains Lynn Walker Huntley, former director of theF o u n d a t i o n ’s Rights and Social Justice Program. In continuing tosupport the national civil rights groups that it had helped providefunding to establish, the Foundation underscored the importanceof their organic links to community, as well as their establishedtrack records of success. At the same time, Ford encouraged thesegrantees to develop new strategies, especially in the areas of education,employment, and housing, and to take greater account ofthe overlapping significance of race, class, and cultural characteris t i c s .Theodore M. Shaw, associate director–counsel of LDF,observes that 1980 marked “the end of a period in which civilrights litigation was viewed expansively and off e n s i v e l y, and [thebeginning of] another in which by necessity it was viewed lessexpansively and defensively.” The nation’s political retrenchmentfrom certain social programs presented the civil rights communitywith challenges on several fronts. The government had earlierbeen an ally of civil rights advance in court, through research, andby enforcing and monitoring antidiscrimination laws. After 1980,the Justice Department frequently opposed civil rights groups incourt. As the President made appointments to the federal bench,the judiciary increasingly reflected the nation’s ambivalencetoward civil rights. New and well-funded opposition groups filedtheir own lawsuits seeking to reverse earlier gains. At the sametime, financial cuts in programs for the poor and in legal serviceshighlighted the importance of including issues of poverty, as wellas race, in the broader civil rights agenda.Political opposition and legal challenges—in such key areasas employment opportunity, reproductive choice, and fair treatmentof immigrants—badly strained the financial capacity ofF o r d ’s grantees. By providing core and occasional project-basedsupport, the Foundation afforded grantees maximum flexibility indesigning and administering law programs as the social and politicalcontexts of their work changed. Although grantees report thata triage mentality dominated their efforts throughout the 1980s,many groups—seemingly against all odds—scored importantcourt victories on antidiscrimination issues and also secured theextension of civil rights law.To address this evolving situation, many groups also began to

9 4 CA S E ST U D I E Sexplore new issues and to complement litigation with public educationand community mobilization activities. The A m e r i c a nCivil Liberties Union (ACLU) and others expanded voter registrationefforts, and also focused attention on the discriminatorybarriers raised by the use of standardized tests in jobs andschools. In addition, during this period, the Foundation helpedexpand and sustain the civil rights infrastructure of nongovernmentalorganizations. In the early 1980s, Ford funding enabledthe National Wo m e n ’s Law Center to become a freestandingo rganization, and helped establish groups with litigation capacityto represent refugees and immigrants. The Foundation providedsupport to encourage churches (or faith communities) to respondto the needs of the black community, and gave funds to enablegroups to conduct research about Latinos and to build public supportfor and leadership skills within that community.The election of Bill Clinton as president in 1992 did not stemchallenges to civil rights. A conservative federal judiciary wasnow in place. Federal legislators—especially after the 1994 election—passeda series of laws that sharply diminished the federal“safety net” for poor people, imposed tough restrictions on immigrants,cut funding for legal services, and blocked access to judicialreview even for certain constitutional claims. Ford increasedits financial commitment to preserve and promote the interests ofthe disadvantaged, maintaining high levels of core support forsome groups, and moving to project-based support for others.Recognizing Asian Pacific Americans as the nation’s fastestgrowing minority group, Ford helped to establish the NationalAsian Pacific American Legal Consortium in 1993. At the sametime, Ford placed increased emphasis on intergroup relationsamong minorities, identifying important issues for additional supportand fostering coalitional efforts on matters of broad concern.For example, in anticipation of the myriad legal issues that wouldbe presented by the 1990 census, and out of concern that minoritieswould be adversely affected when voting districts wereredrawn, the Foundation initiated a $2 million campaign forgrantees to support education, monitoring, advocacy, technicalassistance, and litigation in the area of voting rights.Throughout these years, other national and local foundationsalso gave support to public interest litigation and related strate-

UN I T E D STAT E S 9 5gies. Some foundations provided grants for targeted projects. A tthe national level, a few key donors provided sustained support;they included the Rockefeller Foundation and the CarnegieC o r p o r a t i o n .In 1996, Susan Berresford became president of the FordFoundation. As executive vice president of the Foundation formany years, she was well placed to provide strong support forcivil rights and to lead Ford into the next century. In the finalyears of the 1990s, the Foundation encouraged grantees to rethinktheir basic missions, urging even greater attention to the relationshipsamong race, gender, and class that could especially impacthistorically marginalized groups. As federal powers begandevolving to the states, Ford also helped grantees explore ways towork in state government policy contexts that potentially aff o r d e dnew opportunities for community involvement. Finally, Fordencouraged grantees to forge linkages with the academic communi t y, business, and community groups to develop new partnershipsfor social reform.“It is essential that the Foundation take a long-term approachto funding public interest litigation in the United States, while atthe same time encouraging grantees to pursue new directions andstrategies,” says Anthony Romero, the Foundation’s director ofHuman Rights and International Cooperation. “That’s why thework we’re doing now is as pressing as when we first started inthe 1960s.”A Sampling of Grantee A c t i v i t i e s :T h ree Dimensions of Court-Based StrategiesMore than 150 years ago, Alexis de Tocqueville observed,“There is hardly a political question in the United States whichdoes not sooner or later turn into a judicial one.” One of the greatadvances in American society in the last half century has been thecreation of a network of civil rights organizations that enableshistorically marginalized groups to participate in this nationaljudicial process. Legal advocacy can encourage democratic possibilitiesthat are often blocked by discrimination and disadvantage.Civil rights groups thus use litigation strategically to create lever-

9 6 CA S E ST U D I E Sage for their constituents, promoting political and social goals thata fford disadvantaged minorities a stronger place in society.By the start of the 1980s, civil rights groups had larg e l ysecured a set of rights aimed at ensuring the formal perquisites ofsocial and political equality. But poverty and inequality persisted,and Congress and the courts resisted efforts to remedy entrenchedprivate practices that blocked movement toward further economicand social equality. After years of trying to use court decrees toreform public institutions—whether by desegregating publicschools or improving health and safety conditions at mental hospitals—advocatesaccepted that litigation is a blunt tool requiringyears of tedious enforcement proceedings. Indeed, because legalcategories do not always correspond to social needs, litigationsometimes seemed to impede or distort policy goals. Moreover,the public’s tendency to view litigation as a “winner takes all”game contributed to a sense that civil rights efforts fueled unnecessarydivisiveness, which contributed to backlash. Finally,whether because of “docket fatigue” or other reasons, the federalcourts no longer appeared receptive to egalitarian arg u m e n t s ,increasingly raising procedural barriers to relief that impeded furtherprogress. The changed political climate of the 1980s requiredgrantees to reconsider not only many of their substantive goals,but their strategies as well.Yet, even as grantees devoted more resources to public education,community organizing, and administrative advocacy, theydid not abandon litigation as a tool to advance civil rights. A sMarcia Greenberg e r, copresident of the National Wo m e n ’s LawCenter (NWLC), explains, “A concrete case could provide a wayof highlighting the importance of a legal principle in the contextof a real set of facts and actual people affected by the outcome. Acase could serve to rally press and public attention to the legalprinciple at stake.” In some instances, civil rights groups resortedto litigation to block the government’s enforcement of unfavorablelaws, such as efforts to challenge the 1986 immigrationrestrictions and Proposition 187 (a California referendum thatattempted to bar undocumented immigrants from basic health andeducational services). In other areas, grantees turned to statecourts and to state constitutions for new sources of civil rightsprotection. In many instances, traditional civil rights groups could

UN I T E D STAT E S 9 7no longer control when and where they would raise particularissues in court; opposition groups frequently filed their own lawsuits,and grantees had to intervene in such actions to preservepast victories. As civil rights groups matured, they struggled withmixed success to mitigate the risks of litigation, and their litigationgoals evolved over time to accommodate new realities ofpublic opinion and judicial philosophy.Public Interest Litigation and Public Policy ReformEver since the National Association for the Advancement ofColored People (NAACP) first mounted its litigation campaignagainst segregation, the public has associated the courts with thepower to change social life. Civil rights groups use different techniquesto trigger the process of judicially precipitated reform. Te s tcases can establish precedents that will apply to many individuals.Class actions with many, often thousands, of plaintiffs allow theinterests of a broad group of people to be addressed in one proceeding.Individual lawsuits have the potential to declare newrights and to extend a legal principle into new areas. In addition,civil rights groups must sometimes litigate defensively to preservereform or to block harmful policies. And in some cases,Ford grantees appear as amicus curiae—as “friends of thecourt”—to explain or emphasize important issues.The court-based struggles of Ford grantees show that litigationis an imperfect strategy constrained by many factors. Yet, incertain situations, it remains unclear whether noncourt strategiescan prove successful without support from—or the threat of—litigation.Even when a lawsuit fails in court, it can help publicizeissues, mobilize constituents, garner resources, and legitimate ano u t s i d e r’s position, thereby endowing disadvantaged groups withforms of political capital.This section looks at three adjudicative campaigns mountedby Ford grantees that, among other things, have helped reformpublic education, advance reproductive choice, and extend fairtreatment to immigrants.Using State Courts to Reform Public Sch o o l s. After the desegregationbattles of the 1950s and 1960s, it became apparent that

9 8 CA S E ST U D I E Sdespite the end of formal segregation, schools in the poorestareas, many primarily composed of minorities, lacked resourcesto provide their students meaningful educational opportunity.American schools are largely financed by local property taxes,with the result that significant disparities exist between rich andpoor school districts. Litigation efforts in the 1960s and early1970s to reform school finance systems faltered when the U.S.Supreme Court refused to locate a right to education in theConstitution, and efforts to effect reform through state legislatureslikewise achieved very limited success. In the 1990s, students inone poor Alabama school district still used decades-old textbookspredicting that one day man would walk on the moon.F o r d ’s long-standing commitment to education reform beganwith grants in the 1950s to study the effects of segregation, andcontinued with multimillion-dollar support for research, training,a d v o c a c y, and litigation in the 1970s. In the late 1980s, a Fordgrant enabled the ACLU to work with school finance economiststo develop an empirical base for a new litigation strategy aimed atenforcing a state constitutional right to an adequate education.Unlike the U.S. Constitution, every state constitution explicitlyrequires the establishment of free public schools. The A C L U ’sgoal was to leverage these state constitutional clauses into anenforceable right to a quality education.Since 1989, the ACLU has commenced state court challengesin Alabama, Connecticut, Louisiana, Maryland, and New Yo r k ,and, as amicus curiae, in Massachusetts and California. While theoutcomes vary from state to state, courts have typically upheld theprinciple of educational equity and adequacy. In Alabama, thecourt invalidated an earlier state constitutional amendment thateliminated any state right to free public education, on the groundthat it was a blatant attempt to circumvent the historic 1954 U.S.Supreme Court desegregation ruling, B rown v. Board of Education.(B ro w n declared unconstitutional state laws that allow publicschool districts to separate students by race.) In a later ruling, theAlabama court defined the content of A l a b a m a ’s state constitutionaleducation right in terms of nine capacities that the statemust develop in all children through appropriately funded programsof instruction. In Maryland, the lawsuit precipitated a historicnegotiated agreement among the parties, requiring manage-

UN I T E D STAT E S 9 9ment reform and increased state funding for public schools. InConnecticut, the court’s order triggered a statewide planningprocess on how best to improve school quality through regionali n t e g r a t i o n .The ultimate goal of assuring quality education for everychild in America has remained the same all along. When legislaturesfailed to do what was necessary to make that goal a reality,public interest lawyers stepped in. Says ACLU Legal DirectorSteven R. Shapiro, “Education litigation has become increasinglysophisticated, moving from the desegregation cases, to fiscale q u i t y, to educational adequacy. The problem has changed overtime, but the ACLU has a real commitment not to abandon thef i e l d . ”Litigating for Reproductive Choice. The U.S. Supreme Court’s 1973decision in Roe v. Wa d e , establishing a woman’s right to makereproductive choices, marked only the beginning of a long politicalstruggle in the United States. Given the profound moral issuesthat abortion presents, the Court’s decision provoked bitter oppositionfrom churches and in Congress. With the help of Ford andother donors, Janet Benshoof established the Center forReproductive Law & Policy in 1992 to advance women’s reproductiverights. Benshoof has been litigating for reproductivechoice since her days as a staff attorney at the ACLU Wo m e n ’sRights Project. “In 1977,” she says, “I was given a grant by JohnD. Rockefeller III to ensure that Roe v. Wa d e was implemented inall fifty states—a task that he thought, and I naively agreed, couldbe finished in a year! It wasn’t long before we realized thatadvancing women’s reproductive freedom would involve a lifelongcommitment.”Commentators sometimes refer to abortion as the classicexample of litigation moving ahead of community norms andcausing a political backlash. Opposition to abortion is deeply feltand highly mobilized. Benshoof observes, “There is no otherissue in which the other side has galvanized so much money. ”Nevertheless, the center stands firm in its belief that litigation isan essential component of that struggle in the United States.Simon Heller, the center’s director of litigation, says the cente r’s main work involves Supreme Court advocacy to preserve

1 0 0 CA S E ST U D I E SR o e and the structure of reproductive rights that it protects. Insupport of that goal, the center also undertakes varied strategies,including litigating “service” cases that secure pro-choice policiesfor individual women to make sure that policies are enforced “onthe ground.” Yet as Anika Rahman, its international programd i r e c t o r, cautions, “Litigation is likely ultimately to fail if therei s n ’t along with it a public education campaign effort. At the endof the day, the most important thing is to ensure that the generalpublic supports your goals and objectives.”An important center priority has been to restore full reproductiverights to low-income women in the wake of the elimination offederal Medicaid funding for abortion. Within days of being contactedby a poor woman in Montana who had become pregnantafter being raped, the center flew its lawyers to Montana andobtained a state court injunction, mandating that the state pay forthe abortion she sought. Center staff used the case, based on thestate constitution, to educate the public through the media about theextreme circumstances poor women can face. Eventually, completerestoration of Medicaid funding for reproductive choice in Montanawas achieved. By 1996, 40 percent of women in the United Stateslived in states that provided public funding for abortion.D e fending the Rights of Immigra n t s. The civil rights revolution thatbegan with B ro w n has never fully penetrated the realm of immigrationlaw. Because noncitizens are a highly marginalized group,lacking even the right to vote, legislatures and courts often do notalways respond to their needs. Beginning in 1982, Ford providedsupport to maintain and expand an infrastructure of national andregional legal organizations that help monitor and ensure theequitable enforcement of immigration laws. Among them is theACLU Immigrants’ Rights Project, a grantee since its founding in1983. “There’s enormous judicial deference in the area of immigrationthat doesn’t exist in other civil rights areas,” says LucasGuttentag, its director, explaining that courts typically accept thepolicy judgments of the other branches of government in theimmigration area. “But there have been significant advances. A n dI think the question is, where would we be without that litigatione ffort? And where we would be is absolutely nowhere.”

UN I T E D STAT E S 1 0 1With plaintiffs generally poor, legal fees limited by the federalattorney’s fee statute, and the issues to be litigated unusuallycomplicated, the vast majority of reform litigation in the area hasbeen brought by immigration lawyers dependent on foundationsupport. By necessity, much of the work is defensive or reactive.Yet grantees have scored some dramatic victories. In the early1980s, several class actions successfully challenged aspects of theasylum process. Under a landmark case initiated in the 1980sinvolving Haitian refugees, a court ordered the government toreprocess 5,000 asylum applications in a way that would complywith fundamental due process. The 1982 landmark case of P l y l e rv. Doe established the principle that it is unconstitutional to denyundocumented children a free public education. Later, in a caseinvolving Salvadoran refugees, the United States Immigration andNaturalization Service was barred through a settlement in 1991from manipulating refugees into abandoning their right to seekpolitical asylum.In 1996, a tidal wave of unfavorable federal legislation hit theimmigrant community. Popularly backed federal legislation tocontrol illegal immigration and to reduce welfare rolls also evisceratedthe rights of legal immigrants. The combined effect ofthree extremely complex and overlapping new laws left theunderfunded immigration law community reeling. Org a n i z a t i o n ssuch as the ACLU and the National Immigration Law Center, ano rganization providing expertise on the rights of immigrants topublic entitlements, divided up areas of responsibility in respondingto the laws. On the litigation front, the ACLU, with othergroups, challenged some of the new statutes’provisions that blockimmigrant access to judicial relief. Other advocates persuadedCongress to restore some of the categories of public assistancethat the 1996 act eliminated. Many states have since agreed toreplace some of the eliminated federal funding with state funds.Taryn Higashi, Ford Foundation Refugee and Migrant Rightsprogram off i c e r, explains: “Lawyers have been central to all thesestrategies because immigration laws are so complicated. . . . Eventhough many issues are driven and shaped by public opinion andpolitics, without a lawyer to parse the laws, you just can’t move.”Because of Ford and other donor support, stable immigrants’

1 0 2 CA S E ST U D I E Srights institutions, staffed by seasoned experts who knew andtrusted one another, were in place when the crises hit, and theycooperated to meet the immigrants’legal needs.Public Interest Litigation toI m p l e m e n t ,E n f o r c e, and Monitor ChangePublic policies and laws are not typically self-executing. Ti m eand again, a law is passed, or a judicial decree is issued, and littleor nothing changes. Part of the problem is that legal norms areoften expressed in general or open-ended terms, leaving implementationof statutory requirements to the discretionary decisionsof many individuals, officials, and bureaucrats. Moreover, onsome issues, opposition organizes and actively hinders implementa t i o n .“If there’s anything we’ve learned it’s that it’s not enough tobe instrumental in creating a principle or policy,” says NancyDavis, former executive director of Equal Rights A d v o c a t e s(ERA), a Ford grantee that litigated with other organizations togain women and minorities equal access to employment as SanFrancisco firefighters. “Being around to make sure that it’senforced and that it has some teeth is absolutely critical.” A n dindeed ERA was forced to monitor the settlement in the firefighter s ’ case for many years.“ You can’t relax on the law front,” warns Burt Neuborne,John Norton Pomeroy Professor at the New York UniversitySchool of Law, “because the moment you relax on the law front,they’ll push you back to the old system of law. . . . Within a lifetime—withinone single lifetime—much of what we’ve gainedfrom the fifties to now could be gone.”Implementation and monitoring can be expensive, tedious,and long-term activities. Yet litigation can also be a cost-eff e c t i v es t r a t e g y. Litigation groups have won much-needed injunctiverelief, and reaped millions of dollars in back pay awards and damagesfor clients with no other recourse to claim their rights.Some people express reservations over using litigation tomake law, even when other strategies have failed. However, publicinterest litigation is very often used as a tool to enforce lawsand to seek compliance with decrees already on the books. As the

UN I T E D STAT E S 1 0 3following three examples—involving desegregation, NativeAmerican treaty obligations, and women’s rights—show, there issometimes simply no alternative to litigation as a means of monitoringand obtaining compliance with legal requirements.Maintaining Desegregated Public Sch o o l s. History recounts massiveresistance by the Southern states to the landmark 1954 desegregationruling of B rown v. Board of Education, and official indiff e r-ence, and worse, in the North. LDF, a longtime Ford grantee, hasreturned to court hundreds of times to ensure that B ro w n is implemented.Janell Byrd, who joined the Washington office of LDF in1984, explains that litigation to enforce B ro w n has tried to eliminateboth “the legal structure of racial segregation” and “the racialcaste system” that supports it. LDF’s docket thus aims broadly atending “the wide variety of practices that go ‘hand-in-glove’ w i t hracial segregation (including inferior educational resources interms of school facilities, books, technology, and teachers), aswell as the exclusion of minorities from mainstream society andits opportunity structures.”Enforcing desegregation decrees thus forms part of a broaderstrategy: desegregation cases create opportunities for A f r i c a nAmericans to participate in important community decisions. A sElaine Jones, LDF president and director-counsel, explains,“Desegregation is about funneling resources to your children. It isnot just about white and black students sitting together in a classroom.It provides a lever for decision making by the black commu n i t y.”In its litigation, LDF emphasizes that desegregation improveseducational policy. “During the period of the most eff e c t i v eschool desegregation, roughly 1970 to 1990, the academicachievement for African Americans, while not closing the gapwith whites, showed dramatic improvements,” LDF’s Byrd pointsout. In Alabama, for example, LDF recently resisted efforts byChambers County to amend its desegregation plan with a proposalthat would have allowed a significantly white, newly establishedcity in the rural part of the state to secede from the countyschool system, which is predominately black, and to take with it adisproportionate share of the county’s educational resources. Inthe process of enforcing the existing desegregation order, LDF

1 0 4 CA S E ST U D I E Swas able to bring about significant educational improvementsinvolving course offerings, teacher resources, and school facilities.As of 1997, more than two hundred school desegregationorders remained in effect throughout the nation. Despite the trendtoward resegregation, LDF has successfully maintained integrationand improved school quality in the seventeen southern stateswhere it has brought hundreds of proceedings to enforce B ro w n .E n forcing Native A m e rican Treaty Obligations. Native A m e r i c a n shave historically faced systematic mistreatment in the UnitedStates and a loss of ancestral lands. In one of its efforts to breakup Indian tribes and tribal lands, Congress in 1887 provided forthe allotment of a portion of tribal lands managed by the UnitedStates to individual members of the respective tribes. The federalgovernment undertook to hold the proceeds from those lands—income from leases allowing grazing, farming, logging, or mining—intrust for the individual tribal members. By all accounts,the government utterly failed in its obligations.Many of the account holders are among the poorest people inthe nation. Two hundred fifty million dollars flow through thesystem every year. In all, billions of dollars, held in trust for asmany as half a million individuals, are at issue. Much of themoney is impossible to trace because of government negligence.The gross mismanagement of the trust funds, the Wall Stre e tJ o u r n a l reports, “is so complex and so potentially expensive tofix that it has been kicked from one administration to anothersince the 1920s.” Although the problems had long been recognized,and the legal rights of the individuals were clear, the injusticecontinued and grew. As Elouise Cobell, a lifelong resident ofthe Blackfeet reservation in Montana, says: “They forced us torely on a system that everybody knows didn’t work. When wecomplained about it to the Bureau of Indian A ffairs, to the InteriorDepartment, to Congress, and to administration after administration,it fell on deaf ears.”In 1996, the Native American Rights Fund (NARF), a Fordgrantee since its creation in 1972, filed a class action lawsuit,with Cobell as lead plaintiff, on behalf of the account holders. InFebruary 1999, Federal District Judge Royce Lamberth held gov-

UN I T E D STAT E S 1 0 5ernment officials in contempt of court for failing to producerecords pertaining to the trust funds. A few months later, the courtrejected the government’s request to dismiss the lawsuit, findingthat government officials have a duty to the account holders to“act as a proper trustee . . . as mandated by Congress.” JohnEchohawk, NARF’s executive director, says of the decision, “Thisis the first time a Federal court has ruled that the Federal trusteein this context of trust funds will be held to the standards of a privatefiduciary, just like any other American. Because of that, thisis watershed, landmark litigation.” A trial on the merits began,still later, in June 1999, with government lawyers admitting thatthe U.S. was unable to account for what it owed the Indian benefici a r i e s .Advancing Educational Opportunity for Girls and Wo m e n . “ With lawon your side, great things are possible,” says NWLC’sG r e e n b e rg e r. NWLC has been using law to expand opportunitiesfor women since 1972, when it began as the Wo m e n ’s RightsProject of the Center for Law and Social Policy. A f r e e s t a n d i n go rganization since 1981, NWLC’s programs are grouped in fourbroad areas: education, health and reproductive rights, employment,and family economic security.NWLC has used an ambitious and complementary strategy oflitigation, administrative advocacy, and public education todefine, enforce, and expand federal protections, in particularunder Title IX of the Education Amendments of 1972, whichguarantees gender equity in educational programs funded by thefederal government. According to Greenberg e r, sticking with anissue is key: the positive development of Title IX protection in thearea of school athletics programs is a case in point. NWLC hasbeen involved in virtually ever major Title IX athletics case, andevery U.S. court of appeals that has considered the issue has comeout in favor of broad protection against gender discrimination inathletic programs. In 1997, on the twenty-fifth anniversary ofTitle IX, NWLC highlighted the problem of continued athleticscholarships discrimination by filing complaints against twentyfivecolleges and universities with the federal enforcementa g e n c y.Its work to expand notions of gender equality have also

1 0 6 CA S E ST U D I E Sincluded protection of female students against sexual harassment.In the first student-to-student sexual harassment case the U.S.Supreme Court has ever considered, Davis v. Monroe CountyB o a rd of Education, the Justices ruled in 1999 that under federallaw a public school system is responsible for protecting a studentfrom repeated and vicious sexual harassment by a fellow student.The case was brought by the family of a fifth-grader, who, overthe course of five months, was repeatedly threatened, grabbed ininappropriate places, and sexually harassed by a boy in her class.Despite repeated complaints and pleas for help to her teachers andprincipal, the school system failed to protect the ten-year-old girl,explains Verna Williams, the NWLC attorney who successfullya rgued the case before the Court.“The Court’s decision holds schools responsible for the safetyof their students,” says Greenberg e r. “This ruling extends to studentsbasic protections against sexual harassment that preventsthem from getting the education they deserve and have a right toexpect.”These examples illustrate how grantees constantly have toreturn to court to turn “law on the books” into “law in action.”“Public interest litigators know that securing the initial courtorder is only the first step of many to cement a victory, even withthe best judge,” says Mary McClymont, senior director of Ford’sPeace and Social Justice Program. “Time and continued vigilanceare essential to achieve the change sought, and that’s why institutionalsupport to litigating groups to enable them to keep goingduring the compliance stage is so critical.”Public Interest Litigation and Political MobilizationIn a fundamental sense, public interest litigation aims atempowering historically disadvantaged groups so that they canfreely and equally participate in the political process and protectthe rights they secure. A court-based strategy can encourage communitymobilization by raising consciousness, providingresources, and creating allies. In addition, litigation adds legitimacyto community groups when they confront government action,and helps publicize their goals. Yet just as the threat of “see youin court” gives communities important leverage, so national liti-

UN I T E D STAT E S 1 0 7gation groups benefit from the experiential knowledge of grassrootsgroups. The importance of community mobilization to longtermsocial change thus cannot be overstated. Helen Neuborne,deputy director of the Foundation’s Human Development andReproductive Health unit, says, for example, “Many peoplebelieve that the national women’s groups did not do enough grassrootsorganizing after their victory in Roe v. Wade, that they wenttoo far, too fast and lost support from their constituents.”Law groups are not always equipped to do organizing andcommunity mobilization activities. Part of the diff i c u l t y, as oneactivist lawyer acknowledges, is “the difference in class and racebetween lawyers and the people they serve.” Cindy Morano, seniororganizer of Wider Opportunities for Women, a communityo rganizer who has worked with lawyers throughout her career,explains, “Because lawyers and community organizers have differentskill sets,” legal skill does not predict organizing ability.As a national foundation, Ford does not make many smallgrants to local groups. Over the years, however, it has developedmechanisms to channel funds to groups with expertise incommunity-based activities and has encouraged innovative legalstrategies that are more broadly linked to community mobilizationgoals. Such techniques enable grantees to acquire informationfrom affected communities and to keep these communitiesinformed and engaged.Some grantees have complemented their litigation programswith proactive “transactional lawyering” activities that involvecommunity groups in nonlitigation legal strategies. As A l a nJenkins, Ford’s Racial Justice and Minority Rights program off i-c e r, explains, these alternative lawyering approaches are intended“to help craft solutions where an adversarial approach is unlikelyto succeed.” He underscores, however, that while these nonlitigationefforts are important in mobilizing and sustaining politicalsupport, they carry their own set of limitations.F i n a l l y, a holistic approach to social change requires coordinationamong different and diverse organizations. LDF StaffAttorney George Kendall explains the problem well: “Some of themost important issues that we need to win cannot be won withoutencouraging and sustaining cooperative efforts between nationalo rganizations. They require multipronged campaigns—legal, pub-

1 0 8 CA S E ST U D I E Slic education, legislative—to succeed. Such efforts are beyond themeans of any one organization; we will have success in the futureon these must-win issues only if the donors recognize the necessityto provide funding on such collaborative efforts.”The remainder of this section examines three diversecommunity-based strategies that grantees used to complement orspearhead their litigation work.C o o rdinating Litigation with Community Organizing. In 1994, LosAngeles County was a vast urban area of approximately fourthousand square miles and more than nine million people. Mostresidents traveled long distances to work, for medical care, andfor other routine activities. The many working poor who couldnot afford an automobile were completely dependent on publictransportation provided by the county’s MetropolitanTransportation Authority (MTA). Buses carried 94 percent of theM TA’s passengers. Eighty percent of the bus riders were people ofcolor; their average household income was less than $15,000.Despite the fact that its buses carried nearly all its riders, theM TA devoted more than 70 percent of its budget to rail programs,which primarily benefited affluent riders. Its fleet of buses wasthe most overcrowded, oldest, and least reliable in the nation. Inthe summer of 1994, the MTA announced plans to spend tens ofmillions of dollars in discretionary funds—which could have beenspent on buses—on a light-rail line. At the same time, itannounced plans to raise bus fares and discontinue inexpensivemonthly passes, in order to make still more money available forrail facilities.That fall, LDF sued the MTA on behalf of the Bus RidersUnion (BRU) and a community organizing group that had helpedcreate the BRU, citing Title VI (a federal antidiscriminationstatute) and equal protection violations. LDF won a preliminaryinjunction against the fare increase and the elimination of passes.More than eighteen months of litigation followed, with fourlawyers working nearly full time on behalf of the bus riders. Amountain of evidence was assembled, clearly showing the disparitiesin funding of bus and rail transportation. Public opinionbegan to crystallize in favor of increased bus service, and the L o s

UN I T E D STAT E S 1 0 9Angeles Ti m e s also became a forceful advocate for greater equityin public transport.In 1996, the MTA agreed to a consent decree requiring it toimplement several of the plaintiff s ’ main goals, including lowerand controlled bus fares and reduced overcrowding. A joint workinggroup of representatives of the MTA and the BRU wasformed—giving bus riders an official, ongoing role in LosAngeles County public transportation policy. LDF closely monitoredcompliance with the consent decree, and went back to courtseveral times. Finally, in October 1998, the MTA board voted tobuy 2,095 new buses over the next six years, and days later thehead of the MTA, in what the Los Angeles Ti m e s called “a sharpbreak with the [MTA’s] long absorption in rail transit,” called forthe creation of a vast network of rapid bus lines.More than four years after the litigation commenced, and overtwo years after the consent decree, Los Angeles bus riders wereon the verge of seeing major change. “This work could not bedone without the BRU,” says Richard Larsen, an LDF attorneywho has been on the case from the beginning. “They know theconsent decree, they know the issues, they know the MTA. T h e yarticulate their causes well.” BRU’s community involvement wasessential to mobilize interest in and support for this issue. Butwithout the staying power of an established institution like LDF,the bus riders would never have had their day in court. The injusticedone to the people who depend on buses for transportationbecame clear only through the focusing power of litigation—asdiscovery generated the mass of evidence that BRU relied on tochange public opinion and public policy.Forming New Groups for New Constituencies. In 1991, Ford andother foundations funded a collaboration of three regional A s i a nAmerican legal groups under a single umbrella, the NationalAsian Pacific American Legal Consortium. Using a range ofstrategies including litigation, community education, and leadershiptraining, the consortium, under Executive Director KarenNarasaki, has led its constituents from the margins to the center ofcivil rights advocacy.The consortium has tried to learn from the experience of older

1 1 0 CA S E ST U D I E Spublic interest law groups, while remaining keenly sensitive to itsparticular constituency. Many Asian Americans are recent immigrants,Narasaki says, with “an understandable mentality of saying,‘Well, I left my country for a good reason. This country isbetter than what I had there. So who am I to complain?’” T h econsortium has focused heavily on community education and outreach,as well as developing leadership skills. “We don’t do litigationjust to do litigation,” Narasaki explains. “It has to be capacitybuilding somehow. Whether you’re doing grassroots org a n i z i n garound the case, or using the case to educate the media, there hasto be something more than the actual litigation itself.”To help build a sense of community, the consortium has chosenhate crimes as a principal focus for its work. “One of the reasonsis that it’s been a defining issue for the community as awhole,” Narasaki says. Asian American communities are extraordinarilydiverse, with dozens of ethnicities and languages. ToNarasaki, “the fact that these kinds of crimes exist is the clearest,most easily understandable reason why Asians have to cometogether in a coalition.” The coalition has tried to listen to its constituents,and to bring its resources to bear on issues that are highon the list of their concerns. But Narasaki emphasizes the criticalrole that lawyers play in the community that her org a n i z a t i o nserves. Many grassroots leaders face English language barriersand are unfamiliar with the political system. Having a law degreeconfers legitimacy in the corridors of power. “I tell lawyers andlaw students that I really think that for the Asian American commu n i t y, we’re the bridge,” Narasaki says.Organizing a Community-Based Political Stra t e g y. Luke Cole, of theCalifornia Rural Legal Assistance Foundation, a former Fordgrantee, has organized in the Central Valley in California aroundissues of environmental justice, in opposition to polluting enterprisesin neighborhoods populated by the poor and disenfranchised.Cole argues that “taking environmental problems out ofthe streets and into the courts plays to the grassroots movement’sweakest suit” since “most poor people find the legal system foreignand intimidating.” Cole calls instead for “a community-basedpolitical organizing strategy [that] can be broad and participa t o r y. ”

UN I T E D STAT E S 1 1 1Cole travels frequently from his office in San Francisco tohelp build networks of activists in the Central Va l l e y. He saysthat mobilization “has to happen at an individual level in communityafter community after community.” The strategy facesmany obstacles. Philanthropic support, never adequate, hasdiminished. Political resistance has forced environmental justiceclinics at law schools to close or has blocked law students fromappearing in court. Concerted opposition from industry and othergroups has evoked critical media coverage and legislative setbacks.In California, for example, a significant court victoryrequiring the provision of Spanish language materials in environmentalhearings was nullified by the legislature. Lacking a legislativepresence in the state capital, grassroots activists were noteven aware of the adverse legislation until after it had becomel a w.“If we had the power in the legislature, we would be able toknow about these bills that are going through and are undoing ourgains and stop them,” Cole says. “The fact that we had won thislittle local battle largely on legal grounds was unsustainablebecause we didn’t have a statewide political presence. So what weneed to do is build on those local struggles, and knit them togetherinto some type of larger network that then demands accountabi l i t y. T h a t ’s a very labor-intensive process.” The California RuralLegal Assistance Foundation has not abandoned litigation, butknows that it is a tool that must be supported by broad public educationand mobilization to realize lasting social change.A dd ressing the Limits of LitigationThe problems with litigation are many. As A n t o n i aHernandez, president and general counsel of the MexicanAmerican Legal Defense and Educational Fund, says, “We see litigationas the tool of last resort. It is costly. It is long. And it isc h a n c y. And particularly since 1980, the courts have not been ourfriends. But it’s the realization that you have the ability to litigatethat gives you the credibility to use the other strategies eff e c t i v e-l y. And so to us, it’s a continuum—each tool, each strategy comingtogether for an end.”

1 1 2 CA S E ST U D I E SPerhaps the most telling criticism of litigation as a strategy isthat court decrees do not automatically trigger a change in peopl e ’s attitudes. “When courts declare something, some number ofpeople tend to believe it is the right thing to do,” says JackG r e e n b e rg, former LDF director–counsel. “And the court’s ordergets incorporated into their conduct and their behavior changesover time.” But, he emphasizes, court orders do not necessarilywin over a majority. Sustained public education campaigns arethus essential to frame public debate and to prevent distortion ofprogressive values. Most public interest law groups, however,spend their limited resources on lawyers first, with communicatorsand educators a distant second. By contrast, newly establishedopposition groups, created in reaction to civil rightsadvances, have committed sizable resources to public communica t i o n s .Media work demands a complex balance of coordination, policyanalysis, and focus. “A successful media strategy requiresobtaining a baseline of public attitudes through polling andresearch, and putting forward a message consistent with thosevalues that does not compromise the movement’s values,” saysKathy Bonk, executive director and cofounder of the CommunicationsConsortium Media Center.For some grantees, use of new information and communicationstechnologies, acquired under targeted Ford grants, off e r sgreater sophistication and effectiveness in reaching both themedia and the public. ACLU senior counsel Christopher A .Hansen cites changes at the ACLU since 1994 as an example:“ We have e-mail listservs where all our press releases go out, sowe reach many more reporters on a much more regularized basis.All of the documents on our cases get posted on our website andare available to the general public.”Public education is also directly connected to legal implementation.The monitoring and enforcement of laws and judicialdecrees depends on networks of private lawyers available to workcooperatively with public interest law groups. Public educationmaterials, including legal education manuals, provide criticalresources for this effort. Many groups, however, lack the time andbudgets for this effort. Elizabeth M. Schneider, an expert on bat-

UN I T E D STAT E S 1 1 3tered women’s issues and a professor at Brooklyn Law School,says that public interest groups that work on this issue “have noway to put out ideas or distribute necessary materials to lawyersaround the country.” A public education strategy, she suggests,thus also requires linkages with the academic community, as wellas with students—the next generation of social change activists—in order to develop and refine cutting-edge thinking and betterframe public debate.Over the last two decades, some grantees have had to create acommunications infrastructure from the ground up, with highstart-up costs for personnel and computer technology. Othero rganizations have focused on intergroup coordination as a way toleverage resources and visibility. Some groups have “reinvented”themselves to adapt to the changing political climate. Still othergroups have recast their membership structure as a way to furtherpublic education. No single group has taken all of these steps, andno single approach is necessarily the most effective. This sectionlooks at the innovative efforts of three grantees—LDF, A m e r i c a n sfor a Fair Chance, and the Wo m e n ’s Legal Defense Fund—toovercome some of the limitations of litigation and to influence thebroadest possible public.C reating a Communications Infra s t r u c t u re. During the 1990s, LDFhas focused on rebuilding its communications capacity to respondto the new political climate. Former LDF head Greenberg recallsthe early days of the civil rights movement: “The NAACP h a dhundreds of thousands of members. It sent out the word throughC r i s i s magazine, and bulletins, and newspapers. LDF lawyers metregularly with lawyers in every city imaginable. Especially in theblack community, the lawyers were the leaders.”During these earlier years, training programs and fellowshipshelped LDF to “spread the word” by allowing it to cultivate newcivil rights attorneys and to foster a network of community-based,cooperative lawyers. Institutional capacity dwindled, however, asresources shrank. By the 1980s, budget cuts forced LDF to closeits Division of Legal Information and Community Services,which collected and analyzed data, produced studies and investigativereports, organized state coalitions, and collaborated with

1 1 4 CA S E ST U D I E Sacademics, policy analysts, activists, women’s groups, unionleaders, and Latino and Native American groups.LDF lawyers now emphasize that they are public relationsentrepreneurs, as well as litigators. “In the 1980s,” recallsTheodore M. Shaw, a veteran LDF attorney, “we would say,‘ We’re lawyers, we litigate; we’re not publicity hounds. T h o s ewho count recognize what we do.’ We did not have any internalperson who would work with the press on our issues.”Since 1992, LDF has used general operating funds to retain aWashington, D.C., public relations firm to help develop mediasupport for its issues. LDF took a major step forward in 1997when Ford provided a special two-year grant to start a communicationsdepartment. LDF has expanded its communications capacit y, but sees much work ahead. Elaine Jones, current president anddirector–counsel, explains: “We need to have in-house communicationscapacity. We need to develop literature. We need a day-todaycontact person with the press. We need to do media workacross the country. ”C o l l a b o rating to Mobilize Public Support . Aside from abortionrights, affirmative action has perhaps elicited the most seriousbacklash against post–World War II social justice gains. Someobservers believe that civil rights groups were put on the defensiveby the intensity of the opposition. With legal and policy challengesto federal affirmative action programs, six civil rightsgroups, supported by the Ford, Rockefeller, Carnegie, C.S. Mott,and Cummings foundations, joined together in 1995 to establish acollaborative public education campaign to support aff i r m a t i v eaction. After conducting research, including focus groups, themember groups decided to create a formal org a n i z a t i o n ,Americans for a Fair Chance (AFC).A F C ’s initial goal aimed at implementing a strategic communicationsplan in six states where affirmative action was underattack. The strategy involved identifying a wide range of potentialallies, partners, and messengers—not just the traditional minoritygroups, but other constituencies with a stake in diversity such asveterans, students, and business—and providing them withsophisticated materials for disseminating a pro–affirmative action

UN I T E D STAT E S 1 1 5message. AFC has initiated public education efforts around particularlegal challenges (it chose Michigan as a target state in partbecause of pending litigation there), but its primary focus is ongeneral public education. A F C ’s message—“It’s Fair. It Wo r k s .I t ’s Necessary”—appears on widely distributed fact sheets. Itscampaign has been acutely sensitive to ensuring opportunities forall ethnic groups, as well as for women, and to promoting cooperationwithin the civil rights community. In the future, AFC leaderswould like to see their model replicated on the local level aroundthe country, enabling grassroots membership organizations to putforward a unified message.R e focusing Institutional Identity. In the mid-1990s, the Wo m e n ’sLegal Defense Fund undertook, with Ford support, an institutionalreview. Focus groups revealed that the Fund’s constituentswere unhappy with its very name. “They think we’re too litigiousas a society, just plain don’t like litigation as a strategy,” says itspresident, Judith Lichtman. “But if you described what we do ashaving a seat at the table, representing their interests, being inWashington for them on a set of issues they care desperatelyabout—like the Patient’s Bill of Rights—they loved it. Holdingpublic officials accountable once they get elected or appointed,they loved it.”So, on February 24, 1998, the twenty-seven-year- o l dWo m e n ’s Legal Defense Fund was reborn as the NationalPartnership for Women & Families. With the name change came anew focus. “We learned that if you try to be all things to all people,you end up fooling around the edges of a lot of people’s agendas,and driving little of an agenda yourself,” Lichtman says.“Imposing an internal discipline and programmatic focus wasvery hard, harder than the name change.” The partnership nowformally takes a backseat on issues where sister org a n i z a t i o n shave greater expertise, such as educational equity, a specialty ofthe NWLC, and has instead consolidated its work into two mainprogram areas—Work and Family, and Wo m e n ’s Health—areaswhere it had earlier developed significant expertise and a longhistory of success.R e c e n t l y, the partnership was approached by the A m e r i c a n

1 1 6 CA S E ST U D I E SMedical Association (AMA), the American Trial LawyersAssociation, and leading labor unions to chair a coalition to mobilizepublic support for a “patient’s bill of rights.” “That could nothave happened with the old name,” Lichtman says, “and I knowthat because the trial lawyers and the A M A told me. So a userfriendliername opened up new advocacy opportunities for us.”The partnership has not abandoned litigation, but believes it isnow positioned to accomplish more through non-court activity.C o n c l u s i o nThe work of these public interest law organizations over thelast twenty years suggests that the courts remain an importantsource of leverage for historically disadvantaged groups, lendingthem credibility, influence, and access to power. Public interestlitigation sometimes produces dynamic policy impacts that extendfar beyond the specific terms of a judicial decree, supportingsocial reform even if defendants refuse to comply with a court’so r d e r. Looking forward, civil rights law will continue to play animportant role in the struggle for social justice, even if defensivestrategies must be used. The holistic approach that characterizesthe work of Ford grantees speaks to the cyclical nature of socialprogress, in which victories are almost always followed by backlashand retrenchment. Losses often create new opportunities, butresources must be available to mine them eff e c t i v e l y. This sectiono ffers some lessons that might be learned from the experiences ofthe grantees whose work this case study has surveyed. The lessonspresented offer ideas and guidance for those working in thisfield; they can be adapted to many situations, but are not intendednecessarily to be replicable formulae.Lessons and InsightsLitigation-Related Strategies1 . Litigation remains the “big stick” that enables org a n i z a-tions dedicated to social change to be taken seriously.Although litigation may not produce transformative change

UN I T E D STAT E S 1 1 7for all groups and on all issues, a steady development oflegal principles can support incremental reform essential tosocial justice aims.2 . Litigation has a mixed, but important, impact. It can aff e c tpolicy in different ways and to different degrees. As in theA C L U ’s school reform cases, a judicial decision can playan agenda-setting role by highlighting a legal issue andmaking it a priority for the other branches of governmentto resolve. In addition, a court can delineate rights andobligations—as in LDF’s desegregation cases—providingb a rgaining leverage to otherwise politically excludedgroups that enhances their ability to secure reform. A c o u r tcan also give programmatic content to legal norms.Sometimes a judicial decree holds the line and preservespast victories. The success of a litigation strategy on oneissue or in one area does not predict success for othergroups or at other times. Some factors, however, appear tobe crucial prerequisites to litigation success: appropriateand capable institutional mechanisms; adequate funding;dedicated leadership; and broad community support.3 . Monitoring and enforcement mechanisms can greatlyenhance the impact of judicial decrees. Formal victorydoes not automatically translate into on-the-groundchange. Without monitoring and enforcement, reformprospects are seriously diminished. Experience has shownthat few judgments are self-executing, and that much work,sometimes including further litigation or the threat of it, isrequired to turn a court’s rhetoric to reality. Moreover,monitoring brings to the surface experience and practicethat can then be integrated into new forms of institutionald e s i g n .4 . Litigation goes hand in hand with other strategies.Litigation can provide a pressure point for change, but systemicreform demands interactive and synergistic efforts tomobilize public sentiment. The need for such complementarywork does not negate the role of lawyers.5 . An effective social change strategy requires a mix ofo rganizations—some devoted to single-issue causes, othersmulti-focused—as well as mechanisms to link diff e r e n t

1 1 8 CA S E ST U D I E Sgroups. On the one hand, an effective social change strategyrequires the continued support of national civil rightsgroups. But an interlocking network of complementaryinstitutions—state-based lawyers, grassroots communitya c t i v i t y, and academic think tanks—is also vital. Finally, asconditions change, efforts must be made to include newgroups and issues in the civil rights infrastructure.P rog ramming A p p ro a ches and Donor Roles1 . Encouraging groups to work together can be an eff e c t i v edonor role; forcing partnerships can be counterproductive.Coalition building takes time and resources; funds for thispurpose allow groups to leverage capacity, but do not substitutefor other forms of financial support. Collaborationsare best developed in close consultation with participatinggroups. Unwanted partnerships can divert time and attentionfrom important activities.2 . Law groups and the communities that they serve needlong-term core support as well as capacity-building grants.Viable institutions, rooted in their communities, withstrong ties to other organizations, must be in place before acrisis hits. Core support allows grantees to develop technicalexpertise, credibility, and a long-term perspective onproblems to which they can commit serious attention overtime. They can thus function as “repeat players,” givinggrantees an advantage when they litigate or seek allies oncommon issues. Withdrawal of support can impede ag r o u p ’s effectiveness and even end reform efforts altoge t h e r.3 . It is unreasonable to expect most public interest law groupsto become self-supporting. Despite the availability ofmembership fees for some groups and attorney’s fees insome cases, it is implausible to expect these groups to beweaned of donor support. Donors can, however, encouragegrantees to broaden their bases of support and to exploreinnovative, entrepreneurial forms of financing linked topublic education and mobilization goals. Project supportthat helps organizations identify alternative sources of supportcan further this effort; among them are endowment

UN I T E D STAT E S 1 1 9campaigns that might offer long-term grantees substantialfinancial independence.Looking A h e a dThe next stage of social justice work requires a new articulationof goals, as public interest law groups work to forge “a moreperfect Union” for all Americans. The changed political climate,together with increasingly narrow access to federal courts, highlightsthe need to continue integrating litigation into a broadersocial change strategy. National civil rights groups must developnew linkages with grassroots organizations, with the businessc o m m u n i t y, and with government. And support must be availableto nurture a new generation of intellectuals who can help to shapefuture civil rights discourse, to mobilize favorable public sentiment,and to encourage innovation.Combined philanthropic efforts are needed to establish aspace for social activists to meet, to confer, to consider paststrategies, and to plan future endeavors with social scientists,a ffected communities, and others. To combat an apparent lossof faith in civil rights ideals, Ford and its partners could usefullysponsor empirical research to demonstrate the continuingimportance of these ideals to a nation that strives to be fair, aswell as efficient and productive. New forms of public advocacyand public education, from radio talk shows to popular moviesto web-based materials, will need support to generate communitysentiment in support of social justice goals. At the sametime, support for litigation and legal advocacy will remain asnecessary and important as at any point in the Foundation’s histo r y.N o t e sWe thank students at the New York University School of Law—Steven Cottreau, Jeffrey Hauser, Sameena Majid, Karin McEwen,Christopher Pushaw, Jennifer Simon, Cassandra Stubbs, Elizabeth Stull,Megan Ti p p e r, and especially Ben Wizner—for helpful and enthusiasticresearch assistance.

1 2 0 CA S E ST U D I E S1 . In 1970, the Foundation launched an ambitious “Public InterestLaw” initiative designed to support improvements in areas such as consumerrights, health care, and pollution. The program began with a grantto the Center on Law and Social Policy; over the next decade nine otherpublic interest firms received support as well. In 1980, the Foundationawarded “terminal grants” to these public interest recipients and withdrewfrom involvement in the program.A p p e n d i x :People Interv i ewed for This StudyLorna BabbyS t a ff A t t o r n e y, Native American Rights Fund, Washington, D.C.Janet BenshoofPresident, Center for Reproductive Law and Policy, New Yo r kLouis BogradS t a ff Counsel, American Civil Liberties Union, Washington, D.C.Kathy BonkExecutive Director, Communications Consortium Media Center,Washington, D.C.Janell ByrdS t a ff A t t o r n e y, NAACP Legal Defense and Educational Fund,Inc., Washington, D.C.Luke ColeDirector of the Center on Race, Poverty and the Environment, aproject of the California Rural Legal Assistance Foundation, SanFrancisco, CADayna CunninghamRights Off i c e r, The Rockefeller Foundation, New Yo r kRon DanielsExecutive Director, Center for Constitutional Rights, New Yo r k

UN I T E D STAT E S 1 2 1Nancy DavisFormer Director, Equal Rights Advocates, San Francisco,C ARobert DinersteinProfessor and Associate Dean for Academic A ffairs, Wa s h i n g t o nCollege of Law, American University, Washington, D.C.Alan DivackArchivist, The Ford Foundation, New Yo r kSusan DrakeExecutive Director, National Immigrant Legal Support Center,Los Angeles, CAJohn E. EchohawkExecutive Director, Native American Rights Fund, Boulder,C OTheresa Fay-B u s t i l l o sVice President of Legal Programs, Mexican American LegalDefense and Educational Fund, Los Angeles, CAShepard FormanD i r e c t o r, Center on International Cooperation, New Yo r kSusan GoeringExecutive Director, ACLU of Maryland, Baltimore, MDWilliam GoodmanLegal Director, Center for Constitutional Rights, New Yo r kPatricia GraysonDirector of Development, NAACP Legal Defense and EducationalFund, Inc., New Yo r kJennifer M. GreenS t a ff member, Center for Constitutional Rights, New Yo r k

1 2 2 CA S E ST U D I E SJack GreenbergAdjunct Professor, Columbia University School of Law, NewYo r kMarcia Greenberg e rC o-President, National Wo m e n ’s Law Center, Washington, D.C.Diane L. GrossProgram Director, Americans for a Fair Chance, Wa s h i n g t o n ,D . C .Lucas GuttentagD i r e c t o r, Immigrants’ Rights Project, American Civil LibertiesUnion, San Francisco, CAChristopher A. HansenSenior Staff Counsel, American Civil Liberties Union, New Yo r kKeith M. HarperSenior Staff A t t o r n e y, Native American Rights Fund, Wa s h i n g t o n ,D . C .Simon HellerDirector of Litigation, Center for Reproductive Law and Policy,New Yo r kAntonia HernandezPresident and General Counsel, Mexican American Legal Defenseand Education Fund, Los Angeles, CAIrma HerreraExecutive Director, Equal Rights Advocates, San Francisco, CATaryn HigashiProgram Off i c e r, Refugee and Migrant Rights, The Ford Foundation,New Yo r kJaribu HillD i r e c t o r, Center for Constitutional Rights-South, Greenville, MS

UN I T E D STAT E S 1 2 3Lynn Walker HuntleyD i r e c t o r, Comparative Human Relations Initiative, SouthernEducation Foundation, Atlanta, GAAlan JenkinsProgram Off i c e r, Racial Justice and Minority Rights, The FordFoundation, New Yo r kLinton JoaquinLitigation Director, National Immigrant Legal Support Center,Los Angeles, CAElaine JonesPresident and Director-Counsel, NAACP Legal Defense andEducational Fund, Inc., New Yo r kG e o rge H. KendallS t a ff A t t o r n e y, NAACP Legal Defense and Educational Fund,Inc., New Yo r kLewis KornhauserAlfred and Gail Engelberg Professor of Law, New Yo r kUniversity School of Law, New Yo r kRichard LarsenS t a ff A t t o r n e y, NAACP Legal Defense and Educational Fund,Inc., Western Regional Office, Los Angeles, CAJudith LichtmanPresident, National Partnership for Women & Families,Washington, D.C.Vivian LindermayerDevelopment Director, Center for Constitutional Rights, NewYo r kStephen Loff r e d oAssociate Professor, City University of New York Law School,New Yo r k

1 2 4 CA S E ST U D I E SGeraldine D. MannionC h a i r, Democracy Program and Special Projects, CarnegieCorporation, New Yo r kMary McClymontSenior Director, Peace and Social Justice Program, The FordFoundation, New Yo r kCindy MoranoSenior Org a n i z e r, Wider Opportunities for Women, Oakland, CAKaren NarasakiExecutive Director, National Asian Pacific American LegalConsortium, Washington, D.C.Burt NeuborneJohn Norton Pomeroy Professor of Law, New York UniversitySchool of Law, and Legal Director, Brennan Center for Justice atNew York University School of Law, New Yo r kHelen NeuborneDeputy Director, Human Development and Reproductive Health,The Ford Foundation, New Yo r kBarbara OlshanskyAssistant Legal Director, Center for Constitutional Rights, NewYo r kRobert PeregvySenior Staff A t t o r n e y, Native American Rights Fund, Wa s h i n g t o n ,D . C .Anika RahmanD i r e c t o r, International Program, Center for Reproductive Lawand Policy, New Yo r kRene A. RedwoodExecutive Director, Americans for a Fair Chance, Wa s h i n g t o n ,D . C .

UN I T E D STAT E S 1 2 5Anthony RomeroD i r e c t o r, Human Rights and International Cooperation, The FordFoundation, New Yo r kCharles F. SabelProfessor of Law and Social Science, Columbia UniversitySchool of Law, New Yo r kElizabeth M. SchneiderProfessor of Law, Brooklyn Law School, Brooklyn, New Yo r kSteven R. ShapiroLegal Director, American Civil Liberties Union, New Yo r kTheodore M. ShawAssociate Director–Counsel, NAACP Legal Defense andEducational Fund, Inc., New Yo r kLinda T h u r s t o nS t a ff, Center for Constitutional Rights, New Yo r kVerna Wi l l i a m sVice President and Director of Educational Opportunities,National Wo m e n ’s Law Center, Washington, D.C.Stephen Ya l e - L o e h rA t t o r n e y, Ithaca, New Yo r k

4F rom the Village to theU n i ve r s i t y :Legal Activism in BangladeshST E P H E N GO L U BBangladesh has made significant strides in replacing dictatorshipwith democracy, reducing poverty, slowing population growth,and overcoming the traumatizing legacy of its bloody 1971 secessionfrom Pakistan. Yet, significant problems remain. The Wo r l dBank calculates that 35 percent of the population is “very poor. ”The United Nations Development Programme index of humandevelopment indicators ranks it 150th out of 173 countries. T h r e e -quarters of the country’s women and half of its men are illiterate.There is little enforcement of laws promoting gender equality,constitutional assurances notwithstanding. Violence againstwomen—including domestic abuse, rape, and vigilante attacks—is common, as are police beatings and other human rights violations.The barriers of illiteracy, poverty, violence, and social stigmakeep many from seeking or obtaining legal redress for theirproblems.In view of these conditions, how can dedicated lawyers,NGOs and law professors use the law to address problems plaguingtheir society? This chapter examines some of their strategies.It describes work funded and facilitated under the FordF o u n d a t i o n ’s Public Interest Law Initiative (PILI) in Bangladeshin the 1990s. The full impact of that work will be known onlyover time. But some results and lessons already are emerg i n g .Launched in 1992, PILI constituted Ford’s first and only lawrelatedprogram in Bangladesh. It supported clinical legal educa-1 2 7

1 2 8 CA S E ST U D I E Stion for law students and legal services for disadvantaged populations.It sought to broaden the community of activists providingsuch services by constructing a pipeline of programs thatwould channel motivated individuals into that community on afull-time, part-time, or pro bono basis. These legal activistswould in turn form a constituency for long-term systemic reformgeared toward increasing access to justice. Beyond the closing ofF o r d ’s Dhaka office in 1997, many of these activities continuedto be supported through some extended funding by Ford and byother donors.PILI wove together three strands of funding. One supportedthe operations of four preexisting legal services groups that, tovarying degrees, conduct research, grassroots service delivery(featuring advice, nonformal education, mediation, and litigation),and policy advocacy. The Bangladesh National Women LawyersAssociation (BNWLA), Ain O Salish Kendra (ASK), and theMadaripur Legal Aid Association (MLAA) focus mainly onw o m e n ’s rights; the Bangladesh Environmental LawyersAssociation (BELA) works mainly on environmental justice. A S Kand MLAA, respectively, also serve the urban and rural poor (notjust the women in those sectors). This chapter pays particularattention to how MLAA and many other NGOs have adapted traditionalBangladeshi mediation techniques to advance women’srights and resolve disputes—an innovation growing in popularityacross the nation.Another strand of PILI funding created and financed a newo rganization, the Bangladesh Legal Aid and Services Tr u s t(BLAST). Launched under the initiative of the leadership of thelegal profession’s apex body, the Bangladesh Bar Council,B L A S T now has a nationwide network of offices. In addition tolegal aid, the organization conducts mediation, policy advocacy,and public interest litigation.The funding initiative’s third component helped the country’sthree major law schools—at Chittagong, Dhaka, and Rajshahiuniversities—start clinical legal education programs. These lawclinics initially focused on classroom-based training that wasmore skills oriented than theoretical. The programs later arrangedfor students to obtain practical experience regarding fieldworkand court procedure. This experiential learning has includedinternships with former Ford grantees and other NGOs.

BA N G L A D E S H 1 2 9To complement its funding for the law clinics and legal serviceswork, Ford very selectively supported foreign consultants,international conferences, and grantee site visits abroad. Two successiveDhaka-based American attorneys taught classes, advisedthe clinics’professors, and prepared course materials. Foundations t a ff facilitated cooperation among grantees, helped formulateand launch BLAST and the law clinics, and coordinated workwith other donors, particularly The Asia Foundation (TAF) andthe Norwegian Agency for Development Cooperation (NORAD).This case study presents the context, nature, and evolution ofPILI and of the grantees’ operations. In addition to discussing thethree branches of the initiative, the chapter also illuminates innovativeNGO adaptation of traditional Bangladeshi mediationprocesses. It then sums up changes to which grantees have contributed,lessons and insights springing from PILI, and thoughtson future challenges for this work in Bangladesh.C o n t ext of PILI-Supported Wo r kThe vision for PILI was described in a 1994 document preparedby Ford’s Bangladesh office: “The long-term goal of theDhaka off i c e ’s ongoing public interest law initiative is to promotethe establishment of a more equitable and effective legal systemthat will provide redress and relief to the great majority ofBangladeshis who now have little or no recourse to justice. As afirst step, Dhaka staff have embarked on a strategy designed toencourage the practice of public interest law. If successful, thisinitiative [PILI] should forge an increasingly broad-based communityof like-minded activists committed to changing the existinglegal structures and conventions.”This section fleshes out the underlying assumptions andimplications of that reasoning. It first provides some brief backgroundon legal problems facing Bangladeshis. It particularlyfocuses on the status of women, since they constitute mostg r a n t e e s ’main client group. The discussion then probes roads nottaken by Ford, as a way of explaining early strategic choices.The 1991 return of democracy to Bangladesh, after nearlynine years of military control, did not secure the rule of law.Women are most severely affected. As a report prepared for the

1 3 0 CA S E ST U D I E SUnited Nations Children’s Fund (UNICEF) points out, “Wo m e noften face difficulties in pursuing their rights within the legal system,due to the lack of implementation [of laws against murder,rape, assault, child marriage, and many other abuses]. Socialnorms tend to ostracize [female] victims rather than perpetratorsof crimes.” 1 Other reasons for the lack of implementation includethe long delays and occasional political influence afflicting thecourts; many traditional mediators’ ignorance of the law, includingrelatively progressive provisions of religious law; the corruptionand attitudinal obstacles affecting both courts and traditionalmediation; weak police performance; and widespread poverty andlegal ignorance among the population, both of which block eff e c-tive access to a complex and prohibitively expensive (for mostBangladeshis) legal system.Furthermore, not all of the country’s laws embody equity.Although its constitution grants women equal treatment in publiclife, this protection does not extend to intrafamily matters such asmarriage and inheritance, which are based on Islamic law. T h u s ,while the Muslim Family Law Ordinance of 1961 generally incorporatesthe most liberal provisions of the four Sunni schools ofsharia, some of these provisions still relegate women to a lowerlegal status.Gender violence is widespread. Surveys indicate that thegreatest reported cause is husbands’ frustration with wives for notserving dinner promptly. Another key reason is men’s demandsthat their spouses’ parents pay dowry. This fee, paid with money,livestock, or other resources, is determined at the time that a marriageis negotiated. (Most marriages in Bangladesh are arrangednot by the bride and groom, but by their parents.) Though barredbeyond a modest amount by the 1980 Dowry Prohibition Act, thepractice remains common. Cash-strapped parents are willing topay dowry because it frees them of the long-term financial burdenof maintaining a daughter, and is often the only way theycan secure a modicum of a decent life for her. The parents’initial dowry payment may be followed by a husband’s repeateddemands for additional sums. The threat or reality of domesticviolence may accompany these demands.Another common legal issue is underage marriages. Despitethe Child Marriage Restraint Act of 1929 (which was strength-

BA N G L A D E S H 1 3 1ened in the 1980s), girls frequently are subject to arranged marriageslong before reaching the legal age of 18, and sometimesbefore reaching puberty. Parental endorsement of the practiceremains common. It stems in part from fears that their daughterswill engage in sexual activity, whether forcibly or not. Such activitywould ruin a young woman’s marriage prospects. Driven bythese economic and cultural forces, youths are sometimes wedwithout even meeting until the marriage ceremony. Ironically butnot surprisingly, parents’ e fforts to arrange economic security fortheir daughters through early marriage is often counterproductive.According to Bangladesh scholar Eirik Jansen, “The older thebride is at the time she enters into a marriage and the better educationshe has, the greater are the chances for a stable marriage.” 2Desire for dowry is but one of many factors driving widespreaddisregard of the law. Though men may legally have morethan one wife at a time, this is subject to requirements of theMuslim Family Law Ordinance. These requirements include permissionby the current wife before a new marriage can take place,and equal treatment for all spouses. The men involved rarelyhonor such provisions. Husbands also deny their wives legallymandated maintenance in the event of divorce. And they fail topay dower, the sum that the marriage contract stipulates that thehusband should give the wife over the course of the marriage. Amajor problem is that many marriages are carried out without formalregistration. This works to the husbands’ advantage becausethis initial lack of documentation makes it far easier for them toavoid their legal responsibilities, such as child support and alimony, later.Given the depth of women’s legal problems in Bangladesh,and the Foundation’s concerns about them, why were they not thesole focus of PILI from the start? In fact, women’s rights were animplicit priority of the initiative. (This was also true of most ofthe Foundation’s other work in Bangladesh, even where that workwas not explicitly law oriented.) But to build awareness of genderissues among male students and attorneys, it was first useful toengage them with human rights issues in general. Ford ProgramO fficer David Chiel and his Bangladeshi colleagues reasoned thatonce students and attorneys were drawn into legal aid, theyinevitably would address domestic violence and other issues

1 3 2 CA S EST U D I E Sa ffecting women. In fact, women turned out to be the large majorityof their clients. The more general human rights focus alsowould allow PILI to concentrate on other important legal needsregarding peasants, the urban poor, and the environment.Furthermore, this would help create new and different opportunitiesfor women lawyers (as with BELA’s environmental activists)to begin playing leading roles in other fields, and not justw o m e n ’s rights.These were laudable objectives. But if the aim was to helpbuild a better legal system, why focus just on legal activists? W h ynot build up the bench, bar, and other institutions that constituteor control the system? In fact, when Chiel arrived in Dhaka in1992 as the first Foundation program officer there with specificlaw-oriented responsibilities, he expected to work with governmentalbodies. He investigated collaborating with the judiciary,the police, and other mainstream institutions, but a wide range ofBangladeshis advised that a civil society focus would represent abetter route to meaningful reform.At the same time, Foundation staff were exploring workingwith NGOs that did not in fact become part of the initiative. Onesuch organization increasingly failed to evince any energetic dedicationto reform. A promising alternative direction was assistancefor umbrella efforts to pull together a sector-specific communityof NGOs. But this foundered on personal and ideological rivalries.Though the Foundation invested considerable energy in healingthese rifts, the effort ultimately failed. One possible lesson isthat however important an issue is in fact and a coordinating bodyis in theory, grantees’ e ffectiveness may hinge as much on thepersonalities at play as on the issues they strive to address.Another is that donors may sometimes be better advised simply tofacilitate informal grantee interaction, as opposed to formal structuresand coordination.Building a Community and Constituency for ReformAt the same time that the Foundation was investigating theabove approaches, it was pursuing an alternative, constituencycreatingroute. It aimed to help bring together an increasingly

BA N G L A D E S H 1 3 3broad-based community of like-minded activists that wouldaddress specific legal issues over the medium term while eventuallypushing for systemic, long-term reform.The four preexisting legal services groups—ASK, BELA,BNWLA, and MLAA—constituted an excellent core for thatcommunity of activists and held the promise of greatly contributingto law reform. They already had demonstrated dedication andimpact, with the potential to do much more both individually andj o i n t l y. The Foundation decided to increase funding in this regard.A secondary reason for Ford’s focus on legal services and lawreform through NGOs in Bangladesh was its related work in othercountries, which gave it international experience and contacts inthis field. PILI supplemented its funding by drawing on thesecontacts. It supported occasional overseas training and exposurefor grantee personnel through the London-based org a n i z a t i o nINTERIGHTS and three U.S.-based groups: the A d v o c a c yInstitute, the International Human Rights Internship Program, andthe National Institute for Citizen Education in the Law. AB N W L A leader returning from training at the Advocacy Institute,for example, found that for the first time she saw the value “offinding friends within the bureaucracy, of having to analyze thebudget and specific policies. So if we want a repatriation program[for women forced or lured into prostitution abroad], we have tolook at the [national] budget and lobby for money for this.”Acknowledging that the government was not necessarily immediatelyopen to NGO budgetary input, this NGO leader saw potentialin the relatively new notion that advocates and officials couldwork together in a constructive and focused manner.If these legal services groups were to become the core of a“broad-based community,” they needed to become more of acommunity themselves. As of the early 1990s, they were, in fact,relatively atomized. Ford grantmaking efforts concerningresource management and women’s empowerment already supporteda few of these groups. Other donors funded a handful ofsimilar efforts. But their work and interaction were relatively limited.To address this problem, the Foundation devoted energy tofacilitating grantee interaction. Before his untimely death in 1997,B E L A’s secretary general, Mohiuddin Farooque, describedattending “a meeting organized by Ford and TAF at which some

1 3 4 CA S E ST U D I E Slegal services NGOs met for the first time.” Ford also helped linkM L A A Executive Director Fazlul Huq to BLAST when the latterneeded a leader familiar with grassroots legal aid.In some instances, building links meant breaking down wallsbeyond the NGO community. Exposing law students and professorsto legal services organizations through joint meetings helpeddispel what one professor called the stereotype of “well-paidNGO types all driving Pajeros [expensive, four-wheel-drive vehicles].”Conversely, the meetings helped overcome legal servicesN G O s ’ fears that law student internships would drag their org a n i-zations into bitterly partisan politics associated with some studentg r o u p s .The Foundation itself was part of another community thatalso played an important role regarding legal services. This wasthe community of donors. Ford’s Chiel was aware of fruitfulF o r d / TAF co-funding of Philippine legal services groups. Hefound that Ford, TA F, and NORAD similarly shared program prioritiesin Bangladesh. This cooperation allowed the three donorsto exchange ideas and impressions, to the mutual benefit of theirprograms. They each funded different aspects of the work ofM L A A and Banchte Shekha, a women’s movement that integratesinnovative legal services into its broader health, education, communitymobilization, and livelihood programs in the country’sJessore District. Initial support from TAF enabled grantees togrow to a point where they could absorb larger Ford grants usefu l l y. And by co-funding BLAST, TAF shared Ford’s risk in makingits initial grant to the group when nationwide legal aid workcould have proven controversial.What have these grantees accomplished, both collectively andindividually? A few examples will suffice here; subsequent partsof this chapter offer others. ASK and MLAA o rganized a 1992Ford-funded conference that highlighted progressive rulings byI n d i a ’s Supreme Court. The force of that intellectual example mayhave helped pave the way for the Bangladesh High Court toaward BELA a landmark 1996 decision on standing to bring suit.In that case, the Court also ruled in favor of BELA’s argument forproper resettlement and compensation for people displaced bygovernment flood control measures.B E L A’s success with this issue may also stem from its pro-

BA N G L A D E S H 1 3 5ductive efforts to involve high-level justices in seminars it org a n-ized. It made the NGO less of an alien presence in court, so thatits arguments were more likely to be heard on their merits andless likely to be viewed as emanating from the legal profession’sp e r i p h e r y. Other legal services NGOs might similarly benefit bye fforts to bridge the gap between them and potentially sympatheticjurists. Senior private litigators in many countries often havethe advantage of personal or professional familiarity with appellatejudges. BELA’s approach represents a step toward levelingthe judicial playing field in a legitimate way. It enables NGOs andjurists to better understand each other’s perspectives, withoutcrossing the line to undue influence.Strategic selection of cases has been another hallmark ofB E L A’s approach to litigation. It has, for instance, sought to openup judicial perspectives on the environment by employing environmentalarguments in seeking to block political activists fromputting up wall posters in certain areas. Some judges resented theposters, because they were sometimes plastered on the jurists’p r o p e r t y. Though not all NGO lawyers have agreed with this“poster” tactic, the approach demonstrates the need to pick andchoose cases based on the prospects for jurisprudential advances.This can help to establish precedents for addressing broaderissues.Both in connection with and independently of litigation,grantees and other Bangladeshi groups use the media to enhancepublic awareness of the issues that concern them. ASK, BNWLA,and others have used high-profile cases to try to educate the publicregarding systemic problems, such as police brutalization ofwomen, and to generate pressure for a government response toparticularly egregious crimes, such as trafficking of females forprostitution. Over the long haul the combination of litigation,media work, and advocacy may also spur governmental actionregarding the underlying conditions that spawn abuses.Another constituency-building strategy involves cultivatingdiverse connections around the country. Toward this end, BELAestablished links with local lawyers, journalists, NGOs, and politicalleaders in several parts of Bangladesh. And, of course, anationwide legal aid network is at the core of BLAST’s operations.

1 3 6 CA S EST U D I E SM o r e o v e r, as BELA’s Farooque advised, “Never take anyoneas a permanent enemy or as a permanent friend.” Governmento fficials or private parties who oppose public interest groups onone issue may support them on another. This has been BELA’sexperience regarding environmental matters and MLAA’s in tryingto educate and modify the positions of local religious leaders.M L A A’s Huq emphasizes that “you can’t ignore these people. . . .They’ve listened when we’ve pointed out to them that parts of ourc o u n t r y ’s family law [that protect women’s rights] were draftedby Islamic scholars.”Grantee leaders assert that, particularly in Bangladesh’s heavilypoliticized environment, they strive for nonpartisan identitiesin offering services, building constituencies, and assemblingcoalitions. MLAAhas backed away from working with a nationalgroup embroiled in partisan politics. And where being nonpartisanis not possible, it falls back on a bipartisan approach. MLAA a n dB L A S T have addressed the presence of politically active memberson their boards of trustees by ensuring that the nation’s twomajor political parties are represented.E m p l oying Mediation in Legal Serv i c e s :The Nature and Importance of the StrategyAs the preceding discussion suggests, former grantees arepursuing a variety of legal advocacy strategies. This report cannotfairly weigh their relative contributions to social justice inBangladesh. It can, however, illuminate a few potentially usefullessons by highlighting how the Madaripur Legal Aid A s s o c i a t i o nhas made innovative use of an especially important strategy.Shalish, loosely translated to mean mediation, is an indigenouspractice that uses outside parties to facilitate the resolutionof disputes. But it also can include strong elements of arbitration,in which the outside parties go beyond facilitation to heavilyinfluence the outcome. MLAA has adapted shalish to betteraddress the needs of women and other disadvantaged groups. It isthe main way in which MLAA directly serves the over one millioncitizens of the Madaripur District of Bangladesh and, to alesser extent, an additional million-plus residents of neighboring

BA N G L A D E S H 1 3 7areas. The evolution and nature of its systematic, methodicalapproach merits some attention, particularly because it has been amodel for other NGOs.Formally founded as a court-oriented legal aid group in 1978,M L A A began using mediation in 1983 partly out of frustrationwith the expense and delay of the judicial system. In addition,many clients wanted their problems addressed as simply as possible,and MLAA could serve more through alternative dispute resol u t i o n . Ford and other donor assistance, including the NORADsupportedconstruction of a residential training facility in theearly 1990s, enabled the organization to expand its legal serviceswork over the years and to train NGOs from all over Bangladeshregarding shalish. It would be unfair and inaccurate to creditM L A A alone with the growing use of shalish in Bangladesh. A S Khas employed a variation of it productively in Dhaka, as haveother organizations in other locales. But leaders in the legal servicesand human rights community describe the association as apioneering institution with the most systematic approach to mediat i o n .What, then, is that approach? Typically learning of MLAAthrough word of mouth, clients contact the organization throughits village-based mediation workers or through its town-basedbranch offices. Most clients are women involved in marriagerelatedconflicts. Low-income farmers with land-related disputesconstitute the next largest group. Once a client approaches MLAAand provides relevant information, the association decideswhether and how it can help. In most instances this results inM L A A o rganizing a shalish to which it invites both the client andthe opposing party. Relatives and friends are also welcome toattend. A mediation worker facilitates the event to some degree.Village-based mediation committee (MC) members play al a rger role. These are respected community figures whom MLAAhas recruited to participate whenever a shalish takes place, andwhom the association trains regarding family law, land law, mediationskills, and related matters. Some may have participated intraditional forms of shalish, but others (particularly the growingranks of female MC members) are new to the process. 3 The numberof MC members in attendance depends on their availability.The actual shalish is often a loud and passionate event in

1 3 8 CA S E ST U D I E Swhich disputants, relatives, MC members, and even uninvitedcommunity members congregate to express their thoughts andfeelings. Additional observers—adults and children alike—gatherin the room’s doorway and outside. More than one exchange ofopinions may occur simultaneously. Calm discussions explodeinto bursts of shouting and even laughter or tears. All of this typicallytakes place in a crowded schoolroom or other public space,sweltering most of the year, often with the noise of other communityactivities filtering in from outside. The number of participantsand observers may range from a few dozen to well over onehundred.The shalish for a given dispute may stretch over severalmonths and a number of sessions. These may be supplemented bydiscussions and negotiations between the sessions. The MLAAmediation worker documents in writing the details of the conflictand the settlement agreement. MLAA reports that disputes aresuccessfully resolved in 80 percent of its shalish cases.Despite the expanding and apparently effective use of shalishin Bangladesh, enthusiasm for it must be tempered by the realityof the societal context. With some exceptions, this is a maledominatedprocedure in a male-dominated society. A woman whoresorts to shalish rarely expects equal treatment, as much as shedeserves it. She more typically asks that her husband stop beatingh e r, for example, or that he take her back into their home, or thathe provide some minimal maintenance for their children.Despite its pioneering role, MLAA has not aggressivelysought to build gender equity into shalish and its other operations.One possible weakness in Ford’s and other donors’support for theassociation, and in this author’s donor-sponsored evaluation of itswork, was insufficient attention to this important issue. The challengefor MLAA is a difficult one: to promote gender equity andstill maintain credibility among men. Pushing for equity too fastcould undermine that credibility in organizing shalish sessionsand jeopardize the association’s long-term efforts to graduallytransform community attitudes. Not pushing hard enough underminesthe very goal of equitable dispute resolution. With theencouragement of TA F, MLAA now is moving to better addressthis tension.

BA N G L A D E S H 1 3 9While it is not the perfect tool, NGO-initiated shalish inBangladesh represents a significant advance over other options.Traditional shalish 4 is typically marked by gender bias and legalignorance. This includes ignorance of Islamic law and how itsmore equitable aspects have been incorporated into the nationallegal framework. Patronage ties with community leaders also cancome into play. These easily can work against a person who isless well connected than her or his opponent. Moreover, village“touts” (individuals who capitalize on a bit of legal knowledgeand secretly sell their influence) may manipulate the process.Those who can scrape together the will and resources to go tocourt face a similarly daunting array of obstacles that includeexpense, delay, corruption, sexism, processes they cannot comprehend,and the lack of enforcement of judgments. And where thepoor do nothing, they face continued abuse, or additional dowrydemands by a woman’s husband, or some other undesirable combinationof circumstances. Finally, when these very bad alternativesrun their course, or if they never do, a woman may find herselfwithout home or without income. She and her children may goh u n g r y. She may be forced into begging or prostitution.Against this backdrop, what difference does NGO-initiatedshalish make? NGOs have taken this accessible, comprehensibleand free dispute resolution vehicle—eff e c t i v e l y, the only optionopen to impoverished villagers—and have started the slow processof fixing the vehicle’s biases. They have already employed shalishto the benefit of many thousands of Bangladeshis. A 1999 studyconducted for TAF by a Dhaka-based firm turned up encouragingresults regarding the work of former Ford grantees and otherNGOs. By a four-to-one margin, women who have been throughNGO-initiated mediation expressed satisfaction with the results.Just as significantly, the NGOs back up this process with litigationwhere necessary. They have neither the resources nor theinclination to take every case to court, nor is that the preference ofmany clients. But selective use of this option waves a big stick infront of recalcitrant husbands, discouraging egregious conduct.M L A A uses local attorneys to take a case directly to court ininstances of serious criminal offenses such as murder and rape. Itmay also do so if mediation does not reach resolution, or if a hus-

1 4 0 CA S E ST U D I E Sband breaks his agreement. As TAF Representative Karen Casperemphasizes, “If you don’t have the power or means to litigate,you don’t have a way to persuade a party to honor an agreement.”The NGOs have introduced national law into otherwise illinformedcommunity deliberations, where bias and ignorance previouslyhad shaped standards. This enables shalish participants toinject the law into contentious discussions, or bolsters arg u m e n t sthey are prepared to make anyway. It would overstate the case toclaim that the legal discussions are very sophisticated. At oneheated session the author attended, a female MC memberexclaimed, “This is Bangladesh, not Saudi Arabia! We have ourown laws!” Even when actual legal content is not discussed, merereference to the law is a significant step forward from absoluteignorance. And sometimes the actual content of the laws doesenter the fray.As significant as the words themselves, the MC member’sinterjection was important because of the speaker’s gender.M L A A and other NGOs are gradually integrating women intoMCs, placing anti-domestic violence posters in shalish meetingplaces, and encouraging women to attend and to speak up. W h i l eby no means a scientific sampling, the more than a dozen MLAAand other NGO-initiated shalishes that the author attended duringthree 1993–1997 consulting assignments possibly reflected atrend. The first few sessions featured a spurned wife huddledalone or with perhaps one female relative in a room full of menloudly deciding her fate. The more recent ones had women attendingand participating, some as MC members and some as interested(and even vocal) observers. This was not gender equity inaction: the procedures remained male dominated. But women arestarting to have a voice, and that voice tends to be more sympatheticto the wives involved in disputes.Furthermore, in the case of the very unusual movement,Banchte Shekha, which has worked for many years to buildw o m e n ’s economic, organizational, and educational empowermentin a relatively limited area of the country, shalish actuallyputs women on something closer to an equal footing with men. 5Mediation differs in such a context because underlying communityattitudes and relative power of women have shifted. Law isused here as part of an integrated strategy for establishing gender

BA N G L A D E S H 1 4 1e q u i t y, one that recognizes the many extralegal forces at play. T h em o v e m e n t ’s influence in some communities is such that its staffcan act as mediators.At least two overlapping lessons flow from these phenomena.One is that education, economic empowerment, and other basicdevelopment efforts are fundamental to advancing women’srights. Mediation and other legal services alone are not enough.The matter should not come down to an “either/or” choice,h o w e v e r, for the other lesson is that legal services can complementmainstream development programs. That lesson is confirmedby a 1994 evaluation of a pilot project in which four familyplanning organizations used MLAA training to offer shalishesand other legal services in their communities. The project and theresearch were initiated by TA F, with U.S. Agency for InternationalDevelopment funding. The findings indicated that the integrationof legal services and population control programs benefitedboth activities. 6 The potential value of such integration is suggestedby a 1995 World Bank study, which documents domesticv i o l e n c e ’s damage to a variety of socioeconomic developmentp r i o r i t i e s . 7 To the extent, then, that legal services help ameliorateproblems such as domestic violence, they may promote societaldevelopment more broadly. An additional lesson that emerg e sfrom this discussion regards the need for further research in thisfield, in view of both the potential impact and the limitations ofNGO-initiated shalish.B L A S T:E n g aging the Mainstream Legal Commu n i t yAnother respect in which MLAA proved important to theFord law initiative was that it served as partial model for the creationof BLAST. Founded in 1993, BLAST quickly evolved into anationwide network of offices engaged in litigation, mediation,and policy advocacy.The Foundation saw potentially replicable strategies in howM L A A had both improved on the traditional shalish process andat the same time had engaged local lawyers in legal aid. Chiel wasconvinced that “to create a human rights culture in a country andmake the ‘social change’function of law more than a foreign idea,

1 4 2 CA S E ST U D I E Syou must have a large array of lawyers involved.” As of 1992, thecore of legal services grantees could not provide the necessarycritical mass of lawyers, and few new groups were emerging.F o r t u n a t e l y, a widely respected Bar Council leader, KamalHossain, already had a vision for a nationwide legal aid program.His ideas both informed and matched the Foundation’s evolvingthinking regarding PILI. Over the course of a year of constructivebut sometimes taxing discussions with the Foundation, the gapbetween vision and details was closed, and plans for the newo rganization were finalized. A crucial step was the recruitment ofM L A A’s Huq to also head BLAST. Another was the identificationof Shahdeen Malik, a lawyer whose multifaceted backgroundincluded several years in London, to effectively run the org a n i z a-tion on a daily basis. Huq had the experience and savvy to providevaluable advice on how to set up a legal aid office, recruitlawyers to work with it part time for limited compensation, and toestablish NGO-initiated shalish. Malik had the time and breadthof perspective to integrate Huq’s detailed knowledge intoH o s s a i n ’s vision.F o r d ’s original PILI paper explained the assumption thatmotivated the Foundation to support Hossain’s idea: if moremainstream attorneys are introduced to legal aid, they “willincreasingly be willing to render assistance to indigent clients andwill in the process be exposed to the broader issues of social justiceand reform of the legal system.” And even if the ethics andattitudes of many bar members precluded focusing on the BarCouncil itself, Chiel was convinced that “there were some good[lawyers] . . . present throughout the country.” Above and beyondthe important services it would provide in offices throughoutBangladesh, BLAST could help build a community of activists byfacilitating interaction among mainstream lawyers, legal servicesgroups, and other NGOs.Partly because of its Bar Council links, BLAST won quickacceptance in the legal community and established a nationwidenetwork of offices. Will this translate into the bar as a wholebecoming a strong force for reform? Perhaps. But the arrangementpromises to at least make the legal profession more supportiveof legal aid and human rights. Hossain points out that “gettinga district bar association to [psychologically] ‘own’ a localBLAST” unit increases the unit’s effectiveness. He also notes that

BA N G L A D E S H 1 4 3“the possibility of Dhaka backup by established lawyers emboldenslocal lawyers” to take on tough cases against influential individuals.Based on a recent consultancy for the Dutch developmentagency Novib, Margaret Groarke concludes that “BLAST is veryrespected because it has moved slowly but steadily. Frequently,the most tired side gives up [in protracted legal disputes], butB L A S T d o e s n ’t, which is especially impressive because its attorneysget compensated on a per case basis. So people see them ashonest, hardworking, and committed. Also, the connection to theBar Council and to the upper echelons of the local bar has helpedthem tremendously. ”In some respects, BLAST has exceeded initial expectations.The organization has expanded its network of offices from elevento fifteen, becoming even more prominent as the nation’s larg e s tlegal aid organization. In combination with ASK and MLAA, italso is conducting policy research and advocacy on proposals fora human rights commission and a national legal aid scheme. A n dwith Novib’s support (partly through Groarke’s consultancy), it isaddressing a gap in its initial operations by developing a genderpolicy that will enable it to better advance women’s rights withinand outside the org a n i z a t i o n .F i n a l l y, BLAST has moved into public interest litigation, winningkey Supreme Court decisions. One regards health and consumerrights—specifically, the practice of selling salt that lacksmandated iodine content. (Iodine deficiency causes goiters.) Inanother case, pertaining to deaths in police custody, BLAST t o o kon the common but rarely challenged practice of prisoner abuse,and the legal pretexts under which it occurs. Yet a third case successfullychallenged those sections of a 1997 law that required ashow of hands, rather than secret balloting, for village councilrepresentatives. Given the pressure that open voting would invitefrom powerful community figures, the ruling is highly significant.L aw Clinics:I nvesting in the Next Generation of Law ye r sBuilding up both an NGO core and a network of legal aidlawyers would begin to address current needs. But looking

1 4 4 CA S E ST U D I E Sahead, many Bangladeshis saw a need to invest in law students,the legal profession’s future, for the nascent publicinterest law community to thrive. There also was a strong consensusamong legal services lawyers and mainstream attorneysregarding the low quality of graduating law students’ l e g a lskills. These factors motivated creation of PILI’s third branch:the introduction of clinical legal education programs at then a t i o n ’s three major law schools, at Dhaka, Chittagong, andRajshahi universities.For these new law clinics to thrive, they needed good leadershipwith a demonstrated commitment to educational innovation.Mizanur Rahman, a law professor and an inspiring faculty advisorto the University of Dhaka law student group, was an ideal candidateto head the clinic there. At the University of Chittagong,Dean M. Shah Alam offered a progressive perspective on legaleducation. And at Rajshahi University, Law DepartmentChairman A . F.M. Mohsin’s prior experience as a judge broughtextensive trial expertise and good local bar connections to bear inestablishing the program. Without such dedicated faculty at thethree universities, Foundation support would have gone forn a u g h t .Finding and funding the right talent was only a part of theprocess of launching the clinics. One of the greatest challengeswas overcoming many key figures’ understandable concerns thatclinical legal education was a creature of resource-rich We s t e r nnations and that it could never succeed in Bangladesh. On a Fordsponsoredvisit to the United States, Rahman indeed found nearlyall American programs too complex for easy adaptation toBangladesh. Exposure to such programs in neighboring countries,h o w e v e r, was far more fruitful. The Foundation supported visitsby law faculty members to a pioneering clinical legal educationprogram in Nepal, to India’s National Law School, and to othersites in Sri Lanka.Another key element in building clinical legal education wasthe recruitment of two successive American lawyers as advisorsto the clinics. The reasoning here was that ongoing advice andtraining was necessary for a concept as new as clinical legal education.Already resident in Dhaka, Catherine Lincoln and then

BA N G L A D E S H 1 4 5Groarke (subsequently the Novib consultant) undertook a varietyof tasks. They helped formulate new courses and introduced newteaching methods that emphasized practical training, and theydemonstrated by example how these courses and methods couldbe employed.The clinics aimed to upgrade Bangladeshi student skills whileexposing them to legal aid and NGO work. This experience takesplace at a crucially formative stage in the students’ careers, whenmany mix idealism with surprising cynicism about their professi o n ’s ethics and orientation. As one observer put it, “NGO exposurecan help put these students in touch with their country’sproblems, because many of them [coming from relatively privilegedbackgrounds] are removed from that reality.” NGO linksalso can create a “pipeline effect,” helping to convert student dedicationinto concrete knowledge and actions that broaden thecommunity of legal activists. Some may commit to NGO or probono work after graduation; others might develop new perspectiveson social justice. And as their role in the legal professiongrows over the years, they could become powerful voices forr e f o r m .As the clinical programs matured, so did the potential to linkthem to NGOs. Groarke helped assess how NGOs could use students,and acquainted these organizations with the considerablework involved in supervising interns. To avoid misunderstandings,she provided written guidelines to both the law schools andthe NGOs regarding student placements. These preparations ledto student internships that Groarke reports are starting to “workwell for the NGOs as a recruiting mechanism” for attracting toplaw graduates to such organizations as BELA and BLAST. Anumber of students reportedly have built on their clinical experiencesto conduct legal awareness sessions for impoverishedBangladeshis during their semester breaks, reflecting a possibleinterest in continuing to provide assistance after they becomeattorneys. Groarke speculates that whereas some law students otherwisemight have sought involvement in the bitter (and even violent)political battles that periodically plague Bangladeshi campuses,they now have an outlet for more constructive engagementwith societal issues.

1 4 6 CA S E ST U D I E SChanges and ContributionsC o n c l u s i o nThe long-term nature of development means that the larg e re ffects of Ford-supported law work in Bangladesh will becomeclear only years from now. Nevertheless, some tentative impressionsare starting to emerge regarding grantees’ progress andimpact, and the roles Ford played.Consider the standard set by the 1994 PILI description citedearlier in this chapter: “If successful, this initiative should forg ean increasingly broad-based community of like-minded activistscommitted to changing the existing legal structures and conventions.”It would be a vast overstatement to give sole credit to Fordor its grantees for the growth of legal advocacy and legal awarenesswork in Bangladesh in recent years. Still, these grantees arepart of a growing movement that involves mainstream developmentNGOs. The Legal Awareness Forum, comprising twentyfourorganizations, includes several that only became engaged inthis work in the late 1990s. W h a t ’s more, some top law graduatesare opting for full-time or part-time work with legal servicesNGOs. Shahdeen Malik of BLAST reports that “we’re now hiringstudents from the upper 10 percent of their classes” for Dhakabasedpositions. And leading young lawyers have maintaineda ffiliations with ASK policy research projects, despite leaving thecountry to obtain advanced degrees in Britain.Of equal importance, what was a set of relatively isolatedentities five years ago has become “an increasingly broad-basedcommunity” demonstrating growing sophistication in fields rangingfrom mediation to public interest litigation to policy advocacy. A leading NGO figure, Khushi Kabir of the group Nijera Kori,feels that “what started as individual support for victims hasmoved into using cases to educate, to publicize, to pursue policychange.” BELA’s Farooque similarly observed that increasedNGO interaction has helped once isolated legal services groupsmove “from a localized vision to a national vision. For example,now they’re talking about the rights of female prisoners and proposedamendments to the jail code.” And with the law clinics

BA N G L A D E S H 1 4 7starting to link students with NGOs, there is the prospect that thiscommunity will keep growing.Other evidence of this community’s evolution is seen ing r a n t e e s ’ growing connections with one another and outsidegroups. Only the most detailed diagram could depict the increasinglyintricate web of cooperative connections among NGOlawyers, mainstream practitioners, law students, professors, journalists,and development NGOs’ personnel. For example, A S K ,B L A S T, and MLAA are cooperating in a policy advocacy project.ASK has trained field-workers of the Grameen Bank (an internationallyrenowned NGO) on basic legal issues. As it does withother non-Dhaka cases, ASK refers Grameen-generated work toB L A S T field offices. A Chittagong law student group, RightsImplementation for Social Emancipation, also has sent cases tothe local BLAST o ffice. The law clinics are arranging internshipsat former Ford grantees and other groups. ASK, BNWLA, andB E L A work with media in various ways. And BLAST and BELAhave worked together on public interest litigation.Above and beyond providing funding, the Foundation occasionallyfacilitated some of this progress. For instance, participantsreport that Ford/TAF-sponsored meetings that arranged studentinternships (through the law clinics) at NGOs helped breakdown barriers between law schools and NGOs. The author hasalso observed a much more general development over the courseof three consulting assignments in Bangladesh: legal services personnelspoke of each other in a more familiar and supportivemanner in 1996 and 1997 than they had in 1993.To some extent, the Foundation directly funded the community ’s growth. This is the case with the law clinics and BLAST’snationwide network. But, as ASK, BELA, and BLAST all report,F o r d ’s support also led to other sources providing aid.These are positive medium-term results. Yet, the sad realities ofwidespread poverty and gender inequity continue to permeateBangladeshi society and will do so for many years to come. ButF o r d ’s former grantees have helped start a process through whichthe legal system is beginning to be used to positively impact specificpopulations and policies, and may effectively contribute to amelioratinginjustices and promoting development over the long term.

1 4 8 CA S E ST U D I E SLessons and InsightsThe same caveat that applies to assessing the impact of PILI’sgrantees applies to lessons that might flow from their work: inmany respects, it is too soon to tell. Still, certain innovations thatmarked their work and the initiative overall might prove useful inBangladesh or abroad. Some of these promising insights follow.Legal Services Stra t e g i e s1 . NGO adaptation of traditional community mediation (shalish)has arguably expanded access to justice perhaps morethan Bangladeshi courts have. NGO-initiated shalish is farpreferable to the unmodified traditional practices in whichharsh, unfair judgments spring from local leaders’ l e g a lignorance, indifference, corruption, or gender and classbiases. The new shalish also offers strong advantages overthe courts, which are often tainted by delay, high costs, andprocedures incomprehensible to most nonlawyers. MLAAand certain other NGOs accordingly have emphasizedmediation over the past decade.2 . The NGO approach to shalish has worked best when integratedwith other ongoing activities. Bangladeshi NGOs donot simply arrange for mediation sessions to take place. Byselecting, training, and informally monitoring mediators,they ameliorate biases that plague traditional mediation.And they do take cases to court for a minority of clients.The very threat of litigation creates a strong incentive forparties to reach and honor settlements. Going to courtaddresses client problems that are too severe for mediationto treat.3 . NGO-initiated shalish has been particularly eff e c t i v ewhere an NGO builds its mediation program on a base ofdeeper social change. Such is the case with BanchteShekha. This women’s movement conducts a range ofactivities that organize, educate, and economically empowerwomen. The mediation sessions it coordinates placewomen and men on close to the same plane. This reflectsthe transformations Banchte Shekha has brought about incommunities where it has operated for years. The duration

BA N G L A D E S H 1 4 9of Banchte Shekha’s commitment (and that of its donors)also merits emphasis. The social change it spurs is basedon intensive long-term work on a number of fronts.4 . Innovations in mediation took root in Bangladesh in waysthat imported processes could not. MLAA and other groupsbased their mediation work on societal traditions, whileseeking to change inequitable aspects of those traditions(most notably how they treat women).5 . Grantees have served women partly by defining humanrights protection as starting within the household, emphasizingthat women’s rights are human rights, regardless ofwho perpetrates abuses. “Many of our worst problems arenot just a matter of human rights with respect to the state,”comments a former BNWLA leader now with a We s t e r ndevelopment organization. “Many issues are within thef a m i l y. ”6 . Familiarizing jurists with progressive legal thinking ando rganizations arguably helped BELA obtain a landmarklegal victory regarding standing to bring suit. It may not bea coincidence that this ruling followed a 1992 (Fordfunded)A S K / M L A A regional seminar that helped makeBangladeshi jurists more familiar with expanded notions ofstanding in India, and a series of fora to which BELA i n v i t-ed selected jurists.7 . The experience of MLAA on a local level and BLASTacross the country suggests that engaging mainstreamlawyers in legal services can serve multiple purposes, p a r-ticularly when done by an NGO specifically devoted tolegal services. Most immediately, it deepens the pool ofattorneys available to help the poor. It also may generateprofessional support for law-oriented NGOs, which canstrengthen those groups’ impact. In the long run, it maycontribute to building an important constituency for humanrights and legal reform.Clinical Legal Education1 . Placements with legal services groups offer Bangladeshilaw students valuable opportunities to broaden their perspectives,integrate such services into their careers, and

1 5 0 CA S E ST U D I E Sjoin the community of legal activists. There are initial indicationsthat such placements are affecting the career choicesof some and encouraging pro bono work by others. Evenwhere a clinical program does not link students withNGOs, its classroom instruction could acquaint them withdevelopment issues and the legal needs of low-incomep o p u l a t i o n s .2 . By addressing human rights and social justice concerns,law clinics and NGOs may help upgrade the quality of thelegal profession in general. Dismay at the profession’s lowethical and professional standards drove many top lawgraduates into teaching or business in the past. The clinicsand expanding NGO opportunities improved legal trainingand encouraged high-caliber graduates to practice law.3 . Launching and refining a clinical legal education programis a laborious process. Clinical teaching differs markedlyfrom the theoretical, lecture-oriented method that dominateslegal education in many nations, and considerableup-front effort must be devoted to materials preparationand teacher training. University of Chittagong Law SchoolDean Alam emphasizes that “it is important not to be tooa m b i t i o u s . ”Donor A p p ro a ches and A c t i o n s1 . PILI profited from being grounded in existing opportunities,interests, and needs. Although the Foundation’s initialneeds assessment of Bangladesh’s legal system revealedsignificant weaknesses within such institutions as the judiciaryand law enforcement, its assessment of interests atplay within these institutions found that by and large theywere not dedicated to reform. The Foundation’s opportunitiesassessment, on the other hand, found that it could bestcontribute to impact on the nation’s legal system by workingwith the nation’s NGOs and law schools. Yet anotherconsideration informing the focus of the initiative was theF o u n d a t i o n ’s longtime experience working with NGOs andlaws schools in other countries.2 . Bangladeshi grantees’ innovations in mediation suggestthat often the best methods for building good practices can

BA N G L A D E S H 1 5 1involve supporting in-country org a n i z a t i o n s ’ o p e r a t i o n s .Where those organizations evince innovation and eff e c-tiveness on their own, a heavy investment of We s t e r nadvice and training geared toward improving their operationsmay not be the b e s t use of inevitably limitedresources. What grantees often need most is not extensiveforeign advice, but the funds to provide services and to“learn on the job” while doing so.Looking A h e a dWhat issues confront the law clinics, BLAST, and othergroups the Foundation supported? As in most countries, one challengeis financial: the extent to which BLAST and the other legalservices groups can sustain their funding levels is uncertain. Still,it is a promising sign that other donors have entered the legalservices arena, enabling BLAST, for example, to expand both thescale and nature of its operations.Law clinics may face fewer financial hurdles than the lawrelatedNGOs, since the clinics’ long-term costs are low and interestapparently remains high. University of Chittagong’s A l a msays, “Institutional momentum is building up among teachers andstudents to demand continuation of the law clinic.” A c o n s t i t u e n-cy has been created. This may hold particularly true atChittagong, which thus far is the only law school to offer creditfor law clinic enrollment. Market forces of a sort may influencethe other two universities to maintain the clinics, since the clinicsseem to provide students with skills that both students and lawfirms seek. Another factor will be the degree to which the universitiesretain high-quality personnel to supervise these programs.F o r d ’s former grantees face other challenges, and in tworespects could become victims of their own success. First, a fewmay face the administrative task of managing larger operationsand growing sums of donor funds. And to the extent that the governmentseeks to emulate the NGOs’ mediation innovations, itcould put in place a state-run system that might prove bureaucratic,politically partisan, and ineff e c t i v e .It is encouraging that more NGOs, including large, mainstreamorganizations, are engaged in law-oriented work. The exis-

1 5 2 CA S E ST U D I E Stence of a twenty-four-member Legal Awareness Forum wouldnot have been thought possible a decade ago. The degree ofimpact could hinge on whether this expansion is mainly confinedto legal awareness work, or whether it increasingly includes otherimportant functions such as litigation, mediation, and policya d v o c a c y. With this in mind, donors and NGOs alike may want toprobe questions that this paper only begins to answer. What concretebenefits flow from law-oriented work? Are good laws beingimplemented more? To what degrees are mediation, building legalawareness, and other legal services affecting people’s lives positively?In what ways can this best be documented? One approachmight be to assess whether communities where mediation andother services are being carried out demonstrate changes in legalknowledge, attitudes, actions, or material circumstances comparedto others where such activities are absent.There also is the question of how legal services can be bestintegrated with other development work. The PILI-supportedgroups could conceivably draw on their expertise to be resourcesto larg e r, mainstream development NGOs. The TA F - s u p p o r t e dresearch and the encouraging Banchte Shekha experience cited inthis report offer evidence that real benefits can flow from suchi n t e g r a t i o n .This chapter has scratched the surface of some of these questions.Appropriate research, carried out by the country’s socialscientists in partnership with NGOs, could yield firmer answers.N o t e s1 . Data International, Women in Bangladesh: A Situation A n a l y s i s , areport prepared for UNICEF/Dhaka (Dhaka: June 30, 1993), pp. 81–82.2 . Eirik G. Jansen, Rural Bangladesh: Competition for Scarc eR e s o u rc e s (Dhaka: University Press Limited, 1986), p. 84.3 . Other NGOs have adopted variations on MLAA’s approach.Some seek to advise and modify the perspectives of participants in traditionalshalish. Others seek to set up parallel structures that do notinvolve traditional participants. Many take the hybrid approach ofMLAA. Much hinges on the degree to which socioeconomic change,often spurred by development work, has paved the way for departuresfrom tradition in a given community.

BA N G L A D E S H 1 5 34 . In its more extreme forms, as documented by A m n e s t yInternational in 1993 and 1994 reports, shalish has imposed brutal andeven lethal punishment on women.5 . During PILI, TAF actually funded Banchte Shekha’s legal servicescomponent, Ford its health program, and NORAD its constructionof a major training center. But because these efforts related toeach other, all three were engaged with Banchte Shekha’s overallw o r k .6 . Karen L. Casper and Sultana Kamal, Evaluation Report :Community Legal Services Conducted by Family Planning NGOs, areport prepared for The Asia Foundation (Dhaka: March 1995).7 . Lori L. Heise with Jacqueline Pitanguy and Adrienne Germain,Violence Against Women: The Hidden Health Burden; World BankDiscussion Paper No. 255 ( Washington, D.C.: The World Bank, 1994).A p p e n d i x : People Interv i ewed for This Study[Note: This list includes individuals interviewed by the authorduring his three consulting trips to Bangladesh during the 1990sand who contributed directly or indirectly to this Bangladesh cases t u d y. It does not comprehensively cover, however, the names ofall persons, including clients of former Ford Foundation grantees,with whom he has conducted group interviews.]Kafil A h m e dProject Off i c e r, OXFAM, DhakaNawshad A h m e dProgram Off i c e r, The Asia Foundation, DhakaRafique Uddin A h m e dDeputy Director, Centre for Development Services, DhakaShafique A h m e dB a r r i s t e r-at-Law and Secretary-General, Bangladesh LawTeachers Association, DhakaKhurshid AlamD i r e c t o r, Legal Action Unit, Ain O Salish Kendra, Dhaka

1 5 4 CA S E ST U D I E SM. Shah A l a mProfessor and Dean, Faculty of Law, University of ChittagongSalma A l iVice President, National Women Lawyers Association, DhakaErshadul BariProfessor and Dean, Faculty of Law, University of DhakaRabeya BegumProject Director, Shariatpur Development Society, ShariatpurRashida Begun, Project Off i c e r, OXFAM, DhakaMaren BrennesvikSecond Secretary (Development A ffairs), Royal NorwegianE m b a s s y, DhakaKaren L. CasperRepresentative, The Asia Foundation, DhakaDavid ChielFormer Acting Representative, The Ford Foundation, Dhaka;n o w, Assistant Representative, The Ford Foundation, NamibiaOmar Faruque ChowdhuryExecutive Director, Centre for Development Services, DhakaRezaul Karim ChowdhuryC o o r d i n a t o r, Bangladesh Legal Aid and Services Tr u s t ,C h i t t a g o n gMohiuddin Farooque (deceased)Secretary-General, Bangladesh Environmental Lawyers A s s o c i a -tion, DhakaFawzia Karim FerozePresident, Bangladesh National Women Lawyers A s s o c i a t i o n ,D h a k a

BA N G L A D E S H 1 5 5Angela GomesD i r e c t o r, Banchte Sheka, JessoreJacinta GonsalvesPopulation Program Off i c e r, The Asia Foundation, DhakaM a rgaret GroarkeConsultant/Law Clinic A d v i s o r, The Ford Foundation, DhakaSyeda Rizwana HasanS t a ff Lawyer, Bangladesh Environmental Lawyers A s s o c i a t i o n ,D h a k aHameeda HossainHonorary Secretary, Ain O Salish Kendra, DhakaKamal HossainB a r r i s t e r- a t - L a w, DhakaSara HossainLegal A ffairs Off i c e r, International Centre for the Legal Protectionof Human Rights (INTERIGHTS), LondonFazlul HuqExecutive Director, Madiripur Legal Aid Association,M a d i r i p u rWahida HuqSenior Program Off i c e r, The World Bank, DhakaM. A m i r-Ul IslamB a r r i s t e r- a t - L a w, The Law Associates, DhakaNazrul IslamSenior Program Officer (Training), The Asia Foundation,D h a k aMd. Faizul KabirB a r r i s t e r- a t - L a w, Dhaka

1 5 6 CA S E ST U D I E SKhushi KabirC o o r d i n a t o r, Nijera Kori, DhakaShahjahan KabirProgram A d v i s o r, The Asia Foundation, DhakaBorhan Uddin KhanAssistant Professor, Faculty of Law, University of DhakaReidar KvamFormer Assistant Resident Representative, Norwegian Agency forDevelopment Cooperation, Royal Norwegian Embassy,D h a k aCatherine LincolnConsultant/Law Clinic A d v i s o r, The Ford Foundation, DhakaAbdullahel MahmudC o o r d i n a t o r, Centre for Development Services, DhakaShahdeen MalikA d v i s o r, Bangladesh Legal Aid and Services Trust, DhakaFazlul Hoque MiahProject Coordinator, Palli Shishu Foundation of Bangladesh,D h a k aAlauddin MollahProgramme Head, Social Mobilization and DevelopmentProgram, Ganoshahajjo Sangstha, DhakaTawfique NawazJuris Counsel, law offices of Tawfique Nawaz and A s s o c i a t e s ,D h a k aFazilatun NessaPopulation Program Off i c e r, The Asia Foundation, Dhaka

BA N G L A D E S H 1 5 7Ghazi Shafiqur RahmanExecutive Director, Palli Shishu Foundation of Bangladesh,D h a k aMizanur RahmanSenior Lecturer and Law Clinic Supervisor, Faculty of Law,University of DhakaMozibur RahmanChief Executive, Shariatpur Development Society, ShariatpurMasud Karim RiponFinance Coordinator, Madaripur Legal Aid A s s o c i a t i o n ,M a d a r i p u rRokeya SattarS t a ff member, Banchte Shekha, JessoreKhan Md. ShahidChief Coordinator, Madaripur Legal Aid Association,MadaripurSalma SobhanExecutive Director, Ain O Salish Kendra, DhakaAyul Ali Ta l u k d e rD i r e c t o r, Palli Unnayan Kendra—A Centre for Rural Development,MadaripurNeelan Tiruchelvam (deceased)D i r e c t o r, Law and Society Trust, and Director, InternationalCentre for Ethnic Studies, Colombo, Sri LankaTahera Ya s m i nCountry Representative, OXFAM of the UK and Ireland,D h a k a

1 5 8 CA S E ST U D I E SG roup Interv i ew sMembers of Law Review, a law student group at the University ofD h a k aS t a ff of the Madaripur Legal Aid Association, Bangladesh EnvironmentalLaw Association, Banchte Shekha, Ain O SalishKendra, the Palli Shishu Foundation, and other NGOsMembers of Banchte Shekha

5Contributing to Legal Reformin ChinaAU B R E Y MCCU T C H E O NThe Ford Foundation’s law-related activities in China haveevolved in the context of fundamental and wide-ranging changesin Chinese society—a society with a fifth of the world’s peopleand some four thousand years of recorded history. One aspect ofthose changes has been China’s endeavor to rebuild and improveits legal system. From the start of the “reform and opening” era,begun in earnest in December 1978 by the ruling ChineseCommunist Party, China has worked to rebuild a body of formallaw and the infrastructure of the legal system, such as courts andlaw faculties, among other components. Citizen mediation committeeswere also established to resolve minor disputes throughinformal means. But the legal reform process is far from complete,and the need for improvement of the formal legal systemincreases as the society deepens its economic, social, and politicaltransitions. At the same time, the unmet need continues for a legalsystem that fully protects the civil rights and liberties of all citize n s .Through ongoing involvement since 1979, Ford’s law grantshave contributed to needs identified in collaboration with Chineselegal experts. But it is the work of those experts along with Ford’sgrantees that is the noteworthy contribution to legal reform.The Foundation hoped to be a long-term partner in China’se fforts to rebuild and reform its formal legal system by initiatingcontributions in the legal research and teaching community that it1 5 9

1 6 0 CA S E ST U D I E Sfelt would play an increasingly important role over time. Its firstlaw-related grants went to support legal education and scholarship,and to help rebuild law faculties. From 1988, when theFoundation first opened its Beijing office, law grantmaking grewto include support for training of judges and for legislativeresearch and drafting. While continuing to evolve and sharpentheir focus, these lines of work have been carried on into the1990s. Since the early 1990s, scholars have been supported intheir research on specific legal policy and law, the enhancementof citizens’ rights, as well as exploration of law’s role in society,and basic principles underlying a formalized legal system. Fromthe mid-1990s, the Foundation has been able to assist an expandingChinese legal community increasingly focused on judicialreform and the problem of implementation of laws. The latter isaddressed in a line of Foundation programming that has come tobe called “law-in-action.” It supports legal services, the improveddesign and operations of legal institutions, and efforts to increasepublic awareness of new possibilities in the legal system.After reviewing China’s changing legal context, this studydiscusses the evolution and early approaches of the Foundation’slaw-related grantmaking there. It then explores two more recentand ongoing foci of work: judicial reform, including training ofjudges, and law-in-action. The conclusion briefly restates some ofthe most salient lessons and insights that emanate from thes t u d y.C h i n a 's Changing Legal Contex tChinese society is one not only of great size but also oftremendous accomplishments and complexity. These factorsshould be borne in mind when considering the challenges of itscurrent transition. The transition in China’s legal culture and systemis addressing characteristics of its past fifty years of experiencewith Chinese socialism, as well as others that are much moredeeply rooted. Millennial and powerful traditions emphasize theguidance of human behavior through internalized moral standardsrather than external rules of law, and favor informal means ofcompromise over formal adjudication of disputes. In spite of

CH I N A 1 6 1more recent major changes, these traditions still maintain someinfluence today.The Chinese legal system is now undergoing its third majortransformation of the past century. The first began during the finalyears of China’s last imperial dynasty as the society was increasinglyimpacted by foreign cultures. It was accelerated with the fallof the dynasty in 1911, the declaration of a Republic in 1912, andthe subsequent coming to power of the Nationalist government.During this period, the government abrogated imperial laws andadopted laws based on the models of French, Japanese, andGerman civil codes.A second legal transformation followed the revolution of1949 and the establishment of the People’s Republic of China(PRC). For a short period thereafter, the policy of the ChineseCommunist Party (CCP) focused on replacing laws of theNationalist government with selected aspects of the Soviet legalsystem. During this stage, a system of laws, legal services, andlegal institutions—although of a new provenance—was maintained.It was followed, however, by an even deeper transformationthat began with the Anti-Rightist Campaign in 1957 and continuedthrough the Cultural Revolution of 1966–1976. The CCPinitially sought to use law as a tool in its policy of class struggle.It later decided there was little need for law in the context of classstruggle, and that in many cases law was an obstacle. As is nowwidely acknowledged by Chinese scholars and officials, between1957 and 1976 law and legal institutions were despised, ignored,and then largely destroyed. Some lawyers were condemned asrightists and some were sentenced for labor reeducation. T h eMinistry of Justice, the procuracy, 1 and legal advisory off i c e swere all closed. Legal education also ceased, and the courts,under the control of military commissions, virtually did not operate.For nearly twenty years a formal legal system ceased to functi o n .C h i n a ’s third and current legal transformation also correspondswith wide social, economic, and political changes, in thiscase the “reform and opening” era begun in 1978. As part of thesechanges, a formal legal system is being rebuilt. Legal educationand the procuracy were reinstated in 1978 and the Ministry ofJustice was reestablished in 1979. The role of the judiciary, and

1 6 2 CA S E ST U D I E Sits caseload, have steadily increased, and efforts are under way totrain judges and procurators. Legislation has also proliferatedover the past two decades. Moreover, the PRC is now a signatoryto most of the principal multilateral treaties for economic cooperation,as well as international covenants on women’s rights; civiland political rights; and economic, social, and cultural rights.Most experts agree that the current legal transformation wasprompted by both economic and political concerns: the need tosupport domestic market reforms and encourage new foreigninvestment, and the desire to control the arbitrary misuse ofpower by government officials that characterized the CulturalRevolution. The absence of a formal legal system for nearly twentyyears went hand in hand with rejection of fundamental principlesof rights, governance, and the supremacy of law, and this willnot be easy to rectify. These principles, not firmly established earli e r, remain incompletely grounded, as do the implementation ofnew national laws, full provision of human rights, and theenforcement of court judgments.The reestablishment of formal legal education was one of thefirst basic steps in the current reform effort. Professor Li Dun ofthe Chinese Academy of Social Sciences (CASS) notes that, in allof China, only some sixty qualified potential law professors wereavailable in 1978. Professor Randle Edwards of Columbia LawSchool remarks that there were only two partially functioning lawfaculties at the time. In addition to the task of reviving and modernizinglegal education, there was a great need to develop thelegal profession. In response to the grave and immediate need forlawyers in the early 1980s, accreditation was conferred uponmany people who had little practical experience or legal training.No national qualifying exam for lawyers existed before 1986, andcriteria for granting qualifications also varied throughout thec o u n t r y. As a result, great disparities exist in the quality oflawyers, depending upon educational and occupational backgroundand date of admission to practice. 2 Furthermore, the conceptof lawyers as independent professionals rather than statelegal workers was not recognized until the early 1990s.China has reestablished a formal judicial system, with fourlevels of courts and over one hundred fifty thousand judges, butfew believe the judiciary is yet a competent and professional

CH I N A 1 6 3institution. “Just how far China has come, and how far it stillmust go, in building a legal system that can serve the needs of arapidly changing society is illustrated by the state of its judiciar y,” says Phyllis Chang, the Foundation’s program officer inBeijing responsible for law programming. With the decision torebuild the courts at the end of the 1970s, many demobilized andretired military personnel and other civil servants with no formallegal training were transferred to the judiciary. This exacerbated askills problem that had developed much earlier, when judgeswere selected from among peasants, workers, and soldiers whowere also without legal training. Many judges still lack trainingin law beyond a vocational degree certificate. Although greatlycut back, the practice of filling judicial posts with retired militarys t a ff continued throughout the 1990s in some lower courts insmall towns and rural areas. In these lower courts, where mostcases are heard, high numbers of judges have no formal postsecondaryeducation in any academic field. To address this exigency,the government has pursued judicial training programs since thelate 1980s.Aside from the need for training of judges, the governmenthas more recently recognized the necessity for more fundamentaljudicial reforms. Court procedures have recently undergone greatchange, but many experts and officials see a need for improvementsin the way judges conceive their role and obligations withinthe new legal order. This will undoubtedly be hard to achievein spite of China’s changing legal context. Many judges do notview their role as different from that of any other state civil servant.The appeal process is often threatened by judges seekingguidance in their decisions from their superiors on higher courts.Furthermore, courts are weak in comparison to government agenciesand CCP o rgans, making them vulnerable to outside pressures.Although Chinese law now provides citizens with the rightto sue government agencies, such challenges are often thwartedby courts that are hesitant or unwilling to take on administrativeo rgans. The problem of judicial corruption has also stirred publicand official attention.The current legal reform effort has been strengthened by arevived legal education and research community. This communityplays an important role in training judges, introduces new ways of

1 6 4 CA S E ST U D I E Sthinking about law in Chinese society, and informs governmentawareness and policies about both the implementation of laws andjudicial reform. Since the end of the 1970s, there have beennumerous areas in which government entities, CCP o fficials, anda cross section of Chinese legal academics have agreed on anagenda for research, development, and implementation of newlaws and other related changes to the legal system. As in someother countries, in China the success of policy research, formulation,and promotion on sensitive policy topics can often be facilitatedby low-key but sustained endeavors, without pressure topublish or publicize results.In one important example of such governmental and academics y n e rg y, discussions were held over many years among academicsand policymakers about policy on the “rule of law.” Should lawbe pursued as merely an instrument to achieve state policy goals,or rather as a value to be embodied by both the state and society?Put diff e r e n t l y, this is the contest between the “supremacy of law”and only “running the country according to law” in order to maintainsocial stability and achieve economic development. China’shistory of past imperial rule and the use of law as a means of classstruggle were considered in those debates, along with currentlegal reform efforts. Some scholars acknowledged the inevitableinstrumental uses of law and legislation, but described the importanceof permanent underlying principles designed to achieve ajust and lasting legal order. 3 In late 1997, the CCP adopted “yi fazhi guo” as its official policy objective. Some experts interpretthis phrase, read with other official statements, to mean, “governingaccording to law,” while others say it represents the conceptof the rule of law. In either case, it is widely agreed, althoughthere is still a considerable need for definition of the role law willplay in Chinese society, China’s legal transformation took animportant new step.One final aspect of China’s changing context should be notedbecause of its increasing influence on the implementation of thenew legal system and the delivery of legal services. As describedby Anthony Saich, the Foundation’s representative in China from1994 to 1999, the wider transition taking place has resulted in agreater degree of autonomy for government-supported org a n i z a-tions, such as the All China Wo m e n ’s Federation, and the emer-

CH I N A 1 6 5gence of new social organizations that fulfill social welfare functionsand liaise between state and society. Some of these newo rganizations conduct law-related activities, including, increasin g l y, the delivery of legal services.Anumber of these law-related organizations are hosted bygovernment academic institutions or rely on relationships withgovernment leaders to facilitate their work. Others are created bythe state or CCP, and are what would be known in other parts ofthe world as G O N G Os — g o v e r n m e n t - o rganized nongovernmentalo rganizations. Still others are self-organized and managed. T h e s enew groups have proven instrumental in advancing the lawreform agenda in China.Fo rd ’s Law Program Evolutionand Early A p p ro a c h e sThe Foundation’s law program in China has evolved overtwenty years from modest grantmaking for the exchange ofChinese and American law scholars to a full law and rights programbased in Beijing. During its early years, the program’s primaryfocus was on support for legal education and research. Priorto 1979, the Foundation was a major supporter of Chinese andother geographic area studies in the United States and severalother countries. Support for Chinese studies was intended toenhance understanding of China in the United States and elsewherein the world, and was motivated by a belief that too littleknowledge existed outside of China to understand the dramaticchanges taking place there or their wider international consequences.The Foundation also helped establish the NationalCommittee on U.S.-China Relations and the Committee onScholarly Communications with the People’s Republic, and supportedthe East Asian Legal Studies program at Harvard LawSchool. The Andrew Mellon Foundation was another major supporterof such early work.The Foundation’s first direct support to Chinese institutionscame after China’s reform and opening began in December 1978.For the first two years, the emphasis was on promoting mutualaccess and understanding between the two societies. Beginning in

1 6 6 CA S E ST U D I E S1981, with the availability of additional funding, Foundation supportwas concentrated in the fields of international relations, economics,and law, reflecting the salient features of China’sreforms. Annual commitments grew during the 1980s, and inJanuary 1988, the Foundation became the first private foreignfoundation to open an office in China. T h e r e a f t e r, grant programswere expanded to include rural poverty and resource management,reproductive health, and culture.By that time Foundation staff had already gained severalyears of insight on the needs and priorities of China’s rapidlychanging legal system. Much of that insight was provided byCASS, the government-organized research institute that is one ofthe Foundation’s earliest and most long-standing grantee partnersin China. CASS also remains the Foundation’s official sponsor,allowing it, as a foreign organization, to maintain offices inChina. Other early grantee partnerships were established with thesmall and newly revived legal education community at severalleading universities.Some of the early considerations in the Foundation’s law programmingare recalled by Peter Geithner, who initiated theF o u n d a t i o n ’s law grantmaking in China and was later its first representativethere. “As our grant budget grew we were able toexpand from efforts at mutual understanding to actual programs.The question then was: what programs? We recognized from thestart that we should take the long view, and legal education waschosen.” Former Program Officer Mark Sidel, who served from1988 to 1990, articulates a similar strategy concerning that initialchoice: “We believed the growing legal research and teachingcommunity would have a major multiplier effect on other futurelaw programs.”A subsequent evolution in the program led to a more focusedconcern with rights and governance, from merely rebuilding alegal system to “providing Chinese with access to an expandedrange of ways of thinking about and using law to protect rights andpromote effective, responsive governance,” says former ProgramO fficer Jonathan Hecht, who served from 1990 to 1994. Chang,who joined Ford in Beijing in 1994, says programming has continuedto support efforts to build a legal culture in which law appliesto and is respected by both government and citi-

CH I N A 1 6 7zens, as well as to rebuild a national legal infrastructure—includinglegislation, trained lawyers, courts, and other legal institutions.In the program’s formative years, Foundation staff proceededto deepen support for Chinese legal scholars. This resulted from abelief in the critical and long-term importance of the academicc o m m u n i t y, as well as recognition of the need for concentratede fforts in such a large country. The earliest and largest project ofthe law program to date has been the U.S.-China Committee forLegal Education Exchange (CLEEC), a project that ran from 1983until 1995. The project, designed to build law faculties, generallyfocused on seven of the strongest faculties at universities andinstitutes of political science and law—a small but important subsetof China’s rapidly expanding law schools. CLEEC supportedbilateral exchanges of legal scholars, enabled more than two hundredChinese law students and professors to pursue foreign legaleducation and research, and broadened understanding aboutChina in the U.S. legal community.CLEEC built upon limited earlier support for visiting lectureshipsthat took place in the few years before its creation. A 1 9 8 2conference cosponsored by CASS and a group of U.S. legalscholars, the first Sino-American legal conference since 1949,revealed interest in an ongoing program of exchanges that laterbecame CLEEC. Translations and sharing of Chinese and Englishlanguage law materials were soon added to CLEEC’s activities.The Henry Luce Foundation later became a co-funder, supportingtraining of law librarians and providing library materials. T h eU.S. Information Agency helped fund summer workshops.CLEEC was the central focus of the law program until theF o u n d a t i o n ’s Beijing office opened in 1988.CLEEC has been formative and instructive for Ford’s entireChina law program. While it is not a main focus of this study, afew of its results merit emphasis. From the start CLEEC selectedits participants from a limited number of member schools andinstitutes. Geithner explains that this was to create a critical massof faculty, help prevent their isolation upon return, and foster amutually supportive intellectual environment, especially for newideas, within those faculties. Looking back, this approach seemsto have worked for those CLEEC alumni who returned to theirlaw schools. But not all returned.

1 6 8 CA S E ST U D I E SJust over 68 percent of CLEEC participants who went abroadreturned to China; only about 49 percent returned and took up lawteaching or research positions as planned. This seems disappointing;however, Hecht notes that the rate of return to China was infact notably high compared to almost every other program oflong-term overseas training for Chinese in law and other fields.Reviewing the experience, Foundation staff stress the importanceof simultaneously addressing the institutional environments participantswould return to as well as their training and researchneeds, in order to enhance returns to the targeted academic institu t i o n s .Even with discerning selection processes, some factors will,of course, be largely beyond a donor’s influence. For example,Edwards, the first American cochairperson of CLEEC, attributesthe lower-than-hoped-for return rate partly to the increased marketabilityof Chinese lawyers with postgraduate degrees and partlyto an unwillingness of young scholars to return to faculties withlow seniority. Geithner suggests that the fluctuating political climatein China was another factor. For example, some students andscholars remained abroad in the years following the tragicTiananmen Square events of June 1989, but the return rate pickedup after about 1992 when the momentum of reforms increasedagain and those abroad saw better prospects for contributing toC h i n a ’s development by going home. Chang also points out thatCLEEC participants who returned to China but not to law facultiesbrought other benefits that were not entirely anticipated. Itsalumni have also become founding or senior members of importantlaw firms and have contributed to in-service governmenttraining programs, bringing much-needed talent to the fledglinglegal profession. Others have contributed to public educationabout the law. As will be seen below, still others made contributionsto the development of important legislation.Looking forward, Wang Liming, a CLEEC alumnus and nowan associate law dean at the People’s University of China, recommendsa project that would secure short-term or visiting professorshipsfor CLEEC alumni who have remained abroad or outsideof the teaching profession. William Alford, director of the Centerfor East Asian Legal Studies at Harvard Law School and a foundingmember of the U.S. CLEEC Committee, recommends that any

CH I N A 1 6 9project similar to CLEEC give wider attention to areas outside ofBeijing that may have a greater ability to experiment. He alsosuggests more directed exposure to training opportunities andmodels in public interest law. Nevertheless, while most CLEECparticipants studied trade and international economic law, A l f o r dexplains that “even students of those fields deepened their understandingof the rule of law. ”Many and varied factors have contributed to recent legalreform in China. Peter Harris, the Foundation’s representative inChina from 1990 to 1994, is therefore cautious about disaggregatingthe effects of CLEEC. What can certainly be concluded, heexplains, is that the project enabled some of China’s most importantcurrent and future legal actors to gain critical new insights.Professor He Jiahong of People’s University in Beijing creditsCLEEC with increasing his critical reasoning and inspiring subtlechanges in his thinking about law. Professor and Senior JudgeWan E’xiang explains that his exposure to public interest lawprojects through CLEEC inspired his development of the Centrefor the Protection of the Rights of the Socially Vulnerable (Wu h a nCentre), which operates from Wuhan University. At Wu h a nU n i v e r s i t y, more than ten CLEEC alumni “are now the backboneof the University law faculty,” says Wa n . 4 CLEEC alumnusProfessor Zhu Lanye of the East China Institute of Politics andLaw in Shanghai says: “My experience overseas has affected myideas about the concept of the rule of law, as well as my understandingof the legal system as a whole.” 5Tremendous growth and diversity had been taking place inlegal education in China while the CLEEC program was underw a y. Both undergraduate and postgraduate legal education wasexpanding, and some nondegree training programs existed forgovernment officials. Enrollment in the growing variety of lawcourses had increased from some thirteen hundred in 1978 tonearly thirty-two thousand by the end of 1987. These developmentsconfirmed the Foundation’s original choice to focus grantmakingon the legal research and teaching community, but alsopointed to a continued need for trained legal educators.As the Foundation’s Beijing office opened in 1988, Geithnerexplains, law programming expanded to include two newe fforts—legislative research and drafting, and training of judges.

1 7 0 CA S E ST U D I E SOpportunities were created for government officials and their academicadvisors to study legislative approaches in a variety ofcountries with different legal systems, including A u s t r a l i a ,France, Germany, India, Japan, Thailand, and the United States.The National Committee on U.S.-China Relations, based in NewYork, coordinated the U.S. study tours. Some limited training forlegislative officials also began. The Supreme People’s Court, then a t i o n ’s highest tribunal, established a Senior Judges Tr a i n i n gCentre to study the training approaches of other countries and todevelop its own program. Such legislative training was more sensitivethan the Foundation’s past roles, especially for a foreigno rganization, but Geithner believes that the record of CLEEC’swork made it possible. CLEEC created familiarity with and confidencein the Foundation that made others comfortable inapproaching it for support. Furthermore, both the legal reforme ffort and the identification of its needs began with Chinese off i-cials, he says. Wang Liming believes that the confidence and trustcreated by CLEEC still facilitates the Foundation’s work today.By 1991 the law program, while continuing to support legaleducation and research as well as judicial training, added similarwork toward strengthening the procuracy. Less attention wasgiven to legislative drafting, as the United Nations DevelopmentProgramme (UNDP) now undertook a major effort in that field.Subsequent Foundation support for lawmaking focused on particularfields of law, such as administrative law and criminal procedure,which were seen as central to the rights and governanceaspects of the legal system.Beginning in 1992, the Foundation also supported research byo rganizations on legal topics related to human rights and constitutionaland administrative law, hoping to broaden domestic dialoguein these areas. Hecht, the program officer at that time,describes this as an attempt, in the midst of other emerging initiatives,to refocus attention on basic principles of rights and governance,and on how law would be used in the new system. This toowas a potentially sensitive endeavor. Again, gaining the trust ofkey and now long-standing local partners, as well as maintainingthe flexibility to work with government agencies and their aff i l i a t-ed organizations, facilitated this eff o r t .For example, CASS, among others, had identified the need

CH I N A 1 7 1for more research on human rights law and undertook to conductcomparative work in several countries. Similarly, another grantee,the Administrative Law Research Group (ALRG), which wascomposed of government officials and law professors appointedin the late 1980s by the Legislative A ffairs Commission of theNational People’s Congress (China’s Parliament), helped researchand draft a framework for administrative law.ALRG was at the forefront of efforts to enact path-breakinglegislation such as the 1989 Administrative Litigation Act, whichexpanded liability for official misdeeds and individual standing tosue government agencies and officials. A L R G ’s subsequentresearch and drafting work laid the basis for the 1994 StateCompensation Law, which clarified citizens’ rights to receive compensationfor improper government action, and the 1996Administrative Penalties Law, which limited what had previouslybeen largely unfettered discretion of agencies to impose sanctionssuch as fines and property confiscation. CASS’s research undoubtedlycontributed to China’s decision to sign international covenantson civil and political rights, and on economic, social, and culturalrights. Many of the scholars with both CASS and ALRG had earlierconducted studies or research under the auspices of CLEEC, andcould contribute that knowledge to their new work. Some thirtypeople from CASS alone had been CLEEC participants.The 1989 Administrative Litigation Act in particular hashelped lead to an important shift in the way Chinese citizens viewand use the law. “In the past people wouldn’t dare sue governmentfor violation of their entitlements or rights; now they cansue and get compensation,” says Jiang Ming’an, a professor fromPeking University. Studies report that cases brought under the lawjumped from about thirteen thousand in 1990 to about one hundredthousand in 1998. Some scholars caution, however, thatwhile the Administrative Litigation Act is a milestone, it doescontain limitations.The Foundation has gone on to support a second generation ofALRG scholars. A suggestion made by Zhang Chunsheng, amember of ALRG and vice director of the Legislative A ff a i r sCommission, is that the group could benefit from financial supportto study the successes and mistakes of administrative lawregimes of additional developing legal systems and countries.

1 7 2 CA S E ST U D I E SALRG attributes its overall successes in part to a structure thatguarantees scholars regular access to key policymakers. Saichsimilarly notes that organizations with close government linksoften can play a more direct role in policy formulation while helpingto generate significant policy innovation.Foundation staff members contrast the results obtained fromA L R G ’s research work with those from earlier training programsfor legislative officials. While the earlier programs helped to meetC h i n a ’s immediate priorities by speeding and improving the draftingof discrete laws, they only incidentally built capacity withinthe legislative drafting organs of government. The ALRG modelfocuses instead on a single area of law and includes in-depth academicresearch. Consequently, it has enabled an incrementaldevelopment of expertise and helped train graduate students andyoung professors as a future resource base. This has enhancedChinese capacity to develop the field of administrative law general l y, explains Hecht.In 1993 the Foundation’s law program made plans to build onthe research agenda with a study on the implementation of a neww o m e n ’s rights law. For the first time, the program also sought tocomplement its training, law development, and research componentswith support for an embryonic legal services project—theWuhan Centre. The added focus on service and implementationreflected concern that volumes of legislation were being enactedwithout sufficient attention to how or whether new laws wereworking in practice. Attempts to apply the law, it was hoped,would lead to further improvements in statutes and legal machiner y.Grants were also made for research toward revision ofC h i n a ’s criminal procedure law, with the aim of strengtheningprotections for human rights. A group of reform-minded law professorssupported by the Foundation and led by ChenGuangzhong, former president of the China University ofPolitical Science and Law, was asked by the Legislative A ff a i r sCommission to develop an initial draft of the revised law. T h egroup, which did not include members from the commission, waso rganized differently from ALRG. But it utilized similar links togovernment in the development of law and policy. The revised

CH I N A 1 7 3criminal procedure law, finally enacted in 1996, includes provisionsthat strengthen rights of the accused, including the right toseek counsel at an earlier point after detention. It also includesrestrictions on some types of detention and new procedures thatmake trials more adversarial in nature. Some also say that the lawrepresents a first step toward establishing a presumption of innocence.However, as Chinese authorities acknowledge, implementationof the new law has been difficult due to entrenched policeand prosecutorial practices.The Foundation’s experience with this group of academicsillustrates how a donor can help a grantee grow through transitionsby staying with it over time. Following the successfulenactment of the 1996 law, Foundation staff encouraged thegroup to consider establishing an organization to continue itswork on criminal justice reform. Later that same year, the groupfounded the Centre for Criminal Law and Justice based at theChina University of Political Science and Law. The center currentlymonitors the revised criminal procedure law to identifyimplementation problems and devise possible solutions. To dothis, it utilizes a small criminal defense clinic and recruits legislatorsand judges to serve on monitoring panels and tours. T h esame approach is being used for the development and implementationof criminal justice laws that meet United Nations standards.Changes in China, coupled with a steadily increasing law programbudget, have enabled the Foundation’s grantmaking to growand diversify. Chang notes, “This expanding universe of programmingpossibilities, however, also carries the danger of diluting theimpact of [our] resources, particularly in a country as huge anddiverse as China, where the population of one province can equalthat of entire countries in which the Foundation is working.” Forthis reason, while maintaining some smaller grantmaking areas,since 1995 the law program has focused on two primary areas:judicial reform, which includes training judges, and “law-inaction.”Law-in-action is a phrase coined for the line of work thatgrew out of the program’s emphasis on legal implementation andlegal services. The discussion below will focus on these two areasof grantmaking.

1 7 4 CA S EST U D I E SJudicial Refo r mIt is widely believed that a stronger judiciary would contributeto sustaining China’s movement toward broader opennessin all aspects of society. In describing the purpose behind the judicialreform focus of the Foundation’s law program, Changexplains that “China’s next step toward the rule of law must betransformation of its judiciary.” The Foundation’s willingness tosupport long-term endeavors and its familiarity with key Chineselegal actors, as well as the program’s longevity and credibility inChina, made it a logical partner in judicial reform efforts. W h i l ethe Foundation in 1999 remained the only foreign donor supportingwork on broader judicial reform, the Canadian InternationalDevelopment Agency and UNDP have sponsored training ofj u d g e s .F o r d ’s first work with the judiciary in China began with theopening of the Beijing office in 1988 and was limited to trainingjudges. The primary grant was for a “training of trainers” projectthat involved fellowships for young judges to study abroad. T h o s ejudges were selected by the Senior Judges Training Centre, aff i l i-ated with the Supreme People’s Court. The hope was that theseyoung judges would join the center’s teaching staff to train otherjudges. While the staff was indeed enriched by many of thereturning judges, a significant number took up opportunities elsewhere—inthe private sector, their original courts, or abroad. T h eretention problem is indicative of an ongoing challenge faced byother training programs, such as CLEEC, and confirms the needto address the institutional environment to which trainees willr e t u r n .Currently Ford’s support for judicial reform efforts includesfour lines of work believed to be critical to the judiciary’s emergenceas a professional and impartial institution. One supportsreform experiments undertaken by Chinese courts. A s e c o n dinvolves applied research to help analysts and policymakers betterunderstand how courts and judges in China’s large system actuallyfunction. Third, some support is given to development ofj u d g e s ’associations and organizations. Finally, support continuesfor judicial training programs, which now emphasize fosteringprofessional values and legal skills, rather than teaching substan-

CH I N A 1 7 5tive law. Because this is the area in which Ford’s law program hasthe most accumulated experience, it will be the primary focus ofthis section.In the first line of work, supporting reform experiments inChinese courts, efforts have been concentrated on reforms of trialprocedure. Other grants have been made for exploration ofreforms in judicial administration and to examine how judgmentsare written and structured. Recent grants have also supportedexploration of more systemic reform such as judicial appointments,court finance, and the internal processes by which courtsreach decisions.Liang Baojian, president of the National Judges College, thesuccessor to the Senior Judges Training Centre, shared insightsgained from his experiences with efforts to reform trial procedure.While noting the need for “holistic reform of the judicial system,”which he says includes financial management, skills development,and judicial nomination and appointment procedures, hestresses that trial reform is one key to improving public knowledgeand trust. In his view, the old inquisitorial trial model inwhich the judge undertook the duties of inquiry, “was not eff i-cient, was too long, and was not transparent to the public.”Reforms over past years require adversarial procedures for mosttrials, public proceedings with some limitations, and the presentationof evidence and judgments in open court. Liang says theimplementation of new reforms will require time, and willdepend, in part, upon the legal consciousness, customs, and qualityof judges. For that reason the college teaches skills but alsostresses to judges the far-reaching meaning of reforms in terms oftheir status. Liang views trial procedure reforms nationwide as ameans to “raise the status of courts.”The second area of Foundation support—applied research—has provided some insights into general advantages and disadvantagesof different types of grantee partners. Research projectsundertaken by the courts can further internal momentum towardreform and sometimes have greater possibilities for follow-upimplementation. But court-based projects have generally not producedmany written products; thus, dissemination of new knowledgeand approaches is limited. Similar projects by academicsgenerally do produce valuable articles, case studies, and other

1 7 6 CA S E ST U D I E Swritings, but these tend to be consumed primarily by other academics.Special efforts should be taken to ensure that researchfindings and recommendations are brought to the attention ofjudges and key CCP l e a d e r s .The Centre for Judicial Studies at Peking University, led bycodirectors He Weifang and Zhu Suli, has conducted some revealingstudies on conditions and difficulties faced by courts inC h i n a ’s rural areas. These are especially important, since, despiteincreasing urbanization, the vast majority of Chinese still live inthe countryside. In one study, Professor Zhu interviewed over onehundred basic-level court judges, who possess very limited formallegal education, in order to understand the methods they use andrules or customs they follow. The study yielded insights on bothrural courts and public attitudes. Judges, for example, noted thed i fficulty they face in getting people to testify against their neighborsin rural settings—unlike in urban areas, where witnessesmore often face strangers in court, or at least can live more separatelyonce a court proceeding is completed. The question widelyfaced by rural judges is how to secure testimony—throughencouragement and social pressure, or by court order? The concernis that the use of court orders and increased enforcement willonly discourage rural residents from greater use of law and thecourt system when it is truly necessary. In addition to revealing ad i fficulty faced by rural courts, this highlights the fact that judicialstrengthening alone is not enough. Public legal education onboth rights and responsibilities is also important.The center’s research also noted the discretion China’s ruraljudges—and perhaps urban judges as well—so often use, as wellas the skills and judicial values they would need to achieve equityand justice in such circumstances. Judges must often use their discretionto fill in the many areas in which China’s laws are silent,undeveloped, or ambiguous. However, given the public’s historicexperience with the use of authority and law in China, the courtsmust be seen to use discretion both effectively and fairly, if Chinais to build a respected judiciary.Established in 1995, the judicial training program at SouthCentral University of Political Science and Law in Wuhan is oneof several now supported by the Foundation. Three trainees, fromthe district and intermediate courts in Hubei Province, are repre-

CH I N A 1 7 7sentative of the judges the program serves. One was a former militaryofficer of twelve years who retired in 1987 to become ajudge. Another is a middle school graduate with job experience inpersonnel management. A third graduated from a teachers college,had taught for three years, and was transferred from a departmentof the CCP to the court four years ago. When asked about theirneeds, the first judge replied that he needed “a reeducationprocess in legal knowledge and some skills to write judgments.”He added, “An officer commands a platoon while a judge mustsearch for fairness—not just give commands.” He had completedhis second training course two years earlier. Expressing consensus,the trainees prefer academics as trainers over their colleagueson the bench because, they say, academics have greater exposureto new knowledge.From their experience, the faculty members at South CentralUniversity recommend selecting trainees from the same area orcourt so as to create a community of cooperation, standards, andvalues among peers. One judge with new ideas cannot have abroad impact, they say. But alongside others, she or he can setinfluential examples and engender a new legal culture. This lessonis similar to that established by CLEEC in its work. JiangMing’an from Peking University makes a similar argument whenspeaking specifically about the new administrative law. He arg u e sthat training in the substance of the new law is important, but thatinstructors should also stress that government action can in factbe regulated, by pointing out other judges who have been willingand able to do so. But even in the absence of such a group, hesays, “one better-trained judge can still function better within aflawed judiciary. ”Use of training to instill the judicial values and independencesuggested above is encouraged by all the grantees and otherexperts consulted. Judge Jiang Huiling of the Research Office ofthe Supreme People’s Court agrees, but cautions that substantiveeducation on the law remains critical to help ensure judges’ i n d e-pendence from the influence of colleagues who might otherwisebe consulted for guidance in specific cases. This is especially truein China’s current context, and would seem to suggest a holisticcurriculum that includes substantive law, judge-skills, and ethics.Such a curriculum is beginning to develop for broad dissemina-

1 7 8 CA S E ST U D I E Stion in print form. Wang Liming of People’s University of Chinabelieves an early Foundation grant, which supported a publicationthat taught judges the substance of law by compiling notable andunique cases from throughout the country, was very effective. T h epublication was especially helpful in a legal system where writtenjudgments are often very brief or unreported. Training sessionscan also provide holistic learning by including some elements ofsubstantive law, and encouraging dialogue among judges andscholars regarding legal and policy areas in need of research anddevelopment. One South Central University training sessioninvolved a comparison of Chinese and Japanese laws to protectthe environment, and discussion on the need for better Chinesepolicy on environmental impact assessments for development initi a t i v e s .While the three trainees at South Central University agreed ona preference for legal academics as trainers, the question of whoshould train judges is still widely debated. Some argue that theuse of academics is most beneficial because judges can seekadvice on ambiguous laws and professors can learn how laws arebeing applied in the courts. Other trainees prefer judges becausethey feel more encouraged to raise vexing practical questions.This accords with the lessons from retired Senior Judge ZhouD a o l u a n ’s many years of experience at the national Senior JudgesTraining Centre. Zhou and others, however, recommend utilizinga combination of both academics and judges in order to capturecomplementary skills. The professors at South Central Universitysay academics as trainers are needed because so many of China’sjudges have no legal education, and contact with law professors isunusual and greatly sought. Some academics work part time asjudges and many maintain part-time law practices, so they areable to teach from both academic and practical experience. A l s o ,academics have greater influence on the functioning of judges andcourts in a civil law system where there is no doctrine of judicialprecedent as a form of lawmaking.Training programs are having some effect on the competencyand attitudes of China’s judges, but they also reveal the distanceyet to be traveled. The Shanghai Judges Training Centre providesan example through a story shared by one of its trainees when hereturned for a follow-up course. After his first training session,

CH I N A 1 7 9the judge maintained his stance in resisting repeated requestsfrom a local official to delay enforcement of a judgment against areal estate developer in a matter brought by a creditor. (The courthad earlier ordered the repayment of a loan and the local off i c i a lanticipated that the judge would soon freeze the assets of thedeveloper to compensate the creditor. )There are undoubtedly many factors contributing to change inC h i n a ’s context but, observing this particular judge, the centerbelieves his behavior was inspired through training. This exampleis not isolated. In another region of the country, South CentralUniversity staff and law students conduct follow-up interviewswith trainees in order to improve teaching methodology, and toassess impact. Prior to a training course, one particular judge haddescribed his duty as “to protect the rights and views of the government.”In a follow-up interview he described his responsibilityas a judge to be a neutral “arbiter between views of parties, evenif the government is a party.” South Central University staff findthat when the government or CCP is involved in a case, someincoming trainees still question how to handle the case. Tr a i n e e sdiscuss this matter, they say, and realize that local officials shouldnot interfere in cases or enforcement. Trainees know that this hasbeen written into both law and policy, and that the challenge nowis to help local attitudes and behavior conform to the principle.While notable progress in this area is occurring with trainees,there is still a difference between theory, law, and policy on onehand—and law-in-action on the other.L aw - i n - A c t i o nThe area of work known as law-in-action has built on theF o u n d a t i o n ’s 1993 work to support the delivery of legal servicesand to improve the implementation of laws in China. It nowincludes efforts to strengthen citizens’ awareness of law as ameans to justice, demonstrate how the legal system can be used toprotect rights, give practical experience to lawyers and students,and strengthen the ability of the legal system to deliver justice.When CLEEC was founded in 1983, Edwards explains, it wasmuch too early in the redevelopment of the legal system to hope

1 8 0 CA S E ST U D I E Sto reach the explicit social justice goals now being pursued.Although law is still only a weak force in Chinese society, saysChang, there is now a workable basis to protect individual rightsand pursue social justice through legal processes. That basisincludes a body of laws and regulations, a functioning if underdevelopedjudiciary, a rapidly growing corps of lawyers, an emergingrespect for law, and a new awareness of the importance ofimplementation. The general activities pursued by law-in-actiongrantees include community legal services, test case litigation,community legal education, and local and international comparativeresearch to devise solutions, new laws, or revisions. Since1998, the Canadian International Development A g e n c y, UNDP,and The Asia Foundation have also included legal services componentsin their grant programs.One Foundation grantee is the China Centre for Legal A i d ,which was established by the Ministry of Justice in 1996. T h ecenter is the state’s official agency responsible for overseeing thedevelopment of a nationwide legal aid system. At the behest ofthe Ministry, local governments have established legal aid centersthroughout China; over six hundred such centers existed as ofJuly 1999. The center’s deputy director, Gong Xiaobing, citeschanges in the legal system that propelled the need for the newc e n t e r. These were primarily the transition from an inquisitorial toan adversarial system, with the added burden it places on peoplewho can’t afford legal representation, and the 1996 revisions ofthe criminal procedure law.In addition to its supervision of local legal aid centers, theCentre for Legal Aid documents practical problems faced in theimplementation of China’s civil and criminal laws, and conductsoutside research to resolve disputes and on possible solutions toneeds. This material is provided to the Ministry of Justice for considerationof law revisions and new operational rules for courtsand other institutions within the legal infrastructure. It is too earlyto assess lessons from this aspect of the center’s work. But so far,the center’s work has been aided by a government requirementthat each private lawyer handle at least one legal aid case for thecenter each year in order to qualify for renewal of an annuallicense to practice law. Publications on notable cases handled by

CH I N A 1 8 1the legal aid system have contributed to public legal education,and encouraged more help from private lawyers.One of the center’s notable successes came as the result of arecently strengthened law. In a 1998 criminal case the procuratorsought the death penalty against an indigent defendant who maintainedthat the public security bureau had coerced his confessionthrough torture. The defendant was too poor to hire a lawyer, butthe newly revised criminal procedure law required defense counselin all capital punishment cases. Before the law was revised,the defendant would have been forced to defend his own life incourt. The center helped implement the revised law by assigning adefense lawyer through its private lawyer scheme, and the defendantwas acquitted.In the field of women’s rights, two organizations establishedwith Foundation support in 1995 and 1996 have quickly set newmilestones in the use of law to close the gap between women’srights in law and women’s rights in practice. Wo m e n ’s equalrights have been guaranteed in law since the first PRC constitutionin 1954 and were reemphasized in a 1992 statute. Moreover,the place China was achieving in the wider international women’smovement, and the role it played in hosting the 1995 FourthUnited Nations World Conference on Women, further highlightedw o m e n ’s issues. As elsewhere in the world, however, discriminationand privilege die hard, and Chinese women still struggle tosecure their rights and to gain equal status with men.One grantee, the Qianxi County Rural Wo m e n ’s LegalServices Centre (Qianxi Wo m e n ’s Centre), was founded in late1995 to test measures for addressing obstacles to realizing rightso ffered by the women’s rights law. The center was established bycurrent Director Wang Shuzhen, county head of the statesponsoredAll China Wo m e n ’s Federation, with the assistance ofProfessor Chen Mingxia of CASS, who had led an earlier studyon problems in implementing the law. The center is located in thecounty seat some 180 kilometers outside of Beijing and workswith a network of seventeen substations, one in each township ofthis largely agricultural county. With paralegals and a fewlawyers, it offers ongoing legal services and education onw o m e n ’s rights and related issues at weekly rural markets. It has

1 8 2 CA S E ST U D I E Salso provided training for police officers and worked with thegovernment to establish a special women’s and children’s divisionin the local county court. Through close cooperation with thec o u n t y ’s Bureau of Justice, the center has trained state legal workersin townships who normally conduct informal dispute resolutionto handle legal cases involving women’s rights. The center’ssubstations often operate from bureau facilities. Chen Mingxiabelieves the center’s work and cases will be valuable sources ofinformation for analysis of legal implementation problems.The creation of the special division in the county court, theuse of paralegals, and cooperation with the County Bureau ofJustice have all effectively enhanced the center’s work and implementationof the women’s rights law. The center’s contribution asa model for rural legal services for women is already clear, as isits likely contribution to some changed social attitudes. Beyondthese insights, however, Chen Mingxia asserts that it is still tooearly in the center’s history to assess the impact of its worktoward broader implementation of reforms.The arrangement between the Qianxi Wo m e n ’s Centre and theBureau of Justice township offices is mutually beneficial. T h ecenter is grateful to local officials because it would not be able toa fford placing paralegals in every township on its own. Meanwhile,poorly trained state workers have grown in awareness andskills with regard to women’s rights. The center’s staff membershave also observed higher numbers of attendees and more sophisticatedquestions at their educational stalls and classrooms. T h e yconclude that community education about women’s rights may bea ffecting individual attitudes of both men and women more than itis actually encouraging the use of the legal system. They feel thatknowledge of women’s rights in Qianxi has had a deterrent andproactive effect to protect and promote those rights. Staff membersalso note that when cases do emerge, they are more often settledby mediation than litigation, but that mediation is now moreoften done in accordance with law. Mediation was always the preferredmethod due to tradition, the nature of some family lawissues, and the potential effect on the courts of handling the vastcaseload such a large population would produce. But increasedawareness of rights and the new option to resort to legal serviceshave added standards to the mediation process, which is oftenarbitrary or unfair to women.

CH I N A 1 8 3Another new organization specializing in women’s rights isthe Centre for Wo m e n ’s Law Studies and Legal Services ofPeking University (Peking Wo m e n ’s Centre). In comparison tothe Qianxi Wo m e n ’s Centre, the Peking Wo m e n ’s Centre focusesmore on research and litigation of selected cases that it believesare particularly important or representative of women’s problems.The Peking Wo m e n ’s Centre’s university base clearly facilitatesthe mix of legal services and research. In a recent example, a staffm e m b e r’s research helped lay the groundwork for the law creatingthe national legal aid system. The center’s experiences usingthe legal machinery are a source of research data and otherinsights for academic staff. Some test cases try the routine applicationof women’s rights laws. An example is a case filed onbehalf of eighty women against a Beijing employer for failure topay wages over two years. Other cases test the willingness andability of courts to enforce judgments. “We won and the decisionsonly sit up there on the shelf,” says Guo Jianmei, the center’sexecutive director, expressing both dismay and resolve in light ofsuch poor enforcement.The cases and causes the center takes on reveal not only thestatus of women in society, but also the need for judicial strengtheningand the problems of local malfeasance and official corruption.In the case of a schoolgirl raped by a powerful local schoold i r e c t o r, the center stirred media attention to force the reluctantlocal procurator to act. The media is used extensively and servesmultiple purposes for the center. It plays a public education function;it is sometimes a tool used together with advocacy or litigationto influence public opinion; and it serves to publicize the cente r’s work, thereby encouraging more women to come forwardwith their legal issues. Despite many remaining challenges, Guoand her staff assert that women and the media are paying closerattention to the effects of law on women, and women are moreoften turning to the legal system. Through the engagement of theu n i v e r s i t y ’s respected law professors, Guo says, the conditionsfaced in many of these cases will get more governmenta t t e n t i o n .Foundation support was also behind the establishment ofC h i n a ’s first nongovernmental legal aid center—the Wu h a nCentre. Founded by CLEEC alumnus Wan in 1992, the Wu h a nCentre pioneered the concept and practice of legal services in

1 8 4 CA S E ST U D I E SChina and has also been a model for university-based legal aidclinics and student voluntarism. Wuhan is a major city of aboutfour million people, so this group faces many of the same issuesas the Peking Wo m e n ’s Centre and has used similar tactics to confrontthem. One example is the regular use of the media. Its clientgroups and focus are wider, however. It handles legal needs onbehalf of senior citizens, women, youth, and the disabled, andincludes a unit that files administrative lawsuits against governmentagencies and officials. The Wuhan Centre has also furtherinstitutionalized the role of students. Ten law students are acceptedeach year to work there and several of its current lawyersbegan as student volunteers. In the near future, final-year studentswill be able to receive academic credit for working at the center.The emergence of the Wuhan, Peking, and similar universitylegal aid organizations has raised new issues related to practicallegal education, ways to supplement fledgling government legalaid, and future legal careers in public interest law. Tr a d i t i o n a lChinese legal education emphasizes theoretical training with nopractical component. The student only serves an apprenticeshipimmediately before formal admission to practice. At least oneexpert has suggested that graduates fulfilling apprenticeships foradmission to the profession could bolster public interest legalservice organizations at universities and elsewhere. While studentscan provide some client advice through the Wuhan andPeking centers, there are no regulations allowing supervised studentappearances in court.More faculties are considering the benefits of university legalaid clinics that award academic credits to participating students—to add a practical component to their education, and to supplementlegal services. Some argue that citizens unwilling to usegovernment legal aid offices for suits against the governmentwould have an alternative in university organizations. Othersassert that, as has been shown in some other countries, clinics willencourage students toward future careers in legal aid or publicinterest law.Yang Xinxin, a graduate student intern at the Peking Wo m e n ’sCentre, shared an essay that describes what law-in-action workhas meant for her, and the potential it might have for her future.Her reflections capture three of the Foundation’s goals in its

CH I N A 1 8 5wider twenty-year China law program: “These experiences makeme aware that there have been a lot of people struggling for theimprovement of women’s social status. . . . China’s legal educationsystem might realize benefits by integrating a legal aid programinto its law schools and using it as the basis for trainingfuture legal professionals with a strong sensitivity to public interests.. . . From my experience, a clinical program like this givesstudents an opportunity to apply their skills in a practical situationand to strengthen their belief in law. ”C o n c l u s i o nC h i n a ’s endeavor to improve its legal system, inspired by newpolicy choices in late 1978 and by the country’s evolving needs,is taking place in the context of wide societal changes andincreasing demands on the legal system. To meet the old and newchallenges, this endeavor has been imbued with a talented newpool of Chinese legal minds over the past twenty years—and willgain in the future from students like Ya n g .Early and continuous involvement since 1979 has enabled theF o u n d a t i o n ’s law program to contribute, in a limited way, to variousaspects of this endeavor. Over time, the law program has supportedneeds in legal scholarship and teaching, legislativeresearch and drafting skills, judicial reform, legal services, communitylegal education, and the implementation of new laws.These grantee activities have crossed diverse substantive fieldswithin the law, and have been mutually reinforcing. This consistentand diverse involvement has also put the law program in aposition to support a number of Chinese projects and individualactivities that have been demonstrational for others.The Foundation’s experience as a donor in China indicatesthat the objectives of strengthening the judiciary and of law-inactionwill require a long-term commitment—one that willinvolve successive generations in the legal profession and academe.In addition, many fundamental factors are converging toadvance legal reforms in China. This makes it difficult to assessapproaches and isolate contributions, and it is often inappropriateto attribute direct causation to a specific program, project, or

1 8 6 CA S E ST U D I E Sapproach. In most instances, it is more appropriate to identify arange of contributing factors, or perhaps proximate factors mostclosely related to the outcome or its timing.The lessons and insights shared in this case study cannotcover every aspect of Ford’s twenty years of law programming inChina. They are further limited by the specific foci of this studyand the newness of some activities. Nevertheless, for ease of reference,the most salient lessons and insights are summarizedb e l o w.Lessons and Insights1 . A grant program focused on the legal research and teachingcommunity can have a multiplier and long-termimpact on initiatives to strengthen or reform laws andlegal institutions. In China, the CLEEC project had manye ffects. It reduced the isolation of legal scholars and laid afoundation for longer-term relationships and cooperationbetween Chinese and U.S. scholars and faculty. It alsoreached scholars that have subsequently contributed tolegislative development, policy formulation, and judicialstrengthening, and even nurtured relationships thatenabled the Foundation’s law grantmaking to expand intonew and more sensitive fields. Perhaps CLEEC’s mostsignificant effect has been in introducing new ways ofthinking about and using law in Chinese society.2 . The model employed by the ALRG for the developmentof new administrative law, that is, university-based scholarsaffiliated with a government entity, provided academicswith consistent access to policymakers and allowedthem to successfully vet and promote new ideas. A s i m i l a rand effective model facilitated policy formulation byinvolving policymakers and practitioners in field researchand monitoring. Scholars at the Centre for Criminal Lawand Justice at the China University of Political Scienceand Law recruit legislators, government officials, judges,procurators, and others to observe firsthand the needs andresearch findings behind proposed policies.3 . By encouraging judicial independence and by instilling

CH I N A 1 8 7basic judicial values such as impartiality and equity, judicialtraining programs can, in some contexts, have animpact beyond the specific skills they develop. This isespecially important in the Chinese context, where currentemphasis is on rebuilding the formal legal system, thegeneralized application of laws, and the formal adjudicationof disputes.4 . Recruiting a critical mass of trainees within a region,court, or faculty has enhanced both judicial and law facultytraining by building supportive environments that haveencouraged trainees’ use of newly acquired skills andi d e a s .5 . The impact of judicial training programs can be maximizedwhen coupled with public education about the formallegal system. Such education is necessary to informpublic expectations about, and foster greater respect for,the courts; encourage better adherence to court orders andmoral examples; and overcome reluctance by citizens toparticipate in formal court processes.6 . Judicial training seminars that involve legal academicscan increase dialogue that is mutually beneficial. Judgescan gain knowledge and skills to interpret new or ambiguouslaws, while scholars can learn more about the practicalchallenges courts face in actually applying the law.The dialogue is also able to help identify law and policyareas in need of further research and development. On theother hand, conferences just for judges can serve as forato examine common practical challenges, to share knowledgeand lessons, and to portray appropriate judicialapproaches that strengthen other judges. Where writtencourt judgments are brief or unreported, as in China, publicationsof notable case decisions can be useful judicialtraining tools.7 . There is an important role for China’s growing network ofgovernmental and nongovernmental legal aid offices inproviding basic services, conducting public education,and documenting constraints to the implementation oflaws. Much of the work of such offices is successfullyconducted by paralegals, and the media is an increasingly

1 8 8 CA S E ST U D I E Simportant tool for alerting the public to these new sourcesof aid and the potential use of new laws. The nongovernmentaloffices also pursue test cases and utilize the mediaas a tool along with litigation to influence public opinionand inspire compliance with laws. Continued success ofthese offices will depend largely on consistent supportfrom the government and donors, and the continued openingof Chinese society. But efforts at legal services ande fforts to strengthen the judiciary should also go hand inhand in China, since poor judicial enforcement is a widelyperceived limitation to the use of public interest litigationto pursue social justice there.8 . By documenting constraints to the implementation of lawswith experiences from their casework, some legal aido ffices are only recently attempting to combine the rolesof legal services and research, acting as a laboratory forthe improvement of laws and the legal system in China.Working closely with the state—a strategy that has beenused successfully over time by influential Chinese legalscholars—such offices tentatively show promise for influencingpolicymaking.9 . In the area of women’s rights, legal activists found thatcommunity-based women’s rights education, especiallywhen combined with increased availability of legal aid,changed women’s perceptions about using the law and thelegal system to pursue their rights. Activists also notedthat community rights education served to protect andpromote women’s rights, to some degree, by aff e c t i n gsocial behavior and relations between men and women.Litigation on behalf of women has helped to focus mediaand government attention on barriers to achievingw o m e n ’s rights. Finally, many cases are still handled byinformal mediation without resort to courts, especially infamily matters. However, the increased awareness ofrights and the availability of legal aid for court actionshave resulted in mediations increasingly being conductedwith reference to legal standards. This has improved themediation process, which has often been arbitrary orunfair for women.

CH I N A 1 8 91 0 . Initiatives by a few of China’s law faculties to establishlaw clinics, combined with a spirit of student voluntarism,hold promise for their growth throughout China. T h erecent experiences of these faculties suggest that clinics inChina can add a needed practical component to legal education,provide needed public legal services, and encouragestudents toward future legal aid or public interestw o r k .11 . One way to help promote public interest legal services inChina might be to allow law graduates to serve theirrequired apprenticeships at law-faculty-based clinics aswell as other legal aid organizations before being admittedto the bar. Such service could also help popularizepublic interest law practice. Likewise, a new Chinesemethod for bolstering legal aid by requiring some probono work from every private practitioner and tying therequirement to annual renewal of licenses might be worthmonitoring for possible adaptation to other countries.N o t e sThe author expresses special thanks to Mr. Yu Xingzhong forinvaluable assistance as interpreter and China law advisor during thiss t u d y.1 . The Chinese procuracy is an extremely powerful and importanto rgan responsible for prosecutions as well as supervising and investigatingthe police, prisons, and abuses by government officials. It also hasunique powers to supervise judicial behavior and file suits to overturncourt decisions it believes are erroneous. For a full description of therole and powers of the procuracy, see Albert Chen, An Introduction tothe Legal System of the People’s Republic of China (Butterworths A s i a ,1994), pp. 124–127.2 . Ibid., pp. 131–132.3 . See, e.g., Yu Xingzhong, “Legal Pragmatism in the People’sRepublic of China,” Journal of Chinese Law 29, no. 3 (1989): 49–51.4 . “Powerful Attorneys: Chinese Educators on Legal Trainingand Law in China,” China Exchange News 22, no. 4 (Winter 1994): 4.5 . Ibid., p. 2.

1 9 0 CA S E ST U D I E SA p p e n d i x :Persons Interv i ewed or ConsultedWilliam A l f o r dProfessor and Director, East Asian Legal Studies, HarvardUniversity Law School, Cambridge, MAJan Carol BerrisVice President, National Committee on U.S.-China Relations,Inc., New Yo r kAlain BissonnetteJudicial Training Project, Canadian International DevelopmentA g e n c y, BeijingPhyllis ChangProgram Off i c e r, The Ford Foundation, BeijingChen GuangzhongProfessor and Director, Centre for Criminal Law and Justice,China University of Political Science and Law, BeijingChen MingxiaP r o f e s s o r, Institute of Law, Chinese Academy of Social Sciences,B e i j i n gChen XiaojunP r o f e s s o r, South Central University of Political Science and Law,Wu h a nChen ZuanguoJudge and Vice Director, Shanghai Judge Training Centre,S h a n g h a iRandle EdwardsProfessor and Director, Center for Chinese Legal Studies,Columbia University School of Law, New Yo r kSofia EricssonFirst Secretary (Development Cooperation), Embassy of Sweden,B e i j i n g

CH I N A 1 9 1Fang Shi-rongP r o f e s s o r, South Central University of Political Science and Law,Wu h a nStephen ForbesSecond Secretary (Cultural), Cultural and Education Section,British Embassy, BeijingPeter GeithnerFormer Representative, The Ford Foundation, BeijingYannick GlemarecDeputy Resident Representative, United Nations DevelopmentProgramme, BeijingGong XiaobingDeputy Director, China Centre for Legal Aid, Ministry of Justice,B e i j i n gGu ChanghaoDeputy Director, Legal A ffairs Office, Shanghai MunicipalP e o p l e ’s Government, ShanghaiGuo DaohuiP r o f e s s o r, Institute of Law, Chinese Academy of Social Sciences,B e i j i n gGuo JianmeiAssociate Professor and Executive Director, Centre for Wo m e n ’sLaw Studies and Legal Services, Peking University, BeijingPeter HarrisFormer Representative, The Ford Foundation, BeijingHe JiahongP r o f e s s o r, People’s University of China School of Law, BeijingHe We i f a n gAssociate Professor and Codirector, Centre for Judicial Studies,Peking University Department of Law, Beijing

1 9 2 CA S E ST U D I E SHe We i w e nAdministrative Legal A ffairs Institute, Shanghai Municipality,S h a n g h a iJonathan HechtFormer Program Off i c e r, The Ford Foundation, BeijingJiang HuilingJudge, Research Office, Supreme People’s Court, BeijingJiang Ming’anP r o f e s s o r, Peking University Department of Law, BeijingJiang PingProfessor and former President, China University of PoliticalScience and Law, BeijingJianlin BianP r o f e s s o r, Centre for Criminal Law and Justice, China Universityof Political Science and Law, BeijingDebra KamProgram Associate, National Committee on U.S.-China Relations,Inc., New Yo r kKong HaifeiJudge, ShanghaiLei XianProfessor and President, National Prosecutors College, BeijingLi BuyunProfessor and Director, Centre for Research of Human Rights,Chinese Academy of Social Sciences, BeijingLi DunP r o f e s s o r, Chinese Academy of Social Sciences, Beijing

CH I N A 1 9 3Li HanchangAssociate Professor, South Central University of Political Scienceand Law, Wu h a nLi HongyunPeking University Department of Law, BeijingLi LinP r o f e s s o r, Institute of Law, Chinese Academy of Social Sciences,B e i j i n gLiang BaojianPresident, National Judges College, BeijingLiu DonghuaL a w y e r, Centre for Wo m e n ’s Law Studies and Legal Services,Peking University, BeijingLiu HainianProfessor and Director, Institute of Law, Chinese Academy ofSocial Sciences, BeijingLiu JunningC o e d i t o r, Res Publica Journal, BeijingLiu PingChief, Department of Supervising Administration of Law, GeneralLegal A ffairs Office, Shanghai Municipal People’s Government,S h a n g h a iLiu ZhongdingJudge and Vice President, Shanghai Yangpu District Court,S h a n g h a iQi We n y u a nProfessor and Director, Law Department, South CentralUniversity of Political Science and Law, Wu h a n

1 9 4 CA S E ST U D I E SAnthony SaichFormer Representative, The Ford Foundation, BeijingShi LeiLecturer and Vice Director, Centre for the Protection of the Rightsof the Socially Vulnerable, Wuhan University Law School,Wu h a nMark SidelFormer Program Off i c e r, The Ford Foundation, BeijingFranklin A. T h o m a sFormer President, The Ford Foundation, New Yo r kWan E’xiangSenior Judge and founder of the Centre for the Protection of theRights of the Socially Vulnerable, Wuhan University Law School,Wu h a nWang He-minHead, Exchange and Cooperation Office, National JudgesCollege, BeijingWang JiafuP r o f e s s o r, Institute of Law, Chinese Academy of Social Sciences,B e i j i n gWang LimingProfessor and Associate Dean, People’s University of ChinaSchool of Law, BeijingWang ShuzhenD i r e c t o r, Qianxi County Rural Wo m e n ’s Legal Services Centre,Qianxi, HebeiWang Ya nC o e d i t o r, Res Publica Journal, BeijingWoo LeechanFirst Secretary, United States Embassy, Beijing

CH I N A 1 9 5Wu HandongProfessor and President, South Central University of PoliticalScience and Law, Wu h a nWu We iProfessor and Assistant Director, Centre for Criminal Law andJustice, China University of Political Science and Law, BeijingXie Ti a n f a n gD i r e c t o r, Legal A ffairs Office, Shanghai Municipal People’sGovernment, ShanghaiXin ChunyingProfessor and Deputy Director, Institute of Law, ChineseAcademy of Social Sciences, BeijingXu Yu f e nDeputy Secretary General, Shanghai Women Judges A s s o c i a t i o n ,S h a n g h a iVincent Ya n gD i r e c t o r, China Program, International Centre for Criminal LawReform and Criminal Justice Policy, University of BritishColumbia, Va n c o u v e rYang XinxinGraduate student intern, Centre for Wo m e n ’s Law Studies andLegal Services, Peking University, BeijingYu XingzhongL e c t u r e r-on-Law and Research Fellow, Harvard Law School,Cambridge, MAYue LilingAssociate Professor, China University of Political Science andL a w, BeijingZhang ChunshengVice Director, Legislative A ffairs Commission of the NationalP e o p l e ’s Congress, Beijing

1 9 6 CA S E ST U D I E SZhang ZhimingP r o f e s s o r, Institute of Law, Chinese Academy of Social Sciences,B e i j i n gZhou DaoluanJudge and former Director, Senior Judges Training Centre,B e i j i n gZhu JingwenP r o f e s s o r, People’s University of China School of Law, BeijingZhu LanyeP r o f e s s o r, East China Institute of Politics and Law, ShanghaiZhu QichaoP r o f e s s o r, Centre for Wo m e n ’s Law Studies and Legal Services,Peking University, BeijingZhu SuliProfessor and Codirector, Centre for Judicial Studies, PekingUniversity Department of Law, BeijingG roups Interv i ewed or ConsultedMembers of the Institute of Law, Chinese Academy of SocialSciences, BeijingS t a ff and clients of the Centre for the Protection of the Rights ofthe Socially Vulnerable, Wuhan University Law School, Wu h a nS t a ff, clients, and student interns of the Centre for Wo m e n ’s LawStudies and Legal Services, Peking University, BeijingS t a ff of the Qianxi County Rural Wo m e n ’s Legal Services Centre,Qianxi, HebeiTrainees of the Judges Training Program, South CentralUniversity of Political Science and Law, Wu h a nTrainees of the Shanghai Judge Training Centre, Shanghai

6P a rt i c i p a t o ry Justice inthe PhilippinesST E P H E N GO L U BWhen the popular movement known as “people power” toppledPhilippine dictator Ferdinand Marcos in 1986, it triggered anequally arduous struggle: to gradually attach civil society sinewsto the revived democracy’s skeletal institutional structures. T h a tstruggle to bolster government accountability and eff e c t i v e n e s shas included work to reform elements of a historically unjustlegal system, and to increase Filipinos’ access to it. This chapterdescribes how some Ford Foundation grantees have sought suchgoals by bolstering Filipinos’ active participation in the pursuit ofjustice, development, and better governance.Alternative law groups (ALGs), as these grantees and similarPhilippine NGOs call themselves, mainly seek social, economic,and environmental progress for disadvantaged populations. T h e“alternative” in their name flows from the several ways in whichtheir perspectives and operations differ from private legal practiceand traditional legal aid in the Philippines. These differences aredetailed later in this chapter.The first ALGs were founded in the early 1980s and beganreceiving Ford Foundation support in 1986. Ford’s New York Cityheadquarters previously had been in contact with Philippinehuman rights groups through various international programs, andin 1985 it had reopened a full-fledged office in Manila (havingreduced its presence there to a liaison status in 1982). For the nextdecade, the Foundation had a program officer in the Philippines1 9 7

1 9 8 CA S E ST U D I E Sworking on human rights and governance issues full time, andsupport for ALGs became a key strategy for addressing a widerange of social problems.ALGs address such issues as illegal logging, violence againstwomen, agrarian reform, 1 housing for the urban poor, and indigenouspeople’s rights. Most ALGs are headed by attorneys, and allinclude lawyers on their staffs. They have contributed to scores ofpost-Marcos legal reforms while also addressing an enduringPhilippine problem—the implementation of laws on the ground.They typically work in partnership with other nongovernmentalo rganizations and with disadvantaged communities. Sometimesthey play leading roles; more often, supporting ones.While ALGs have never been the exclusive focus of theF o u n d a t i o n ’s human rights and governance grantmaking in thePhilippines, this chapter concentrates on them for three reasons.First, they have had considerable impact in a number of importantareas. Second, their work has overlapped with other Ford grantmakingdealing with natural resources, women’s reproductivehealth, and strengthening local philanthropy. Finally, their experiencemay hold useful lessons for development work in thePhilippines and beyond. A related facet of this chapter is howF o r d ’s support for ALGs, initially under a human rights rubric,justifiably continued even as the Foundation ended its humanrights funding, per se, in the Philippines, and shifted resources tocivil society and governance work. Support for ALGs survivedbecause they were seen to occupy a nexus of issue areas that spanprogram boundaries.Former Foundation Program Officer Terrence George fundedmore than a dozen ALGs during his 1989–1995 Philippines tenurebecause these groups address a range of human rights and developmentconcerns, and not just abuses committed by the government.Many of these issues play out at the local level, and therehave been growing opportunities to work with elected off i c i a l sand decentralized executive agencies. Hence, Georg e ’s successor,Gary Hawes, supports selected ALGs through Ford’s local governanceprogram. That program seeks greater civic participation ingovernance, especially by underrepresented sectors.At the time of this study, the Foundation was funding eightALGs in the following areas:

PH I L I P P I N E S 1 9 9• Indigenous people’s rights and environmental issues:Legal Rights and Natural Resources CenterDevelopmental Legal Aid Center (DLAC)Environmental Legal Aid Center (ELAC)Tanggol Kalikasan (TK)• Agrarian reform:Tungo sa Kaunlaran ng Kanayunan at RepormangPanasakahan (Kaisahan)Balay Mindanaw Foundation, Inc. (BMFI)Sentro ng Alternatibong Lingap Panlegal (Saligan)• Wo m e n ’s rights:Wo m e n ’s Legal Bureau (WLB)While this study describes the work of Foundation-fundedALGs, not all of that work is Ford funded. Some activities drawon other donors’ assistance. Ford does not, for example, supportlegislative lobbying. The A L G s ’ e fforts cut across Ford programmingcategories in ways that illuminate the interface between lawand other fields. This chapter explains the context, evolution, andimpact of ALG work and of Ford support for it, and concludeswith a summation of possible lessons that flow from this experien c e .A l t e r n a t i ve Law Gro u p s :C o n t ext and CharacteristicsALGs are organizations that promote Philippine developmentby enhancing popular participation in lawmaking, policy development,and other government actions. They are staffed mainly bylawyers, law students, other development professionals, or paralegals(laypersons to whom an ALG provides basic legal training).They are relatively small; even the largest, Saligan, has fewerthan twenty attorneys. Most are based in Manila, though somehave affiliated offices and lawyers elsewhere in the country. A tthis writing, the ALG network included twenty-one separateo rg a n i z a t i o n s .Much ALG work is collaborative. Partners include lowincomecommunities and individuals, other NGOs, and grass-

2 0 0 CA S E ST U D I E Sroots associations (which in the Philippines and this chapter arereferred to as people’s organizations, or POs). 2 ALGs depart fromprivate practice and traditional legal aid by seeing clients as partnersin development, and seeking to empower them to developtheir own legal and political strategies. Their activities embraceboth conventional and unorthodox legal work. They may litigate;appear before quasi-judicial proceedings, such as labor andagrarian reform tribunals; negotiate with corporate leadersregarding environmental and labor issues; and provide legalassistance and guidance regarding strikes and protest activities.They may also secure government services for partners; org a n i z ecommunities; train paralegals; pursue efforts to affect jurisprudence;conduct research; produce scholarly articles and publications;advise advocacy groups; and work on legal and regulatoryr e f o r m .While sharing some goals and strategies, ALGs vary in otherrespects. In fact, as former Tanggol Kalikasan head H e c t o rSoliman notes, much of their dynamism “comes from the fact thatthey have evolved independently of each other.” Their network isby no means monolithic in terms of its members’perspectives andoperations. Some are more adversarial than others in relating togovernment. Some smaller ALGs based outside Manila do notbecome involved in national policy advocacy at all. Not all litigate,and many do so only as a last resort. Not all carry out paralegalwork. For the many that do, their paralegal operations aredriven substantially by the needs of their partner communities.These partnerships also affect the A L G s ’ orientations toward variousissues. An ALG that focuses on indigenous people’s rights,for example, does not necessarily agree with a women’s rightsALG on the degree to which indigenous law should govern familyr e l a t i o n s .The roots of the ALGs reach deep into Philippine legal cultureand political history. They have evolved in a political and legalenvironment dominated by closed circles of patronage and power.A number of writers have noted the oligarchic nature of thePhilippine polity. University of Wisconsin Professor PaulHutchcroft sees the nation’s post–World War II dictatorship anddemocracy as sharing an enduring pattern of patrimonialism, in

PH I L I P P I N E S 2 0 1which public office serves as a vehicle for personal profit. 3H u t c h c r o f t ’s analysis of the national government and elitesapplies to local politics as well. Similarly, University of thePhilippines Professor Alex Magno laments the “weak state” that“has failed to evolve the bureaucratic capacity to make good rulesand enforce them uniformly and well,” and in which policy formulationand implementation is captive to narrow, vested interests.Even a 1988 Philippine Senate report highlights the pervasivenature of an “extreme personalism [that] leads to the graftand corruption evident in Philippine society. ” 4In a related vein, University of the Philippines law professorAlfredo Tadiar has maintained that “the most dominant singlecharacteristic of Philippine society is the pervasive influence ofclose personal relations upon almost any conceivable humani n t e r a c t i o n . ” 5 His assertion has important analytical implications;in some ways, the Philippine legal system is best understood notas a set of institutions and processes, but as a network of personalconnections affecting and often dictating its operations. The governmentenforces many laws only to the extent that private partiespress for such action, whether overtly, informally, or corruptly.Given these circumstances, how do Filipinos gain access tojustice and government services? For those with suff i c i e n tresources, it often is via personal connections: family, friends,landlords, moneylenders, politicians, or other local power brokers.Where these sources of influence are not available or do nots u ffice, bribery is an alternative. Describing an exceptional situationin which Filipinos refused to pay for government servicesthat should be free, a newspaper columnist illustrates the rule: “Along time ago, [Manila’s Chinese-Filipino community] establishedtheir own fire brigade because they simply couldn’t trustthe fire department to come to their aid. They figured that theamount they would have to bribe the firemen to put out the blazecould be better used buying their own fire fighting equipment andestablishing their own volunteer fire brigades.” 6A crucial problem for most Filipinos is that they lack the legalknowledge, financial resources, or personal connections to extractservices from the government, enforce their rights, or influencepolicies that affect them. They may sometimes have the option of

2 0 2 CA S E ST U D I E Sturning to a local power broker, but this creates utang na loob ( adebt of gratitude) that binds them to that individual in ways thatcan later influence their political or personal conduct.At the same time that the Philippine legal and governmentalsystems reflect underlying societal realities, lawyers are taught totake an unquestioning and very formalistic view of their roles.K a i s a h a n ’s Magistrado Mendoza recalls professors instructinghim that “the law is harsh, but it is the law.” By virtue of subsequentwork with farmers, he says, “I’ve learned that being alawyer is not merely following the narrow letter of the law, [but]that the court can also be persuaded, and that I can still do somethingthat addresses the needs of marginalized sectors.”A L G s ’activities, then, can be seen as an effort to make clientpopulations more legally and economically independent. T h e yaim to inject fairness, accountability, and predictability into alegal system that is often abused or ignored by elite interests.More broadly, ALGs seek to democratize access to state-allocatedresources and policymaking processes.Fo rd Foundation's Programming A p p ro a c h e sThis section traces the evolution since 1985 of both ALGs andthe Foundation’s support for them. It very briefly explores theF o u n d a t i o n ’s civil and political rights grantmaking in the earlypost-Marcos years, describes the Foundation’s gradual shift to anemphasis on supporting A L G s ’ social and economic rights eff o r t sin the early 1990s, and finally looks at support for them underF o r d ’s local governance program from 1995 to date.When the Foundation’s Philippines program off i c e r, JohnHumphreys, took up his human rights/governance post in 1985,political violence plagued the country. Even after Marcos wasdriven from power in February 1986, politically inspired killings,torture, and other violations persisted under the democraticadministration of President Corazon Aquino (1986–1992). Fueledby the government’s war against a communist insurgency and bycoup attempts that undermined civilian control of the military, theabuses abated only after both threats diminished toward the endof her term. Initially, the human rights portion of Humphreys’

PH I L I P P I N E S 2 0 3portfolio accordingly was weighted toward civil and politicalrights concerns.At the same time, Humphreys began supporting a few A L G s ,as well as other activities mainly concerned with social and economicrights. This approach dovetailed with the broadening thrustof NGO work in the post-Marcos years. Having defeated the dictatorship,many progressive individuals and organizations turnedtheir attention to other endeavors. Constraints affecting what Fordcould fund in the civil and political rights fields also affected theF o u n d a t i o n ’s program. Some Philippine groups would not acceptmoney from a U.S.-based organization, even a private one such asFord, or would only do so to a limited degree.The Free Legal Assistance Group (FLAG) was an earlygrantee that, while focusing mainly on individual civil and politicalrights, reflected founder José Diokno’s “developmental legalaid” philosophy and strategy. This emphasizes that lawyersshould attack injustice in ways that address underlying issues andreach beyond individual cases. FLAG gave rise to a law studentgroup, the University of the Philippines Paralegal Vo l u n t e e rO rganization (UPPVO), which became an incubator for manybudding attorneys who went on to found and staff ALGs. It providedtheir first exposure to the developmental legal aid philosoph y, to interaction with disadvantaged populations, and to lawyersconcerned with social justice issues. Several UPPVO alumniworked as volunteer or part-time FLAG lawyers before (and evenafter) joining A L G s .Similar experiences at the country’s other leading law school,the Ateneo de Manila College of Law, inspired other attorneyswho went on to launch or join other ALGs. Here the formativeinfluences were Ateneo-based development institutes concernedwith labor, agrarian reform, and other sectoral concerns, and laterthe Ateneo Human Rights Center, itself an ALG, whose internshipprograms the Foundation began supporting in the late 1980s. T h eUPPVO and Ateneo experiences suggest that exposing law studentsto social justice issues can crucially affect their futurecareer choices. 7In the 1990s, various factors shifted the balance of Ford’shuman rights programming toward social and economic rights,and toward ALGs. One was that politically inspired human rights

2 0 4 CA S E ST U D I E Sviolations diminished early in the decade, as the communist insurgencyfaded and the country’s overall situation stabilized. Policebrutality and other nonpolitical abuses remained common, butthey did not add up to nearly as severe a problem as did the violationsof the Marcos and early Aquino years.A central consideration for the Foundation’s human rightsgrantmaking was that democracy’s revival had done little to curethe enduring social and economic inequities that reached backcenturies, traversing colonialism, dictatorship, and democracy.These inequities perpetuated a concentration of wealth and influencein a relatively small segment of the population, allowed theongoing draining of state resources by those in power, and madethe rule of law an illusion for the legal system.Another influence was the work of Frances Korten, the headof Ford’s office in the Philippines from 1988 to 1992, on agrarianreform in lowland areas and on land tenure and environmentalissues in upland regions. That work stressed grassroots participation,good governance, and sustainable development for lowincomefarmers. Through co-funding, informal coordination, andgrantee impact, these eff o r t s , along with the Foundation’sw o m e n ’s reproductive health program, reinforced Ford’s humanrights grantmaking. A 1991 Foundation document illustrated themutually beneficial interface: “An upland farmer pressing forland security, an environmental activist facing threats from loggers,and a women’s health activist working to remove discriminatorylaws all require the legal and political skills necessary toassert their rights and to strike down unjust laws and practices.”F o r d ’s human rights funding supported ALGs to help suchpersons develop those skills and to provide related backup services.ALGs, noted George, “were able to link up with communitybasedNGOs and POs, so they could understand community-basedissues. The ALGs stayed overnight in villages. They took the allnightbuses to get there.” They also tramped through malarial jungles,sweated through sweltering community consultations, andotherwise went places and took on tasks beyond the interest ofmany governmental personnel or traditional lawyers.Ford also collaborated with other donors, especially with T h eAsia Foundation (TAF), by co-funding grantees and informallycooperating. In a number of cases, one foundation helped an A L G

PH I L I P P I N E S 2 0 5get started and the other supplemented that initial support whenthe group could usefully absorb additional resources. The foundationstogether covered the bulk of ALG staff salaries and expensesthroughout the first half of the 1990s, paving the way for otherdonors to play greater roles toward the end of the decade.Interaction with TAF also aided Georg e ’s thinking regarding aprogrammatic road not taken: work with the judiciary. It was clearto him that the greatest legal problems facing Filipinos “were of asocial justice nature and were not necessarily handled by thecourts, which in any event were backlogged, expensive, and hardto access.” He knew of TA F ’s decade-long attempts to addressthose backlogs through training, international exchanges, andconsultancies involving the judiciary. He was also aware that,despite the good intentions of some judicial leaders, that eff o r thad foundered due to the impact on the court system of corruption,patronage, and other undue influences. For both TAF andFord, ALGs offered a more productive, alternative route to legalr e f o r m .Indeed, ALGs were among the most promising org a n i z a t i o n sseeking Ford support. Some of the ALG lawyers were top graduatesof the nation’s leading law schools. They persuasively articulatedboth their goals and their willingness to experiment withnew strategies. The fact that many hailed from elite institutionsdid not necessarily make them elitist. Many had cut their professionalteeth on fieldwork with disadvantaged populations, andtheir community orientation suggested that they would remainrooted in grassroots realities.Still, the first ALG grants were experimental investments.G e o rge explains that “what [Ford and TAF] were doing was seedingthe field, seeing what would happen, and then working to consolidatethe field and to facilitate contact among A L G s . ”Much of this “seeding” took the form of core or institutionalsupport for salaries, office expenses, in-country travel, and thelike. As opposed to project funding for narrowly defined activities,core support gave the NGOs flexibility in setting and adjustingpriorities and strategies. It was far from a blank check, howev e r. Ford engaged ALGs in prolonged discussions over extendedperiods before making initial grants.WLB Executive Director Evalyn Ursua praises the institution-

2 0 6 CA S E ST U D I E Sal support approach: “Along the way, we encountered a lot ofdevelopments or needs we hadn’t predicted. Ford gave us a lot ofroom to define our agenda.” Antonio La Viña, cofounder of theLegal Rights and Natural Resources Center, similarly recalls that“in our first year or two, the most important thing was to establishc r e d i b i l i t y, doing a lot of fieldwork and lots of legal assistance forcommunities in a nonstrategic way. ”“Seeing what would happen,” as George put it, requiredpatience: many A L G s ’ early fieldwork did not yield quick results.Furthermore, a low-key approach on the part of the Foundationproved advisable. The Foundation is open about its programs, andis well regarded by Filipinos who know its work. But given thehistory of United States involvement in the Philippines, fundingby a U.S.-based organization can be a sensitive matter.“Seeding the field” meant more than core funding. It alsoincluded support to establish new ALGs beyond Metro Manila(MM), and funding for existing groups to set up branch offices ora ffiliates in the provinces. Looking toward the next generation oflegal services lawyers, grants provided opportunities for law studentsto gain exposure to ALG work. The university-based A t e n e oHuman Rights Center set up a clinical legal aid program andhelped non-MM law schools to do the same. Funding to both theschools and the ALGs themselves supported internships for studentsfrom at least eleven law colleges across the country. Someof these took the form of yearlong postgraduate placements. T h eresult of these combined efforts and similar independent initiativeswas a pipeline effect: the majority of current ALG attorneyscame to these organizations by way of various internships.Ford, TA F, and the ALGs themselves have sought to facilitateALG interaction in various ways. Perhaps the most successfulvehicle was a series of annual ALG conferences, starting in 1990,that for the first time brought these organizations together andintroduced some of their members to each other. The gatherings’greatest value might have been informal networking. The conferenceshelped break down a traditional rivalry between someAteneo University and University of the Philippines graduates;bolstered personal connections; facilitated subsequent cooperation;and fostered solidarity among attorneys who mainly operatedoutside the legal profession’s mainstream.

PH I L I P P I N E S 2 0 7Other attempts at creative programming met with more mixedresults. George feels that he “pushed hard, perhaps too hard,” infunding a secretariat for the ALG network. And not all of theALGs, branch offices, or law school programs flourished. At varioustimes, the Foundation also funded an ALG database, a studyof paralegal training, and a review of these NGOs’ work by a formerALG attorney. The impact of these initiatives is unclear. Onthe whole, efforts to build a formal ALG network structure provedless effective than facilitating informal interaction and collaborati o n .Innovation entails risk. Ford’s programmatic disappointmentswere an almost inevitable by-product of investing in experimentalideas and organizations that proved fruitful. Some of these successfulefforts are described later in this chapter.In 1995, incoming Program Officer Hawes was given a fundingportfolio focused solely on local governance, without the formerhuman rights component. Why the change? First, Ford hadalready plowed some fertile ground in the local governance field.Of at least equal importance, the enactment of the 1991 LocalGovernment Code devolved significant taxation, expenditure,planning, and service functions to local levels. Finally, in someprovinces a new generation of local government leaders wasbecoming more open to cooperating with civil society elements.While the end of grantmaking under a human rights rubricentailed a reduction in the number of ALGs Ford supported—toeight from more than a dozen during the early 1990s—it by nomeans ended the Foundation’s support for human rights work.Civic participation, which ALGs directly aid by strengthening thecapacities of partner populations to protect their rights themselves,was already at the core of Ford’s local governance program.A focus on local governance was thus a natural outgrowthof the Foundation’s support for law-related work.The ALGs continued to focus on human rights, civic participation,and local governance, regardless of the rubric under whichthey were funded. 8 But a subtle shift in their Ford-funded eff o r t swas represented by ELAC. “Under the Ford grant, we’re stilldoing community education and advocacy,” explains ExecutiveDirector Grizelda Mayo-Anda, “but expanding into new [geographic]chapters, community-based resource management, and

2 0 8 CA S E ST U D I E Sexpanding relationships with local government.” As with otherALGs, Ford support enables ELAC personnel to participate inshort courses and workshops on development management, localgovernance, and resource economics.Though the transition from Ford’s human rights grantmakingto its local governance program was smooth, it clearly involvedt r a d e - o ffs. The Foundation decided to forgo opportunities to supportALG and other NGO operations that do not pertain to localgovernance. In addition, the six ALGs funded by local governancegrantmaking no longer have as much leeway to utilize theirFord support as they see fit, since it must pertain to this targ e t e dset of activities. There were sacrifices, then, in not continuing theprevious human rights programming and building on its accompl i s h m e n t s .A l t e r n a t i ve Law Groups in A c t i o nIn their efforts to advance human rights, strengthen democraticprocesses, and bolster government accountability, ALGs haveserved as both allies and critics of government. They have assistedlegal and regulatory reform, and provided policy advice, whileat the same time seeking to improve implementation of laws byapplying pressure from outside the system. The following sectionshighlight some of those eff o r t s .Policy Advice and Regulatory ReformMost of the major 1990s legislation addressing the needs andpriorities of disadvantaged Filipinos was accomplished with A L Ginvolvement, either in response to legislators’ requests for informationor by helping to build legal expertise of other NGOs andPOs. The result has been new laws, many of them landmark innature, pertaining to such issues as rape, sexual harassment,indigenous peoples’rights, natural resources, agrarian reform, andurban housing. While lobbying efforts are not supported by theFord Foundation, grantees were able to supply critical researchand analyses that enabled activists and legislators to develop progressivenew laws and policies.

PH I L I P P I N E S 2 0 9The Legal Rights and Natural Resources Center, for example,provided Congress with budgetary analysis that led theDepartment of Environment and Natural Resources (DENR) topartly cover the cost of delineating indigenous peoples’ a n c e s t r a ldomains. This was a potentially important step toward recognizingand enforcing their historical land rights.ALG attorneys’ legal analyses and credentials carry weight ina lawyer-heavy Congress. Their expertise especially enables themto assist legislative aides. According to Marvic Leonen, executivedirector of the center, “The aides have to come out with a product,”in the form of draft legislation, so they may solicit outsideinput. The ALGs stand ready to help.ALGs have also affected scores of executive agency policies.Most notably, they have contributed to rules, regulations, andadministrative orders promulgated by such institutions as DENR,the Department of Agrarian Reform (DAR), and the Office of theP r e s i d e n t .The ALG Tanggol Kalikasan has been instrumental in thedevelopment of environmental regulations. Its work with a numberof government agencies has contributed to natural resourcesconservation in officially protected areas, and community andlocal government participation in the environmental impactassessment process. It has also helped design better regulationsregarding lumber exports; protections for fishing communitiesagainst commercial fishing boats’ encroachment; prohibitions onthe once common practice of catching dolphins; and strongerpenalties for fisheries law violations. Praised by some governmentofficials, Tanggol Kalikasan backs its regulatory reforme fforts with scientific research when possible.On another front, Saligan helped draft Urban Developmentand Housing Act regulations that advance the urban poor’s residentialrights and opportunities. It also contributed to a presidentialorder legitimizing the businesses of registered street vendors.Work in both of these sectors complements scholarship (such asHernando de Soto’s The Other Path) that concludes that developmentcan benefit from granting legal recognition to the urbanp o o r’s residences and businesses. Such research also suggests thatthis legal recognition diminishes extortion and other corruptactivities by government personnel.

2 1 0 CA S E ST U D I E SKaisahan and other ALGs have had a tremendous impact onagrarian reform policies. For example, Kaisahan contributed tothe development of an administrative order setting equitable standardsfor the land rent that farmers pay landlords. Similarly, theLegal Rights and Natural Resources Center and Ta n g g a p a n gPanligal ng Katutubong Pilipino (Panlipi) contributed to regulationsregarding indigenous peoples’ land rights and related environmentalissues. And, according to Ermelita V. Valdeavilla, headof the official National Commission on the Role of FilipinoWomen, “We wouldn’t know how to survive without the kind ofpartnership we have with Wo m e n ’s Legal Bureau. They do a greatjob of helping us think through and crystallize our positions onlegal issues.” These positions affect not only this governmentalbody itself, but also executive agencies across the board.ALG policy work also extends to the local level. Saligan andSentro ng Batas Pantao, for example, were involved with draftingregulations pertaining to the Local Government Code. With Fordsupport, Saligan also helps local governments adapt to the opportunitiespresented by the code. It contributed to the Naga Citygovernment institutionalizing the role of a People’s Council (forwhich Saligan is the secretariat), which provides an official channelfor NGO and PO input into running the city.Such impact plays out differently elsewhere, and often hingeson the local presence of ALG attorneys. ELAC’s membership onthe Palawan Province Council for Sustainable Development hasprobably contributed to stronger provincial environmental policiesin some respects and at least prevented backsliding in others.In the Palawan provincial capital of Puerto Princesa, ELAC hasprovided information and analysis useful in fashioning regulationsregarding illegal fishing.Key themes run through these A L G s ’ regulatory reform andpolicy work. These groups sometimes are de facto policy advisorsto officials who value their grassroots experience and legalexpertise. Yet, when acting alone, ALGs may find that their arg u-ments regarding contentious issues sometimes carry only limitedweight. In the many instances where politics permeate the policyf r a y, ALGs are most effective when they belong to advocacyc o a l i t i o n s .In reviewing these policy successes, Gerardo Bulatao, former-

PH I L I P P I N E S 2 1 1ly a Department of Agrarian Reform official and currently anInstitute of Politics and Governance (IPG) consultant, emphasizesthe personal element in advocacy. In contrast to the hostile “pressurepolitics” of the Marcos era, he sees value in advocates gettingto know key decisionmakers or their aides personally. T h i slesson applies worldwide, but is particularly salient in thePhilippines, where p a k i k i s a m a (smooth interpersonal relations) isoften more important than institutional structures.H o w, though, to establish such contacts? As IPG ExecutiveDirector Marie Victa Labajo emphasizes, “Informal, casual gatheringscan be very important for establishing good interpersonalrelations.” In the experience of Tanggol Kalikasan head Te dBonpin, it also helps to attend and even speak at the same conferencesas government officials. Bulatao adds that to make contact“in the Philippine context, with people you don’t know, look for amutual friend, relative, or contact.” He also stresses the importanceof identifying the key players in policy formulation—sometimesaides to important officials, rather than the officials themse l v e s .None of this is to suggest that personal contact, even whencoupled with legal expertise and coalitions’ political influence,can necessarily trump patronage, corruption, and other undueinfluences that often sway Philippine government operations. Butneither should it be underestimated. Personal connections are apart of the fabric of Philippine society. By cultivating this aspectof Philippine life, ALGs and their allies are simply playing on thesame field that elite interests have historically exploited.ALG personnel have not been confined to “the outside lookingin” on policymaking. Particularly under the 1992–1998administration of President Fidel Ramos, some moved into governmentand drew on their NGO experience to benefit off i c i a lpractices. Antonio La Viña, of the Legal Rights and NaturalResources Center, served at the Department of Environment andNatural Resources. He enlisted ten ALG attorneys to join himthere. Two other ALG leaders, Bulatao and Hector Soliman, wenton to fill top slots at the Department of Agrarian Reform. W h i l ethere, they directly affected a host of policies, and facilitatedinput by Kaisahan, Saligan, and their coalition allies into thosepolicies. Now a presidential assistant, Donna Gasgonia formerly

2 1 2 CA S E ST U D I E Sheaded Panlipi, a premier ALG concerned with indigenous peopl e s ’r i g h t s .There are several other respects in which ALG personnel haveapplied their experience in other settings. As U.S. Agency forInternational Development (USAID) consultants, Panlipi leadershelped formulate a key DENR policy that strengthened indigenouspeoples’ land rights. Other attorneys also have moved on toinfluential consulting or staff positions, some with internationalo rganizations, to contribute to a ripple effect of ALG policyi m p a c t .L e gal Implementation, Good Governanceand A c c o u n t a b i l i t y :C o nve rting Reforms into RealityIn the Philippines, as in many countries, reforming laws is buthalf the battle—ALGs work just as vigorously to see that laws areimplemented. Sometimes this is a matter of educating Filipinosregarding the law and helping them to take advantage of it. Butimplementation often overlaps with getting government off i c i a l sto do their jobs and holding them accountable when they do not.ALG implementation strategies are shaped by the ways in whichlocal officials respond to community priorities. ALGs help communitiesto work effectively with progressive elected leaders,nudge traditional politicians toward more development orientedinitiatives, and challenge corrupt off i c i a l s ’m i s c o n d u c t .The lack of implementation has long diminished the meaningof democratic protections in the Philippines, and eroded publicfaith in the legal process. The state’s failure to enforce laws is acentral reason why many rights go unrealized, why manyFilipinos remain mired in poverty, and why many resources aredrained away illicitly. Ford Philippines Representative SuzanneSiskel explains, “Ignorance and flouting of the law are veryimportant causes of inequity and hardship” for disadvantagedgroups. The ALGs are “reinforcing the goals of progressive legislationand policy, and bringing this to the local level by enabling[local governments], civic groups, communities, et cetera, tounderstand and, at least sometimes, to realize the benefits of goodpolicy and legislation.”

PH I L I P P I N E S 2 1 3The issue of implementation is intimidating in its scale. A L G scan attack these problems only selectively. But strategies such asparalegal development, community organizing, litigation, andmedia outreach can create a ripple effect, and perhaps provide abasis for replication elsewhere in the country. They also provideALGs and their allies with insights that shape new policies which,in turn, sometimes lend themselves to easier enforcement.Paralegal development is a central implementation strategy. Itbegins with ALG consultations with communities to identify thelegal issues that most concern them. Such consultations may leadto a series of paralegal training sessions, followed by ongoingcontact between ALGs and paralegals as new situations arise.Paralegals also often have access to ALG legal assistance in pursuingcases through court or administrative mechanisms, wheren e c e s s a r y. And given that Philippine institutional operations oftenhinge on personal relationships, paralegals’ ongoing involvementwith official proceedings helps them build useful links with personnelin relevant government off i c e s .A prominent example of Foundation-supported paralegaldevelopment is the work jointly carried out by Saligan, Kaisahan,and BMFI. They have trained almost five hundred paralegals whoguide their fellow farmers’ land reform applications through DARprocesses. This involves gathering data and affidavits regardingsuch matters as crop yields and land occupancy, and, if landlordscontest the applications, representing farmers at DAR quasijudicialhearings. The paralegals handle most applications themselves,though ALG attorneys provide legal representation if disputesreach court.Another instance of effective paralegal development isW L B ’s partnering with a PO to address violence against womenin a community in the Metro Manila area. General training formales and females alike has been complemented by more specializededucation for a core of five paralegals. The three the authorinterviewed in late 1997 provided written documentation indicatingsubstantial success in handling approximately two hundredcases dating from late 1995. The disputes most commonlyinvolved wife beating and child support. Regarding the former,the paralegals typically explained the law to the police; persuaded

2 1 4 CA S E ST U D I E Sthem not to ignore the wife and instead to prepare the requisitereport that can help deter subsequent spousal misconduct; enlistedmale “allies” to counsel the husband and explain the criminalnature of his actions; and drafted a written agreement underwhich the husband promised to change his conduct. Where suchinterventions fail, WLB can and does take perpetrators to court.The threat of prosecution is a major stick to back up the paralega l s ’ attempts at persuasion.ELAC has helped paralegals and fishing communities controlo u t s i d e r s ’ illicit fishing techniques in Palawan Province, whichhad caused local catches to plummet. Armed with knowledge thatthe practices are illegal and that they have a right to intervene, thefishermen intercepted the outsiders. Catches have reportedlyclimbed since.ALGs focus most paralegal training on domestic laws andprocesses of greatest interest to partner organizations, as opposedto international or constitutional law. Depending on the community, the focus can be fisheries or forests (as with ELAC andTanggol Kalikasan), domestic violence (WLB), or agrarianreform (Saligan, Kaisahan, and BMFI). Many also provide trainingin how to prepare affidavits and gather evidence. Leonen, ofthe Legal Rights and Natural Resources Center, points out thatimparting legal skills useful in the local context is important. “Alot of communities would rather learn about how to make an aff i-davit than weightier international human rights issues,” he says.W L B ’s Ursua agrees that “international law generally is lessimportant,” unless “there’s not domestic legislation to fall backon, as with trafficking of women.”A cohesive PO is another crucial component in buildinge ffective paralegal services. This is a reason why the Foundationsupports BMFI to carry out community organizing as well asparalegal development, and why some ALGs will not engage inparalegal development where the partner PO is weak. Of course,law can be a tool in organizing: Tanggol Kalikasan has helpedlaunch POs geared toward battling illegal logging and fishingpractices by educating communities about those practices. Still,the general ALG experience is that legal knowledge, in and ofitself, does not build strong org a n i z a t i o n s .A strong PO can bring countervailing pressure to bear on off i-

PH I L I P P I N E S 2 1 5cials who otherwise might be biased or simply unresponsive.Sometimes the combination of organization and legal knowledgecan create such pressure even where actual power is lacking. T h i sis because of the p a l a k a s a n (“pull”) system that permeates thes o c i e t y. A police off i c e r, provincial bureaucrat, or local electedo fficial may avoid taking the risk of crossing a PO whose cohesivenessand relative legal sophistication make it seem connectedto more powerful personages.As a complement to mobilizing paralegals to serve as frontlinefacilitators, some ALGs use community organizing, followedby community-wide nonformal legal education, as another meansto increase citizens’ participation in government, promotea c c o u n t a b i l i t y, and ensure implementation of progressive laws.With funding from the Foundation’s local governance program,ALGs have helped familiarize Filipinos with their rights andresponsibilities under the Local Government Code, and haveincreased their input into local government and planning processes.Citizens learn, for instance, that the code grants NGOs andPOs seats on local government councils, and they become familiarwith how to get this provision implemented.Kaisahan works with POs to build their capacities to set communitypriorities and to work with local governments to allocatefunds for those priorities. Hawes points out, “Even t r a p o s [ t r a d i-tional politicians] are interested in reelection. They’re willing tolisten to constituents when constituents tell them what they want.So if people want immunizations and clean water systems insteadof waiting sheds [shaded shelters at public transportation stops,often emblazoned with public off i c i a l s ’ names before elections],often politicians will provide them.” Of course, such projectshinge on the availability of resources. But strengthening citizenunderstanding of and participation in local government enablesPOs and NGOs to monitor and help maximize effective use ofpublic revenues. This addresses a historical lack of knowledgethat allows funds to be siphoned off from government coff e r sthrough insider contracts, substandard project work, or outrighttheft. Kaisahan training also encourages community members tothink about not just their rights, but about their responsibilities ascitizens and even about how they can contribute resources (suchas volunteer time) to their priority projects.

2 1 6 CA S E ST U D I E SWhere politicians are not responsive, nonformal legal educationcould have indirect electoral impact. Such education, alongwith Saligan training regarding electoral laws (including pollwatching), may have helped prompt dozens of farmer leaders toseek and win local office in the provinces of Bataan andB u k i d n o n .As with paralegal training, A L G s ’ other operations adapt tocommunity-specific conditions. Litigation, while typically a lastresort, is another important strategy for many ALGs as they seekto combat gender violence, advance agrarian reform, or even protectallies who are hauled into court. Tanggol Kalikasan hasdefended partner populations and DENR personnel againstharassing lawsuits brought by environmental law violators.Another example of ALG adaptation is found in Palawan’s capital,Puerto Princesa, where the progressive mayor has sometimescalled on ELAC for legal advice and analysis. Such assistancehelped him persuade the Secretary of Justice to bar the establishmentof an environmentally threatening sugar mill in a watershedarea. ELAC also helped the mayor obtain a favorable SupremeCourt decision upholding the city’s confiscation of a boat thatillegally used cyanide for fishing. The mayor has in turn workedwith ELAC to combat illegal fishing practices.The flexibility and diversity of ALG strategies has allowedthese groups to take many new directions in pursuing legal implementation.WLB, for example, serves as a secretariat for a newnational network of lawyers focusing on stemming violenceagainst women. It also is working with the Philippine JudicialAcademy to construct a curriculum for judges, prosecutors, andother government personnel regarding laws pertaining to genderviolence. The ramifications of this development could reachbeyond this single issue to provide a model for other ALGs andtheir partners to fashion government training curricula in manyother fields. There is some evidence, for example, that enforcementhas been improved by involving such civil society forces ineducating judges and prosecutors about the Urban Developmentand Housing A c t . 9Given the continuing corruption in Philippine public life, notall ALG work involves cooperation with government off i c i a l s .Where alerted to graft by their partner groups, ALGs sometimescan attack this problem. Armed with legal knowledge by Ta n g g o l

PH I L I P P I N E S 2 1 7Kalikasan, a PO in Rizal Province persuaded the provincial councilto overturn an apparently corruption-induced municipal governmentdecision favoring a firm that violated environmentallaws. ELAC and its paralegals have aided the successful prosecutionof municipal officials involved with illegal logging and fishingin Palawan. Coupled with media coverage, this led to at leastone corrupt mayor’s defeat in the subsequent election.Such use of the media to publicize problems is another strategyused by ALGs. When officials in the province of Cebu passeda zoning ordinance designed specifically to allow a cement plantproponent to evade land use regulations, ELAC organized a sitevisit and press conference, and helped journalists arrange interviewswith community members. Ensuing publicity contributed tothe local government revoking the ordinance. The Legal Rightsand Natural Resources Center assigns specific staff to press relationsduties. Many times, media attention and public educationare heightened by the diverse, complementary activities carriedout by ALGs and their allies, ranging from court cases to demonstrationsand hunger strikes.An important lesson rises from A L G s ’ various efforts at lawreform, paralegal development, community organizing, nonformallegal education, litigation, and media outreach. It concerns integrationof these strategies: they often work best when they workclosely together. What ALGs learn from grassroots experience,for instance, is often converted into policy proposals. And wherethey are successful in policy advocacy, they naturally seek toimplement resulting reforms on the ground.Having noted many positive features of A L G s ’ i m p l e m e n t a-t i o n work, two concerns crop up. The first is not unique to A L G s ,although it applies to the Foundation’s funding of them. As IPG’sBulatao puts it, there is “the big gap between the FordF o u n d a t i o n ’s NGO grants and the research the Foundation supports.In the end, you want some feedback on what good yourmoney did.” While Ford and other donors have long supporteduniversity-based research in the Philippines and elsewhere, theyhave put very limited or no resources into academic studies of theimpact of the very projects they fund. By and large, research instituteshave not examined A L G s ’ and other NGOs’legal implementationwork to discern, for instance, the dynamics behind ande ffects of local legal victories, the best paralegal development

2 1 8 CA S E ST U D I E Smethods, or how nonformal legal education affects target audien c e s ’ knowledge and actions. Such studies could contribute toimproving NGOs’operations and impact in the future.Another potential difficulty for some ALGs regards whatcould be called their “unit of analysis.” Tanggol Kalikasan’sBonpin correctly describes ALGs as “serving the community, notthe individual.” This is a great strength of their work. On the otherhand, the relevant community may, under some circumstances, bel a rger than the one an ALG has chosen to serve. Halting a governmentor private sector project may benefit a partner PO, but harma larger population. In a related vein, TA F ’s former assistant representativein the Philippines, Karin Gollin, praises ALGs general l y, but wonders whether they sometimes should emphasizenegotiation more. She perceives the value of some litigation to theextent that certain ALGs undertake it, but at least in the environmentalsphere sees “lots of banging of heads against brick wallsand not getting what they want.” Some ALGs may be starting toadopt more flexible positions. Rather than fighting a power plantproject, ELAC and its coalition recently negotiated an agreementthat commits the National Power Corporation to adhere to environmentalstandards, study any impact on the surrounding sea,and mitigate any ill effects. In Ms. Gollin’s view, Ta n g g o lKalikasan also is notably moving toward more mediation andnegotiation in its work.C o n c l u s i o nHow have the ALGs, their partner communities and org a n i z a-tions, and the Foundation contributed to Philippine socialprogress? What are some of the lessons and promising ideas thathave emerged over the years? What challenges do they facetoday? This section offers brief responses to those broad questi o n s .Changes and ContributionsALGs have contributed to scores of administrative rules andregulations that, when implemented, benefit farmers, fishing com-

PH I L I P P I N E S 2 1 9munities, indigenous peoples, the urban poor, disadvantagedwomen, and other populations across the country. When requestedby Congress and local governments, they also have lent their legalexpertise to governmental consideration of many pieces of legislation.At the same time, that expertise has strengthened the advocacycapacities of their NGO and PO coalition partners. Event o d a y, one foreign diplomat familiar with the PhilippineC o n g r e s s ’s generally conservative composition expresses amazementat the legislature’s enactment of progressive laws, typicallywith NGO input.Despite the many ALG contributions to policy formulation,there should be no illusions regarding the ongoing, widespreadlack of implementation. But in view of their limited resources,these relatively small NGOs have proven very cost-effective athelping their partners raise Philippine law from rhetoric to reality.F o r d ’s contribution to the A L G s ’ work has been manifold.Most fundamentally, the Foundation has taken an attitude thatcould colloquially be expressed as, “If it ain’t broke, don’t fix it.”Many ALGs are sophisticated organizations that the Foundationhas funded, for the most part, in a flexible manner that has letthem chart their own courses. In addition, by sometimes providingpotentially risky initial grants to launch new org a n i z a t i o n s ,Ford opened doors for other donors to provide subsequent support.It also encouraged and funded some of these groups toslightly adjust their programs to match emerging opportunitiesand needs in Philippine society, most notably regarding local governance.Finally, its facilitation of interaction among ALGs hashelped these groups to become more than the sum of their parts,to constitute a public interest law movement that continues toevolve and attract other donor support after more than a decade.Lessons and InsightsLaw Reform and Implementation1 . By becoming known to policymakers through workshops,conferences, and informal channels, an adept NGO candraw on its grassroots experience and legal expertise toplay an important advisory role regarding legislation and

2 2 0 CA S E ST U D I E Sregulations, as requested. Legislative and executive agencyo fficials often call on ALG lawyers to provide such advice.2 . In the Philippines, executive agencies, Congress, localgovernments, and multilateral agencies make most of thekey decisions affecting the disadvantaged majority’s rightsand development. These bodies also have proven moreamenable than the courts to addressing ALG partner popula t i o n s ’ needs. The ALGs therefore have focused most oftheir policy-oriented work on these institutions, rather thanthe judiciary.3 . Nonlegal elements can be crucial for effective legal advoca c y. ALGs often belong to coalitions that employ politicalpressure and persuasion to effect policy reform and implementation,drawing on tools that range from communityo rganizing to scientific and budgetary data.4 . ALG paralegal development efforts include both formaltraining and ongoing professional support. Saligan,Kaisahan, WLB, and other ALGs develop effective paralegalsby connecting them with lawyers who can answerquestions as they arise. Learning through experience isc r u c i a l .5 . Paralegals are cost-effective, particularly when lawyersprovide backup services. Paralegals trained by WLB andother grantees have handled problems related to genderviolence and agrarian reform that otherwise would havegone without remedies, or that would have consumedl a w y e r s ’ much costlier time. Attorneys still are necessary,however; their availability to occasionally take recalcitrantparties to court constitutes a valuable “stick” for paralega l s .6 . These paralegals’ work is often most effective when theyconcentrate their efforts on a community’s most pressingneeds. Kaisahan’s and Saligan’s partner paralegals, forexample, focus on shepherding land reform applicationsthrough bureaucratic processes. The training for thisincludes learning how to negotiate, prepare affidavits, andmaintain written records.7 . O rganization is power. Though paralegal eff e c t i v e n e s smight seem based solely on the premise that “knowledge is

PH I L I P P I N E S 2 2 1p o w e r,” another theme also emerges from ALG experience:knowledge most effectively translates into actionwhen wielded by an organization. A w e l l-o rganized groupis often more likely than an individual to be able to makeits voice heard by the press, a sympathetic mayor, thepolice, a prosecutor, a judge, an executive agency off i c i a l ,or even a corrupt politician concerned about the group’sv o t e s .8 . ALGs have operated effectively by taking an integratedapproach to their work. They and their partners often blendcommunity mobilization, litigation, administrative advocacy, use of media, and other actions. The mix of strategiesnaturally varies, depending on the issue and communityi n v o l v e d .9 . Under the right circumstances, ALGs may play valuableroles in training government personnel. They know aboutconcrete problems in the ways laws are implemented, andcan prioritize key issues, rather than attempt to cover entirelegal fields with ineffective generalities. One example isW L B ’s curriculum development for judges and prosecutorsregarding violence against women.Donor Prog ramming A p p ro a ch e s1 . Flexible, permeable donor program categories reflect reality. ALGs have been supported under various Ford categories,meeting different objectives: human rights, localgovernance, natural resources, and reproductive health.ELAC, for example, helps protect the human rights of fishingand indigenous community members; strengthens thecapacities of civil society organizations to advance theirinterests on their own; helps them manage naturalresources; and aids local governments in relating to thesegroups and in handling other issues. Donor programmingcategories can help focus resources, thinking, and expertise.But this is perhaps best done when they allow andeven encourage the inevitable crossover that marks manyg r a n t e e s ’ w o r k .2 . Programming should reflect local realities. The Foundati o n ’s local governance grantmaking has tried to adapt to

2 2 2 CA S E ST U D I E Sthose realities by, in addition to focusing on local governments,addressing the important roles of civil society anddecentralized executive agencies, and featuring contributionsby legal services NGOs. Many Philippine legal andgovernance issues boil down to a common focus: communitycontrol over local resources, be they aquatic, agrarian,upland, or even urban land. Executive agencies make manydecisions regarding these resources. Thus, Saligan,Kaisahan, and BMFI address vital local governance concernsthrough their work with the Department of A g a r i a nR e f o r m .3 . Long-term support for effective grantees is justified andadvisable. A key factor is not how long the donor has supporteda grantee, but whether the grantee continues to havesignificant impact. During more than a decade of Ford support,the Legal Rights and Natural Resources Center hasbecome a leader regarding indigenous peoples’ rights andupland development issues. Yet the center and other A L Ggrantees started with promising but inexperienced leaderswho spent their first few years cutting their professionalteeth. Had the Foundation been impatient or shifted programmingpriorities after a few years, A L G s ’ impact mighthave been stifled.4 . Funding the A L G s ’ core costs enabled them to experiment,evolve, learn through experience, and respond to unanticipatedopportunities and obstacles. Even as the shift to alocal governance focus has precluded Ford support for certainactivities, the support has remained flexible enough togive the ALGs considerable leeway in their work.5 . A broadly defined view of a legal system sometimes canmake for the most effective donor work in the legal field.The support of Ford and other donors for ALGs has helpedthem strengthen elements of the Philippine legal system.By working through government agencies more than thecourts, ALGs have affected scores of policies and processesthat have practical relevance for their partner populations.It also is possible that ALGs have helped bring amodest amount of additional accountability to the judici-

PH I L I P P I N E S 2 2 3a r y, by pursuing redress there and strengthening their partne r s ’ understanding of its operations.6 . D o n o r support for law school clinics can help incubatepublic interest law movements. Most ALG attorneysentered the field through exposure provided by law schoolprograms, and through internships organized by individualALGs. Law school clinics often need funding to get off theground. Their direction can be influenced by the specificactivities, such as NGO placements, that donors support.7 . Applied research merits greater emphasis in grantmaking.Ford and other donors might be wise to support suchresearch to assess the work of ALGs. Conducted in cooperationwith grantees, such research could document impact,illuminate the dynamics underlying that impact, and crystallizelessons for future use by grantees and donors alike.Looking A h e a dWhere do the ALGs go from here? The answer depends on theo rganizations themselves. Still, a few common challengese m e rg e .One relates to the 1998 election of President Joseph Estrada.Some ALGs no longer have the level of contacts and access in thecurrent administration that they enjoyed under its predecessor,particularly in DENR. They may need to build new relationshipsor develop new strategies.Another challenge facing all NGOs is that of financial susta i n a b i l i t y, particularly exploring opportunities to generate fundingfrom Philippine sources. Ford, TA F, and USAID are supportinginitiatives to strengthen NGO fundraising in general andALG capacities in particular. Yet in-country resources can comewith demanding strings attached, particularly given the stronglypersonal nature of Philippine society. And even in the UnitedStates and Western Europe, most NGOs are by no means selfsupporting.So while ALGs cannot afford to ignore this issue, thechallenge also confronts donors. They may need to initiate morelong-term mechanisms (such as endowments) that help solidgrantees remain in business.

2 2 4 CA S E ST U D I E SThere is also the matter of personnel sustainability: someALG staff move on to private sector and government jobs payingbetter salaries. Fortunately, these jobs often keep them engaged indevelopment issues while meeting their financial needs.M o r e o v e r, their replacements at the ALGs generally have maintainedthe org a n i z a t i o n s ’ d y n a m i s m . Striking a balance amongs t a ff compensation, competence, and dedication is an ongoingc h a l l e n g e .In coming years, A L G s ’ accomplishments, expertise, andgrassroots orientation may weigh in favor of their seeking toincrease their impact in two ways. First, through “mainstreaming”:making greater contact with the established bar, the judiciar y, and elected officials through presentations, legal publications,and personal links. Second, they could become resources for theinternational development community. To a limited extent, theyalready are taking such steps, particularly regarding judiciale n g a g e m e n t . But enthusiasm for greater influence must be temperedby the potential for any successful NGO to stretch itself toothin (or for a donor to push it to do so).A final challenge regards strategic flexibility. ALGs and theirpersonnel have evolved in ways that provide for varied approachesto problems. Population growth, globalization, and a host ofother trends present obstacles and opportunities that will forcethese groups and their partners to keep rethinking their individualand collective goals and devising new strategies that can potentiallyextend their effectiveness to areas now unforeseen. T h e r eseems little doubt, however, that ALGs will evince the requisiteflexibility and will continue to crucially contribute to theinevitably long-term endeavor of strengthening human rights,development, and democracy in the Philippines.N o t e s1 . Agrarian reform includes land reform, the change in farmerlandlordland tenure arrangements to the benefit of the farmers, typicallyso that they have greater control over the land (which can include outrightownership), and/or greater shares of crop proceeds. A g r a r i a nreform is a more all-embracing term, however, in that it also includes

PH I L I P P I N E S 2 2 5various technical or financial support services geared to assist farmersand to ensure the tenurial changes’ s u c c e s s .2 . In a literal sense, POs are NGOs, so a brief delineation is ino r d e r. POs generally are self-help entities whose (generally low-income)members hail from a single sector (tenant farmers, urban poor, etc.), andmost directly benefit from development activities. [In some other countries,similar groups are referred to as community-based org a n i z a t i o n s(CBOs).] They typically are not compensated for their PO work. In thiscontext, NGOs are service organizations that work with POs in pursuitof development goals. They sometimes are not sector specific in theiroperations and membership. Their staffs tend to be better educated andmore affluent than PO members. NGO personnel often are compensatedfor their work. As an example of the distinction, community org a n i z e r sand agricultural technologists from an NGO might assist farmersbelonging to a PO on livelihood projects.3 . Paul D. Hutchcroft, “Oligarchs and Cronies in the PhilippineState: The Politics of Patrimonial Plunder,” World Politics 43, no. 3(April 1991): 415–450.4 . Senate of the Philippines, Committee on the Education, Arts andCulture and the Committee on Social Justice, Welfare and Development,A Moral Recovery Program: Building a People—Building a Nation,Report submitted by Senator Leticia Ramos Shahani, 9 May 1988, p. 16.5 . Alfredo F. Ta d i a r, “The Administration of Criminal Justice in thePhilippines: Some Aspects for a Comparative Study with That of theUnited States,” Philippine Law Journal 47, no. 4 (September 1972):5 4 8 .6 . Boo Chanco, “A Police Bereft of People’s Trust,” The ManilaC h ronicle, 20 January 1993, p. 5.7 . In fact, several ALG attorneys today teach law school courses,where their instruction can shape students’ perspectives on the profession,perhaps drawing some into ALG service.8 . Two of the six ALG grantees are not involved with local governance.They are leaders in their respective fields: the Wo m e n ’s LegalBureau defends women’s rights (particularly the right to be free fromviolence); and the Legal Rights and Natural Resources Center promotesindigenous peoples’ rights and environmental law. W L B ’s fundingcomes from Ford’s reproductive health program (though it originatedunder the rubric of Ford’s human rights program), and the centerreceives support from the Foundation’s Philippines, Indonesia, and Indiao ffices to serve as secretariat for the NGO Working Group on the A s i a nDevelopment Bank.9 . Anna Marie Karaos, Marlene Gatpatan, and Robert Holtz,

2 2 6 CA S EST U D I E SMaking a Difference: NGO and PO Policy Influence in Urban LandReform Advocacy; Pulso Monograph No. 15 (Manila: Institute onChurch and Social Issues, 1995), p. 100.A p p e n d i x :People Interv i ewed for This Study[Note: This list includes individuals the author interviewedboth during his 1999 trip to the Philippines for this study and severalother persons he interviewed during previous consulting andresearch trips there. It does not comprehensively cover, however,all of the persons with whom the author has discussed laworientedwork in the Philippines over the years, including manymembers of people’s organizations assisted by ALGs and personswith whom he has conducted group interviews.]Alberto C. A g r aPolicy and Legal Consultant, Governance and Local DemocracyProject, Makati, MMJoselito C. A l i s u a gC h a i r, Executive Committee, Haribon Palawan, Puerto Princesa,P a l a w a nAudie C. A r n a d oExecutive Director, Center for Paralegal Education and Tr a i n i n g ,Cebu City, CebuNesorio G. Aw a tLegal Area Manager for Palawan, Tanggapand Panligal ngKatutubong Pilipino, Puerto Princesa, PalawanNormita V. BatulaC o o r d i n a t o r, Legal A ffairs Unit, Tungo sa Kaunlaran ngKanayunan at Repormang Panasakahan, Quezon City, MMErnesto D. BautistaAssistant Resident Representative, United Nations DevelopmentProgramme, Makati, MM

PH I L I P P I N E S 2 2 7Ted BonpinA t t o r n e y, Tanggol Kalikasan, Haribon Foundation for theConservation of Natural Resources, Quezon City, MMGerardo J. BulataoSenior Consultant, Institute of Politics and Governance, QuezonC i t y, MM; and former Undersecretary, Department of A g r a r i a nReform, Quezon City, MMJosé CanivelVisayas Coordinator, Environmental Legal Assistance Center,Inc., Puerto Princesa, PalawanKarina Constantino-DavidExecutive Director, Harnessing Self-Reliant Initiatives andKnowledge, Inc., Quezon City, MMSheila S. CoronelExecutive Director, Philippine Center for InvestigativeJournalism, Quezon City, MMMa. Vicenta P. de GuzmanExecutive Director, Tanggapand Panligal ng Katutubong Pilipino,Quezon City, MMEduado de los A n g e l e sP a r t n e r, Romulo Mabanta Buenaventura Sayoc & de Los A n g e l e s ,Makati, MMRebecca Nadine D. DichosoCommittee Secretary, Committee on National CulturalCommunities, House of Representatives, Quezon City, MMMa. Socorro DioknoSecretary-General, Free Legal Assistance Group, Quezon City,M MDaniel EdralinChairperson, Alliance of Progressive Labor, Quezon City, MM

2 2 8 CA S E ST U D I E SRaquel Edralin-Ti g l a oExecutive Director, Wo m e n ’s Crisis Center, Quezon City,M MJaime FaustinoD i r e c t o r, Venture for Fund Raising, Pasig, MMVincent Edward R. FestinA t t o r n e y, Sentro ng Alternatibong Lingap Panlegal, Quezon City,M MVictoria P. GarchitorenaExecutive Director, Ayala Foundation, Inc., Makati, MMDonna Z. GasgoniaPresidential Assistant, Office of the President, Manila, MM; andformer Executive Director, Tanggapand Panligal ng KatutubongPilipino, Quezon City, MMTerrence Georg eFormer Program Off i c e r, The Ford Foundation, Makati, MMKarin GollinFormer Assistant Representative, The Asia Foundation, Makati,M MGary HawesProgram Off i c e r, The Ford Foundation, Makati, MMAnna Marie A. KaraosResearch Associate, Institute on Church and Social Issues, A t e n e ode Manila University, Quezon City, MMAntonio G.M. La Vi ñ aFormer Undersecretary for Legal and Legislative A ffairs andAttached Agencies Department of Environment and NaturalResources, Quezon City, MM; and former Director for Researchand Policy Development, Legal Rights and Natural ResourcesC e n t e r, Inc., Quezon City, MM

PH I L I P P I N E S 2 2 9Marie Victa LabajoExecutive Director, Institute of Politics and Governance, QuezonC i t y, MMNick LangtonRepresentative, The Asia Foundation, Makati, MMIda J. La’oExecutive Director, Development Legal Assistance Center, Inc.,Quezon City, MMMarvic M.V. F. LeonenExecutive Director, Legal Rights and Natural Resources Center,Inc., Quezon City, MMMa. Paz LunaFormer Program Director, Tanggol Kalikasan, Quezon City, MMIcasiana Luzong-deGalaA t t o r n e y, Sentro ng Alternatibong Lingap Panlegal, Quezon City, MMInocencio MagallanesVice Chair, Executive Committee, Haribon Palawan, PuertoPrincesa, PalawanEd Tami MansayaganSecretary-General, National Confederation of Indigenous Peoplesof the Philippines, Quezon City, MMGrizelda Mayo-AndaExecutive Director, Environmental Legal Assistance Center, Inc.,Puerto Princesa, PalawanCarlos P. Medina, Jr.Executive Director, Ateneo Human Rights Center, Ateneo deManila College of Law, Makati, MMArmand H. MejiaL a w y e r, Tanggol Kalikasan, Quezon City, MM

2 3 0 CA S E ST U D I E SMagistrado A. Mendoza, Jr.C o o r d i n a t o r, Legal A ffairs Unit, Tungo sa Kaunlaran ngKanayunan at Repormang Panasakahan, Quezon City, MMCarol MercadoProgram Off i c e r, The Asia Foundation, Makati, MMBeth Pua-Vi l l a m o rAssociate Executive Director, Legal Rights and NaturalResources Center, Inc., Quezon City, MMEduardo E. QueblatinEnvironmental Management Specialist, Governance and LocalDemocracy Project, Makati, MMRodolfo Ferdinand N. Quicho, Jr.Program Director, Tanggol Kalikasan, Quezon City, MMMary RacelisFormer Country Representative/Assistant Regional Representative,The Ford Foundation, Makati, MMGlenda RamirezC o o r d i n a t o r, Internship and Legal Aid Program, Ateneo HumanRights Center, Ateneo de Manila College of Law, Makati, MMJoel RocamoraExecutive Director, Institute for Popular Democracy, QuezonC i t y, MMRonaldo Romey-GutierrezL a w y e r, Tanggol Kalikasan, Quezon City, MMCarolina S. RuizC o o r d i n a t o r, Feminist Legal Services and Development Program,Wo m e n ’s Legal Bureau, Quezon City, MMAntonio L. SalvadorExecutive Director, Sentro ng Alternatibong Lingap Panlegal,Quezon City, MM

PH I L I P P I N E S 2 3 1Rodrigo SauceloActing Tourism Off i c e r, Office of the Mayor, Puerto Princesa,P a l a w a nPhilip B. SchwehmDeputy Chief of Party, Governance and Local Democracy Project,Makati, MMHowie SeverinoEnvironment Desk Coordinator, Philippine Center for InvestigativeJournalism, Quezon City, MMSuzanne E. SiskelRepresentative, The Ford Foundation, Makati, MMHector D. SolimanFormer Undersecretary for Field Operations and SupportServices, Department of Agrarian Reform, Quezon City, MM, andformer Program Director, Tanggol Kalikasan, Quezon City, MMAlfredo F. Ta d i a rP r o f e s s o r, University of Philippines College of Law and ProjectD i r e c t o r, Reproductive Health, Rights, and Ethics Center forResearch and Training, Quezon City, MMEvalyn G. UrsuaExecutive Director, Wo m e n ’s Legal Bureau, Inc., Quezon City, MMErmelita V. Va l d e a v i l l aExecutive Director, National Commission on the Role of FilipinoWomen, Quezon City, MMTomasito S. Vi l l a r i nExecutive Director, Kaisahan, Quezon City, MMMarites Danguilan Vi t u gJournalist, Cainta, RizalFrederick A. Y l a y aCity Councilor, Puerto Princesa, Palawan

7Eastern Euro p e :Funding Strategies forPublic Interest Law inTransitional SocietiesAU B R E Y MCCU T C H E O NWhen the Ford Foundation sponsored the 1991 “Symposium onPublic Interest Law Around the World,” convened by the U.S.-based National Association for the Advancement of ColoredPeople Legal Defense and Educational Fund, the paucity of participantsfrom countries of Eastern and Central Europe was conspicuous.After monumental social and political changes in theregion, those same countries would now be well represented atany comparable gathering. Through the creativity and commitmentof individuals from the region, and the support of a handfulof donors, public interest law (PIL) in Eastern and Central Europehas taken great strides. Ford’s PIL grantmaking program todaysupports more than a dozen groups in Eastern and Central Europe(hereinafter referred to as “Eastern Europe”). The Foundation andits grantee partners in the region have gained important experienceand insights regarding donor strategies for building PILwithin societies in transition. Those lessons are the focus of thisc h a p t e r.The Eastern Europe PIL program is young; it officially beganonly in 1995–1996, and is evolving as the region’s transition continuesand as organizations emerge and mature. In addition to providingorganizational support, the funding program is specificallydesigned to develop PIL as a new field of law work in EasternEurope, to promote a regional community of PIL o rg a n i z a t i o n s ,and to facilitate their networking with similar organizations else-2 3 3

2 3 4 CA S E ST U D I E Swhere in the world. The activities of PIL grantee partners todayare diverse, and include impact litigation, basic legal services,clinical legal education, and community legal literacy programs.Using international and domestic law, they address issues rangingfrom ethnic discrimination to environmental protection. The programand its partners have laid foundations for wider acceptanceof PIL, engendered or strengthened specific PIL practices, andencouraged the creation of a newly defined community of org a n i-zations and individuals involved in PILthroughout the region.This chapter examines the Foundation’s PIL work in theCzech Republic, Hungary, Poland, and Slovakia. It describes thisp r o g r a m ’s background and growth in the context of the changestaking place in those countries, ongoing human rights and socialjustice concerns, and the Foundation’s broader regional priorities.It sets out selected programming approaches gained from theexperiences of grantees, donors, and other partners, and notessome of the opportunities and constraints that influenced programchoices at different stages.The case study is based on interviews conducted in late 1998with organizations in the four countries of focus, and individualselsewhere who are familiar with PIL and donor activities inEastern Europe. Many of the lessons discussed here are newlyderived from recent experience in those countries. Others aremore familiar, but are valuable in reconfirming experiences oflaw-related grantmaking programs, as well as other types ofdonor programs, in other countries.E volution of the PublicI n t e rest Law Grantmaking Prog r a mThe Ford Foundation’s efforts to promote the consolidation ofdemocratic institutions in Eastern Europe after the end of communismled to the conclusion in 1995 that a focused PIL g r a n t m a k-ing program was both needed and possible. Joseph Schull, thenthe Foundation’s deputy director for Ford’s Russia and EasternEurope program, says that many believed that PILcould provide aframework for beneficially engaging the human rights communitywith new constituencies in these societies on an ongoing basis. A she recalls, “PIL appeared to be a vehicle for moving the human

EA S T E R N EU RO P E 2 3 5rights agenda from an abstract ethical plane to a more practicallegal level.” Schull says a long-term goal of the program was todevelop PIL as an effective civil society activity in the region—sothat governments, the private legal profession, and the nongovernmentalsector would be encouraged to advance legal protectionsand solutions for their societies.Program staff planned a long-term institution-buildingapproach that could support grantee organizations as they evolvedand became more independent, and could encourage grantee susta i n a b i l i t y. The Foundation was fortunate to have active donorpartners with many shared objectives. While employing slightlyd i fferent terminology to describe their legal program activity, theOpen Society Institute (OSI) and its affiliates and the GermanMarshall Fund are two primary and important contributors to PILin Eastern Europe.As Eastern Europe’s young democracies developed, a legacyof public mistrust of legal systems, courts, and other institutionsremained from an undemocratic past. This was a major influencein the decision to pursue a PIL program. Irena Grudzinska Gross,the Foundation’s program officer for Eastern Europe, explainsthat under previous regimes in the region, law was primarily aninstrument of the state; citizens and civil society org a n i z a t i o n srarely pursued causes or grievances through the legal system.While some government subsidies were theoretically available,legal services did not always exist in reality. In criminal matters,for example, defense attorneys were reputed to be ill prepared attrial, if they showed up at all. Only the privileged could afford topay for their own lawyers, and the poor generally saw the courtsas a place to be avoided. Legal experts were concerned that ongoinglaw reform in the region, without mechanisms for implementationand expanding public access to justice, would be ineff e c t u-al and might actually deepen public mistrust of the legal system.Professor Leah Wortham of Catholic University Law School inWashington, D.C., who has worked in the region to establish aclinical legal education program there, restates the challenge byasking, “How do you create respect for the rule of law where thehonorable thing to do, in some countries, was to avoid the law?”There were other program opportunities and choices emerg i n gin Eastern Europe at that time. Changes began taking place in thelate 1980s, and although conditions in individual countries varied,

2 3 6 CA S E ST U D I E Smany political, legal, economic, and social effects of the transitionwere common across them. There was marked, yet embryonic,growth in civil society entities and activities. Democratizationof political systems was under way and new constitutions werebeing debated or adopted. Both substantive and procedural lawswere being changed. The judiciary was undergoing reform andrestructuring, including changes in its powers vis-à-vis otherbranches of government. A newfound respect for human rightswas also emerging, and international human rights norms increasinglyaffected domestic laws.The broader legal reform process occurring at the level ofstate institutions was attracting attention from a wide variety ofpublic and private donors. For example, the countries in whichthe Foundation worked were soon to be admitted to the Councilof Europe; thus, the European Convention on Human Rightswould eventually become applicable in their domestic legal contexts.National courts could then apply the protections of theConvention in judgments, and parties could invoke it in cases.Both the European Union and the Council of Europe were devotingsubstantial resources to assist countries of the region to preparefor this process. The U.S. government and some privatedonors were also providing support for legislative redraftinge fforts, constitutional and judicial reform, and public administrationreform.As staff evaluated Ford’s potential contributions, they soughtto match its particular strengths with areas of need, while avoidingefforts that would add little to foreign government aid cominginto the region at that time. In particular cases, support was providedfor legislative reform efforts, as with a 1992 grant to theHungarian Ministry of Justice for an international consultation onthe reform of the Hungarian criminal procedure code. However,strategic choices among PIL’s desired and potential impactsconvinced the Foundation to act primarily as a supporter of NGOsand public-private partnerships. Government agencies were perceivedas large, bureaucratic, and difficult to engage, especiallybecause officials tended to change too often to develop genuinelong-term relationships or to expect significant impact. “[O]urzone of greatest competence was in the nonstate sector,” Schull

EA S T E R N EU RO P E 2 3 7says. But refining strategic choices seemed prudent even amongthose grant opportunities that were related to both law reform andNGO development. Schull provides this example: “We generallystayed away from projects related to developing the legal and legislativeframework for nonprofit activity . . . there was enoughfunding available from other sources for generalized NGO supportactivities to enable us to focus selectively on institutionsrelated to our substantive interests.”A principal focus of the Foundation’s funding activities forEastern Europe prior to the late 1980s was freedom of expression.Its support for international academic and artistic exchanges, publications,and conferences helped the Foundation build relationshipswith the human rights community—relationships that wouldserve as a natural base from which to construct a new fundingprogram. Successful human rights groups and activists once partof underground dissident movements slowly moved to provideP I L services, among other program activities. Edwin Rekosh,director of the Public Interest Law Initiative in Tr a n s i t i o n a lSocieties, a Ford grantee housed at Columbia University LawSchool in New York City, explains that human rights org a n i z a-tions began to professionalize, differentiate, and build niches, butthey continued to use protest tactics of the former era and wereslow to use law and courts. “The role of the lawyer was seen astechnician or state functionary,” says Rekosh. It took some timeto “reconceive the role of the lawyer, and the lawyer as part of theNGO. The Foundation helped by showing the role of lawyers inmore activist legal settings.”Although legal and political reforms were widespread in theregion as the new funding program was being conceived, manyEastern European countries throughout the 1990s continued toexperience conditions that concerned human rights activists.Minority rights and nationality issues common to many countriesin the region were reasserted in the wake of the reforms. Severalminority groups struggled for their human rights, but the Romastood out as the most deprived ethnic group throughout Europe.Long victims of discrimination from many quarters, the peopleknown by the derogatory term “gypsies” experienced a rise inracist violence after the fall of communism. Other regionwide

2 3 8 CA S E ST U D I E Sproblems included domestic violence, police misconduct, andi n e fficient judicial processes.These and other concerns were manifested to varying degreesin the four countries considered in this chapter. In the CzechRepublic, continuing problems with the judicial system served toheighten distrust of courts. Administrative courts increasinglyissued judgments without hearings and the length of judicial proceedingswas generally felt to be intolerable. Deficiencies in theCzech citizenship law, which resulted from the peaceful divisionof Czechoslovakia in 1993, led to the expulsion of hundreds ofSlovaks, including many Roma, and the separation of Slovakfamilies along nationality lines.In Slovakia, political uncertainties raised fears among NGOsabout issues of free expression and press freedom. A law in 1996limited the use of minority languages in government offices andthe media. This most significantly affects Slovakia’s Hungarianm i n o r i t y, which comprises 11.5 percent of the population. T h eSupreme Court found the 1996 law to be unconstitutional, butcontroversy around interpretation and adherence to the ruling hascontinued. Slovakia’s failure to adopt a minority language lawalso drew criticism from the European Union, the Org a n i z a t i o nfor Security and Cooperation in Europe, and the Council ofEurope in 1997.In Hungary, police misconduct was pervasive, and few victimshad the confidence to file complaints. Due process was oftendenied, with the state often refusing to provide criminal defensecounsel. The right to privacy for patients and recovering drugaddicts remained a major issue until the passage of a new law in1998. Children’s psychiatric institutions were cited for poorsupervision and violating children’s rights.In Poland, police abuse was likewise an issue. In 1997, thePolish Constitutional Court severely limited a woman’s right toabortion. Journalists complained of a need for stronger laws onaccess to information, and civil rights activists cited legal measuresrestricting the constitutional right to privacy. The rights ofrefugees and aliens were insufficiently protected. Several casesregarding slow judicial proceedings were submitted to theEuropean Commission on Human Rights in 1997.As the 1990s proceeded, opportunities for PIL work inEastern Europe became clearer. The Foundation had numerous

EA S T E R N EU RO P E 2 3 9program opportunities and choices, but also faced formidableobstacles to achieving the impacts sought through a PIL g r a n tprogram. Indeed, many challenges continue today. As pointed outby Dimitrina Petrova of the European Roma Rights Center(ERRC), “public interest law” is hard to translate and understandin any local language of the region. “In the past, the ‘public interes t ’ was seen to be pursued by the state procurator, not by lawyerspursuing social change. The creative work of lawyers was limited,”she says. The term is often confused to mean simply the fieldof public law, as distinct from private law. Others have confusedthe concept with the role of the lawyer defending the state againstcitizen claims. There were also practical limitations to the developmentof PIL in these countries; the right to counsel in criminalprocedures was not fully and consistently provided, virtually nolegal aid mechanisms existed for the indigent in civil matters, andvery few lawyers themselves had any training or experience inP I L s t r a t e g i e s . 1The ability of the Foundation to navigate these programopportunities and obstacles was aided by the intense investmentof staff time in the early 1990s, which resulted in learning fromand building relationships with local grantees and other localpartner organizations and individuals during the region’s transition.With the new funding opportunities presented by the transitionto postcommunist societies, the development of indigenouscivil society organizations and direct relationships withlocal grantee partners, rather than Western-based intermediaries,became a priority. The local knowledge and contactsderived made more strategic grantmaking possible from 1994o n w a r d .In the early 1990s, the Foundation had supported efforts bygrantees in the region to build the freedom of expression andother human rights aspects of their work. At the time, this was notconsciously directed at the development of a future PIL p r o g r a m .For example, Helsinki Committees in Poland and the CzechRepublic—human rights groups that conducted monitoring, publicadvocacy, and education—were supported to conduct programplanning processes. Among other programs, in 1994 theFoundation helped the two groups to develop litigation and legalcounseling units, respectively. In 1995 the Foundation commissioneda consultant to report on the prospects for clinical legal

2 4 0 CA S E ST U D I E Seducation at several universities in the Czech Republic andS l o v a k i a .Recognizing that more systematic, broad-based PIL s t r a t e g i e swere needed to shore up nascent legal reforms and restore publicfaith in legal remedies, Foundation staff outlined a PIL i n i t i a t i v ein 1995 that included five funding strategies, targeting supportfor: (1) exemplary NGOs in fields such as human rights, environmentaladvocacy, women’s rights, and consumer advocacy whosework included a substantial component of legal services, impactlitigation, legislative monitoring, and legal education; (2) networkingand exchanges of experience among these and othergroups to strengthen the emerging field of PIL; (3) buildingstronger relationships among PIL NGOs, bar associations, andlaw schools; (4) innovative legal education programs promoting amore practical and public interest orientation among legal educatorsand law students; and (5) communication and educationale fforts addressing diverse publics as well as policymakers toenhance recognition of PIL as a means of enlarging public accessto justice. The overarching goal of the initiative was to supportthe development and dissemination of good practices in strategiclitigation, legal services, clinical education, and legal literacytraining, and to provide mechanisms for broader reflection andsharing of experiences among PIL practitioners in the region.There was still some concern among Foundation staff that theapproaches and vocabulary of PIL were too alien to firmly takeroot in Eastern Europe. To test possibilities further and to facilitatethe initiative, the Polish Helsinki Committee was enlisted in1995 to convene a small meeting of lawyers, judges, and humanrights activists. Those participants affirmed PIL as a relevantframework for advocacy in the region and discussed strategies foraddressing obstacles to further development of their work. T h emeeting was followed by symposia in the United Kingdom in1996 and in South Africa in 1997, which brought togetherlawyers, educators, donors, and activists from Eastern Europe andRussia, as well as countries with longer experience in PIL. By allaccounts, the gatherings were a stimulus for PIL activities in theregion. Participants indicate that the symposia also strengthened afledgling network of legal and advocacy groups, in part throughthe overlap of attendees, which was helpful in building relationshipsamong both individuals and organizations. The use of exter-

EA S T E R N EU RO P E 2 4 1nal venues for the symposia facilitated contributions from PILactivists from outside the region with long experience in a varietyof legal fields, and expanded the future resources available toEastern European groups. The latter symposium led to the creationof the Public Interest Law Initiative in Transitional Societiesat Columbia University to provide published resources and networkingservices to the expanding PILcommunity in the region.The PIL symposia were models of collaborative work—notonly for the organizations in attendance, but for grantmakers aswell. The Budapest-based Constitutional and Legislative PolicyInstitute (COLPI), an affiliate of OSI, cosponsored the two symposia.Staff from Ford and COLPI indicated that the ongoing collaborationhelped them refine their approaches and allowed themto learn from each other’s experiences in the region. For PILgroups, the grantmakers’ collaboration led to expanded resourcesand valuable contacts. For example, the joint meetings were ableto utilize experts and successful models known to each of thedonors. Subsequent co-funding of some PIL projects hasincreased sustainability of groups that had previously dependedon a single major donor. Schull warns that important opportunitiescan be missed for both donors and grantees if donor collaborationis deferred until co-funding decisions are being considered.Early and ongoing collaboration can inform strategies and helpdonors to clarify their respective funding roles.The PIL activities of Eastern European grantees eventuallygrew to include impact litigation, basic legal services, clinicallegal education, and community legal literacy programs.Throughout the evolution of the program much has been learnedabout PIL programming itself. Other insights on a variety of relatedtopics, from staff experiences, PIL groups, and other partners,are shared below.Selected Donor Programming A p p ro a c h e sC o n t ext and A d a p t a t i o nOne of the most important lessons that emerged from Ford’sP I L program in Eastern Europe was the need for sensitivity tocontext, as well as for care and flexibility in transplanting con-

2 4 2 CA S E ST U D I E Scepts and methods. This is an age-old caution, but it remains aliveand was repeated often by donor and grantee staff alike. It wasclearly raised not just as an admonition to foreign donors but alsoas a self-caution, as NGO staffers in Eastern Europe discussed thepotentials and pitfalls of transplanting approaches from theirneighboring countries, as well as from urban to rural settings.Awareness of outside approaches to PIL is highly desirable, butflexibility is required to allow for adaptation to new settings.These adaptations should take place with sensitivity not only tod i fferent legal, political, and economic situations, but also to culturalcontexts, which can be either barriers or facilitators in thedevelopment of PIL.Sometimes this sensitivity is a simple matter of terminology.The Czech Helsinki Committee provides a striking example in itsadaptation of a U.S.-originated public education program, whicho ffers basic legal information in an easily accessible form. T h eprogram is known in the United States and elsewhere as “StreetL a w,” a term that in the Czech language would be popularlyunderstood to mean the “law of the jungle”—clearly not the progr a m ’s intent. While the Czechs readily utilize the Street Lawconcept, as do many countries in the region, they have adapted itstitle and some of its methods to suit their environment.Professor Stefan Krieger of the Hofstra University LawSchool says that sensitivity to a local context should includerecognition of past local efforts and successes—both as a matterof respect and as a foundation for adapting and guiding future initiatives.He also stresses the importance of considering the culturesof the private legal profession and of law faculties whendeveloping any donor strategy. Krieger suggests that with a contextualanalysis that includes these elements, a donor might bettercustomize programming strategies to countries that are similarlysituated.When one university in the region launched its law clinic withpartial support from the Foundation, the focus of its work wasl a rgely on commercial law. Ford Program Officer Irena Grossremembers that this was in response to the experiential contextand culture of both the faculty and the wider legal profession atthe time. While the founders sought both the pedagogical and theP I L benefits of a law clinic, they feared that a clinic with PIL

EA S T E R N EU RO P E 2 4 3objectives would be premature at best, and would possibly evenbe opposed within the law faculty. Over time, the clinic hasevolved to include PIL work. The lesson for donors and universitiesis that flexibility, patience, and a willingness to experimentare often necessary for the successful adaptation of a PIL m o d e l .This is not to suggest that flexibility be without boundaries.Recognition and respect for grantees’ experience and local contextsshould not cause a donor to sacrifice its own program objectivesor the lessons from its own experience. Foundation stafflearned that this is especially important when introducing newconcepts and approaches of PIL. Donors must maintain a clearsense of their own objectives and constructively discuss an org a-n i z a t i o n ’s plans to adapt a PIL approach to the local context. Incases where it is not possible to develop a desired program whileremaining respectful of the local context, either due to a possiblecultural clash or simply a lack of appropriate local org a n i z a t i o n sor resources, it is more appropriate to abstain rather than to insistupon an ill-fitted project that is perhaps only remotely related tothe donor’s program objectives. The same caveat should apply tograntee organizations. PIL programming (like all grantmaking) isinherently a conversation of t w o parties, in which each shouldremain authentic to its own purposes and self-u n d e r s t a n d i n g .S t rengthening Civil SocietyGross, who inherited the Foundation’s young PIL program inearly 1998, observes that in the context of the region’s broad societaltransitions, building PIL groups has also served to strengthenthe wider body of civil society. While PIL programming isdesigned primarily to pursue social and economic justice includinghuman rights, program choices can also help open space forother civil society organs to operate. This may happen in manyways, through law reform achievements, court cases or, as in thecase of the Centre for Legal Advice in Wa r s a w, by advising andassisting other NGOs with their legal needs. PIL’s impact mayalso be seen in a subtler strengthening of civil society that resultsfrom the promotion of active citizenship, and greater publicinvolvement in social and economic causes, which is inherently apart of PIL’s educational work.

2 4 4 CA S E ST U D I E SMartin Palous of the Czech Helsinki Committee stresses theimportance of this broader objective in societies underg o i n gwide-ranging transition. Noting that the protection of humanrights requires vigilance in any society, he points out that transitionalsocieties, such as those in Eastern Europe, may experienceebbs and flows in the respect accorded to human rights and in thedevelopment of an independent civil society. He argues that the“politics of transition” do not end with the achievement ofdemocracy or the formal enshrining of human rights laws, butcontinue through the formation of civil society and furtherthrough its independence, maturation, and globalization. As a PILo rganization, the Czech Helsinki Committee sees itself as part ofa globalizing civil society that seeks to address threats to socialand economic justice worldwide.P ro a c t i ve and Reactive Prog ra m m i n gThe Foundation’s Eastern Europe PIL program combinedboth proactive and reactive donor approaches, depending on thecircumstances. In the beginning of Ford’s PIL programming in theregion, Schull says, grants were largely for technical assistancepurposes. The general situation, needs, and actors were in suchrapid transition that it was difficult to be proactive—at least in asystematic way. Staff learned that the best efforts of theFoundation were in quick and flexible responses that brokeredhigh-quality technical assistance tailored to the needs andrequests of grantee groups. This was also a reflection of the staff’sown level of experience during the first years after 1989, whichmade reactive programming seem prudent.At a later stage, however, as staff felt more confident in theirunderstanding of the region’s needs as well as the available institutionalpartners and resources upon which to draw, Schull began toview a proactive approach as both appropriate and necessary. “It isnot presumptuous in some cases to broker, or convene groups todiscuss new ideas. A donor should not always assume a passiverole,” he says. “In some cases donors control too much, but in othersa proactive role is necessary to get beyond where grantees are,or simply to provoke them to examine their own views.”By taking a proactive role in convening symposia of PIL p r a c-

EA S T E R N EU RO P E 2 4 5titioners from both within and outside Eastern Europe, Fordhelped introduce terms and concepts that were unfamiliar in theregion. Discussions on impact litigation, test case litigation, anduniversity legal aid clinics, for example, provided a counterpointfor legal activists to examine and understand their own currentand potential practices more deeply.Danuta Przywara of the Polish Helsinki Committee encouragesdonor staff to take a proactive stance in discussing projectimplementation with grantees. She believes that this provides “anopportunity to get a different way of thinking on implementationand approaches: the clash of perspectives is very instructive.”Edward O’Brien, executive director of the Washington, D.C.–based Street Law Inc., stresses that donors can be more proactiveb y, for example, ensuring that the conferences they fund encourage“multinational presentations and participatory methods ofteaching.” O’Brien believes conferences can thus help to breakdown stereotypes and erode prejudices and chauvinism.Monica Platek of the Polish Association of Legal Educationsays that in the embryonic stage of a field or program such as PIL,donors should be proactive to ensure that grantee groups gainskills in project planning, budgeting, and proposal writing.F u r t h e r, she believes donors should actively encourage granteee fforts toward the development of second-tier leadership, both towiden networks and to nurture future NGO leaders.Two specific experiences with proactive approaches in theF o u n d a t i o n ’s PIL program are worth comparing. In the first,Foundation staff decided to fund the establishment of a legalresource center, having consulted with local experts to confirmthe need for such an organization. An enthusiastic host org a n i z a-tion was identified, and extensive discussions were held in anattempt to establish a shared vision for the project. After twoyears in operation, however, the Foundation concluded that thee ffort had failed, and ended its support. According to Schull,“[O]ur mistake was to believe that a project could be entrusted toan organization that did not understand or own it fully. In retrospect,we should have understood that the protracted planningprocess, and the need for continuous involvement by Foundations t a ff to move it forward, was merely a symptom of the project’sinappropriateness.”

2 4 6 CA S E ST U D I E SThe Foundation’s partnership with the Hungarian CivilLiberties Union (HCLU) has been far more successful. Ford contactedHCLU because of its experience in promoting individualcivil liberties. While such work was new to Hungary and theg r o u p ’s model derived from foreign organizations, it had alreadybeen appropriated by these local legal activists. Foundation staffencouraged the HCLU to focus on high-impact cases, in additionto individual legal services. Staff also took the lead in urging thatthe group’s budget include line items for organizational developmentand fundraising expenses. To d a y, HCLU’s work focusesl a rgely on patients’ rights, privacy rights, and freedom of information.Its activities include impact cases, individual legal services,education of policymakers, and public education.The HCLU’s emphasis on high-impact cases has led to somenotable successes. In 1997 HCLU brought suit against a hospitalfor the inhumane treatment of a psychiatric patient who had beensubject to electric shock treatment and was denied family visits.At that time, there was no legal standard on the treatment of psychiatricpatients. The suit asked for damages and for a declarationthat such treatment was in violation of the patient’s rights.The court adopted HCLU’s arguments using both civil law andthe new human rights provisions of the 1989 HungarianConstitution. This was among the earliest uses of Hungary’s newhuman rights laws. Furthermore, the case gained much pressattention and was used as a tool to educate the public andParliament. Later, HCLU educational materials were reviewedby members of Parliament before passage of the new 1998Health Act, which incorporates patients’ rights such as informedconsent as a precondition to medical or psychiatric treatment,confidentiality of medical records, and the right to refuse lifesustainingtreatment.S t rengthening the Legal Pro f e s s i o nAnother aspect of the PIL program has been to introduce PILconcepts and strategies to other activists and lawyers. It is hopedthat this will increase the legal resources available to groups aswell as nurture a PIL ethos within the profession. For Jan

EA S T E R N EU RO P E 2 4 7Hrubala, a young judge and vice president of the Association ofSlovak Judges, the 1996 PIL program symposium was a turningpoint. Following the symposium, he left his promising judicialcareer to establish and work with the Centre for Environment andPublic Advocacy (CEPA) in the Slovak Republic. He explained atthe subsequent 1997 symposium that he had left the bench to persuadeothers that many issues come before the courts unnecessarily, while other problems that never reach court merit greatera d v o c a c y. His former fellow judges first looked askance at hisactivities, Hrubala said, but attitudes were gradually changing andhe hoped that students would be attracted to this kind of work. 2The increased presence of PIL activity and organizations hashelped draw the attention of private practitioners in Poland to theproblem of public mistrust of the legal system. Wo j c i e c hHermelinski, a private attorney and vice dean of the Warsaw BarCouncil, states, “More private lawyers now even accept indigentclients and apply to courts for exemptions of fees based uponArticle Six of the European Convention on Human Rights.”Article Six establishes the right to fair trial, and the right to freecriminal defense for the indigent in countries of the Council ofEurope. The fee Hermelinski refers to is a required minimuma t t o r n e y ’s fee established by the bar to prevent competitionbetween attorneys. He notes, however, that the influence of fledglingPIL groups in Poland is still weak, and he believes a successfuldonor strategy must involve lawyers in private practice, aswell as judges and prosecutors. In his view, the training of judgeson the European Convention, made possible by funds provided bythe Council of Europe, has enabled and encouraged more lowercourt judges throughout the country to rely on the Convention intheir judgments.In Hungary, the Legal Defence Bureau for National andEthnic Minorities (NEKI) describes the effect of PIL activities onprivate lawyers who had been skeptical of their potential impactin small public interest or human rights cases. According toNEKI, private practitioners now display greater willingness totake on such cases as they observe some of NEKI’s successes andgain confidence in its tactics and strategies. Director ImreFurmann explained that in the past NEKI actively and with diff i-

2 4 8 CA S E ST U D I E Sculty sought help from private lawyers, but now many lawyerscome forward to offer their assistance. CEPA has observed a similarinterest develop in Slovakia, according to Hrubala.Interest by students and public communities in PIL a l s oappears to have had an effect on private practitioners, accordingto staff at Krakow’s Jagiellonian University Law Clinic, whichsends law students into Poland’s courts to assist lawyers. T h ec l i n i c ’s staff has noticed that the students’ presence adds scrutiny,which has improved the level of service that lawyers offer indigentclients. Street Law Inc. has found that lawyers who teachcommunity legal literacy in Eastern Europe programs go intocommunities and learn important lessons about public perceptionsof law in society.A small or closed legal profession, especially in the context ofmany new alternative economic opportunities, diminishes thenumber of lawyers serving public interest causes and org a n i z a-tions. Catholic University law professor Wortham points out, “Agrowing economy may not trickle down to deliver more . . . legalservices for those in need.” She recommends that in developingstrategies, donors consider the routes by which people enter thelegal profession and provide support for international comparativeresearch on the relationship between access to the professionand access to justice in various countries. Other strategies toincrease the practice of PIL, she suggests, might include professionalexchanges among lawyers’ associations and policymakersfrom diverse countries focusing on the numerous benefits of anopen profession and potential reforms toward that end.Comparative research might also include the various methodscountries use to encourage or require pro bono and other publicservice law work.One way the PIL program has sought to strengthen the professionis through legal education that offers substantive and proceduralinstruction, instills public service values, and providesopportunities for practical experience. NGO partners wereencouraged to offer internships to law students and graduates, andto solicit pro bono work from recent graduates now in privatefirms. While law students’ perspectives were broadened by suchexperiences, these efforts could not reach enough law students oryoung lawyers with the right skills and at their most formative

EA S T E R N EU RO P E 2 4 9stage. The most direct link between formal legal education andP I L appeared to be the university-based law clinic. Experienceelsewhere shows that clinics can provide practical skills thatimprove legal education, encourage PIL careers, supplement otherlegal services, nurture values in the legal profession, and increasepublic understanding of the legal system.The Warsaw Bar Council’s Hermelinski believes a multiprongedprogramming strategy best supports these goals. Policyand regulatory reforms are needed in some countries to allowsupervised student appearances in court. Public education work isneeded to promote attitudinal changes in society and make PILcareers desirable to students. Without these additional components,Hermelinski points out, any grant program for clinics in theregion may fall short of its full potential.Others interviewed shared suggestions to foster the clinics’various objectives. Hofstra law professor Krieger believes thatintegrating community-based organizations and other civil societygroups into the operations of the clinic from the start wouldextend the PIL impact of clinics beyond their educational purpose.This, he says, would bring students and instructors into contactwith “people who see and experience the patterns of abuseand disadvantage that the clinic is meant to address.” In Polandand Hungary, Ford-funded clinics and NGOs have establishedsome forms of cooperation. The clinic at the University ofWarsaw intended to serve clients referred by two women’sgroups, as well as the Polish Helsinki Committee. In Budapest,the Hungarian Helsinki Committee has a formal relationship witha clinic where it is responsible for case selection. According toFerenc Koszeg, executive director of the Hungarian HelsinkiCommittee, this contributes to the pedagogical value of the clinicby ensuring that students are addressing important human rightsand constitutional issues.Professor Eleonora Zielinska of the University of Wa r s a wbelieves the use of NGOs for case recruitment or selection is agood strategy for clinics. For one, she is convinced that contactbetween students and NGOs is important to creating good PILlawyers. She cautions, however, that all involved need to beextremely clear as to who controls case strategy. Given the natureof PIL litigation, and the multiple tactics it uses, there may be

2 5 0 CA S E ST U D I E Sconflicts between the short-term interest of the clinic’s client andthe longer-term interests of larger causes. A conscious and carefullyconsidered balance between these interests should be pursu e d .Platek urges universities and donors to encourage more linksbetween community legal literacy efforts and law clinics.Community literacy programs can identify clients for clinics andclinics can propose target communities and topics for instruction.Donors can also do more to help clinics successfully integratewith law faculties in the region. COLPI, for instance, has conveneda meeting of law school deans to inform them of the benefitsclinics have achieved elsewhere. Such efforts would facilitatesustainability and access to the resources and talents of universities.This is particularly important in Eastern Europe where, asGross notes, some faculties have been resistant to the concept ofclinical legal education, believing that practical application is aninappropriate role for a student.Wortham suggests that donors can assist this goal by, whereverpossible, supporting clinic founders that have professional statuswithin the host faculty. “Establishing a clinic by recruitingoutside staff usually makes bad programming sense,” she says.She cites as an example the early days of the clinical educationmovement in the United States. Societal circumstances were ripeand student interest was high, but law schools recruited practitionerswho found it difficult to gain full acceptance within lawfaculties. This problem was somewhat alleviated when academiccredit for participation in clinics was offered. “Look for enthusiasmwithin the faculty,” she advises donors. “Don’t worry if theadministration is lukewarm or students enthusiastic. What drivesmost law schools is faculty interests.”Wortham also urges that donors ensure that clinical instructorsare integrated into the normal salary structure of the law facul t y. They should not be allowed to work on a voluntary basis orfor less compensation than other law teachers do, she says. T h a twould not institutionalize the clinic and its benefits, but wouldonly capture the opportunity presented by a committed staff. Toensure success, Wortham adds, a donor should fund a clinic well,even if it is the sole initial donor, and provide clinical instructorssalaries that are comparable to other law faculty.

EA S T E R N EU RO P E 2 5 1Exchange programs and site visits, other staples of PIL d o n o rprogramming, should be planned carefully, say staff atJagiellonian and Warsaw universities. Such opportunities shouldbe of sufficient length to ensure clinicians’ actual acquisition ofnew methods or skills. Placements need not always be at foreigninstitutions, although this can often be beneficial. Where possible,donors should utilize examples of clinics that operate within similarlegal, socioeconomic, and educational environments. The mostestablished or prestigious clinics are not always the most instructiveexamples even in the same country. Offering them as learningmodels might unintentionally discourage fledgling efforts orunderresourced universities. Finally, when foreign experts areused for short-term training purposes, they will likely reach moreclinicians if donors bring them to the target country or regionrather than sending small numbers of trainees abroad.It is also inspirational, according to Zielinska, for fledglingclinics to see themselves as part of a new regional movement.Common problems then seem less insurmountable; commonresearch can be undertaken and solutions fashioned. An exampleis the added momentum that the push for student practice regulationshas sustained in Eastern Europe. Clinics in the region arenow working together to develop model rules of student practiceto be proposed for adoption in each country. A regional associationof university clinics might be helpful to this young clinicalmovement in much the same way that the Helsinki Committeenetwork continues to encourage the human rights movements inindividual countries of the region.Sharing Best Practice and ModelsSeveral PIL groups suggested that donors should consciouslyseek to develop a few promising local organizations as models forlater emulation in the region. To do this successfully, donorswould adopt a long-term approach to organization building and bewilling to maintain support through inevitable staff changes andfluctuating periods of success and failure.The use of any foreign model can also be a long-term andevolving process, and such efforts have met with mixed success.In some instances this process has occurred relatively smoothly

2 5 2 CA S E ST U D I E Sand quickly. The Helsinki Committees that have been replicatedin different countries of the region are one example. HCLU,which patterned itself on the American Civil Liberties Union, isa n o t h e r. Borislav Petranov of the London-based INTERIGHTSobserves, however, that international groups have been viewed inmany ways: as mentors, imposers, agenda setters, and cofounders,just to name a few. As a result it normally takes a long time todevelop sound international relationships, he says. “Sometimesthere is an overdemand on international organizations as modelsand a lower- i n t e n s i t y, longer-term presence is needed.”S t a ff exchanges or placements, conferences, and subgrantshave all been successfully used by various groups in the region asmethods for conveying and replicating best practice. OSI andFord have had success in the past few years incubating smallerhuman rights NGOs in Poland by funding a small grants programimplemented by the Polish Helsinki Committee. Both donorshave also supported the replication of the work of the EuropeanRoma Rights Center (ERRC) across national borders by allowingsubgrants to be fashioned and awarded by that regional group.The use of foreign experts to transmit experience should bedone with care, cautions Platek. More than one interviewee feltthat many foreign experts did not display the personal sensitivity,m o d e s t y, or deference necessary to be effective. Careful choiceand preparation of outside experts is essential, so that the substanceof what they have to share can be appreciated.Sustainability and Organizational Capacity Building of Gra n t e e sThe different types of sustainability and capacity-buildingchallenges facing PIL groups in Eastern Europe are exemplifiedby the experience of NEKI in Hungary. Although not its area ofexpertise, NEKI found itself giving essential managerial andadministrative advice to Kesaj, a smaller group based in neighboringSlovakia. Both NEKI and Kesaj are devoted to addressingthe plight of the Roma. Kesaj, originally established as a culturaltheater for Romani people, expanded to provide legal services.Although its managerial capacity had begun to improve, Kesajwas forced to close due to a lack of funds, exacerbated by a newSlovakian law on philanthropy. According to NEKI, the new law

EA S T E R N EU RO P E 2 5 3made the organization subject to heavy taxes and a minimumbudget requirement. NEKI’s management assistance to Kesaj, andits observation that similar needs were widespread, led it to concludeemerging PIL NGOs would benefit from professional consultingservices in management and administration. NEKI furtherpoints out that in order to build PIL as an institution in the region,NGOs and their donors must address three separate challenges too rganizational and institutional development: internal managementand administration capacity, indigenous philanthropy, andgovernment policies.Both NGOs and donors interviewed spoke of the need todiversify sources of financial support toward greater sustainabilityof PIL groups in Eastern Europe. Some referred to morediverse foreign sources while others mentioned fostering indigenousphilanthropy from individuals and the emerging private secto r. Still others suggested government subsidies and incomegeneratingactivities by NGOs. Both PIL groups and donors alikeassert that diversified fundraising needs to be a more prominentaspect of an institution’s development strategy. On the donor’spart, this might involve greater collaboration within its own staffor with other donor agencies that have experience in incomegeneratingprojects and indigenous philanthropy.The development of second-tier leadership is another criticalneed. Many PIL groups in the region are still managed by theirfounders and have yet to develop skilled leaders-in-waiting. Aloss of leadership could have a devastating effect on those org a n i-zations. To mitigate or prevent this, a donor’s programmingapproach might wisely include early efforts to develop and retaina second tier of leaders. This is particularly important in transitionalsocieties characterized by the fluid movement of personnelbetween civil society organizations, government, and a growingprivate sector.S t a ff of more than one group asserted that a funding strategythat made smaller grants but longer-term commitments would betterserve the sustainability of their organizations. They indicatedthat ceilings on grant awards would relieve the felt pressure toscale up activities and spending as a measure of success.Premature expansion, they worry, could damage long-term eff e c-tiveness. In contrast, extended funding commitments would

2 5 4 CA S E ST U D I E Senable long-range program planning and promote staff stability.Donors and grantees could then build staff training and othero rganizational development activities into budgets.This approach is worth consideration by donors when theyhave identified a PIL grantee partner that they seek to scale upover a period of years. It could also be used as a strategy forencouraging a grantee’s consistent attention to securing diversifiedfunding. It might be prudent, however, to couple this programmingapproach with other strategies such as regular assessmentsor evaluations to ensure the effectiveness of the PIL g r o u pthroughout the period of the long commitment. It was also suggestedthat endowment grants, which can foster simultaneouslystability and experimentation, be used more flexibly and creativelyas a tool for sustaining a new field such as PIL. Yet endowmentsare clearly not right for every grantee, especially thosewithout proven track records.The Czech and Polish Helsinki Committees and Foundations t a ff each described the usefulness of planning grants to increasesustainability and capacity. Initial planning grants were awardedin the early 1990s as these human rights groups were evolvingfrom underground dissident movements to organizations withmore direct involvement with their country’s changing legal systems.The grants allowed them to assess conditions, identify clearmissions, and research and formulate strategic plans. In theprocess, the Foundation learned more about the legal, political,and cultural environment these groups were working in, and wasable to assess programming opportunities and limitations. T h egrants enabled the committees to pursue processes of institutionalreview and restructuring while maintaining core activities. DanutaPrzywara of the Polish Helsinki Committee says that the initialplanning grant enabled them “to think carefully about new goalsand methods and . . . to plan and consult specialists without suspendingother activities.” Jana Chrzova of the Czech HelsinkiCommittee emphasizes that the opportunity for strategic planningwas especially important at a time of some public doubt about thecontinued need for human rights NGOs in the new democracy.The planning period also helped the Czech Helsinki Committee todefine a complementary role with respect to the Slovak HelsinkiCommittee after the breakup of Czechoslovakia.

EA S T E R N EU RO P E 2 5 5More recently, after approximately five years in both cases,Foundation staff made subsequent planning grants to the committeesto support a second phase of strategic long-term planning.These grants enabled each group to review its role within a nowwider PIL and human rights community. While experts stress howimportant planning grants can be to helping organizations sustaind i fficult periods or transitions, they also emphasize that planningshould not be used as a substitute for project delivery or be mandatedby a donor when it is not merited by special circumstances.Last, both grantees and Foundation staff suggest that moreattention should be given to performance assessment as a meansof capacity building for PIL o rganizations in Eastern Europe.Grantee groups suggest assessments as a way to gain practicallessons that can be fed into their future decisionmaking and work.Foundation staff express the need to couple their current performancemonitoring with other forms of assessment that include morequalitative and quantitative data on the impact of the new program,the network, and specific groups. Some intervieweesemphasized that more formal assessments might be premature forfledgling groups in the new PIL c o m m u n i t y, especially in themidst of rapidly changing and unpredictable contexts. Othersstressed the positive role that studies on societal impact and projectperformance can play. Participatory forms of assessment thatinvolve PIL s t a ff, clients, donors, and other stakeholders weresuggested in light of some of these concerns.Networks or Coordinating Structure sAnother strategy employed by the PIL program is the use of anetwork support service. The New York City–based PublicInterest Law Initiative in Transitional Societies (the Initiative) hasdelivered useful follow-up assistance to PIL groups that collaboratedat the two symposia, as well as to the emerging network ofP I L groups in Central and Eastern Europe and the former SovietUnion. Initiative Director Rekosh describes the organization as ashort-term, external catalyst for the PIL network. Its activitiesinclude seminars, publications, electronic communications, andtechnical assistance. One 1998 seminar examined state-supportedindigent defense and legal services programs. Another seminar

2 5 6 CA S E ST U D I E Swas focused on university-based law clinics. Seminars add substantivelyto the groups’work, reinforce their mutual reliance, andprovide opportunities to learn from each other’s experiences.Initiative publications, disseminated to policymakers and the privatelegal profession, as well as PIL groups, attempt to identifynew possibilities for activists and to provide a forum for debate. Ito ffers news bulletins on developments in the field, documents,resource lists, job postings, and other materials on its website andby e-mail. The electronic network is also used to survey activitiesand needs. The Initiative invites requests for technical assistanceand helps groups connect with appropriate resources.By all accounts, the Foundation’s programming approach toP I L in Eastern Europe, including the Initiative network support,has been extremely important in promoting the network’s cohesiveness,especially its regional aspect. Groups within the networkemphasize different factors that they believe are responsiblefor this success. For example, some credit the history of cooperationat the earlier symposia. They doubt that network supportcould be used successfully without some similar grounding. Manypeople agree that the Initiative’s independence from any particularorganization enables it to keep the needs of the network paramount,and to avoid being dominated by any one group’s needs,expertise, or interests.Some interviewees believe it would be more practical ande ffective to locate such an entity within the region it serves. T h e ybelieve this would allow more direct contact between the structureand PIL groups, greater access to its offices and services, andmore engagement in the issues groups face and their changingneeds. Others interviewed believe an outside locus increasesawareness of and access to external resources for use in theregion. More than one interviewee emphasized that the eff e c t i v e-ness of such an entity depends less on where it is than on how it isrun, and on the quality of its relationships with the groups it isdesigned to serve.C ro s s - S e c t o ral Prog ramming and Gra n t m a k i n gBy employing a grantmaking strategy wider than PIL—onethat crosses sectors but targets a disadvantaged population

EA S T E R N EU RO P E 2 5 7group—the Foundation has been able to magnify the effects ofseparate grants. For example three grantees, ERRC, NEKI, andAutonomia, all work with Hungary’s Roma minority, which constitutes5 percent of Hungary’s population. Roma suffer severesocial and economic hardship, including prejudice, poverty, anddiscrimination and an unemployment rate of nearly 90 percent insome communities. The three grantees contribute to Roma socialand economic empowerment in different ways. Autonomia, theHungarian Foundation for Self-Reliance, while not a part of PIL,provides Roma with grants and loans for self-help initiatives tobuild economic and social autonomy. ERRC and NEKI providelegal services and use the law to pursue Roma rights.The experiences of two specific communities convey this lessonvividly. In late 1997, a racially motivated murder of a Romafisherman took place in the community of Tunyogmatolcs innortheastern Hungary. The murder followed racial abuse and verbalinsults. The first official response was to not prosecute thecase, claiming lack of evidence. NEKI, which is partially supportedby ERRC, provided legal advice to the victim’s family in theirsuccessful effort to secure prosecution, and a conviction ensued.The deceased had been the principal income earner in his household.During and after the trial, Autonomia helped the family tomaintain their income through a microenterprise project.Autonomia also supported others in the same community. A n n aCsongor of Autonomia explains that it was important and instructivethroughout the community that Roma found two vehicles forsupport, and that their interests could be pursued in both the newlegal and economic systems.Recsk is another community in which Autonomia works innortheastern Hungary. Csongor believes the economic empowermentthat grew from A u t o n o m i a ’s earlier work there resulted inincreased social confidence and an assertion of human rights.When a school official directed racial slurs at children, a parentsought NEKI’s legal help. In this instance, NEKI combined a publiceducation campaign with out-of-court negotiations and a complaintto the Ministry of Education to bring an end to the racialabuse. Autonomia believes its ongoing work toward economicempowerment could be furthered by PIL e fforts to fight discriminationin employment and financial lending.

2 5 8 CA S E ST U D I E SC o n c l u s i o nThe PIL network in Eastern Europe continues to expand. Afew of the PIL groups supported by the Foundation also went onto conduct their own grant programs, a development that allowsthe Foundation to indirectly support additional smaller groups andto reach more remote areas.But PIL’s accomplishments cannot be measured by the numberof its organizations. The true potential of PIL—a young networkand Foundation program, dating only to the mid-1990s—and itssocial impact in Eastern Europe have yet to be realized. The programand its partners have laid new foundations for the acceptanceand practice of PIL. A new legal community has been strengthened,one that uses law and legal institutions to pursue social andeconomic justice for the disadvantaged. Former Ford FoundationDeputy Director Schull recognizes the significance of PIL, and theimportant role of the Foundation and other donors with which ithas collaborated. “I think that we struck a vein and brought togethera field in its early stage of development,” he says, “when itsmembers can most benefit from the networking and professionalexchange that the Foundation is well placed to support.”In its few years, the program has provided the Foundation andits grantee partners many early, yet valuable, insights. Since themain body of this chapter sets out a variety of donor programmingapproaches, only a few of the most salient ones are summarizedhere.Lessons and Insights1 . The PIL grantmaking program in Eastern Europe confirmsa common caution heard about other donor programs andsettings: sensitivity to context is important when transplantingconcepts and methods both between and withincountries. Donor flexibility is advisable to allow finetuningand adaptation of PIL methods to the different settingsof Eastern Europe. At the same time, Foundation staffhave learned that it is equally important, given the newnessof PIL approaches in the region, to maintain a clear senseof donor program objectives.

EA S T E R N EU RO P E 2 5 92 . The experience of Ford and COLPI with PIL in EasternEurope reaffirms how beneficial donor collaboration canbe for both donors and grantees. Such cooperation hasexpanded the pool of experts and other resources availableto PIL groups and helped inform donor strategies.3 . The Foundation’s proactive approach has contributed to thesuccess of the Eastern Europe PIL program. Reactive programmingapproaches, however, have also been productivelyused, especially in the early stages of grantmaking.4 . The goals of university-based law clinics can be furtheredby multipronged programming strategies, such as publicpolicy work that pursues regulations allowing supervisedstudent appearances in court, and public education work topromote careers in PIL. Cooperation between clinics andother civil society organizations can also be integrated intothe operations of clinics to ensure that they more eff e c t i v e-ly address PIL objectives. Donors can help clinics integratemore effectively with law faculties, thereby increasingopportunities for sustainability through access to universityresources. Strategies for doing this include supporting individualsalready within faculty structures, where possible,and putting clinical instructor salaries on par with otherlaw faculty salaries.5 . P I L o rganizations in Eastern Europe could be enhanced bygreater attention to building capacity in management andadministration. In some cases, professional services will beneeded in strategic and long-term planning, project management,and project assessment for PIL N G O s .Furthermore, the experiences of organizations confirm thatthere are limits to this type of internal org a n i z a t i o n a ldevelopment in isolation. The need for indigenous philanthropyand government policies on the broader NGO sectordemand attention as well. It may require greater collaborationwithin and between donor agencies. Some granteesrecommend smaller grants but longer commitments bydonors. Planning grants proved to be useful programmingtools to assist sustainability of the Czech and PolishHelsinki Committees as they matured from dissident andu n d e rground human rights groups after 1989.

2 6 0 CA S EST U D I E S6 . The PIL meeting and two international PIL s y m p o s i aproved very useful, according to participants. They carriedadded programming significance because of the newnessof the PIL field; and the common challenges faced bycountries in the region, such as negative public attitudestoward the legal system and the previous isolation of theparticipants. The non-U.S. venues and presence of somany non-American resource persons enhanced the gatheringsfurther in confirming that PIL is not just a U.S.concept, and that it is being successfully used by othersocieties undergoing transitions. As a follow-on structureevolving from the symposia, the Initiative provides bothcontinuity and ongoing services to the newly emerged PILnetwork, and thereby enhances the benefits of the twos y m p o s i a .7 . Cross-sectoral grantmaking encourages synergy betweenlegal services and economic development sectors, as illustratedby the three grantee groups in Hungary working onissues related to the Roma population. This suggests apotential to similarly use PIL to enhance other nonlegale fforts with additional constituencies.N o t e s1 . See Dimitrina Petrova, “Political and Legal Limitations to theDevelopment of Public Interest Law in Post-Communist Societies,”Parker School Journal of East European Law 3 (1996): 5 4 1 – 5 6 7 .2 . Public Interest Law Initiative in Transitional Societies (1997),Symposium on Public Interest Law in Eastern Europe and Russia, ASymposium Report, p. 11. New York: Columbia University.A p p e n d i x :People Interv i ewed for This StudyKaroly BardResearch Director, Constitutional and Legislative Policy Institute,B u d a p e s t

EA S T E R N EU RO P E 2 6 1Pavel BilekDeputy Director, Czech Helsinki Committee, PragueBebs ChorakDeputy Director, Street Law Inc., Washington, D.C.Jana ChrzovaExecutive Director, Czech Helsinki Committee, PragueAnna CsongorExecutive Director, Hungarian Foundation for Self-Reliance(Autonomia), BudapestLilla FarkasLegal Expert, Legal Defence Bureau for National and EthnicMinorities (NEKI), BudapestImre FurmannD i r e c t o r, Legal Defence Bureau for National and EthnicMinorities (NEKI), BudapestIrena Grudzinska GrossProgram Officer for Eastern Europe, The Ford Foundation, NewYo r kWojciech HermelinskiAttorney and Vice Dean, Warsaw Bar Council, Wa r s a wJan HrubalaCentre for Environment and Public A d v o c a c y, Ponicka Huta,S l o v a k i aFerenc KoszegExecutive Director, Hungarian Helsinki Committee, BudapestRichard C. KraemerDevelopment Off i c e r, Jagiellonian University Law Clinic,K r a k o w, Poland

2 6 2 CA S E ST U D I E SStefan KriegerP r o f e s s o r, Hofstra University Law School, Hempstead, NYRobert KushenDeputy Director, Open Society Institute, New Yo r kEwa LetowskaM e m b e r, Polish Helsinki Committee, Wa r s a wHalina NiecP r o f e s s o r, Jagiellonian University Law Clinic, Krakow, PolandZaza NomaradzeDeputy Director, Constitutional and Legislative Policy Institute,B u d a p e s tEdward O’BrienExecutive Director, Street Law Inc., Washington, D.C.Martin PalousChairperson, Czech Helsinki Committee, PragueBorislav PetranovLegal Off i c e r, International Centre for the Legal Protection ofHuman Rights (INTERIGHTS), LondonDimitrina PetrovaExecutive Director, European Roma Rights Center, BudapestM a rgo PickenFormer Program Officer for Human Rights, The Ford Foundation,New Yo r kMonica PlatekExecutive Director, Polish Association of Legal Education,Wa r s a wDanuta PrzywaraSecretary of the Executive Committee, Polish Helsinki Committee,Wa r s a w

EA S T E R N EU RO P E 2 6 3Edwin RekoshD i r e c t o r, Public Interest Law Initiative in Transitional Societies(PILI), Columbia University Law School, New Yo r kJoseph SchullFormer Deputy Director for Russia and Eastern Europe, The FordFoundation, New Yo r kGabriela SchwarzInternational Program Director, Street Law Inc., Wa s h i n g t o n ,D . C .Maria SzewczykDirector and Professor, Jagiellonian University Law Clinic,K r a k o w, PolandFranklin A. T h o m a sFormer President, The Ford Foundation, New Yo r kGabor Attila To t hProject Director, Hungarian Civil Liberties Union, BudapestVeronika UjvariProject Manager, Hungarian Civil Liberties Union, BudapestEva Vi s z l oO ffice Manager, Legal Defence Bureau for National and EthnicMinorities (NEKI), BudapestFilip We j m a nStudent Assistant, Jagiellonian University Law Clinic, Krakow,P o l a n dLeah Wo r t h a mAssociate Professor, Catholic University Law School,Washington, D.C.Monika ZacnyStudent Assistant, Jagiellonian University Law Clinic, Krakow,P o l a n d

2 6 4 CA S E ST U D I E SEleonora ZielinskaP r o f e s s o r, University Center of Legal Aid, University of Wa r s a wFaculty of Law, Wa r s a wG roup Interv i ew sS t a ff of the Hungarian Helsinki Committee, BudapestStudents of the Jagiellonian University Law Clinic, Krakow,P o l a n d

PA RT 2Thematic Pe r s p e c t i ve s

8U n i versity Legal Aid Clinics:A Growing InternationalP resence with Manifold BenefitsAU B R E Y MCCU T C H E O NIn many different countries, university legal aid clinics facilitatethe use of law in the pursuit of broad social justice goals. In somecontexts university clinics have relatively long histories, while inothers they have existed only a few years. As would be expected,such clinics take different forms, and they continue to developwith the changing social and political landscape. This chapterdescribes how Foundation-supported legal aid clinics are beingused throughout the developing world. It discusses what clinicscan offer to social justice agendas, and why legal practitioners,educators, and donors might consider launching and supportingthem. Finally, it gives some insights that could help such universityprograms get off to a good start and assist them in pursuingsocial justice goals over time.A variety of definitions may apply to university legal aid (orlaw) clinics. The focus of this discussion is primarily on universitybasedor affiliated clinics that involve law students in providingactual client service, rather than those that offer students onlysimulations and practical exercises. Most of the clinics discussedhere also include classroom and lecture components, and someaward student and teaching credits. Those described explicitlyserve disadvantaged sectors of their societies with the aims ofimproving people’s lives, securing justice, and advancing civil,political, economic, social, or cultural rights. In different settingsthese efforts have been initiated with different components and2 6 7

2 6 8 TH E M AT I CPE R S P E C T I V E Sfoci. Most notably, successful clinics often begin modestly, withgreat simplicity, under difficult circumstances and without significantresources.The first legal aid clinic at a U.S. university was spawned bystudent volunteers seeking to provide free legal advice around theend of the nineteenth century. The growth of clinical programswas motivated by their practical educational value during thedecades of the 1920s and 1930s. From the 1960s onward, theygrew steadily and increasingly served the needed additional functionof expanding legal services for A m e r i c a ’s poor and underprivileged.The Ford Foundation was instrumental in that expandedpurpose, and clinics in the United States continue to makeessential contributions, now supported largely by university budgets.This chapter, however, will focus on clinics outside theUnited States.It should also be mentioned that some university clinics existto provide training and client service toward a variety of othergoals. For example, the World Bank–affiliated Russian Foundationfor Legal Reform has supported university clinics in commerciallaw and small business law, examples of which can alsobe found around the world. The Ford Foundation’s own experience,however, is largely with clinics that pursue social justicegoals which connect with broader Foundation grantmaking programsin furthering public interest law, access to justice, andhuman rights. This discussion reflects that experience.A Growing Multinational Pre s e n c eOne of the greatest obstacles to the creation of new clinics isthe assumption that clinical legal education and clinical servicesare entities of only the developed world. In fact, the benefits ofuniversity legal aid clinics have been realized over time in somed i fficult political and economic circumstances, and in countrieswith diverse legal systems. In some countries, fledgling clinicswere started as recently as the 1990s.When Bangladeshi law faculty members greeted the clinicapproach with initial doubt, the Foundation arranged for them tovisit a pioneering clinical legal education program in Nepal.There, they saw that such a program could function eff e c t i v e l y

UN I V E R S I T Y LE G A L AI D CL I N I C S 2 6 9without major long-term foreign funding and in a society similarto Bangladesh in some important respects. The Foundation alsofunded Bangladeshis to visit and study a clinic in Sri Lanka and at e n - y e a r-old clinic at the National Law School (NLS) of IndiaUniversity in Bangalore. At NLS they saw students contributingto a range of services, typically without academic credit. T h e s eincluded client counseling, mediation, litigation preparation, communitylegal literacy instruction, paralegal training, and empiricalresearch toward law reform.Clinics have survived extraordinarily difficult political andeconomic circumstances, even in regions where overt humanrights activities are no longer possible. A clinic at Sudan’sUniversity of Khartoum was begun in 1984 and continued into1998. While its work had been limited, it was a focal point forboth staff and students interested in law and social justice. It providedsupplemental lectures on law practice and offered legalservices mainly for university staff and students.University legal aid clinics have grown to be a fundamentalpart of the legal infrastructure in South Africa. They firstappeared in the early 1970s during the height of apartheid, whenlaw was pervasively used as an instrument of oppression and segregation.By the early 1980s, most of South A f r i c a ’s twenty-onelaw faculties had established clinics, and by the mid-1990s, theFoundation was supporting eight of those, mostly at traditionallynonwhite universities that suffer the legacy of apartheid policies.Since 1994, the government’s legal aid entity has set up twentyadditional clinics based at universities but using law graduatesunder apprenticeships. Similarly, in a number of South A m e r i c a nnations, clinics have provided individual legal services since thelate 1960s and early 1970s. At the end of 1996, after transitions todemocracy and civilian rule, eight university-based clinics inA rgentina, Chile, and Peru joined to form a new network. T h enetwork, coordinated by Chile’s Diego Portales University LawSchool, was also created to develop broader approaches to publicinterest law in cooperation with other NGOs.During the 1990s, Ford-supported clinics have emerged inother transitional societies. In China, they are helping to implementlegal reforms by enabling disadvantaged groups to exercisetheir rights. Clinics are also utilizing new administrative laws thatprovide a greater measure of government accountability to the

2 7 0 TH E M AT I C PE R S P E C T I V E Spublic, and are taking advantage of the new degree of autonomyallowed for government-supported social organizations. Likewise,fledgling clinics have emerged at universities in the CzechRepublic, Hungary, Poland, and Russia. These too are operatingin difficult circumstances of changing laws and legal procedures,as well as in contexts of long-standing legal nihilism among thepublic and extremely theoretical and conservative approaches tolegal education.Observers are generally optimistic about the potential of thesenew clinics. However, despite their abilities to surmount diff i c u l tchallenges so far, greater success in some cases may depend uponfurther political or educational reforms. Clinical programs caninfluence the latter, but many law schools around the world aredominated by tradition and theoretical methods of teaching. DeanM. Shah Alam of Bangladesh’s University of Chittagong law facultynotes that launching and refining a legal aid clinic is a laboriousprocess.Professor Leah Wortham of Washington, D.C.’s CatholicUniversity Law Clinic assisted the Jagiellonian University clinicin Poland. Her observations when reflecting on that experiencehold optimism for new clinics elsewhere in the world as well.“Clinical education there can build on the successes and mistakesof thirty years or so of development in other countries,” she says.“Advances in communication with phone, travel speed, and electroniccommunication make it much easier for lawyers, teachers,and law students to work with counterparts in other countries anddraw on research sources.” Communications technology can helpmake the experience of other programs available to new clinicparticipants. Within a country as large as Russia, for example, thecreation of an electronic network by the St. Petersburg Institute ofL a w, including course materials and details of training seminarsand meetings, will allow faculty in the dozen or so new clinicalprograms to access information and interact with each other.Clinics’ Manifold BenefitsPractical legal education for students and free legal servicesfor disadvantaged people are the most common, and among the

UN I V E R S I T Y LE G A L AI D CL I N I C S 2 7 1most important, benefits of university legal aid clinics. But theyare not the only ones. Clinics are used to pursue a range of potentialsocial justice benefits in developing countries. While outcomesdiffer by clinic, country, and context, the examples belowillustrate five of the most compelling potential benefits of clinics,including improving legal education, supplementing other indigentlegal services, generating broader social impact, encouragingfuture work in public interest law, and enhancing access to thep r o f e s s i o n .I m p roving Legal EducationThe most commonly known educational benefits of clinics arethe practical “lawyering” skills students gain through workingdirectly with clients on specific problems. In addition, the experiencecan help students to better understand and apply legal theory,as well as to explore weaknesses in legal systems or procedures.In clinics around the world, students gain experience interviewingclients, gathering facts, drafting pleadings and wills,negotiating contracts, examining witnesses in court, presentingoral arguments, and planning case strategy. In some legal systems,would-be lawyers are exposed to such practical matters during apostgraduate apprenticeship before being certified for law practice.Such apprenticeships differ in length and in quality, and theemphasis varies widely depending upon the supervising lawyer.Clinics help students connect the specific subjects taught in thelaw school curriculum to actual experience, which in manyinstances also involves public interest law and work with the disadvantaged.One South American practitioner notes that teachers’involvement in clinics can also positively impact their teachingabilities in the classroom. V. Nagaraj, director of the clinic atNLS, notes that the educational benefits of clinics are now sowidely accepted in India that the Bar Council, which off i c i a l l yaccredits law schools, has recently made clinical education amandatory prerequisite for accreditation. This will expand theeducational benefits of clinics to a greater number of Indian studentsand is a strategy worth consideration in other countries.Some Chinese students have stressed that exposure to practicalskills has helped them to comprehend the concepts presented

2 7 2 TH E M AT I C PE R S P E C T I V E Sin law lectures on both substantive and procedural law. These studentswere referring to their experience at Wuhan University’sCentre for the Protection of the Rights of the Socially Vu l n e r a b l e ,founded in 1992. It now accepts ten law students each year andprovides experience in cases involving senior citizens, women,youth, and the disabled, as well as administrative lawsuits againstgovernment agencies and officials.In Eastern Europe, clinics allow both teachers and students tosee how the law really works—and does not work, says Wo r t h a m .She stresses that supplementing law lectures with practical educationis extremely important in a region where legal education, andthe law itself, has been largely theoretical. To encourage greaterappreciation for the many possibilities of clinical legal education,a seminar was convened in Hungary in 1998 for twenty-five lawschool deans from throughout Central and Eastern Europe. T h eseminar was organized by the Budapest-based Constitutional andLegal Policy Institute, an affiliate of the Open Society Institute,which supports the development of clinics throughout that region.Ty p i c a l l y, universities open clinics to offer training to theirown students, but this is not the only successful approach. T v e rState University outside Moscow is developing a clinical programwith input from Professor M. Rahman of the University of Dhaka,the former head of a Ford-supported legal aid clinic there. T v e rState started a summer school open to fifty law students fromacross Russia. The summer school, which reaches law studentswho already work as volunteers for human rights centers throughoutthe country, uses a hypothetical human rights case as a teachingtool and introduces students to interactive teaching methods.Students have responded positively by introducing the topics andteaching methods to fellow students and faculty in their homeu n i v e r s i t i e s .Supplementing Legal Serv i c e sIn addition to their educational benefits, university clinics canserve as both supplements and complements to other indigentlegal services. Clinics in India and South Africa, to name onlytwo countries, work in contexts where the combined forces ofgovernment legal aid, NGOs, and community-based paralegals

UN I V E R S I T Y LE G A L AI D CL I N I C S 2 7 3still cannot meet the legal service needs of their societies. Clinicsthere use a financial means test to screen potential clients and providefree legal services, typically in targeted communities. Eventhough the unmet need in both countries is still far beyond thecollective capacity of their university clinics, they neverthelesshelp to service particularly egregious cases and oppressed communities,often outside of city centers.In India, clinical legal services are recognized as so potentiallyimportant that the judiciary now actively encourages theirdevelopment, according to NLS’s Nagaraj. The NLS clinic nowoperates from three venues, one attached to the court complex inBangalore, one on campus, and a third in an outlying rural area.The official legal aid entity of the government also recognizes thevalue of clinics as service providers. While students and full-timeteachers are not allowed to make court appearances in India, theywork with clients and prepare cases that are then passed on asneeded to private lawyers who are compensated by the governmentas members of its legal service panel. In addition to thesedirect client services, the NLS clinic trains NGO and communitybasedparalegals who then serve additional people and communiti e s .In South Africa, where there is no adequate state legal servicesprogram, such clinics are often the only options available tothe poor. South A f r i c a ’s university clinics now generally concentrateon “poverty law” but they also aided the struggle againstapartheid by working on cases of police brutality, freedom ofmovement, freedom of residence, detention without trial, racialand ethnic discrimination, and other breaches of fundamentalhuman rights. In some parts of the country, says Lebo Malepe,clinics are the only sources of formal assistance, particularly inthe civil sphere. Malepe works with the Tshwaranang LegalAdvocacy Centre to End Violence Against Women, the first specialistlegal group in that regard. In other instances, South A f r i c a nclinics are providing backup legal services to a larger independentnetwork of community-based paralegals, while referring morespecialized cases to experienced public interest law NGOs, therebycomplementing and magnifying the work of those groups.When university clinics are the primary legal service providers,or where community legal needs are high, special care can

2 7 4 TH E M AT I C PE R S P E C T I V E Sbe taken to manage tension between the two goals of providingadequate legal services and providing appropriate, structured clinicaleducation. This point was emphasized by the late ProfessorM. Shanara Gilbert of the City University of New York LawSchool when she studied and advised seven South African universityclinics as a consultant to the Foundation in 1993. This tensioncan arise from the pressure on instructors to supervise and teachstudents, as well as to manage a demanding caseload. It isincreased by the students’ need for diverse exposure to lawyeringskills that may not always correspond to the clinic’s pendingcases. The inconsistency brought to a client’s case due to studentturnover makes this tension even more acute. Careful managementis required, but there is no easy solution to this problem.Some schools have called upon assistance from adjunct instructorsand private practitioners. In Eastern Europe, new clinics havebegun to use returning clinic students as intermediate supervi s o r s .University clinics can also complement the work of existinghuman rights organizations. In Russia, for example, law facultiesat universities in T v e r, Kursk, and Krasnoyarsk teach and supervisestudents while the human rights organizations employ thestudents, either on a volunteer basis or for a small stipend.Although tensions can also arise between faculty and humanrights organizations, which may have different primary objectives,donors can assist by encouraging fruitful cooperation injoint projects.G e n e rating Broader Social ImpactSome university clinics successfully expand the impact oftheir work by concentrating services on specific legal issues orpopulation groups. Other clinics seek broad impact through classaction suits, where possible. These strategies can complement,inspire, or enable the work of other organizations that focus onthe status of women, the environment, the rights of HIV/AIDSpatients, refugees, asylum seekers, or others. Wide jurisprudentialimpacts and public education can also flow from the work of clinics.Even cases that are lost can help influence the media and publicopinion and increase understanding of human rights and thelegal system. Clinics can enhance this by cooperating with other

UN I V E R S I T Y LE G A L AI D CL I N I C S 2 7 5social justice and nonlawyer NGOs. Likewise, the cases strategicallyselected and litigated by clinics can serve to better informjudges about human rights standards and the magnitude of theirrole in public interest law matters. In other instances, clinics canreveal practical problems in a country’s legal system, inspire policyreview and reform over time, help improve the broader policymakingand lawmaking processes, and encourage greater citizenp a r t i c i p a t i o n .The Palermo University law clinic in A rgentina represents agood example of such an approach. It pursues jurisprudential andpublic education impacts through careful case selection and bycooperating with the A rgentine NGO Citizen Power, which conductsprograms in civic education and citizen participation. T h es y n e rgy of the two groups has been productive. This strategy hasalso been successfully used by others in the network of clinicscoordinated by Chile’s Diego Portales University Law School.This success has been in spite of obstacles such as judicial delays,occasional judicial incompetence, and even corruption.Cooperation with nonlawyer NGOs provides clinics with informationabout social issues and special population groups, whichhelps them select the most representative and viable cases. NGOscan encourage use of clinical services by educating their constituencies.For example, Citizen Power worked with other environmentaland women’s rights activists to prepare publicationsand to teach about the various legal instruments available. NGOscan also carry the impact of clinic cases further by disseminatingresults to the broader public.The clinic network in A rgentina, Chile, and Peru has foundthat even when litigation is ultimately lost, their cases do progressthrough the courts. In the process, ensuing press coverage andpublic education efforts can have important effects on publicopinion, judicial attitudes, and appreciation of human rights andthe roles and protections of law. This benefit is also found in thework of university clinics in China. An example is the BeijingbasedCentre for Wo m e n ’s Law Studies and Legal Servicesof Peking University (Peking University Wo m e n ’s Centre).Observers and staff note that its cases cause both women and themedia to pay closer attention to the effects of law and the legalsystem on women and inspire more women to utilize the systemby coming forward with legal grievances.

2 7 6 TH E M AT I C PE R S P E C T I V E SA greater challenge in clinical work is often the education ofthe judiciary itself. Some judges are sensitized to public interestissues by the arguments presented in particular clinical cases. Ye ta report by the Diego Portales University clinic on public interestlitigation explains that “making the judges familiar with the languageof public interest law and persuading them of their key rolein this matter seems to be the toughest challenge to confront.”Some interviewed argue that increasing litigation on public interestmatters, and systematizing it to affect judicial education, willhelp judges realize the magnitude of their role. Through permanentstaff lawyers, assisted by students and educational objectives,clinics are often well placed to conduct the public interestlitigation that pursues these broader social goals with the publicand the judiciary. Nevertheless, cases should be carefully selected,researched, and developed in the interest of the client and forother public impacts. This is especially important because litigationof this type is often opposed by powerful and well-resourcedinterests that can easily afford the best and most extensive legala s s i s t a n c e .The Peking University Wo m e n ’s Centre has developed theauthority to challenge legal, practical, and policy obstacles tow o m e n ’s equality. This is true even though many of its cases havebeen unsuccessful. Its cases and publicity efforts may be helpingto focus the attention of policymakers and officials on the ways inwhich law and the courts inadequately address, and even perpetuate,the problems facing women in China—conditions such asexploitation in employment, discrimination, and domestic viole n c e .The benefits of the Peking University Wo m e n ’s Centre diff e rin nature from the impacts sought by the Palermo University clinic.Some cases filed by the center test the routine application ofw o m e n ’s rights laws. For example, one case was filed against aBeijing employer who refused to pay wages to a group of womenfor over two years. Other cases test the willingness and ability ofChinese courts to enforce judgments. In still other cases, the centerdraws attention to the way local corruption can exacerbate violationsof women’s rights. In addition to providing women withindividual legal services, the center’s work has led to increasedgovernment scrutiny of obstacles to women’s rights.

UN I V E R S I T Y LE G A L AI D CL I N I C S 2 7 7In an unusual demonstration of a clinic’s policy impact, theUniversity of Natal-Durban’s clinic in South Africa helpedresearch and formulate new policies on community participationin development planning. The clinic’s client was a provincial government,but it also played an important role in helping communitiesand citizens to access and understand the policymakingprocess and the opportunities for influencing it. Students and staffresearched relevant national laws and policies, consulted localand regional authorities throughout the province, and interviewedcommunity organizations. They also debated participatory mechanisms,recommended new administrative rules and procedures,drafted model legislation, and prepared policy recommendationsthat are currently being implemented.E n c o u raging Public Interest LawAnother frequent motivation for creating university legal aidclinics is to introduce students to the possibilities of using the lawfor social justice purposes and to encourage and inspire such futurework as lawyers. This creates a pipeline of young lawyers for publicinterest law and legal aid work. Again, the nature and degree ofthis benefit depends upon country and context. Students can befully alerted to career options in these fields, where they exist, orcompelled by the legal needs of their communities to think creativelyabout ways to serve the public interest while in private practice.Experts from all of the countries covered in this chapter concludethat this is a very real benefit of university clinics.Professor Eleonora Zielinska, the first director of the Universityof Warsaw clinic, which opened in 1997, states, “Contactbetween law students and NGOs is important to creating futurepublic interest lawyers. Hopefully public interest law firms willevolve from law clinic graduates.” Zelinska has already observeda pattern of Polish law students volunteering extra time for theNGOs they encounter during their clinic assignments. Zielinskabelieves that this desire for public service is a direct result of anew consciousness brought about through the law clinic.Nagaraj of India’s NLS agrees. “In some students we see atotal transformation of the personality,” he says, “while in otherswe notice a sensitization and a desire to balance earnings with

2 7 8 TH E M AT I C PE R S P E C T I V E Sservice.” He also notes a relatively higher commitment to probono work in private practice by students who are graduates ofthe clinic. Peking University Wo m e n ’s Centre graduate internYang Xinxin feels that her experience at the center has had similarinfluences on her development. She writes, “China’s legal educationsystem might realize benefits by integrating a legal aid programinto its law schools and using it as the basis for trainingfuture legal professionals with a strong sensitivity to public interes t s . ”In the Philippines, graduates from several law schools havefollowed the pipeline into public interest law and legal services tothe poor. University legal aid organizations there provide communitylegal services in a variety of forms and recruit students towork with legal services NGOs popularly known as “alternativelaw groups.” Many of the lawyers now working for these NGOshad their first exposure to alternative law groups through theiruniversity legal aid org a n i z a t i o n s .O b v i o u s l y, many university legal aid clinic students will notgo into public interest practice. But the clinic experience can stilla ffect students’ perspectives on their future roles as private legalprofessionals. In India, Nagaraj observes that clinics expose studentsto social justice needs at a formative stage in their careers.“While studying, the students are exposed to the real dynamics oflaw and legal disputes, bringing them closer to society, to downto-earthrealities, and teaching them not just through case reports.This ultimately improves the legal profession,” he says. One clinicadvisor in Bangladesh points out that a clinic can help put studentsin touch with some of that country’s less obvious problems,because many law students are personally removed from thoserealities. In addition, as the professional influence of today’s studentsincreases over the years, they could become powerful voicesfor reform.Enhancing Access to the Pro f e s s i o nIn many countries an apprenticeship is required before a lawgraduate is certified for admission to the legal profession and lawpractice. Apprenticeships with experienced practicing lawyers arehighly sought after and are often fewer than the number of law

UN I V E R S I T Y LE G A L AI D CL I N I C S 2 7 9graduates. Consequently significant numbers of graduates areunable to enter the profession or, even worse, find themselvesunemployed. Hiring for apprenticeships in some countries is alsosubject to a great deal of unjust patronage, social privilege, andother forms of discrimination. This problem has been experiencedin Poland, South Africa, and elsewhere. It has blocked access tothe profession for disadvantaged population groups such aswomen, ethnic and racial groups, candidates from poor backgrounds,and others. It robs the profession of a potentially enrichingdiversity.By offering such apprenticeships, where allowed, under thesupervision of a clinic’s qualified legal staff, a clinic can serve toboth improve access to and diversify the legal profession. Since1993, clinics run by law faculties in South Africa have been permittedto offer apprenticeships for admission to law practice. By1999, a combined total of approximately 250 additional lawyerswere being admitted to practice each year through apprenticeshipso ffered by law faculty and government-run clinics based at universities.The total number of available apprenticeship positionshas been increased and new doors to the profession have beenopened for women and nonwhite law graduates, thereby strengtheningit through diversity. Clinics gain approval to host apprentices,just as any law firm would, if they meet certain criteria suchas adequate supervision by qualified lawyers. The number ofapprenticeships any clinic may offer depends upon the number oflawyers on staff. Apprenticeships also provide one additionalopportunity to transmit skills, strategies, and values of publicinterest law. Beyond the benefits for the profession and theapprentice, the clinic can increase its legal work and gains assistantsupervisors for its students.C o n c l u s i o nAs these examples suggest, university legal aid clinics arenow part of the educational and legal landscape in most regions ofthe world. They have already made contributions to social justiceand public service in the developing world, and there are compellingpotential benefits that recommend their consideration in

2 8 0 TH E M AT I C PE R S P E C T I V E Sstrategies for legal education and public interest law. There is,u n f o r t u n a t e l y, no general recipe for ensuring the success of a universitylegal aid clinic. However, there is a wealth of literaturecovering pedagogical and legal services approaches as well asmanagement strategies for clinics. 1This closing section, therefore, will not address those topicsnor summarize this chapter. Rather, its purpose is only to highlighta few brief suggestions for the consideration of thoseinvolved with clinics—suggestions derived from the successes,shortcomings, and observations of Foundation grantee partners inspecific contexts.• Try to observe the teaching and operations of other successfulclinics. Such observations aided the developmentof university clinics in Bangladesh, South A m e r i c a ,Eastern Europe, and elsewhere. Observe clinics that operatewithin similar legal, socioeconomic, and educationalenvironments when possible, but don’t ignore others thatmight nevertheless display innovative or instructiveapproaches. Also, the most prestigious clinics are notalways the most instructive examples. Singling them out asmodels might unintentionally discourage fledgling eff o r t s .• Universities can aid success by recruiting clinic leadershipfrom within the law faculty, wherever possible, by makingclinic instructors equal partners with other law professors,and by developing successor leadership. This approach tos t a ffing can help avoid common problems by integratingnew clinics with university law faculties, thus facilitatingaccess to the resources and talents of the university.O ffering tenure track positions and teaching credits, andplacing clinic instructors within the normal salary structureof the law faculty, also increases sustainability. Beginningearly to develop a second tier of leadership can help alleviatethe difficulties clinics have faced when founders orsenior staff departed. Both university and Foundation staffcited the failure to do this as a deeply felt shortcoming insocieties, such as South Africa, where social and democratictransitions caused the loss of key clinic leadership to

UN I V E R S I T Y LE G A L AI D CL I N I C S 2 8 1new opportunities in government, private law practice, andthe judiciary.• Consider organizing community-based client consultationsfrom satellite facilities (or outdoors) on a regular basis.This approach serves to increase community access. If possible,consider securing permanent offices within or nearthe law faculty for the best interaction with resources andcolleagues there. Also foster a community presence tofacilitate client access and other goals—such as exposurefor students and a better understanding of the contexts oflegal problems.• Consider cooperating with community-based org a n i z a t i o n sand NGOs. Based on his experience in working in theCzech Republic, Professor Stefan Krieger of New Yo r k ’sHofstra Law School clinic says that “people who experiencethe patterns of abuse and disadvantage that the clinicis meant to address” can also be essential to guiding a clinictoward social justice goals.• National and regional associations of university clinics canbe a boost for individual operation. It is inspirational,according to Zielinska of the University of Wa r s a w, forfledgling clinics to see themselves as part of a regionalmovement. Common problems then seem less insurmountable;common research can be undertaken and solutionsfashioned. The network in Eastern Europe has generatedregionwide momentum to achieve regulations allowingsupervised student practice and appearance in court. Bothseasoned and newer clinics in South Africa have benefitedfrom the activities of their national association, such astraining, fundraising, policy advocacy, informationexchange, and more.• Student practice rules that allow clinic students to makecourt appearances can bring important benefits—but don’tlet their absence be an obstacle to the creation of universityclinics. In several countries, university legal aid clinicshave operated for years without the benefit of such rules.Examples include India, where clinics are encouraged by

2 8 2 TH E M AT I C PE R S P E C T I V E Sthe judiciary and will soon be mandatory for law schoolaccreditation, and South Africa, where clinics emerged inthe early 1970s and have evolved to offer general and specializedservices.• Consider pursuing regulations and permission to train legalapprentices who seek admission to the profession. A l s ostrive to design the classroom component so that discussionsof issues of diversity, discrimination, and humanrights are integral components. Offering apprenticeshipscan help diversify the profession when such positions withother practitioners are subject to patronage or discrimination.Apprentices can also provide additional humanresources for a clinic’s other service objectives. Forthrighteducation about a society’s conditions, including topicssuch as discrimination, diversity and human rights, canalso aid a clinic toward its broader social justice goals.N o t e1 . See “Bibliographic Materials on Clinical Legal Education andAccess to Justice,” compiled by the Public Interest Law Initiative inTransitional Societies, New York: Columbia University Law School;“Guidelines for Clinical Legal Education,” Report of the Association ofAmerican Law Schools–American Bar Association (AALS-ABA)Committee on Guidelines for Clinical Legal Education (1982); andRobert N. Dinerstein, “Report of the Committee on the Future of the In-House Clinic,” Journal of Legal Education 42, no. 508 (1992): 561–574.

9Public Interest Litigation:An International Pe r s p e c t i veHE L E N HE R S H KO F F & AU B R E Y MCCU T C H E O NThis chapter provides an international perspective on public interestlitigation by looking at the work of a sampling of FordFoundation grantees that use public interest litigation in a numberof ways to improve conditions for disadvantaged groups, such asthe poor, women, and religious and ethnic minorities. Litigationcan help to reform existing laws that hinder or prevent membersof these groups from participating fully and fairly in society. Itcan enforce rights that existing laws guarantee, but are not followedin practice. Litigation can complement a broader politicalmovement, or foster mobilization and encourage alliances thatthen produce political action. Furthermore, litigation can helpchange attitudes toward the law and create a culture in which governmentand private entities respect and enforce human rights value s .The Foundation first supported groups undertaking publicinterest litigation in the United States during the 1960s. In the followingdecades, the Foundation increased the range of its geographiccommitment, and grantees now undertake litigation inmany countries in Latin America, Asia, Africa, the Middle East,and Eastern Europe. These nongovernmental org a n i z a t i o n saddress a broad range of social concerns—from job discriminationin China, to wrongful imprisonment in Peru, to violenceagainst women in Poland. They use a variety of creative strategiesand often work against great odds, nevertheless winning signifi-2 8 3

2 8 4 TH E M AT I CPE R S P E C T I V E Scant courtroom victories that seek to enforce human rights, tochange entrenched practices and laws, and to encourage politicalconsensus for social improvement.An earlier chapter of this volume focuses on public interestlitigation in the United States. This chapter turns attention to theequally important work of the Foundation’s grantees in other partsof the world. The first part of the chapter provides an overview ofpublic interest litigation, examining its goals, approaches, andstructural adaptations in a global context. The second part highlightsthe specific litigation efforts of Ford grantees in Nigeria,India, and parts of the Middle East, Latin America, and EasternE u r o p e .P u b lic Interest Litigation:G o a l s , A p p ro a c h e s , and A d ap t a t i o n sOver the last twenty years, the Foundation has supportedgroups conducting public interest litigation in a wide variety ofpolitical and social areas around the world. Organizations sometimesrefer to their work as “social action litigation” or “socialcause lawyering.” By whatever name, these groups are seeking touse the courts to help produce systemic policy change in societyon behalf of individuals who are members of groups that areunderrepresented or disadvantaged—women, the poor, and ethnicand religious minorities.Grantees litigate for multiple and reinforcing reasons and theyselect cases and clients with reform interests in mind. Their workbuilds on a model of group representation, where a single lawsuitcan vindicate the rights of many individuals. They also makestrategic use of individual cases that enable public interestlawyers to identify broader patterns of inequity; by representing asingle client, grantees can enforce legal entitlements, declare newrights, change bureaucratic attitudes, and promote alliances insupport of shared goals.In using litigation as a vehicle for social change, public interestlaw NGOs face a uniquely complex set of incentives andchallenges. Indeed, because domestic conditions vary considerablyfrom country to country, one cannot generalize about litigationas a global strategy. In countries where the laws are them-

PU B L I C IN T E R E S T LI T I G AT I O N 2 8 5selves unjust, litigation can document the legal system’s failuresand inequities. Where legal procedures hinder or oppose legalrights, lawsuits can confront and eliminate those barriers. In transitionalsocieties shifting from authoritarian rule to democraticgovernance, litigation can help new constitutional principles totake root, as well as increase public awareness of human rightsand embolden those with legal claims to come forward. In communitieswhere judges lack broad knowledge of legal alternatives,lawsuits can serve an educational function, teaching thecourts and the public about basic rights and legal possibilities.Where national laws are repressive or insufficient, litigationbased on international law can provide normative guidelines fordomestic courts. Lawsuits do not always succeed in court, butthey help to focus public attention and to shape public opinion infavor of reform.Law affects society in many complicated ways; social andeconomic practices likewise affect legal possibilities. In the globaltransition toward human rights and rule-of-law values, litigationcan be instrumental in achieving shared goals. Despite broadvariations across countries in terms of legal, cultural, political,social, and economic conditions, one can nevertheless point toseveral key variables that seem to shape litigation and are in turnaltered as litigation goes forward. These variables include the systemof government and scope of existing laws, the independenceof the judiciary and the operation of the court system, and publicattitudes toward law.O b v i o u s l y, the nature of a country’s governance structure—whether a military dictatorship, totalitarian, democratic, or a systemin transition—shapes the role that courts can play in socialreform and the kinds of problems that grantees can meaningfullyaddress through litigation. South Africa, for example, where theFoundation has supported legal reform efforts since the 1970s,had a viable judicial system during the period of apartheid, but itsjudges were constrained by laws that were themselves unjust.Civil rights lawyers nevertheless successfully challenged discriminatory“pass” laws (as described in the South Africa case study).The Legal Resources Centre handled hundreds of individual casesto compel implementation of Supreme Court rulings that limitedthe reach of those laws.The independence and operation of the court system also

2 8 6 TH E M AT I C PE R S P E C T I V E Sa ffect the anticipated consequences of public interest litigation,creating opportunities as well as obstacles to reform. A number offactors seem to be important: whether a judicial system is insulatedfrom political domination; whether the judge has formal powerto review the legality of legislative action or to enforce judgmentsagainst the government and private entities; and whether the judiciarypossesses professional capital in terms of resources, prestige,education, and credibility. In some countries, judges are notlegally trained; elsewhere they may be corrupt, ideologically hostile,or politically subservient. In certain legal systems rulings inindividual cases may build a body of legal precedent that can helpother victims of injustice. In addition, court rules and proceduresvary widely from country to country, affecting nearly every stageof the litigation process—from who is allowed to bring a lawsuit,to the kinds of evidence that the court will hear, to the types ofquestions that judges are authorized to decide. India’s SupremeCourt, for example, has exercised strong judicial leadership inestablishing “epistolary” jurisdiction, allowing any person towrite to the court to seek judicial help in resolving social problems.This procedure has generated a tremendous demand forlegal services on behalf of disadvantaged groups.Public attitudes toward the law also create challenges for publicinterest litigators. After living through years in which thecourts were corrupt, inefficient, or complicit in oppressive practices,citizens may not trust the legal system and may be reluctantto assert claims for relief. Moreover, disadvantaged people maynot regard their problems—often involving social and economicconditions—as ones that law can redress. Even where they perceivetheir injury in legal terms, they may fear that going to courtis not safe and that they will be targeted for retribution. Fordgrantees have used many different approaches in encouragingnew forms of social trust.Perhaps the most salient feature of public interest litigationworldwide is its synergistic relation with a wide range of otheractivities—many of which are described in other chapters in thisvolume—that grantees undertake to promote broader social, political,and economic change. As in the United States, the groupsprofiled in this chapter regard their work as part of a larger reforme ffort that may include community organizing, public education,

PU B L I CIN T E R E S TLI T I G AT I O N 2 8 7research, media publicity, and other nonadversarial legal strategies.Public interest litigation thus depends on the work of a greatmany people, legal and lay, with a wide range of interests, expertise,and experience.P u blic Interest Litigation:Selected Highlights of Grantee Wo r kFrom Nigeria to India, public interest lawyers have used litigationfor various purposes: they have documented injustice andexposed the inequities of repressive regimes; they have repeatedlygone to court to help implement constitutional principles andlaws, as well as to further legal reform through creative forms oflawyering; and they have struggled to integrate favorable internationalnorms into their domestic legal systems and pursued vindicationof rights in international tribunals. This section highlightsseveral of these important efforts, focusing on cases involvinglaw reform.Exposing Repre s s i ve RegimesNGOs often use litigation as a way to document and thusexpose institutionalized injustices, even where the lawsuit as aformal matter is unlikely to succeed in court. By creating a recordof official practices, grantees try to use well-targeted litigation todocument official abuse or private violence; to crack the veneer oflegality that some repressive government practices claim; and tolay the foundation for future action. In Chile, for example, theVicariate of Solidarity repeatedly filed lawsuits during the yearsof military rule to seek the release of prisoners (called “habeascorpus” actions). They thus created a powerful record of abusesthat over time acquired political importance. Although theVicariate could count few courtroom victories, its massive documentationlater played an important role in proving the extent ofthe government’s rights violations. After changes in the politicalregime, the Vi c a r i a t e ’s work in documenting prior repression contributedto the work of the National Commission on Truth andR e c o n c i l i a t i o n .

2 8 8 TH E M AT I C PE R S P E C T I V E SIn Nigeria, groups have similarly used litigation to documentand expose official injustices. In 1999, Nigeria held democraticelections that reinstated civilian rule after more than fifteen years.Since shortly after its independence in 1960, a series of militaryregimes had run the country without regard for constitutionalrequirements, sometimes with grave consequences for humanrights. The government suspended a 1979 constitution, and neverimplemented a 1989 constitution. In addition, military authoritiesoften used decrees to usurp judicial authority and to suspendhuman rights. (A 1994 study identified at least forty-one decreesthat were in force that stripped the courts of power to decide disputesinvolving land use, newspaper publication, treason, civildisturbances, and trade matters.) Even when the courts issued rulingsto stop repressive practices, the military regimes frequentlydid not obey them.The Constitutional Rights Project (CRP) was established in1990 with the aim of using research and litigation to promotebasic rights and to strengthen the judiciary. The Foundation begansupporting CRP the following year. Although Ford and CRP s t a ffmay not have expected the group’s courtroom actions to producesignificant legal victories under very difficult circumstances, theynevertheless believed that CRP’s work could help build publicawareness of rights abuses and sustain the momentum of thoseworking for democracy. CRP and other law groups brought caseafter case charging the government with a wide range of abuses ofp o w e r. In some cases, they were able to win release of prisonersillegally detained; in others, they were able to win limited victoriesfor free speech. Much of their litigation, however, was hamstrungby interminable delays, judicial apathy, and corruption, andin many instances the courts threw out cases or otherwise deniedrelief. Even when the court ruled in favor of CRP’s clients, themilitary authorities ignored the rulings.C R P nevertheless succeeded in focusing a public spotlight onthe injustices of the military regime. Newspapers that did not darereport a public demonstration would nevertheless cover a courtcase and give the reform effort much-needed publicity. For complicatedreasons, litigation became a somewhat safe way to challengegovernment practices. Those undertaking direct humanrights campaigns, by contrast, often faced jail, torture, and even

PU B L I C IN T E R E S T LI T I G AT I O N 2 8 9death for their efforts. Despite “losing” many cases in court,C R P ’s litigation served as a vital tool for educating the public athome and for exposing official crimes to an international audien c e .Implementing LawsPublic interest lawyers try to use court cases to win equalenforcement of existing laws and to enforce wide-ranging victorieson behalf of large classes of people. Many courtroom victories,however, are accomplished piecemeal, with incremental successesmatched by repeated failures over the course of manyyears. This building block approach depends on steady and persistentefforts to hold government and private interests accountablefor complying with the law. Lawyers thus file many lawsuitsto enforce laws that are on the books, but which, for various reasons,remain unenforced.In A rgentina, for example, groups mounted similar efforts toenforce rights that existed on the books on behalf of the physicallydisabled. In 1997, two NGOs—the A rgentine Association ofCivil Rights and Citizen Power—petitioned the courts to implementa law that requires buildings to be accessible to the disabled.One case was brought on behalf of an attorney with physical disabilitieswho could not enter the courthouse. Although the lawsuitproduced results—the decision required all court buildings inBuenos Aires to have ramps and be accessible to wheelchairboundindividuals—the lawsuit did not require enforcement of thelaw elsewhere in the country.Grantees also try to address the problems of unequal enforcementof the laws. Governments in some countries respect thelegal rights of some groups, but deny those same rights to others.For example, Palestinian residents of the Occupied Te r r i t o r i e sface serious environmental health hazards from industries thathave moved there to avoid Israel’s enforcement of environmentalcodes. In 1992, LAW—the Palestinian Society for the Protectionof Human Rights and the Environment—filed a lawsuit on behalfof residents of Tulkarem in the Occupied Territories to close achemical factory that manufactured insecticides. The factory hadrelocated to the Occupied Territories after the residents of an

2 9 0 TH E M AT I C PE R S P E C T I V E SIsraeli town won a court order closing it down for environmentalviolations. The order specifically barred the factory from operatingin agricultural or residential areas, but the factory neverthelessran unimpeded for several years in Tulkarem. LAW filed its casein military court, the presiding court in the Occupied Te r r i t o r i e s .L AW a rgued that the factory was operating in violation of Israelienvironmental laws, producing evidence showing that factoryoutputs were damaging water, croplands, and the health of reside n t s .The military court granted LAW a partial victory. It allowedthe factory to continue operating in Tulkarem, but it ordered thecompany to stop production of the more toxic chemicals andrequired the factory to protect workers with masks. The case alsoprovided the impetus for a cohesive community educatione ffort—including workshops, lectures, films, and publications—that continued to raise public awareness of environmental issuesin the area. Finally, publicity about the lawsuit helped pressuregovernment agencies to provide more evenhanded enforcement ofenvironmental regulations in the Occupied Territories.E n c o u raging Legal ChangeGrantees also use litigation to try to reform laws and to secureo fficial recognition of human rights. Some of these efforts aim atexpanding the fabric of legal protection to include groups andinterests that society has historically ignored or mistreated.In India, for example, d a l i t s (those formerly known by thederogatory term “untouchables”) continue to suffer widespreaddiscrimination despite laws that guarantee equal rights. India’sconstitution guarantees all persons a right to life. In addition, theScheduled Castes and Scheduled Tribes (Prevention of A t r o c i t i e s )Act aims at erasing the caste system and its discriminatorye ffects, providing for stringent penalties against those who practice“untouchability.” Enforcement of and compliance with thisl a w, however, remains uneven and inconsistent.The Centre for Social Justice (CSJ) has worked to broadenand interpret these existing laws to remedy specific injusticesagainst the dalits. For example, the village of Borsad received a

PU B L I C IN T E R E S T LI T I G AT I O N 2 9 1water pipeline from the government, but residents tampered withthe line and cut off water to dalits who lived in the village. CSJ, inpartnership with the Navsarjan Trust, brought suit on behalf of theBorsad dalits, arguing that the state had a duty to ensure a supplyof drinking water. CSJ’s case was brought directly to the HighCourt of the State of Gujarat because it involved violation of abasic human right—the Indian Constitution’s guarantee of a rightto life—through the denial of drinking water. The lawsuit, one ofa series of cases that CSJ has filed on behalf of dalits, alsoclaimed violations of the Prevention of Atrocities Act. T h eGujarat High Court ruled in favor of the dalits, and directed thestate to repair the pipeline and to provide an interim water servicewhile making the repairs. The litigation contributed to building ahuman rights foundation for future antidiscrimination efforts bypublic interest lawyers. The case also helped to promote developmenton behalf of groups being discriminated against, for it holdsthe state responsible for providing basic life resources and forensuring fair delivery of necessary services.Public interest law advocates in Israel have also filed dozensof lawsuits before the Supreme Court to strengthen and expandthat country’s legal protections for marginalized people. T h r o u g hsuch litigation before the Supreme Court, the Association forCivil Rights in Israel (ACRI) has slowly helped develop humanrights jurisprudence in Israel. Its landmark victories include casesinvolving gender equity, freedom of information, gay and lesbianrights, and freedom from discrimination.In September 1999, ACRI and other groups won a historicvictory on behalf of Palestinians when the Supreme Court outlaweduse of physical force by Israeli security officers duringinterrogations. For years, human rights organizations had contendedthat Israeli security often abused Palestinians who weredetained for questioning. Although public interest lawyers hadbrought dozens of cases, the court had avoided making a precedentsettingruling. In May 1998, the Court agreed to address the legalityof the interrogation methods, and it heard a series of petitionsbrought by ACRI and other public interest law groups. By now,each of the nine justices had heard many such cases in whichACRI had marshaled important facts during its years of litigation.

2 9 2 TH E M AT I C PE R S P E C T I V E SThe Court’s September ruling constituted a major legal steptoward more equitable treatment of Palestinians and an aff i r m a-tion of human rights principles more generally.Using International LawPublic interest lawyers are also making innovative use ofinternational human rights law where domestic venues or lawsfall short. Grantees use two strategic approaches. They argue forthe application of international laws in domestic courts and theytake cases to international tribunals when domestic options haveproved unsuccessful.Grantees in Latin America, Eastern Europe, and Africa areworking to implement international laws through domestic litigation.It will be years before the broad impact of such litigation isknown. At present, its benefits may be best gauged not solely interms of cases won and lost, but in its educational value, as judgeslearn about human rights standards and integrate internationalnorms into domestic systems.In Hungary, the Legal Defence Bureau for National andEthnic Minorities (NEKI) repeatedly relies on internationalhuman rights law in domestic courts in order to cultivate anincreased awareness of human rights norms. In as many cases aspossible, NEKI cites international and European human rightsl a w. It believes that this strategy, in conjunction with politicalchanges in the country, will over time spawn a change in judicialattitudes and activity.S i m i l a r l y, several public interest law organizations in Nigeriaare attempting to break new legal ground through lawsuits thatseek to implement international law in domestic courts. T h eShelter Rights Initiative and the Social and Economic RightsAction Center (SERAC) are two grantees focusing on povertyrelatedproblems. They are asking domestic courts to developenforceable remedies under the African Charter on Human andP e o p l e s ’ Rights, and the United Nations International Covenanton Economic, Social and Cultural Rights. Problems of poverty areof special concern given decades of military rule, combined withmismanagement and corruption, that have left a deteriorating economicinfrastructure and a nationwide housing crisis.

PU B L I C IN T E R E S T LI T I G AT I O N 2 9 3SERAC, founded in 1995, has filed cases in Nigerian courtson behalf of the former residents of Maroko, whose shantytownthe government demolished in 1990, leaving three hundred thousandpeople without shelter. After protests from residents andadvocates, the government promised to provide shelter at thehousing colony of Ilasan. But housing at Ilasan was never completed.Eight years after the government demolished their homes,more than two hundred eighty-five thousand Maroko evicteesremained without shelter, and as many as six hundred thousandpeople lived in Ilasan without water, electricity, roads, or asewage system. SERAC’s lawsuit charged the government withviolating the Covenant on Economic, Social and Cultural Rights,which establishes rights to housing, education, food, health, and asafe environment. In one of the cases, although there was no finalruling as of this writing, SERAC had succeeded in persuading thecourt to hear a claim that the government, by evicting thousandsof Maroko children from their homes and interrupting their studies,had violated their right to education under internationalhuman rights law.Grantees also turn to international bodies to enforce internationalnorms when domestic courts are unwilling to rule in favorof their claims. As lawyers repeatedly employ mechanisms forenforcing international law, domestic governments find it mored i fficult to avoid or ignore international decrees. Not least,actions based on international law help draw the attention of aninternational human rights community to ongoing abuses, andstrengthen ties among regional NGOs working for human rights.Groups working in Eastern and Central Europe, for example,have developed lawsuits that seek to enforce the EuropeanConvention on Human Rights. As more countries in postcommunistEurope have joined the Council of Europe, the Conventionhas become applicable in their domestic laws. As a first step,grantees try to vindicate the norms of the Convention in theirnational courts. When those efforts fail, lawyers and their clientstake cases to the European Commission of Human Rights and theEuropean Court of Human Rights in Strasbourg. An importantexample of this strategy is found in the regional work of theBudapest-based European Roma Rights Center, which successfullyrepresented Anton A s s e n o v, a Roma teenager who was beaten

2 9 4 TH E M AT I C PE R S P E C T I V E Sby Bulgarian police. In 1998, the European Court issued a landmarkruling finding that the Bulgarian government violatedA s s e n o v ’s rights by subjecting him to torture and degrading treatmentwhile he was in police custody, and also by failing to undertakean official investigation of the incident. The ruling extendedthe scope of international law by making the right to an investigationpart of the right to be free of official mistreatment.S i m i l a r l y, in Latin America, the Center for Justice andInternational Law (CEJIL), a regional organization founded in1991 by a consortium of ten prominent NGOs from the A m e r i c a s ,has successfully used the American Convention on Human Rightsand its enforcing institutions—the Inter-American Commissionon Human Rights and the Inter-American Court—to redresshuman rights violations that have gone unenforced in domesticcourts. (The commission holds hearings, facilitates negotiated settlements,issues recommendations, and can forward selected casesto the Inter-American Court, whose rulings are accepted as bindingby twenty-one of the thirty-four members of the Org a n i z a t i o nof American States.) Advocates here have had to deal with thelegacy of military rule and civil wars, years in which governmentscarried out widespread violations of human rights with impunity.M o r e o v e r, even in the context of democratic regimes, a widerange of human rights violations exists. Some Latin A m e r i c a ncountries have since adopted broader constitutional protectionsfor human rights, but their judicial systems remain lax or ineff e c-tive in prosecuting offenders and enforcing penalties.By 1999, CEJIL was handling more than one hundred fiftycases involving forced “disappearances,” extrajudicial executions,violations of due process rights, limits on freedom of expression,and torture. Some cases have resulted in legal victories, but, nots u r p r i s i n g l y, CEJIL often faces considerable difficulty in enforcinga favorable ruling from the Inter-American Commission orCourt. Although domestic governments may officially acknowledgethe Inter-American system’s authority, very few haveenforcement mechanisms built into their national laws. Wi t h o u tpersistent monitoring and subsequent efforts by CEJIL and otherNGOs to enforce decisions in domestic courts, most Inter-American Commission and Court decisions would probably gou n h e e d e d .In particular, the Inter-American system has been critical to

PU B L I C IN T E R E S T LI T I G AT I O N 2 9 5C E J I L’s efforts to improve conditions for indigenous peopleswhose land and livelihoods face threats from encroaching miners,farmers, and loggers. For decades the Enxet-Lamenxay people ofP a r a g u a y, for example, suffered as their ancestral land, part of thelast intact wilderness in South America, was parceled out to cattleranchers. Despite a domestic court decree affirming their landrights, the Enxet were not even given access to the area except aslaborers. CEJIL took their case to the Inter-American Commission,and in 1998 the Paraguayan government agreed to buy backmore than twenty-one thousand acres from ranchers to help theEnxet move back to their lands, and to develop projects toimprove their living conditions. The agreement, which calls for areturn of lands to an indigenous people, sets a precedent for futurecases on behalf of indigenous land rights.C o n c l u s i o nTo d a y ’s world is at an important crossroads as many societiesadvance from authoritarian regimes to democracies inwhich the values of human rights and the rule of law take root.The public interest litigation described in this chapter supportsthis broad movement, while seeking to assure that disadvantagedpopulations do not become worse off in the process of globalizationand law-based reform. Public interest litigation serves as animportant instrument for publicizing human rights abuses and forhelping to provide protection to marginalized groups. Even if alawsuit fails to change an unjust law, the act of going to court caninfluence or even change attitudes about the law and contributeto a climate for reform. Unorthodox arguments can serve to suggestinnovative uses of the law; complaints can present a cumulativerecord that documents mistreatment. Grantees recognize thatthe relationship between litigation and social change is complexand incremental, and that litigation comprises only one of manyimportant approaches for reform. As the other chapters in thisvolume show, building a system of justice demands sustainede fforts on many fronts; the work requires a long-term perspectiveand a great deal of patience. In that struggle, public interest litigationis an incomplete strategy, but nevertheless an essentialo n e .

2 9 6 TH E M AT I C PE R S P E C T I V E SN o t eThe authors gratefully acknowledge the contributions of SaraBullard, Daria Caliguire, and Priscilla Hayner for conducting interviewsand reviewing documents. The authors also thank Suhani Kamdar, a studentat the New York University School of Law, for her helpful assista n c e .

1 0N o n l aw yers as Legal Resourc e sfor Their Commu n i t i e sST E P H E N GO L U BAsk most people in most countries what the key elements of theirlegal systems are and their answers may well feature attorneys,judges, prosecutors, police, courts, and prisons. In many lowincomecommunities across the globe, though, nonlawyers areplaying increasingly pivotal roles. They often are paralegals—persons with specialized training who provide legal assistance todisadvantaged groups, and who often are themselves members ofthose groups. Or they may be ordinary community residents whouse the law to collectively or individually help themselves. T h i schapter is about several Ford Foundation grantee org a n i z a t i o n sand their community-based legal work with nonlawyers. W h i l ethe Foundation also supports U.S. efforts in this area, this discussionis limited to the work of grantees in other countries. Itsketches accomplishments, and highlights several insights arisingfrom those efforts.The paralegals discussed in this chapter include both NGOpersonnel and community-based volunteers. Both typicallyreceive nonformal (i.e., non–law school) legal training fromNGOs before undertaking paralegal work. Drawing on that trainingand on subsequent practical experience, they educate and helpwomen, farmers, indigenous peoples, the urban poor, and otherdisadvantaged populations regarding legal issues. Though theymay assist litigation, paralegals often strive to resolve problemswithout going to court—whether through administrative process-2 9 7

2 9 8 TH E M AT I C PE R S P E C T I V E Ses, alternative dispute resolution, or community action. Manyaspects of their work involve what women’s rights advocatesM a rgaret Schuler and Sakuntala Kadirg a m a r-Rajasingham term“legal literacy”—“the process of acquiring critical awarenessabout rights and the law, the ability to assert rights, and the capacityto mobilize for change.” 1By fortifying paralegals’ knowledge of the law, grantees haveenabled them to gather evidence, construct affidavits, conductinterviews, and use legal arguments to achieve their goals. Inbroad terms, these NGO efforts have increased disadvantagedp e o p l e ’s access to justice by enhancing their capacity to use legalprocesses; strengthened implementation of laws by applyinginformed pressure on government bodies and private off e n d e r s ;and heightened participatory development by bringing previouslypowerless voices into local decisionmaking processes. There arealso indications that paralegal assistance helps enhance women’shealth, environmental protection, low-income groups’ l i v e l i h o o d s ,and law reform. On a most basic level, paralegals have raisedc o m m u n i t i e s ’ awareness of the rights due to them—a significantadvance for the many societies in which legal ignorance abounds.Citizens have learned to think critically about the law and to raiseconcerns about inequitable aspects of many laws.Paralegal activity, widespread legal awareness, and strategiessuch as community organizing can blend to help disadvantagedg r o u p s become more cohesive and active in addressing the legalproblems and related issues that affect their members. In somecases, there have been shifts in the power imbalances that negativelyaffect such groups, enabling them to deal more eff e c t i v e l ywith abusive husbands, indifferent or repressive police, andexploitative landlords.As paralegals enable disadvantaged populations to becomemore legally s e l f - s u fficient, they have also helped fill the hugelegal aid voids that exist because most societies have relativelyfew lawyers and government programs addressing the legal needsof the poor. Their effectiveness is enhanced because they are intouch with community dynamics in ways that even the bestintentionedlawyers often cannot be. Not least, paralegals providea cost-effective supplement to expensive legal talent. Paralegalsare not complete substitutes, however, for attorneys or for broader

NO N L AW Y E R S A S LE G A L RE S O U R C E S 2 9 9community-wide education regarding the law. Legal serviceslawyers, paralegals, and community legal education generallywork best where they work together. This chapter describes severalstyles and purposes of grassroots legal efforts: individual selfhelp,professional and volunteer paralegal work, communitymobilization, and impacts beyond the community.Individual Self-HelpAt their most basic level, grassroots law-oriented efforts seekto enhance individuals’ knowledge of the law through the disseminationof legal information. While this may not involve paralegalor community activism, it can help people help themselves indealing with law-related problems.In carrying out this work, grantees focus on legal issues mostpertinent to their specific audiences. For example, a South A f r i c a ngroup, the University of Natal-Durban’s Centre for Socio-LegalStudies, adapted the U.S.-based Street Law model, whichemploys role playing and other innovative devices to teach audiencesabout legal issues they encounter in daily life. Launched inthe mid-1980s, its Street Law program helped school-age youthsdeal with the brutal facts of apartheid repression and resistance.Using law students to provide the training, the program touchedon international human rights laws, which were certainly salientin a society whose legal system sought to legitimize racism. Italso advised adolescents on everyday practical concerns, such ashow to relate to police. Such advice included the fact that duringdemonstrations or under other circumstances, resisting or runningfrom arrest could prove fatal, for it gave authorities the ostensibleright to employ potentially lethal “justifiable force.” Continuingto adapt to changing conditions, in recent years the program hasfocused on citizen rights and duties under the nation’s newdemocracy and constitution. This Street Law model has in turnbeen adopted and adapted in many different countries today.Building grassroots legal knowledge entails attention to themedium as well as to the message. The words of a Filipino lawyerabout paralegal education apply equally acutely to broader nonformallegal education efforts: “I used to think we were doing

3 0 0 TH E M AT I C PE R S P E C T I V E Sparalegal training, but now I see that we were just delivering lawlectures.” For poorly educated audiences, such lectures are boringand delve into unnecessary, incomprehensible nuances. Manylaw-oriented NGOs and university-based programs around theworld, such as Street Law, have therefore turned to games,quizzes, simulations, discussions, and other popular educationm e t h o d o l o g i e s .Kenyan NGOs have demonstrated a flair for packaging legalinformation in understandable and usable forms. Given that manypeople are illiterate, some of their products take the form of radiodramas, interactive plays, and audiotapes. The Legal ResourcesFoundation employs all of these devices to address such issues asdomestic violence and women’s inheritance rights. Where itrelates directly to target audiences (as opposed to workingthrough media), it employs a “participatory principle” thatemphasizes the active component in learning: “I hear, I forget; Isee, I remember; I do, I know.” An important element that is missing,however, from NGOs’ nonformal legal education work inKenya and elsewhere is testing and evaluation of its eff e c t i v e n e s s .As noted in a generally positive Foundation-sponsored evaluationof the Kenyan org a n i z a t i o n s ’ e fforts, “Little of the materialappears to have been formally tested to elicit feedback about howthe product is perceived by the target group.” 2That observation suggests an important question. What arethe most effective ways of disseminating legal information?Answers would vary according to contexts, target audiences, andoverall strategies. O rganizations such as Namibia’s LegalAssistance Centre (LAC) are moving toward increasing use ofradio and television, both because of the mass audiences theyreach and because many in those audiences are illiterate. T h einteractive Kenyan approach is more targeted, and may betterserve to identify community needs and potential paralegals.Appropriate testing of the various methods in specific contextscould help maximize effective use of inevitably limited donorfunds and NGO energ y. The many ways in which this can bedone for targeted training, for example, include selectivelyassessing audiences’ retention of information a year later (perhapsin preparation for further training if possible); comparingtheir legal knowledge with that of control groups that did not

NO N L AW Y E R S A S LE G A L RE S O U R C E S 3 0 1receive training; and undertaking qualitative inquiries into eff e c ton attitudes and actions. Such research also would identifyimpacts that often go undocumented in legal information disseminationprojects.P ro fessional Pa r a l e g a l sUnder many circumstances in many societies, people needmore than legal awareness in order to assert their rights and getthe law implemented. A report by the South African NGO BlackSash Trust sums up some of the challenges that citizens face indealing with government agencies. It states, “Many of our clientsare illiterate and intimidated by officialdom. They have little orno access to telephones. In spite of this they have usually triedmany avenues to resolve their problems before coming to a SashAdvice Off i c e . ” 3To address these problems, NGOs such as Black Sash andN a m i b i a ’s LAC employ paralegals to render or arrange legal servicesfor individuals. These paralegals sometimes are themselvesmembers of the communities they serve. They receive specialtraining regarding pertinent legal issues and procedures, helpclients navigate judicial and bureaucratic systems, and sometimesdeal with those systems on the clients’ b e h a l f . Both Black Sashand LAC base these personnel in field offices throughout theirrespective countries. Under apartheid, paralegals helped clientsdeal with race-based repression and discrimination. To d a y, a primaryfocus of their work is domestic violence. The steps andstrategies they pursue depend on the individual circumstances andpreferences of clients. Sometimes paralegals are able to obtaininjunctions that evict and bar abusers from their houses.A l t e r n a t i v e l y, they may arrange interventions by the police andgovernment social workers.Other common issues addressed by these paralegals includeunfair job dismissals, fathers’failure to pay maintenance for children,and government benefits for the aged, infirm, widowed, andorphaned. Black Sash helps clients access benefits withheld ordelayed by corrupt or lethargic state bureaucracies. Sometimes itprovides simple advice on forms, and sometimes it follows up

3 0 2 TH E M AT I C PE R S P E C T I V E Sd i r e c t l y. Black Sash’s Durban office, for example, has documenteda forty-two-month-long saga of letters and telephone calls tosecure a government pension for an elderly client.Where legal problems are severe, excessively complicated, orotherwise require skills beyond those the paralegals possess,N a m i b i a ’s LAC and South A f r i c a ’s Black Sash turn to attorneysto conduct litigation and provide other legal backup. LAC has itsown large corps of lawyers, while Black Sash relies on otherNGOs such as South A f r i c a ’s Legal Resources Centre. The parale g a l s ’ work does not end when they refer clients to attorneys,h o w e v e r. In monetary damage suits sparked by police brutality,for example, paralegals help gather evidence, identify witnesses,and otherwise assist with the cases. They similarly may assistattorneys when domestic violence victims seek the imprisonmentof abusive husbands. Here, though, there is the tragic constraint ofa wife’s financial dependence on her spouse, which sometimesprecludes resorting to this option.C h i n a ’s Qianxi County Rural Wo m e n ’s Legal ServicesCentre, while a newer organization operating in a far diff e r e n tcontext, employs paralegals in some similar ways. Paralegals dispenseadvice, mediate disputes, staff educational outreach desksat weekly rural markets, and occasionally refer cases to lawyers.Out of both necessity and effectiveness, the center is operated bythe local branch of the state-sponsored All China Wo m e n ’sFederation, and bases some of its paralegals at the local offices ofthe Ministry of Justice. As an experimental effort with a limitedtrack record, the center’s significance lies in its trying new andpotentially replicable approaches in a society whose legal systemis undergoing significant transition.The paralegal experiences of Qianxi and other org a n i z a t i o n ssuggest that while nonformal legal education can raise disadvantagedpopulations’ legal knowledge, many people need the directassistance paralegals can provide in order to assert their rights. Tovarying degrees, these groups employ media, booklets, and otheroutreach efforts to spread such awareness, but they do not considerthese devices substitutes for paralegals’ legal expertise.Paralegals can serve as an important component of grassrootse fforts to help disadvantaged people secure government benefits,participate in civic and political life, and use the justice system to

NO N L AW Y E R SA S LE G A LRE S O U R C E S 3 0 3protect their rights. They can also effectively stretch the limitedfinancial resources of legal services NGOs. But paralegals are nota complete substitute for lawyers. Lawyers are necessary to trainthe paralegals, to handle problems that require court work or indepthlegal expertise, and to follow up where legal implementationproves beyond the paralegals’g r a s p .One could argue that paralegals unfairly condemn the poor to“second-class” legal services. But the real choice often is notbetween second-class help by paralegals and first-class help bylawyers, but between paralegals’ assistance and no assistance atall. Even where lawyers are available, paralegals sometimes canbe equally competent. In any event they are far more accessibleand cost effective. With paralegals in place, lawyers can operatein a more selective manner. Finally, as illustrated later in thisc h a p t e r, the community mobilization efforts by paralegals oftenreach beyond the typical purview and skills of most attorneys.Volunteer Pa r a l e g a l sIn some countries, the level of community organization, thedegree of formal education, and the nature of government operationsare such that volunteer paralegals can carry out manifoldfunctions. In some respects, their work resembles that of NGOs’professional paralegals, though it generally is less structured.But there also are distinct differences. Volunteer paralegals’work sometimes is buttressed by the fact that they belong to acommunity-based association. In turn, their activities strengthenthe association. Finally, just as NGO paralegals are inexpensivesubstitutes for lawyers who cannot be everywhere handling everyproblem, community-based volunteers extend the reach of legalservices even further into grassroots communities. For these andother reasons, NGOs such as Namibia’s LAC and South A f r i c a ’sBlack Sash train volunteer paralegals, often using their own paralegalstaffs to do so.The partnership between a Philippine legal services NGO,Sentro ng Alternatibong Lingap Panlegal (Saligan), and a twelvehundred-householdassociation of coconut farmers illustrates howlawyers and volunteer paralegals can work together. Saligan,

3 0 4 TH E M AT I C PE R S P E C T I V E Swhose lawyers work on land reform and other developmentissues, trained several dozen of the association’s members to providebasic legal information to their fellow farmers on both farmrelatedand other matters. Fifteen of the trainees ultimatelybecame active in processes that enabled the association’s membersto achieve more secure and potentially profitable land tenurearrangements under the country’s agrarian reform law.The fifteen paralegals gathered data, interviewed farmers,prepared affidavits, processed land reform applications, a n dtaught their communities about the law. They also countered landlordresistance in various ways. Where the landlords sought toevade the law by hiding ownership or revenue information, theparalegals tracked it down. Where the landlords brought inlawyers to fight agrarian reform at the quasi-judicial hearings ofthe relevant government agency, the paralegals represented thefarmer applicants. And where landlords filed suit against farmers(alleging, for example, that the farmers had stolen crops) to frustratethe process, the paralegals helped Saligan attorneys preparefor trial in defense of the farmers. In the absence of the paralegals,most of the land reform applications would have withereddue to bureaucratic delays or landlord resistance.The experiences that Saligan and other Ford grantees havehad with volunteer paralegals highlight several important aspectsof paralegal development. First, specificity of training is important.Although knowledge of constitutional or international humanrights precepts may be useful for some purposes, such as attitudinalchange, the farmer paralegals make far more use of theirknowledge of agrarian reform laws and regulations. Second,o rganization is equally crucial. The paralegals are effective partlybecause they belong to a cohesive community group that grantsthem legitimacy and countervailing political influence in dealingwith landlords. The saying “knowledge is power” has some truthto it, but “organization is power” may carry even more weight.Third, in-depth training for extended and repeated periodsoften is necessary. This need is frequently underestimated bylawyers. As the aforementioned review of Kenyan NGOs emphasizes,“It is ironic that it is often professionals who have receivedextensive education and training on a full-time basis over manyyears who have unrealistically high expectations of what can be

NO N L AW Y E R SA S LE G A L RE S O U R C E S 3 0 5achieved in a brief period of training.” 4 F i n a l l y, ongoing contactwith lawyers, or at least with greater sources of expertise, is neces s a r y. This is a form of “on-the-job” training. As new questionsarise, the paralegals need easy contact with individuals who cananswer them. In the coconut farmers’ case, such individuals areSaligan attorneys and staff of another NGO that works with thefarmers. The notion of “ongoing paralegal development” thereforemay be more appropriate than “paralegal training.”The very elements that make for effective volunteer paralegalsalso raise questions about when and where their developmentshould be a priority. Can their work be sustained if, for example,donor withdrawal of support to a legal services NGO ends thep a r a l e g a l s ’ access to lawyers and ongoing training? The issuehere, though, may not be whether their work is sustainable butwhether their impact is. Paralegal activity need not be a lifelongavocation if it has raised farmers’ income or contributed to environmentalprotection. There is the strong possibility that volunteerparalegals continue to function to varying degrees even afterdonors and NGOs lose contact with them.The fact that these elements may be necessary to maximizevolunteer paralegals’ e ffectiveness indicates that this strategydoes not flourish under all circumstances. Not all communities orlegal problems benefit from utilizing paralegals. On the otherhand, they can often make a difference, even under trying conditi o n s .One matter about which there is apparent difference of opinionand experience among grantees concerns the degree to whichformal education is useful or necessary for paralegals. On the onehand, Kenya’s Legal Resources Foundation maintains that paralegalsmust be able to read and write. Certainly, Saligan-trainedparalegals need to do so in order to carry out many of their tasksregarding land reform advocacy. Namibia’s LAC too feels thatthese skills are very helpful. On the other hand, some FilipinoNGO attorneys emphasize that often the best paralegals are notwell educated, and that biases and assumptions sometimes need tobe “unlearned” by individuals who start paralegal training withtoo much of a legal background. The experience of India’s Centerfor Social Justice is that even illiterate individuals can prove veryuseful. And at least one of the most effective paralegals conduct-

3 0 6 TH E M AT I CPE R S P E C T I V E Sing mediation for Banchte Shekha, the Bangladeshi women’smovement, has had only a few years of schooling. The question offormal education, then, at least partly hinges on the functions thatgiven paralegals perform. Indeed, not all paralegal activitiesinvolve reading and writing, as illustrated below.A l t e r n a t i ve Dispute ResolutionSo far, the chapter has focused on ways in which NGOs, communitygroups, and paralegals help citizens gain access to governmentservices and legal processes. But there are key areas, mostnotably alternative dispute resolution efforts, in which NGOs arebuilding substantial substitutes for the formal legal system.Noteworthy work in this vein can be found in Bangladesh. T h eMadaripur Legal Aid Association (MLAA), Ain O Salish Kendra,and other NGOs involve community residents in modified versionsof the traditional dispute resolution procedure known ass h a l i s h. (See Chapter 4 in this volume, F rom the Village to theUniversity: Legal Activism in Bangladesh, for a more completedescription of shalish.)M L A A serves the million-plus residents of the country’sMadaripur District by recruiting community leaders to serve onmediation committees, by training them about the law, and byencouraging them to apply the law rather than their biases inmediating disputes. It also employs paid staff as mediation workers.Effectively paralegals, they respond to community residents’requests for assistance by organizing shalish sessions or by referringthem to other MLAA s t a ff for help. MLAA and other NGOsmost commonly serve women who are victimized by domesticabuse, husbands’ illegal demands for dowry (payments made tothem by wives’families when arranged marriages are negotiated),and related problems. Farmers engaged in land disputes also turnto NGO-led mediation to try to resolve their problems, as do otherlow-income individuals.Akey feature of some NGO-initiated shalish is that it is complementedby the threat of litigation. Where egregious criminalconduct is alleged, NGO lawyers generally seek prosecutionrather than mediation. And the possibility of a lawsuit creates

NO N L AW Y E R S A S LE G A L RE S O U R C E S 3 0 7incentives for a recalcitrant husband to submit to the process andabide by its results. W h a t ’s more, by virtue of selecting and trainingthe mediation committee members, the NGOs have someimpact on these influential community members, who in turninfluence the outcomes of disputes.A drawback of both alternative and traditional justice systemsin many societies is their tendency to be male dominated. Wo m e nmay struggle harder to make their cases heard. Some NGOs neverthelesspursue mediation because courts may be prone todelays, expensive, corrupt, and confusing for clients. Moreover,courts themselves can be subject to the same gender biases.Research supported by The Asia Foundation on NGO mediationin Bangladesh suggests that women welcome such mediation. Amulticountry U.S. Agency for International Development studyalso identifies positive effects both for women and other disadvantagedpopulations. 5 In some instances, combined family planningand legal services efforts are mutually reinforcing. 6Observations of NGO-initiated shalish over time indicate thatwomen gradually are participating more, and are having a greatersay and impact in the sessions. This puts them ahead of wherethey otherwise would be.The approach sketched above is not the only way in whichNGOs have employed alternative dispute resolution. Years of difficultorganizing, livelihood development, and consciousness raisinghave enabled Banchte Shekha, one of several Bangladeshigroups, to put its female members on more equal footing, and toinvolve them, along with paralegals, prominently in its shalishs e s s i o n s . I n d i a ’s Centre for Social Justice eschews reliance onpredominately male community leaders to settle domestic disputes,convinced that their biases outweigh their influence. Itprefers to have its own staff conduct conciliation sessions, backedby the implicit threat of a lawsuit. In a somewhat similar vein,volunteer paralegals trained by the Philippines’ Wo m e n ’s LegalBureau (WLB) employ an array of devices to get husbands’ w r i t-ten commitments to abstain from spousal abuse. These include thethreat of taking the man to court, the registration of complaints atpolice stations, educating police regarding the law, persuading thepolice to be responsive, and enlisting male “allies” to convincehusbands to change their conduct. In striving to obtain the cooper-

3 0 8 TH E M AT I CPE R S P E C T I V E Sation of community leaders, W L B ’s approach differs from that ofthe Centre for Social Justice. Finally, under apartheid, the Centrefor Socio-Legal Studies helped familiarize South African blackcommunities with legal principles and practices, so they couldmore fairly administer informal neighborhood courts. These functionedas alternatives to the government’s all-white, expensive,and inefficient judicial system.C l e a r l y, strategies for dealing with traditional communityleaders vary according to context. To the extent that involvingcommunity leaders in alternative dispute resolution has provene ffective, it has been necessary for NGOs to keep pressing forgrowing gender equity in the procedures, and to complementmediation with related efforts, such as litigation, in order to maximizetheir impact.C o m munity and Group MobilizationSome groups, like Banchte Shekha in Bangladesh, employparalegals and legal information dissemination for the moreexplicitly political strategy of mobilizing communities. Mores p e c i f i c a l l y, the law can be used by grassroots groups seeking topressure state agents or private parties that are frustrating legali m p l e m e n t a t i o n .The volunteer paralegals trained by a Chilean NGO, Corporationfor Legal Training for Citizenship and Democracy (FORJA),engage in community organizing, advocacy, and democracybuildingwork. A particular problem that the paralegals’ c o m m u-nity associations helped identify in Melipilla, a town outside ofSantiago, involved commercial concerns dredging sand from ar i v e r. This caused flooding in nearby neighborhoods. After receivingtraining from FORJA regarding relevant environmental andlegal issues, the paralegals in turn briefed and involved communityleaders in a series of actions designed to persuade local off i-cials to address the problem. These steps included press releases,meeting with the authorities, organizing residents affected by theissue, and publishing a newsletter about it. When these steps didnot prove satisfactory, the paralegals and FORJA’s lawyers tookthe issue to court, where it was pending as of this writing.

NO N L AW Y E R S A S LE G A L RE S O U R C E S 3 0 9Advocacy of this sort inevitably engenders some problems.Bar associations in Chile argue that paralegals usurp attorneys’roles in dispensing advice. However, these objections have dissipatedsomewhat as lawyers have become more familiar with paralegalwork and realized that such work does not necessarilythreaten the lawyers’ incomes. Another problem is that aggressivetactics by FORJA and its allies can antagonize government off i-cials. And residents in certain communities have met some mobilizationefforts with passivity. This may be because they have notattached high priority to the problems involved or because theysee little chance of achieving change. This weighs in favor ofcareful selection of issues, and against mobilization and advocacyfor their own sake.Of course, often it is not government but private parties thatare violating others’ rights. There are many situations where paralegalactions that deal directly with such parties are more eff i c i e n tand effective or become necessary because there are no legal aidlawyers available to pursue matters through government channels.These factors all figure in the approach taken by the IndianNGO Hengasara Hakkina Sangha (HHS). Otherwise known as theKarnataka Wo m e n ’s Legal Education Program, it mainly worksthrough what are known as s a n g h a s (collectives) to providewomen with paralegal training. A s a n g h a, typically composed oftwenty to twenty-five community members, often is formed by asmall local NGO in order to help it address livelihood, familyplanning, or credit needs. HHS conducts paralegal workshops forboth selected sangha members and NGO personnel.A fundamental feature of sangha training in India is theemphasis on attitudinal change. Given the deeply ingrained feelingsof inferiority that the culture inculcates in both d a l i t s(untouchables) and women, NGOs seek to broaden their perspectives.HHS does this, in part, by emphasizing gender considerationssuch as the value of women’s reproductive and householdwork. The Centre for Social Justice tries to get at attitudinalchange partly through use of wordless cartoon illustrations for itsilliterate audiences. One sequence, for example, shows that peoplelived as equals before castes arose. This undermines the beliefthat caste divisions are natural or that they always have been afact of life.

3 1 0 TH E M AT I C PE R S P E C T I V E SArmed with knowledge, organization, and more assertive attitudes,sangha members trained by HHS have banded together toassert their rights regarding both domestic relations and subminimumagricultural wages. They do not claim complete success.Their newfound knowledge and perspectives regarding dowry, forexample, have not diminished that illegal activity. But they saythey have negotiated higher farm wages for themselves in certaincommunities, and have achieved a reduction in domestic violenceon a more widespread basis. The latter may be significant not justin terms of upholding women’s rights and restraining immediatephysical harm, but because of research indicating the more longtermdamage to health suffered by battered women and their childr e n . 7The fact that the women are organized is crucial. A wife inisolation who confronts a violent spouse may simply invite furtherbeating. A group of women is more likely to effectively pressureor shame him, particularly if they threaten to get the policeinvolved. Similarly, a woman who seeks police help alone may belaughed out of the station, or worse. A group is harder to dismiss,especially if they seem to know something about the law. T h eexperience of the Centre for Social Justice also indicates thatsanghas, local NGOs, and local lawyers carry more weight if theyhave connections with those outside the community who cancomplain to higher government officials about local authorities’failure to enforce the law.A noteworthy aspect of the HHS training of the sanghas isthat legal issues are not the entry points. This would be too controversialand too likely to prompt opposition among men withina community. Rather, HHS builds on the fact that sanghas alreadyare organized (which itself can be a sensitive process) aroundfamily planning, livelihood, or credit needs. Once the womencome together around those issues, they can start to discuss whatmay be more controversial matters.The experience of Kenya’s Legal Advice Centre dovetailswith that of HHS in some ways. Staffed by attorneys, communityo rganizers, and social scientists, it views law as one of manypotential vehicles for community mobilization. It first ascertainsthe problems to which a given community attaches priority, whichmay be landlord-tenant disputes, garbage disposal, children’s

NO N L AW Y E R S A S LE G A LRE S O U R C E S 3 1 1well-being, youths’ sexual health, or a host of other concerns. Tothe extent that such problems lend themselves to legal strategies,the center pursues paralegal training, the threat or reality of litigation,and related approaches. Where community organizing, mediationby local administrative chiefs, and political mobilizationseem more appropriate, the center takes those routes. And ofcourse, it blends legal and extralegal strategies where possible.The point is that its use of law flows from an overall politicals t r a t e g y.Impact Beyond the Commu n i t yTo talk about community-based nonlawyers’ roles outsidetheir communities might seem like a contradiction in terms—bydefinition, they operate on a local level. As in many developmentfields, there is the challenge of whether and how even the bestlocal initiatives can yield wider benefits. Nevertheless, there areat least two respects in which nonlawyers’ legal work can contributeto impact beyond where they live or work. One is policyreform, through such devices as legislation, regulations, andSupreme Court rulings. The other is replication of communitylevelactivities.The contributions of paralegals and community residents topolicy reform take several forms. In the Philippines, for example,many legal services NGOs known as “alternative law groups”operate on both policy and grassroots levels to address environmental,agrarian, gender, and other issues. They often work inadvocacy coalitions that include leaders of national federations ofcommunity-based associations, to convert what paralegals andcommunity residents experience on the ground into successfulproposals for reforming the national government’s policies.Several years ago, for example, Saligan and Tungo sa Kaunlaranng Kanayunan at Repormang Panasakahan (Kaisahan) drew onp a r a l e g a l s ’ experience to help identify problems with and pushsuccessfully for regulatory changes in the country’s land reformprogram. The resulting modifications effectively lowered theprices of the plots farmers buy from landlords, and increased theshares of crop proceeds for farmers who lease land. More recent-

3 1 2 TH E M AT I C PE R S P E C T I V E Sl y, a 1998 study by the two grantees documented the land reformrecommendations flowing from the work of farmer paralegalsfrom across the country.N a m i b i a ’s LAC and South A f r i c a ’s Black Sash similarly drawon community-level work to push for policy reforms. LAC’sGender Research Project has used cases identified by paralegalsto inform its policy recommendations regarding such issues asdivorce, maintenance, and rape. Black Sash’s paralegals haveworked with South A f r i c a ’s Legal Resources Centre, for example,to identify trends meriting public interest litigation and to locateclients whose cases could form the core of such suits.F i n a l l y, the NGO-initiated shalish described above is beingreplicated throughout much of Bangladesh. By virtue of its pioneeringwork with this process, the MLAA has played a particularlyprominent role in this regard. It serves both as a model andas an organization that trains other Bangladeshi NGOs regardingits approach.C o n c l u s i o nThough it is difficult to generalize from such a broad array ofexperiences, some consistent themes seem to emerge from thelaw-oriented work of paralegals and other nonlawyers. Both themethods and the messages used in training paralegals and othercommunity residents are best pitched at their specific legal needsand aptitudes. Paralegal training works best when it is in-depth,extended, repeated, and complemented by ongoing contact withlawyers or other sources of expertise. All of these educationale fforts also benefit from being integrated with other forms oflegal activism, such as litigation and policy advocacy. Perhapsmost fundamentally, law-related assistance programs should takeaccount of nonlawyers and nonjudicial processes. As with Indiansanghas, this can involve building on community organizing, familyplanning, or livelihood projects.Explicitly law-oriented programs do not constitute the onlyarena in which legal and extralegal strategies can be integratedf r u i t f u l l y. Development programs that focus on related priorities,such as governance, similarly might explore how law-oriented

NO N L AW Y E R S A S LE G A L RE S O U R C E S 3 1 3NGOs can make government service delivery more responsiveand accountable, as they have for Filipino farmers, South A f r i c a npensioners, and Namibian women. Similarly, projects that aim tobenefit women’s health, reduce poverty, encourage environmentalprotection, and promote other mainstream development concernsmight integrate nonlawyers using legal approaches to achievethese ends. Such integration holds potential for productivelyexpanding paralegal work, and for bridging the gap that sometimesdivides human rights advocacy from mainstream developmentprograms.N o t e s1 . M a rgaret Schuler and Sakuntala Kadirg a m a r- R a j a s i n g h a m ,“Introduction,” in Schuler and Kadirg a m a r-Rajasingham, eds., L e g a lLiteracy: A Tool for Wo m e n ’s Empowerment (New York: W I D B O O K S ,1992), p. 2.2 . Rob Watson, Understanding Our Rights: Review of the PublicEducation Work of Human Rights NGOs in Kenya, a report prepared forthe Ford Foundation’s Kenya office (London: November 1996), p. 17.3 . Black Sash Trust, Report for the Period 1 January to 30 June1998, p. 2.4 . Watson, p. 17.5 . Scott Brown, Christine Cervenak, and David Fairman,Alternative Dispute Resolution Practitioners Guide, a report prepared bythe Conflict Management Group for the U.S. Agency for InternationalD e v e l o p m e n t ’s Center for Democracy and Governance, as part of thec e n t e r’s Technical Publications Series (Washington, D.C.: March 1998).6 . Karen L. Casper and Sultana Kamal, Evaluation Report :Community Legal Services Conducted by Family Planning NGOs, areport prepared for The Asia Foundation’s Bangladesh office (Dhaka:March 1995). Though the results should be viewed with caution, T h eAsia Foundation also commissioned a 1999 study that determined thatmost women who went through NGO-initiated shalish were satisfiedwith the results.7 . Lori L. Heise with Jacqueline Pitanguy and Adrienne Germain,Violence Against Women: The Hidden Health Burden; World BankDiscussion Paper No. 255 ( Washington, D.C.: The World Bank, 1994).

1 1L aying the Gro u n d wo r k :Uses of Law-Related Researc hMI C H A E L SH I F T E R & PR I S C I L L A HAY N E RIn many societies, the very notion of research on legal questionsis not widely accepted. Yet, experience shows that it is importantto go beyond merely learning and applying the law. Researchfocused on the social purposes of the law—and the institutions ofthe justice system that implement it—can yield positive results.Research helps to identify problems in need of reform; itbears witness to injustices that are not yet socially recognized; itinitiates and informs public discussion; it documents problemswhen resolutions are not yet possible; and it can lead to concreteproposals to improve conditions. Research can contribute directlyto the development of proposals for change, as well as actual policy. It also can contribute indirectly to the transformation of attitudesand intellectual culture.The value of such work is also exemplified by the growingrole of research in the proceedings of international tribunals.Responding to ineffective national court systems, NGOs areincreasingly seeking redress through the United Nations, inter-American, or European systems. In the evolving processes ofglobalization in the legal field, research will no doubt be an indispensabletool.As shown in this chapter, research can be used for many differentpurposes. It draws from a variety of disciplines, reflectingdiverse approaches and methodologies. These include standardlegal and jurisprudential research, social science methods such as3 1 5

3 1 6 TH E M AT I CPE R S P E C T I V E Sopinion surveys, and investigative techniques involving factfindingand monitoring. Despite their variation, all of theapproaches share a commitment to accuracy, reflect professionalstandards, and are designed to enhance credibility and objectivity.While research is but one of many elements that may be used toshape public opinion and policy outcomes, the multiple eff o r t sdescribed in this chapter have generated fresh perspectives thathave often improved policy options and enriched and broadenedthe public debate.The law-related work of Ford Foundation grantees around theworld encompasses many different forms of research, undertakenby many different individuals in a range of settings to address avariety of legal needs; the image of the university scholar doesnot capture the rich diversity of activity in this field. In no settingdoes research provide a stand-alone strategy. But in tandem witha d v o c a c y, litigation, and other legal and political strategies,research can be a powerful tool for social change.This chapter describes ways in which Foundation-fundedgroups have used law-related research to support policy and lawreform, provide the factual basis for litigation, and help granteesengage more effectively in public debate. This is not intended tobe an exhaustive list of the uses of law-related research. Instead,it aims both to highlight several important roles of this type ofwork by using illustrative examples, and to encourage practitioners,policy advocates, and funding agencies to consider the benefitsof such research.R e s e a rch to Support Policy and Law ReformsPolicy reforms do not emerge in a vacuum. Reform measuresbased on sound information and well-developed ideas have a betterchance of succeeding. Whether reforms are pursued throughconstitutional, legislative, or judicial channels, they nonethelessoften call for some research effort. The circumstances underwhich policy reform will be considered will determine the nature,timing, and scale of such research.Among the clearest contributions of research is its potential tou n d e rgird the development of specific constitutional, legislative,

US E S O F LAW- RE L AT E D RE S E A R C H 3 1 7or judicial reforms. In some cases, a donor might fund researchwhen it is not in a position to support policy reform more directly(or where such opportunities are very limited), hoping to promptdebate and promote critical thinking even in a politically constrainedenvironment. Such a long-term perspective has resultedin important contributions in a number of countries.In apartheid South Africa, for example, university researchcenters served as institutional shelters that made it more diff i c u l tfor the government to quash opposition. They also provided legaland intellectual aid to activists. For example, researchers atuniversity-based institutes significantly aided the labor movement,which was for many years black South A f r i c a ’s most org a n-ized and important domestic political force. In addition to theirongoing litigation efforts, a handful of centers undertookresearch, produced publications, and hosted conferences thatbrought together a wide range of people involved in industrialrelations. The Centre for Applied Legal Studies (CALS)researched international standards and other countries’ l a w sregarding such matters as unfair labor practices and industrialhealth and safety, and then helped integrate those standards intoSouth African law. At a time of government backtracking, CALSlegal analyses and advice to unions contributed to the 1990 repealof antilabor legislation adopted two years earlier.In China, policy research, formulation, and promotion on sensitivetopics was well served by the model of the Institute of Lawat the Chinese Academy of Social Sciences. The A c a d e m y, withits various institutes, is affiliated with the government, providingthe academic researchers with consistent access to policymakersand the opportunity to continually vet and promote new ideas.This model also encouraged the researchers to focus on policyrelatedresearch instead of more academic projects.Constitutional developments, like reforms involving specificpolicies, have benefited significantly from research endeavors. In1989, five years before the democratic elections in South Africa, aprominent scholar-activist from that country, Albie Sachs, undertookresearch on constitutionalism with the assistance of a Fordgrant to the Institute for Commonwealth Studies at the Universityof London. Many credit this and similar efforts with key elementsto the Bill of Rights that was ultimately incorporated into the

3 1 8 TH E M AT I C PE R S P E C T I V E Sinterim and permanent constitutions, adopted in 1994 and 1997r e s p e c t i v e l y. CALS and the Community Law Center and otherunits at the University of the Western Cape (UWC) also carriedout research on constitutional issues, and provided advice toAfrican National Congress (ANC) representatives who werenegotiating constitutional, legal, and other issues shortly beforethe transition. (Certain of the UWC personnel, in fact, were intheir private capacities members of those ANC negotiatingteams.) Their inquiries ranged from community consultations toscrutiny of other countries’ constitutions. This research, alongwith resulting publications and conferences, focused on a range ofquestions including local, regional, and national governancestructures; models for reintegrating quasi-independent blackhomelands into South Africa; judicial authority; and women’s andc h i l d r e n ’s rights.In Nigeria in the late 1990s, the Shelter Rights Initiative(SRI), an NGO that focuses on social and economic rights, completedstudies on housing, health, and education that provided thebasis for recommendations to the Nigerian government for policychange and constitutional reform. Specifically, SRI carried out areview of the Nigerian constitution and all laws and policies pertainingto housing, health, and education, and has evaluated themin terms of their compliance with international standards.Judicial and criminal procedure reforms in Chile have alsobenefited from applied research. Shortly after the end of the dictatorshipthere in the early 1990s, the Diego Portales Law Schoolundertook major studies on the Chilean judiciary. At that time,very little empirical knowledge had been developed on the countr y ’s judicial system, and in a political context in which it wasstill difficult to engage judges in a constructive dialogue on theseissues. As a result of this early research into judicial reform anumber of professors developed considerable expertise in thiswork. In the years since, Diego Portales Law School has madeimportant contributions to the reform of the judicial system inChile. Several professors have advised the Minister of Justice ona wide range of judicial reform issues. They have, for example,contributed to the drafting of legislation to create a public prosecu t o r’s office, and to the reform of criminal proceedings—reforms that greatly strengthened human rights protections for the

US E S O F LAW- RE L AT E D RE S E A R C H 3 1 9accused. Some of this direct policy work was supported by otherfunders, including directly by the Chilean Ministry of Justice formore recent work, but early Foundation support for basic researchwas important in building expertise and a pool of independentlegal analysts.S i m i l a r l y, in the criminal justice field, research has helped toestablish or clarify new rights for Chinese citizens. There arenumerous areas in which Chinese government entities and a crosssection of legal academics agree about the need and agenda forresearch, development, and implementation of new laws andrelated policies. Research undertaken by the Centre for CriminalLaw and Justice based at the China University of PoliticalScience and Law contributed to important changes in a 1996Criminal Procedure Law that included restrictions on pretrialdetention, rules on the cross-examination of witnesses, andadvances toward a more adversarial system. The center has sincegone on to monitor the new law’s implementation, with a viewtoward identifying problems and designing solutions where possible.This monitoring is done through both a small criminaldefense clinic, and by recruiting legislators and judges to serve onmonitoring panels and tours.When the Russian constitution and other laws came underserious review in the early 1990s, academic lawyers suddenlyfound themselves in demand. Legal scholars associated with theHuman Rights Project Group were funded in 1992 to help formulatecriminal justice laws, as well as legislation on the creation ofa Parliamentary Ombudsman, freedom of movement, minorityrights, and the right to privacy. The Center for the Study ofConstitutionalism in Eastern Europe, through its Moscow off i c e ,built an archive and library on constitutional questions for the useof law and policy specialists, and published the first Russian academicjournal focused on constitutional issues. And researcherswith the International Committee for the Promotion of LegalReform in Russia conducted an independent monitoring projecton the implementation of a new procedure, jury trials, in nineregions of Russia.In the area of administrative law reforms, the Chinese-basedAdministrative Law Research Group has made key contributionsto such reforms that help ensure government accountability. In

3 2 0 TH E M AT I CPE R S P E C T I V E S1989, its work contributed to a milestone in China’s legal developmentwith the passage of a law that strengthened the power ofcourts to overturn administrative agency acts and established significant,though limited, rights of citizens to sue governmentagencies and officials. The Group’s subsequent research anddrafting work laid the basis for a 1994 law that clarified citizens’rights to receive compensation for improper government action,as well as the procedures for compensation claims.In the United States, research has played a crucial role inimmigration law and policy by raising questions about the practiceof expedited removal—one of the most fundamental developmentsof that field in recent decades. Before the enactment of theexpedited removal policy in 1996, every person seeking to enterthe United States who was denied admission had the chance todemonstrate his or her admissibility in a formal administrativehearing. Under expedited removal, whenever an inspecting off i c e rsuspects a lack of proper documents, she or he can make a finaldetermination of inadmissibility based on an informal interview.In 1997, the International Human Rights and Migration Project ofthe Markkula Center for Applied Ethics at Santa Clara Universityinitiated a four-year study of the policy’s implementation. The initialfindings suggested that expedited removal procedures mayvary depending on the port of entry or nationality of the individual;and that the process disproportionately penalizes women, thep o o r, and those who do not speak English. The study as of thiswriting served as the only independent source of uniform and substantialinformation on the effects of expedited removal. By raisingimportant questions about the practice, the research helpedkeep the issue “alive” for policymakers.R e s e a rch to Provide aFactual Basis for LitigationUsing a variety of methods, a myriad of groups documentinjustice and collect information that is eventually used for litigation.But experience has shown that public interest litigation canoften be more effective when a legal case is buttressed by structured,objective research and high-quality analysis. In some

US E S O F LAW- RE L AT E D RE S E A R C H 3 2 1instances, patterns of wrongdoing need to be convincinglydemonstrated. In others, research has to document and substantiatethe consequences of particular policies and practices to bolstera party’s case in court. Devoid of a grounding in research, litigationis that much weaker and more difficult to pursue.A U.S. experience underscores the importance of linking publicinterest litigation with policy research. In the late 1980s, theAmerican Civil Liberties Union (ACLU) initiated an ambitious,multistate campaign to reform public education through theenforcement of state constitutional rights. The ACLU reached outto experts in school finance and related areas to build an empiricalbase showing that many public education systems were inadequatejudged by even the most basic standards. In addition todirect testimony from parents, schoolchildren, teachers, andschool staff, the ACLU gathered testimony from nationally recognizedexperts on school finance, educational psychology, and curriculumdevelopment in order to make its case. Focused researchshowed the disparities between rich and poor schools, and theadverse effects of low financing on educational outcomes.Armed with this data, the ACLU went to court in a number ofstates challenging school funding practices. While the outcomeshave varied, most courts have upheld the principle of educationalequity and adequacy. In Maryland, the A C L U ’s court action precipitateda historic negotiated agreement requiring increased statefunding for schools, and in Connecticut, the court’s order triggereda statewide planning process on how best to improve schoolquality through regional integration. In related work, the litigatione fforts of the NAACP Legal Defense and Educational Fund tomaintain desegregation also rely heavily on social scienceresearch to demonstrate the positive effects of desegregation onblack and white student achievement levels.Funding of research activities is also a core element of thework undertaken to advance equality for the Palestinian Israelic o m m u n i t y. The Galilee Society is developing a computerizeddatabank system detailing health, environmental, and socioeconomicconditions of the Palestinian Israeli population. The data isused by the Society and other activists, not only to identify communityneeds and bolster advocacy initiatives, but also to supportlitigation addressing inequalities faced by Palestinian Israelis.

3 2 2 TH E M AT I C PE R S P E C T I V E SIn a case brought in 1997 by Adalah, the Legal Center forArab Minority Rights (a Ford grantee since 1998), the GalileeS o c i e t y ’s data was used to help illustrate the need for more equitablehealth services in the “unrecognized” Arab Bedouin villagesof the Negev desert. Statistics showed that the infant mortalityrate in these villages was the highest in Israel, the immunizationrate of children was the lowest, and more than half of the A r a bBedouin children living there suffered from anemia and poornutrition. While Israel’s Ministry of Health provided mother andchild preventive health services to neighboring Jewish towns, itdid not provide clinics in the unrecognized Bedouin villages.A d a l a h ’s court petition on behalf of 121 Arab Bedouin womenand children demanded that the Ministry of Health establishhealth care clinics in the ten largest of those villages.Adalah, which specializes in high-impact litigation aroundArab rights issues, argued that the failure to provide health servicesviolated both the National Health Insurance Law and the BasicLaw: Human Dignity and Freedom, which protects the right tolife. In October 1998, when the Israeli Supreme Court heard thecase, the Ministry of Health agreed to establish six new clinics inthe unrecognized villages in the Negev and the Court ordered afollow-up hearing to monitor compliance.In Eastern Europe, several organizations have turned to basicresearch to confront discrimination against the Roma (also knownas “gypsies,” a term considered pejorative). The European RomaRights Center (ERRC) uses research to identify instances of discriminationand to bolster litigation challenging discriminatorygovernment practices. In the Czech town of Ostrava, for example,the ERRC found that schools commonly separated Roma childreninto “special” schools intended for the remedial or mentally handicapped.To challenge this practice, ERRC undertook intensiveresearch, interviewing families and closely documenting patternsof unfair school placement. That data became part of both a publishedreport on the problem as well as several lawsuits charg i n gschool authorities with racial segregation and violation of thec h i l d r e n ’s rights to equal education opportunities.Comparable efforts have also been undertaken in Brazil. T h eNucleus for the Study of Ethnic Relations (NUER) is one of severalgroups that has developed antiracist legal strategies in Brazil

US E S O F LAW- RE L AT E D RE S E A R C H 3 2 3and challenged the judicial system’s indifference to racism.NUER has surveyed lands claimed by African Brazilian communitiesin order to prepare documents that others can use in bringinglitigation on the land claims. This strategy represents, forBrazil, one of the first experiences of using academic expertise inpromoting antidiscriminatory jurisprudence.While research can be an important tool to strengthen litigation,there are also times when litigation itself is a source of documentation.This was true in Chile under the military governmentof Augusto Pinochet, when court petitions helped to documento fficial abuses. Human rights lawyers took virtually every case ofillegal arrest or disappearance to court with a petition for the perso n ’s release. These actions sometimes resulted in small gains,such as the recognition that a person was being held by theauthorities, but seldom were successful in getting prisonersreleased from detention. Despite the rarity of success, rightsadvocates continued to bring cases to court, coordinated first bythe Committee of Cooperation for Peace, and later, after the governmentordered the Committee dissolved, by the Vicariate ofS o l i d a r i t y, which operated under the protection of the CatholicChurch. In the course of this work, the Committee and theVicariate amassed reams of testimony from victims and their families,and the judges appointed to each case undertook at leastminimal investigation of their claims.Although these cases were not originally undertaken for documentationpurposes, the Vi c a r i a t e ’s thousands of case filesbecame a powerful source of information on the patterns andpractices of disappearances and the changing nature of the repressionover time. From these case files, the Vicariate producedmonthly and annual reports that were distributed around the worldand widely used by international human rights organizations intheir campaign to end the military’s abusive practices in Chile.Many researchers have since relied on these reports as historicaldocumentation of the repression. In addition, after the Pinochetgovernment lost power, copies of these case files were turnedover to the presidentially appointed National Commission onTruth and Reconciliation. The documentation developed throughlitigation provided a critical source of information for their subsequentinvestigations, and allowed the Commission to make

3 2 4 TH E M AT I CPE R S P E C T I V E Simportant advances in the short nine months that it had to completeits investigations and report.R e s e a rch to Enhance the Public DebateLaw-related work can often be more effective when it reachesbeyond a narrow, legal realm. To be broadly understood and widelysupported, such work needs to be made public. This objectivecan, of course, be accomplished without research. But good informationand high-quality analysis can help nourish and stimulate apublic discussion about a legal question. If done creatively, withattention to targeted sectors of the population, research activitiescan significantly enhance public debate and help build support forlegal policy reforms. Without accurate and convincing information,positive options and ideas are less likely to get the attentionthey deserve.In a number of countries, issues of racial discrimination andminority rights have generated considerable research attention inan effort to engage the public in searches for solutions. T h r e eexamples from different parts of the globe follow.When court decisions and political rhetoric in the UnitedStates led to a groundswell of attacks on affirmative action policies,Americans for a Fair Chance (AFC), a consortium of six ofthe most prominent U.S. civil rights and women’s rights groups,was formed specifically to broaden public understanding ofantidiscrimination policies. Using solid data about the use ande ffect of affirmative action programs, AFC challenges negativemisconceptions, argues that affirmative action should not beequated with preferences or quotas, and shows that on the wholesuch programs have been fairly implemented. Research used byAFC ranges from intensive studies done by academic centers,government agencies, and other sources, to its own commissionedresearch. In addition, AFC has used public opinion polls, focusgroups, town meetings, and other tools to assess the publicresponse to the issues it works on, and to develop a better understandingof how best to deliver its own messages. While aff i r m a-tive action policies continue to face difficult challenges nationwide,A F C ’s work has enabled defenders of those policies to craftsubstantive, fact-based messages that highlight the benefits of

US E S O F LAW- RE L AT E D RE S E A R C H 3 2 5a ffirmative action and raise the overall level of public debate onthe issues.In Israel, the Palestinian Israeli community has struggledagainst both official discrimination and widespread public bias.The current status and future needs of this minority have beengiven scant attention in the popular press, and low priority withinresearch units of governmental agencies, universities, and independentthink tanks. To counter the paucity of accurate, up-todateresearch, Sikkuy, an Israeli NGO working to advance equalo p p o r t u n i t y, has undertaken a three-year project to promote aff i r-mative action for Palestinian Israelis. The project’s advocacy,educational, and policy-related activities all rest on research todocument and analyze the participation by Palestinian Israelis invarious sectors, including workforce, governmental posts, andcorporate boards. In 1997, a Sikkuy survey showed that of 103state-owned companies in Israel, only three had any PalestinianIsraelis on their boards of directors. In publicizing these surveyresults, Sikkuy was able to generate significant media attentionand raise public awareness of bias against Palestinians. And in thefall of 1999, the new Israeli Minister of Justice announced hewould draft a law to mandate Palestinian Israeli representation onthe boards of state-owned businesses.Another research project seeks to enhance public debate onracially discriminatory hiring practices in Brazil. Judges in Brazilhave interpreted the law to mean that the intention to discriminatemust be proven. So the University of São Paulo is conductingresearch on hiring practices. They use social science researchmethodologies (known as audits) that test whether discriminationregularly occurs despite stated intentions. Even if discriminatorypractices documented by this research are not ultimately used asevidence in the courts, the findings may have an important influenceon the general public’s view of the prevalence of racial discrimination.C o n c l u s i o nThe illustrations above underscore the vital role that researchcan play in advancing positive legal changes that, in turn,improve the lives of the underrepresented or vulnerable in diff e r-

3 2 6 TH E M AT I C PE R S P E C T I V E Sent societies. Research does not always yield immediate, tangibleimprovements; its impact can be, and often is, long term and indirect.But conducted properly, and under the right circumstances, itcan be tremendously compelling—strengthening policy reform,litigation, and public education. The challenge is to determinehow best to integrate research in conjunction with other strategiesto raise the level of debate and decisionmaking.

1 2Weathering the Storm:NGOs A d apting toMajor Political Tr a n s i t i o n sMI C H A E L SH I F T E RAll nongovernmental organizations working on questions relatedto the law undergo strains at various points in their histories. T h a tis inevitable, and has to do largely with the sensitivity of lawrelatedwork in changing political contexts. The demands of politicalchange have pressed especially hard on NGOs operating insocieties where entire governments have been reconstituted—from military to civilian rule, for instance, or from communism tod e m o c r a c y. Such changes can affect nearly all aspects of a lawrelatedgroup’s work, from its basic mission to its day-by-dayactivities, and organizations must be adaptable in order to survive.Less dramatic, but just as significant, are the subtle but frequentshifts in political priorities and public attitudes that characterizelife in an established democracy. NGOs in those settings, too,have learned that flexibility must be an integral part of their org a-nizational development.This chapter focuses on the political changes that particularlyimpact human rights or public interest law NGOs, including fundamentalchanges in government structures as well as subtlerchanges in political climate and context. It does not deal with amyriad of other forces of change that may cause NGOs to retoolor refocus, such as demographic shifts; economic transitions;technological advances; and unanticipated environmental, health,or social crises. Neither does it deal with the ordinary pressures ofo rganizational development, such as staff turnover, budgetary3 2 7

3 2 8 TH E M AT I C PE R S P E C T I V E Sproblems, internal discord, and programming failures—theinevitable growing pains of all NGOs.The key question here is: How have some law-related groupsresponded and adapted to the important political changes thathave played so prominent a role on the world stage in recentdecades? By tracing the paths of several Ford-funded NGOsthrough transitions—transitions that were, in most of their experiences,unprecedented and fraught with obstacles—it is hoped thatuseful insights will emerge for other NGOs facing the challengesof change.Along the way, this chapter also attempts to identify the programmingtools and approaches donors might consider and takeadvantage of in order to work more effectively with org a n i z a t i o n sexperiencing such changes. Clearly, groups are better able torespond to challenges when they have in place stable org a n i z a-tional structures, committed staff, and an established reputation intheir communities, as well as the capacity to develop a long-rangestrategic vision and to train new leadership. Donors can play animportant role in helping to encourage these attributes.Of course, even with donor support, not all organizations survivetheir country’s political upheavals, nor should they. Someclose down when staff move on to expanding opportunities withinthe government sector. Others, finding their original mission nolonger necessary, quietly disband. Still others try and fail to adaptto new circumstances. For the purposes of this discussion, attentionwill focus on those organizations that were able to make successfultransitions in the wake of political change.Dealing with Regime ShiftsOver the past several decades, the world has witnessed profoundchanges that have brought major shifts in political regimes:from apartheid in South Africa, communism in Eastern Europe,and military dictatorships in Latin America, to some form ofdemocracy in each of these regions. With those transitions havecome fundamental changes in legal frameworks, judicial operations,and the enforcement of laws. By necessity, and in mostcases with eagerness, law-related NGOs in these transitional soci-

N G OS ADA P T I N G TO MA J O R PO L I T I CA L TR A N S I T I O N S 3 2 9eties responded with immediate shifts in strategies and activities,as well as long-term changes in overall goals. The adaptations ofthe Foundation grantees discussed here are notable for their ultimatesuccess, but those successes have not come without a degreeof hardship.The Center for Legal and Social Studies (CELS), A rg e n t i n a ’sleading human rights group, is an illustrative example. Foundedin 1979 when the country was under military rule, the group,while adhering to the highest professional standards, collectedextensive information on the massive “disappearances” of thousandsof A rgentines. In 1983, the country ended its nightmare,and a civilian, constitutional government took over. Unlike otherLatin American countries—indeed, countries in transition todemocracy elsewhere as well—the new government put membersof the former juntas on trial for having committed human rightsviolations.CELS played a central role in this process, providing thecourts and other authorities with necessary information to moveforward—and sustaining public pressure in pursuit of full justice.At the same time, however, CELS leadership sought to devise afresh agenda that would focus less on past violations committedfor political motives, and more on current abuses of civil libertiessuch as police brutality and discrimination. Following the democratictransitions, CELS began to incorporate some of the aimsand features of the American Civil Liberties Union (ACLU), andin 1986, CELS’s executive director visited various ACLU off i c e sin the United States.It would be another decade before CELS was able to fully settleon its new agenda. It took the passage of time and considerableexperimentation and deliberation for CELS to resume a coherentfocus and effectiveness, and to define its new role. In this case, itrequired a generational change as well, since CELS, characteristicof A rg e n t i n a ’s human rights movement as a whole, had been dominatedby family members of the “disappeared,” who were understandablyless inclined to give up the group’s original purposes.During the long transition, strategic visits to the ACLU by CELSs t a ff, as well as the work of external consultants who reviewedand evaluated the organization, proved justified and helpful.These kept alive valuable ideas and gradually helped develop sup-

3 3 0 TH E M AT I C PE R S P E C T I V E Sport within the organization for pursuing a fresh agenda. T h eweight of the past and the continuing unresolved questions of justiceaccounted for the delay.For donors, the CELS experience points to the importance ofpatience, maintaining a long-term perspective, and sticking with agroup that is going through a difficult period—especially whenthat group shows signs of promise for renewal. Long-term core orinstitutional support (covering staff salaries, rent, office expenses,and the like) proved central, even when CELS was struggling tofocus its agenda. A decision to withdraw support at an earliermoment would have likely had serious, negative implications forthe only human rights group of its kind that had gained substantialrecognition not only in A rgentina, but throughout the region.Even during its growing pains, CELS had continued to performvaluable work, including documenting cases of police violenceand delivering legal services to disadvantaged communities.In other contexts, comparable NGOs went through the transitionprocess with less stress. The fall of the Berlin Wall and shiftto democratic politics in Eastern Europe meant that human rightsgroups that had at one time operated within underground dissidentmovements evolved into full-fledged rights and advocacy org a n i-zations, with significant commitments to public interest lawreform and legal services. Before then, lawyers in these societieswere widely seen as serving as government officials; the notionthat they could be part of a dynamic, nongovernmental sector atfirst seemed alien.Yet, both the Czech Helsinki Committee and the PolishHelsinki Committee—the two leading human rights groups intheir countries under communist rule—managed to shift theirfocus in the postcommunist years toward greater attention to suchareas as policy advocacy, public education, and monitoring legislation.Their successful adaptation was helped by a set of planninggrants from Ford in the early 1990s. These were designed toenable the groups to undertake a serious institutional review andrestructuring while maintaining core activities. Subsequent supporthelped the groups carry out further long-term strategic planning;assured stability also facilitated greater experimentation.The programming instruments applied in these cases helped givethe organizations the opportunity to retool and chart new courses.

N G OS ADA P T I N G TO MA J O R PO L I T I CA L TR A N S I T I O N S 3 3 1To d a y, both groups have wide-ranging agendas that focus onstrengthening human rights standards, in accordance with domesticand international law, in both the Czech Republic and Poland.The experience of the International Memorial Society(Memorial) in Russia demonstrates both the problems posed bytransition and the critical importance of creative adaptability.Memorial was created at the end of the Soviet period to preservethe memory of those who had been politically repressed, as wellas to safeguard the rights of survivors. However, in the new freerenvironment, it found itself taking on an ever-wider range ofactivities. In a postcommunist society, where efforts on behalf ofhuman rights are few and public interest lawyers barely exist, thissmall group of committed, creative individuals, many of whomwere nonlawyers with little previous organizational experience,became overloaded with old and new issues. The repressed werejoined by refugees and by victims of ethnic violence and war.There were pressing needs for public education, legislative initiative,and legal defense. In Memorial’s case, there were actuallytoo many tasks being attempted simultaneously by too few, andthe strain within the organization threatened its future.The efforts of Memorial’s leaders to clarify the org a n i z a t i o n ’smission and improve its structure were critical. ContinuedFoundation support, accompanied by grants that brought consultantsto work closely with the leaders, helped advance such eff o r t s .M e m o r i a l ’s historians, lawyers, and activists managed to definetheir different tasks while creating a structure that allowed themto interact with each other and to work together creatively.Members became more aware of the need to seek out professionallegal advice, to attract young lawyers to public interest work, andto cooperate with international agencies. Without giving up itsoriginal mission, the newer, more multifaceted Memorial hassince become one of the leading organizations addressing a varietyof human rights issues in today’s Russia.South Africa offers examples of organizations successfullyu n d e rgoing transitions in some respects, while facing continuingand new challenges in others. During the apartheid era, the Centrefor Applied Legal Studies (CALS) conducted research critical ofthe regime, pursued cases that took on racism and repression, andhelped build the labor movement’s legal capacities. When the

3 3 2 TH E M AT I C PE R S P E C T I V E Stransition to democracy began in 1990, CALS quickly becameinvolved in efforts to draft the country’s interim and permanentconstitutions. During and after the transition, CALS increasinglyfocused many of its efforts on the social and economic rightsissues that assumed new salience. Several other law-orientedNGOs and university-based institutes have gone through similarc h a n g e s .South Africa NGOs also face the ongoing challenge of integratingblacks into their professional staffs—a task some havecarried out better than others. And with the onset of democraticrule in 1994, many donors shifted their support away from NGOsand toward government agencies. These challenges have been metin various ways. For example, internships and clinical legal educationprograms have enabled black law students to develop valuablelegal contacts, gain experience, and advance in the profession.Flexible Foundation funding has helped NGOs pursue theseactivities and, more generally, to adjust to the obstacles andopportunities presented by transitions. In some cases, such asSouth A f r i c a ’s Legal Resources Centre, and the Legal A s s i s t a n c eCentre in neighboring Namibia (which also underwent a transitionfrom apartheid), endowment support has helped buildg r a n t e e s ’ long-term funding bases. Endowments were seen asespecially appropriate instruments for these groups, in light oftheir critical, long-term role in protecting rights and fosteringdemocratic practice.These South African and Namibian organizations will likelycontinue to face the ongoing challenge of staking out legal positionsthat may not sit well with their governments or even withthe general populations of their countries. Defending prisoners’rights or mounting environmental challenges to governmentbackedprojects does not command the same support and energ yas battling apartheid. The NGO adaptation here may diff e rbetween the two countries. Both organizations are sticking totheir principles, but given that Namibian democratic roots run lessdeep, the Legal Assistance Centre may face greater challenges inbalancing the need to work with the government while opposingcertain policies.As important as it can be for NGOs to adapt—and for donorsto flexibly support them along the way—sometimes new org a n i-

N G OS ADA P T I N G TO MA J O R PO L I T I CA L TR A N S I T I O N S 3 3 3zations appropriately arise from transitions. These new groupsmay in turn adapt to the evolving post-transition environment.With the fall of the Marcos dictatorship in the Philippines in1986, many young attorneys (as well as other progressiveFilipinos) turned their attention to social, economic, and environmentalconcerns. These lawyers launched several “alternative lawgroups” (ALGs), legal services organizations that used the law topursue the development priorities of grassroots org a n i z a t i o n s ,making them more legally self-sufficient by building knowledgeand skills, and by promoting community mobilization.The very founding of ALGs represented a kind of adaptationto new circumstances. As law students under the dictatorship,many of the A L G s ’ leaders had worked with an earlier generationof human rights NGOs and lawyers. Working together, both generationscontinued to battle pervasive civil and political rightsabuses under the new democracy. But with the overthrow of thedictatorship, enduring social and economic inequities assumedgreater salience for many Filipinos. ALGs seized the chance tochallenge these disparities, working with NGOs and with grassrootsgroups composed of women, the urban poor, low-incomefarmers, fishing communities, indigenous peoples, and other disadvantagedpopulations.A L G s ’ evolution demonstrated ongoing adaptation to therevived democracy’s own changes. The emerging social, economic,and environmental priorities of partner communities weremore appropriately addressed through executive agencies andlocal authorities, particularly after the passage of the 1991 LocalGovernment Code, rather than through the often conservative andcorruption-plagued courts. As the Philippine NGO movementgained more experience and ALGs more knowledge and credibility, ALGs were increasingly able to lend their legal expertise topolicy advocacy coalitions. As ALG attorneys and other NGOleaders went into government, particularly during the 1992–1998administration of President Fidel Ramos, these coalitions werefurther able to leverage influence. The coalitions favorably aff e c t-ed important policy on a wide range of key social issues.Donor approaches complemented and facilitated A L G s ’e fforts in at least three ways. First, rather than narrowly confiningfunding to specific activities, Ford and other funders provided

3 3 4 TH E M AT I C PE R S P E C T I V E Sinstitutional support that gave these NGOs the leeway to experiment,learn, and adapt to the evolving Philippine scene. Second,the donors were willing to risk and accept failure from some ofthe activities they funded. And third, they did not hold thegrantees to rigid indicators of accomplishment. Instead, theyexpected the ALGs to produce results that eventually benefitedtheir partner populations.A L G s ’ e fforts have been impressive in many respects. Muchof what these NGOs have accomplished was unanticipated. T h eunexpected, favorable results included positive impacts on nationalpolicies, concrete benefits flowing from paralegal training, successfulengagement with local issues, and the indirect but powerfulinfluence arising from ALG personnel going into government.Had expectations been framed and enforced along the lines ofwhat some ALGs originally anticipated—impact on appellatecourt decisions, for example—they would have been deemed“failures,” and support might have counterproductively ended.In these and other societies that have faced shifts in politicalregime, a number of programming techniques have beenemployed to help deal with the important, often difficult, challengesof organizational adaptation. Apart from the instrumentsalready mentioned, one of the most fruitful approaches has beenexchanges and visits among key figures from the human rightsand legal services sectors of A rgentina, Chile, Eastern Europe,and South Africa. Though clearly each situation posed uniqueissues and concerns, these transitional societies had enough incommon to make such consultations (arranged at carefully selectedmoments) worthwhile and effective.Dealing with Changes in Political ClimateThe experiences of organizations that faced the challenge ofregime shifts, and the programming ideas that came about inresponse to those challenges, are instructive. It may also be usefulto consider other changes in political climate or context that arelikely to affect law-related NGOs in the future.In this sense, the story of a Peruvian organization, the LegalDefense Institute (IDL), is an especially interesting one. T h e

N G OS ADA P T I N G TO MA J O R PO L I T I CA L TR A N S I T I O N S 3 3 5group has had to adapt to a number of difficult challengesthroughout the years. The first was the substantial increase in violenceand the deterioration of overall security conditions duringpolitical strife of the late 1980s and early 1990s, and the Peruviang o v e r n m e n t ’s failure to provide order and perform elementarydemocratic functions. IDL began to shift its strategies: it continuedto document abuses committed by the various parties in theconflict, but also sought to strengthen and enlarge the democraticsector through education and training programs.In 1992, IDL, along with other Peruvian NGOs, had to dealwith two particularly critical moments. The first was a “selfcoup”by Peru’s president that effectively closed the Congress andjudiciary and suspended the constitution. The second was the captureof the leader of the main insurgent group, the Shining Path.Taken together, these key developments called for considerationof a different kind of human rights approach. As a result, IDL,sensibly moving to fill a void, devoted greater effort to questionsof institutional reform, and began to play an important role in thedemocratic process.I D L’s ability to adapt is manifest in a variety of its activities,though perhaps especially so in its education work. Its efforts inthis sector can be divided into two distinct stages. From 1986 to1992, IDL’s main focus was on emergency work and preventionof human rights abuses. Since 1992, IDL has concentrated moreon education and training activities to help build the capacity ofinstitutions. This furthers its chief objective of reconstructing thec o u n t r y ’s badly frayed social and democratic fabric. The twostages have been accompanied by a shift in strategy, moving fromt a rgeting particular geographic zones of the country to targ e t i n gparticular sectors such as local authorities, peasant leaders, selfdefensecommunities, and the thousands who were displaced bythe violence and have now returned to their communities.I D L’s adaptability derives in some measure from its soundleadership and capacity to think strategically and in the long term.In addition, however, at critical moments IDL benefited fromflexible donor assistance, including institutional support. T h i swas essential to enable the group to respond to such dynamic, difficultconditions. Several external consultants also worked closelywith IDL s t a ff at key moments to help them think through strate-

3 3 6 TH E M AT I C PE R S P E C T I V E Sgies and decide how to maintain a focus on “traditional” humanrights work while at the same time dealing with the special problemsposed by the deterioration of government institutions.F i n a l l y, it is instructive to look at several examples of howpublic interest law NGOs in the United States responded torecent, important changes in the country’s political context. T h e1980 election of President Ronald Reagan signaled a diff e r e n tpolitical environment. It ushered in a president who appointedmore conservative judges, which, in turn, significantly aff e c t e dthe work of public interest lawyers. As a result, many public interestlaw NGOs that had previously given almost sole priority to thecourts concentrated more of their efforts on public education.M o r e o v e r, groups that had traditionally litigated turned greaterattention to activities like community organizing and administrativeadvocacy. Within a less hospitable political context at thenational level, groups also pursued new opportunities for importantlegal work at the state and local levels. For example, as thefederal judicial appointees became more politically conservativeand less willing to find in their favor, such NGOs began to usestate constitutions rather than the federal constitution as theirbases for legal action.Changing political contexts and corresponding shifts in programmingapproaches sometimes call for a reevaluation of institutionalidentity. Many U.S. nongovernmental law-orientedgroups, worried about functioning effectively in an often less thanfriendly environment, became increasingly concerned about theiri d e n t i t y. Some responded by developing greater technologicalexpertise and using new communications strategies to advance aclear message of reform. The National Association for theAdvancement of Colored People Legal Defense and EducationalFund, for example, created a new communications departmentand enlisted professional media relations assistance to maximizeexposure for its issues in a different political climate. T h eWo m e n ’s Legal Defense Fund enhanced its public image anddeveloped new and productive alliances after it changed its nameto the National Partnership for Women and Families. T h eFoundation responded favorably to these important institutionalchanges with funding support.An alternative model used in the immigrant rights field was to

N G OS ADA P T I N G TO MA J O R PO L I T I CA L TR A N S I T I O N S 3 3 7concentrate communications capacity within a membershipo rganization that supports the work of the broader, pro-immigrantlegal and advocacy communities. The National ImmigrationForum (NIF) conducts proactive, ongoing media education thatcommunicates to the American public generally why immigrationis in the U.S. national interest. NIF catalyzes select, ad hoc advocacyalliances that form around specific policy goals, and developsand builds consensus around common media messages andcommunications strategies for the alliances. NIF also responds toand handles reporters’ queries, and trains individuals to be eff e c-tive public speakers on immigration and refugee policy matters.C o n c l u s i o nSustained commitments—from both donors and NGOs—areamong the key qualities that account for successful adaptations tochanging political circumstances. It matters whether donorsdemonstrate patience and stick with groups even when they areexperiencing difficulties. Flexible, long-term support can, underthe right circumstances, be very helpful. Planning grants, networking,convening, and training can, when strategically conceivedand used, be effective in making such groups more producti v e .Although the programming approaches to assist org a n i z a t i o n sin making transitions can be widely applied, it is also crucial totake into careful account the particularities of each situation.Strategies will vary in different contexts, at different moments.Though there is no solution or formula that is fully satisfactoryand applies across the board, different experiences in diff e r e n tparts of the world strongly point to the importance of providingcore support over a longer time period. Such a posture wouldallow solid NGOs to determine how best to adapt to multiple,external challenges, while pursuing their agendas and navigatingtheir own courses as successfully as possible.

AC RO N Y M S/ AB B R E V I AT I O N SA C L UA C R IA F CA L GA L R GA M AA N CA S KA U L A IB E L AB L A S TB M F IB N W L AB R UC A L SC B OC A S SC C PC E J I LC E L SC E PAAmerican Civil Liberties UnionAssociation for Civil Rights in IsraelAmericans for a Fair Chancealternative law groupsAdministrative Law Research GroupAmerican Medical A s s o c i a t i o nAfrican National CongressAin O Salish KendraAssociation of University Legal Aid InstitutionsBangladesh Environmental LawyersA s s o c i a t i o nBangladesh Legal Aid and Services Tr u s tBalay Mindanaw Foundation, Inc.Bangladesh National Women LawyersA s s o c i a t i o nBus Riders UnionCentre for Applied Legal Studiescommunity-based org a n i z a t i o nChinese Academy of Social SciencesChinese Communist PartyCenter for Justice and International LawCenter for Legal and Social StudiesCentre for Environment and Public Advocacy3 3 9

3 4 0 AC RO N Y M SC L CC L E E CC O L P IC O PA C H IC R PC S JC U N YD A RD E M U SD E N RDLACE L A CE R AE R R CF L A GF O R J AF U N D E P U B L I C OG L P L IG R PH C L UH H SI D LI L CI n i t i a t i v eI P GK a i s a h a nCommunity Law CentreU.S.-China Committee for Legal EducationE x c h a n g eConstitutional and Legislative Policy InstituteCommittee of Cooperation for PeaceConstitutional Rights ProjectCentre for Social JusticeCity University of New Yo r kDepartment of Agrarian ReformO ffice for the Defense of the Rights of Wo m e nDepartment of Environment and NaturalResourcesDevelopmental Legal Aid CenterEnvironmental Legal Aid CenterEqual Rights A d v o c a t e sEuropean Roma Rights CenterFree Legal Assistance GroupCorporation for Legal Training for Citizenshipand DemocracyFoundation for the Defense of the PublicI n t e r e s tGlobal Law Programs Learning InitiativeGender Research ProjectHungarian Civil Liberties UnionHengasara Hakkina SanghaLegal Defense InstituteInternational Legal CenterPublic Interest Law Initiative in Tr a n s i t i o n a lS o c i e t i e sInstitute of Politics and GovernanceTungo sa Kaunlaran ng Kanayunan atRepormang Panasakahan

AC RO N Y M S 3 4 1L A CL AWL C A CL D FL R CM CM L A AM MM TAM e m o r i a lN A A C PN A R FN E K IN G ON I FN I P I L A RN L SN O R A DN PN U E RN W L CO S IP a n l i p iPeking Wo m e n ’sC e n t r eP I LP I L IP OP R CLegal Assistance CentrePalestinian Society for the Protection of HumanRights and the EnvironmentLegal and Constitutional A ffairs CommitteeN A A C P Legal Defense and Educational FundLegal Resources Centremediation committeeMadaripur Legal Aid A s s o c i a t i o nMetro ManilaMetropolitan Transportation A u t h o r i t yInternational Memorial SocietyNational Association for the Advancement ofColored PeopleNative American Rights FundLegal Defence Bureau for National and EthnicM i n o r i t i e snongovernmental org a n i z a t i o nNational Immigration ForumNational Institute for Public Interest Law andR e s e a r c hNational Law School (of India University)Norwegian Agency for DevelopmentC o o p e r a t i o nNational PartyNucleus for the Study of Ethnic RelationsNational Wo m e n ’s Law CenterOpen Society InstituteTanggapang Panligal ng Katutubong PilipinoCentre for Wo m e n ’s Law Studies and LegalServices of Peking Universitypublic interest lawPublic Interest Law Initiativep e o p l e ’s org a n i z a t i o nP e o p l e ’s Republic of China

3 4 2 AC RO N Y M SQianxi Wo m e n ’sC e n t r eS A D A FS a l i g a nS E R A CS P D AS R ITA FT KU C TU N D PU N I C E FU P P V OU S A I DU W CW L BWuhan CentreQianxi County Rural Wo m e n ’s Legal ServicesC e n t r eSouth African Defense and Aid FundSentro ng Alternatibong Lingap PanlegalSocial and Economic Rights Action CenterPeruvian Society for Environmental LawShelter Rights InitiativeThe Asia FoundationTanggol KalikasanUniversity of Cape To w nUnited Nations Development ProgrammeUnited Nations Children’s FundUniversity of the Philippines ParalegalVolunteer OrganizationUnited States Agency for InternationalDevelopmentUniversity of the Western CapeWo m e n ’s Legal BureauCentre for the Protection of the Rights of theSocially Vulnerable

AB O U T T H E AU T H O R SHugo Frühling is a lawyer and social scientist based in Santiago,Chile. A graduate of the University of Chile with an S.J.D. fromHarvard Law School, Frühling has taught at Ottawa Law Schooland Harvard Law School, and served as an advisor to the ChileanMinister of the Interior. Frühling is currently a professor at thePolitical Science Institute of the University of Chile and aresearcher at the Center for Development Studies in Santiago,where he coordinated a comparative project on Policing inDemocratic Societies. He has published widely on human rights,nongovernmental organizations, judicial reform, and policies toconfront crime.Stephen Golub, GLPLI project director, is an attorney and consultantbased in Kensington, California, near Berkeley. A g r a d u a t eof Brown University and Harvard Law School, Golub teachesInternational Development Law and Policy at the Boalt HallSchool of Law of the University of California at Berkeley. Hispublished products pertain to evaluation, human rights, legal services,the rule of law, and related fields. Golub’s research and consultingexperience spans over two dozen countries and fifteeny e a r s .Priscilla Hayner, an independent writer and consultant based inNew York, recently completed a book comparing truth commis-3 4 3

3 4 4 AB O U TT H E AU T H O R Ssions worldwide. She was previously a program officer for internationalhuman rights and world security at the Joyce Mertz-Gilmore Foundation, and is currently a program consultant to theFord Foundation. Hayner holds a master’s in International A ff a i r sfrom the School of International and Public A ffairs at ColumbiaU n i v e r s i t y.Helen Hershkoff is an associate professor at the New Yo r kUniversity School of Law. She formerly served as an associatelegal director of the American Civil Liberties Union; as a staffattorney at The Legal Aid Society of New York; and as a litigationassociate at Paul, Weiss, Rifkind, Wharton & Garrison. Shereceived her A.B. from Radcliff e-Harvard College in 1973 andher J.D. from Harvard Law School in 1978. From 1973 to 1975,she studied as a Marshall Scholar at St. A n n e ’s College, OxfordU n i v e r s i t y, where she was awarded a B.A. in Modern History.She has written about welfare and education reform, and her currentscholarship focuses on state courts in the United States.David Hollander served until June 1999 as chair of the board ofthe Gay Men’s Health Crisis, Inc., and was previously cochair ofthe board of Lambda Legal Defense and Educational Fund, Inc.Until 1993, Hollander worked as an entertainment lawyer in NewYork and was a managing partner in the firm of Morrison &F o e r s t e r. He also served as managing editor of New Ti m e sM a g a z i n e (1975–1977). Hollander received his A.B. fromHarvard College in 1971 and his J.D. from Harvard Law Schoolin 1974.M a ry McClymont is senior director of the Peace and SocialJustice program of the Ford Foundation, where she overseesGLPLI. She formerly served as national director for Legalization,Migration and Refugee Services, U.S. Catholic Conference; seniorstaff counsel, the National Prison Project of the A m e r i c a nCivil Liberties Union; and trial attorney, Civil Rights Division,U.S. Department of Justice. She has an LL.M. in InternationalLegal Studies with a specialization in human rights law from theAmerican University Washington College of Law, and a J.D. fromG e o rgetown University Law Center.

AB O U TT H E AU T H O R S 3 4 5A u b rey McCutcheon is a U.S.- and U.K.-trained lawyer andsocial scientist presently working as an independent consultantbased in South Africa. He previously worked as a FordFoundation program officer and earlier as a congressional staffd i r e c t o r. McCutcheon has also served as staff or board memberfor several NGOs, including a post as Executive Director of theWashington Office on Africa. He graduated from Yale Collegeand Georgetown University Law Center, and later earned anM.Sc. at the London School of Economics in Social Policy andDevelopment and an LL.M. in Law and Development at theUniversity of London’s School of Oriental and African Studies.Michael Shifter is currently senior fellow and program directorin democratic governance at the Inter-American Dialogue inWashington, D.C. He is an adjunct professor of Latin A m e r i c a nStudies at Georgetown University. Prior to joining the Inter-American Dialogue, Shifter directed the Latin American andCaribbean program at the National Endowment for Democracy.Before that, he served as program officer for the FordF o u n d a t i o n ’s human rights and governance work in the A n d e a nRegion and Southern Cone of South America. He writes and lectureswidely on U.S.–Latin American relations.

INDEXAbel, Richard, 26–27, 30Abortion, 99–100, 238Abregu, Martin, 70, 77Abuse, police/official/domestic. SeeViolenceAcademy of Christian Humanism, 61,63Access to the profession, enhancing,278–279Accountability, government, 6Adalah, 322Adaptation and sensitivity to context,241–243Administrative Law Research Group(ALRG), 171–172, 186, 319–320Advocacy Institute, 133Affirmative action, 114–115, 324–325African Charter on Human andPeople’s Rights, 292African National Congress (ANC), 25,33, 318Agrarian reform, 199, 204, 210, 211,214Ain O Salish Kendra (ASK), 128,133–135, 137, 143, 147, 306Alabama, 98, 103Alam, M. S., 144, 151, 270Alford, William, 168–169All China Women’s Federation, 164,181, 302Allende, Salvador, 60Alternative dispute resolution,306–308Alternative law groups (ALGs), 11–12,197–202. See also PhilippinesAlternative models of legal services,71–72American Civil Liberties Union(ACLU), 94, 98–101, 112, 321, 329American Convention on HumanRights, 294American Medical Association(AMA), 115–116Americans for a Fair Chance (AFC),114–115, 324–325American Trial Lawyers Association,116Americas Watch, 62Andean Commission of Jurists andIDL, 67Andean region/Southern cone of SouthAmerica, 55; changes and contributions,80–81; clinics, law schoollegal aid, 78–79, 269, 275; communitymobilization, 74, 76–78; donorprogramming approaches, 82–83;human rights, protecting, 58–69;interviews for this study, peopleinvolved in the, 83–87; law anddevelopment movement, 56–58;lessons and insights, 81–83; litigation,74–76; origins of a program,347

348 INDEX69–73; preview, chapter, 9–10; publicinterest law grantmaking,69–80; public opinion, influencing,79–80; strategies, public interest,73–74; summary, chapter, 80–83;training law students, 78–79Andrew Mellon Foundation, 165Andrews, Penelope, 32, 33Apartheid, 8–9, 19, 20–21. See alsoSouth AfricaApprenticeships with experiencedpracticing lawyers, 278–279, 282Aquino, Corazon, 202Argentina, 275, 289, 329–330. Seealso Andean region/Southern coneof South America; Human rights–related law effortsAsia Foundation, The (TAF): alternativelaw groups, 204–206; clinics,law school legal aid, 147; collaborativeexperiences, 129, 134, 152;funding challenges for NGOs, 223;gender equity, 138, 139; legal servicescomponent in grant programs,180; mediation, 307Asian Pacific Americans, 94, 109–110Aspen Institute, 31Assenov, Anton, 293–294Assessment, performance, 255Association for Civil Rights, 72, 73,75Association for Civil Rights in Israel(ACRI), 291–292Association of University Legal AidInstitutions (AULAI), 38, 41Ateneo de Manila College of Law,203, 206Attitudes, public, 112, 235, 238, 247,286, 309Autonomia, 257Banchte Shekha, 134, 140, 148–149,152, 306, 307Bangladesh: changes and contributions,146–147; clinics, law schoollegal aid, 127–128, 143–145,149–151, 268–269, 278; communitymobilization, 132–136, 146–147;donor programming approaches,150–151; funding challenges forNGOs, 128; future, vision of the,151–152; gender issues, 14,129–132, 140, 148–149, 152, 306,307; goal of public interest law initiatives,129; interviews for thisstudy, people involved in the,153–158; lessons and insights,148–151; mediation, 136–141; nonlawyersas legal resources for theircommunities, 306, 312; preview,chapter, 10–11; socioeconomic conditions,127; summary, chapter,146–152. See also Madaripur LegalAid AssociationBangladesh Environmental LawyersAssociation (BELA), 128,133–136, 145, 149Bangladesh Legal Aid and ServicesTrust (BLAST), 128, 135, 136,141–143, 145, 147, 149, 151Bangladesh National Women LawyersAssociation (BNWLA), 128, 133,135, 147Baojian, Liang, 175Bedouin people, 322Benshoof, Janet, 99Berresford, Susan, 95Black Lawyers Association LegalEducation Centre, 41Black Sash Trust, 22, 29, 301–303,312BMFI, 213, 214Bohmer, Martin, 76, 79Bonk, Kathy, 112Bonpin, Ted, 211, 218Brazil, 322–323, 325Brown, Alice, 20, 36Brutality, official/police/domestic. SeeViolenceBudlender, Geoff, 24, 28, 29, 37Bulatao, Gerardo, 210–211, 217Bulgaria, 294Bundy, McGeorge, 91Bureau of Indian Affairs (BIA),104Bus Riders Union (BRU), 108–109Byrd, Janell, 103California Rural Legal AssistanceFoundation, 110–111

INDEX 349Canadian International DevelopmentAgency, 174, 180Capacity-building and sustainabilitychallenges, 252–255, 259Carmichael, William, 24Carnegie Corporation, 23, 24, 36, 95,114Case method, 56Case studies, seven, 4, 8–12. See alsoparticular regionCasper, Karen, 140Catholic Church, 62–63, 323Catholic University Law School,56–58Catholic University of Lima, 78Catholic University of Temuco, 77Center for Justice and InternationalLaw (CEJIL), 294–295Center for Law and Social Policy, 105Center for Legal and Social Studies(CELS), 61–63, 67–69, 75–76,329–330Center for National Policy Review, 92Center for Reproductive Law & Policy,99Center for Social Justice, 305–306Center for Study of Constitutionalismin Eastern Europe, 319Center on Social Welfare Policy, 91Centre for Applied Legal Studies(CALS), 23–34, 36–37, 45,317–318, 331–332Centre for Criminal Law and Justice,173, 186, 319Centre for Environment and PublicAdvocacy (CEPA), 247, 248Centre for Judicial Studies, 176Centre for Legal Advice, 243Centre for Legal Aid, 180–181Centre for Social Justice (CSJ),290–291, 307, 309, 310Centre for the Protection of the Rightsof the Socially Vulnerable, 169Centre for Women’s Law Studies andLegal Services, 183, 275Chang, Phyllis, 163, 166–167, 180Change, implementing/enforcing/monitoring/encouraging, 102–106,290–292. See also individual sub -ject headingsChaskalson, Arthur, 24, 28Chiel, David, 131, 132Chile, 57–58, 287, 308–309, 318–319,323–324. See also Andeanregion/Southern cone of SouthAmerica; Human rights–related laweffortsChilean Commission of HumanRights, 62, 67China: Administrative Law ResearchGroup, 171–172; changing legalcontext, 160–165; clinics, lawschool legal aid, 184, 189, 269,271–272, 275–276; County Bureauof Justice, 182; Cultural Revolutionof 1966–1976, 161; evolution/earlyapproaches, Ford’s law program,159–160, 165–173; gender issues,181–183, 188, 275–276; interviewsfor this study, people involved inthe, 190–196; judiciary reform,174–179; law-in-action, 179–185;lessons and insights, 186–189; non -lawyers as legal resources for theircommunities, 302; preview, chapter,11; reform and opening era,159; research, uses of law-related,163–164, 166, 170–171, 175–176,186, 317, 319; summary, chapter,185–189; transformations, threemajor, 161–162; U.S.-ChinaCommittee for Legal EducationExchange, 167–171China University of Political Scienceand Law, 186Chinese Academy of Social Sciences(CASS), 162, 166, 167, 170–171Chinese Communist Party (CCP), 161,164, 165, 177Chrzova, Jana, 254Chunsheng, Zhang, 171Citizen Power, 73–75, 80, 275, 289Civic participation, 207, 243–244. Seealso Community mobilizationCivil and political liberties, 60–61,243–244Classifications, racial, 21Clinics, law school legal aid: access tothe profession, enhancing,278–279; Andean region/Southern

350 INDEXcone of South America, 78–79,269, 275; Asia Foundation, The,147; Bangladesh, 127–128,143–145, 149–151, 268–269, 278;broader social impact, generating,274–277; China, 184, 189, 269,271–272, 275–276; defining, 267;education, improving legal, 271;Europe, Eastern, 239–240,242–243, 249–251, 259, 270, 272;gender issues, 275–276; growth of,268; internships, student, 147;multinational presence, a growing,268–270; Philippines, 206, 278;preview, chapter, 13; public interestlaw, encouraging, 277; SouthAfrica, 38–41, 45, 269, 272–273,277, 282; summary, chapter,279–282; supplementing legal services,272–274Clinton, Bill, 94Cobell, Elouise, 104Cole, Luke, 110–111Collaborative experiences: Andeanregion/Southern cone of SouthAmerica, 63–64, 77–78;Bangladesh, 129, 133, 134, 147,152; China, 170; clinics, law schoollegal aid, 274–275, 280, 281;Europe, Eastern, 240–241,251–252; international perspectiveon public interest litigation,286–287; nonlawyers as legalresources for their communities,299; Philippines, 199–200,204–205, 217; United States,107–108, 112–115. See alsoCommunity mobilizationColombia, 61–62. See also Andeanregion/Southern cone of SouthAmerica; Human rights–related laweffortsColombian Commission of Jurists, 66Colombian Communities Foundation,71Committee of Cooperation for Peace(COPACHI), 62–63, 65Committee on ScholarlyCommunications with the People’sRepublic, 165Communications infrastructure, creatinga, 113–114Communications technology, 270Community Law Center, 318Community mobilization: Andeanregion/Southern cone of SouthAmerica, 74, 76–78; Bangladesh,132–136, 146–147; China,163–164; clinics, law school legalaid, 281; Europe, Eastern, 239,249–250; mediation, 137–138;NGOs, complementing work of, 2,7; nonlawyers as legal resources fortheir communities, 308–311;Philippines, 207–208; South Africa,28–30; United States, 106–111. Seealso Collaborative experiences;Nonlawyers as legal resources fortheir communitiesCongress, U.S., 104. See also UnitedStatesConnecticut, 99Constitutional and Legislative PolicyInstitute (COLPI), 241, 272Constitutionalism, 317–319Constitutional Rights Project (CRP),288–289Constitutional structure, creating anew, 33–35Context, sensitivity to, 241–243Convention on the Elimination of AllForms of Discrimination AgainstWomen, 36Convention on the Rights of the Child,36Corporation for Legal Training forCitizenship and Democracy(FORJA), 74, 78, 308–309Correa, Jorge, 68Corruption, 70, 201, 209, 211,216–217, 292Council of Europe, 236, 238, 293Court cases: Brown vs. Board ofEducation, 98, 103; Davis vs.Monroe County Board ofEducation, 106; Komani (1980),25–26, 28; Moutse, 27–29; Orr, 26;Plyler vs. Doe, 101; Rikhoto, 26,28–29; Roe vs. Wade, 99Credibility of human rights groups, 62

INDEX 351Crisis magazine, 113Cross-sectoral programming and grantmaking,256–257, 260C.S. Mott, 114Csongor, Anna, 257Cummings Foundation, 114Czech Republic, 238. See also Europe,EasternDalits, 290–291, 309Daoluan, Zhou, 178Davis, Nancy, 102Debate, research enhancing the public,324–325Democracy, 66–69, 204, 236Department of Environment andNatural Resources (DENR), 209,211, 212, 216de Soto, Hernando, 209de Tocqueville, Alexis, 95Development: equitable and sustainable,5–6; microenterprise, 37; separate,21Diego Portales Law School, 67–68,71–73, 77–78, 269, 275, 318Disappeared people, 59, 63Dissemination of legal information,299–301Domestic laws and processes, 214. Seealso violence under Gender issuesDonor programming approaches:Andean region/Southern cone ofSouth America, 82–83; Bangladesh,150–151; Europe, Eastern,244–246, 250; Philippines,221–223; South Africa, 45–46;United States, 118–119. See alsoFunding challenges for NGOsDowry payments, 130, 131Dugard, John, 23, 27, 31Dun, Li, 162Duncan, Sheena, 22, 23East Asian Legal Studies program, 165Eastern Europe. See Europe, EasternEchohawk, John, 105Education: apprenticeships with experiencedpracticing lawyers,278–279, 282; desegregated publicschools, maintaining, 103–104;girls and women, advancing educationalopportunities for, 105–106;implementation and public, legal,112–113; judiciary, educated, 76;judiciary reform, 174–179; nonlawyersas legal resources for theircommunities, 299–301, 305–306;rights and responsibilities, publiclegal education on, 176; state courtsused to reform public schools,97–99. See also Clinics, law schoollegal aid; Training programsEdwards, Randle, 162, 179–180ELAC, 207–208, 210, 214, 216–218El Salvador, 101Environmental justice: Bangladesh,128; indigenous people, 199, 212,239, 295; Israel, 289–290;Philippines, 199, 212, 216, 218;United States, 110–111Enxet-Lamenxay people, 295Epistolary jurisdiction, 286Estrada, Joseph, 223Ethnic violence, 257Europe, Eastern: adaptation and sensitivityto context, 241–243; civilsociety, strengthening, 243–244;clinics, law school legal aid,239–240, 242–243, 249–251, 259,270, 272; collaborative experiences,240–241, 251–252; cross-sectoralprogramming and grantmaking,256–257, 260; donor programmingapproaches, 244–246, 250; evolutionof public interest law grantmakingprogram, 234–241; fundingchallenges for NGOs, 233–234,240, 252–254; human rights–related law efforts, 237–238,293–294; interviews for this study,people involved in the, 260–264;legal profession, strengthening the,246–251; lessons and insights,258–260; mistrust of legal systems,235, 238, 247; networks or coordinatingstructures, 255–256; politicaltransitions, NGOs adapting tomajor, 330–331; preview, chapter,12; proactive and reactive programming,244–246, 259; research, uses

352 INDEXof law-related, 322; summary,chapter, 258–260; sustainability andorganizational capacity building ofgrantees, 252–255; “Symposium onPublic Interest Law Around theWorld” (1991), 233European Commission on HumanRights, 238, 293European Convention on HumanRights, 236, 247, 293European Court of Human Rights, 293European legal systems, continental,79European Roma Rights Center(ERRC), 252, 257, 293–294, 322Exchange programs, 251E’xiang, Wan, 169, 183Expression, freedom of, 237,238Farooque, Mohiuddin, 133–134, 136,146Fedler, Joanne, 36Flexibility, strategic, 224Foreign experts used to transmit experience,251–252Foundation for the Defense of thePublic Interest (FUNDEPUBLI-CO), 72, 75Franks, Beverley, 40Freedom of expression, 237, 238Free Legal Assistance Group (FLAG),203Frühling, Hugo, 343Fujimori, Alberto, 69Funding challenges for NGOs:Bangladesh, 128; Europe, Eastern,233–234, 240, 252–254; humanrights–related law efforts, 60–61;Philippines, 205–206, 222, 223;South Africa, 46–47. See alsoDonor programming approachesFurmann, Imre, 247–248Galilee Society, 321–322Gamarra, Ronald, 63–65Garreton, Roberto, 64Gasgonia, Donna, 211–212Geithner, Peter, 166–170Gender issues: alternative dispute resolution,307; Bangladesh, 129–132,134, 140, 148–149, 152, 306, 307;China, 181–183, 188, 275–276;clinics, law school legal aid,275–276; dowry payments, 130,131; educational opportunities forgirls/women, 105–106; equality,105–106, 138–141; India, 309–310;marriages, underage, 130–131; nonlawyersas legal resources for theircommunities, 307, 309–310;Philippines, 199, 210; rights ofwomen, 36, 128, 129–132,181–183, 188, 199, 210, 275–276;violence against women, 36, 127,130, 141, 213–214, 307Gender Research Project (GRP), 36George, Terrence, 198, 204, 205, 207German Marshall Fund, 235Gilbert, M. Shanara, 40, 274Girls. See Gender issuesGlobal Law Programs LearningInitiative (GLPLI), 2–4, 15. Seealso individual subject headingsGollin, Karin, 218Golub, Stephen, 343Govender, Karthy, 43Governance structure influencing thecourts, 285–286. See also Politicaltransitions, NGOs adapting tomajorGovernment accountability, 6Government-organized nongovernmentalorganizations (GONGOs),165Grameen Bank, 147Grandmothers of the Plaza de Mayo,61Grassroots legal knowledge, building,299–301. See also CommunitymobilizationGrassroots mediation, 10–11Gray Areas program, 91Great Society programs, 91Greenberg, Jack, 112, 113Greenberger, Marcia, 96, 105Groarke, Margaret, 143, 145Gross, Irena G., 235, 243Guangzhong, Chen, 172Guzman, Abimail, 59

INDEX 353Haiti, 101Hansen, Christopher A., 112Harris, Peter, 169Harvard Law School, 165Hate crimes, 110Hawes, Gary, 198, 207Hayner, Priscilla, 343–344Hecht, Jonathan, 166, 168, 170, 172Heller, Simon, 99–100Helsinki Committees, 239–242,249–252, 254, 259, 330–331Hengasara Hakkina Sangha (HHS),309–310Henry Luce Foundation, 167Hermelinski, Wojciech, 247, 249Hernandez, Antonia, 111Hershkoff, Helen, 344Higashi, Taryn, 101–102Holistic approach to social change,107–108, 116Hollander, David, 344Homelands for indigenous Africans,artificial, 21, 27Hossain, Kamal, 142–143Housing issues, 292–293Hrubala, Jan, 246–247Huiling, Jiang, 177Human Rights National Coordinator ofPeru, 61Human Rights Project Group, 319Human rights–related law efforts:Andean region/Southern cone ofSouth America, 58–69;capacities/credibility/legal strategiesof human rights groups,62–66; Center for Justice andInternational Law, 68–69, 294–295;Center for Legal and SocialStudies, 68–69; China, 172–173;civil and political liberty, 60–61;Colombian branch of the AndeanCommission of Jurists, 61–62;Europe, Eastern, 237–238,293–294; funding issues, 60–61;improvements in people’s lives, 5;International Commission ofJurists, 61; international perspectiveon public interest litigation,293–294; Legal Defense Institute,61; martial law tribunals, 64–66;Philippines, 202–204, 207; politicaltransitions, NGOs adapting tomajor, 66–69; political violence,59–60; Russia, 274; social justiceand legal services, access to, 60;socioeconomic status, 58–59Human Rights Watch/Americas, 62Humphreys, John, 202, 203Hungarian Civil Liberties Union(HCLU), 246, 252Hungary, 236, 238, 292. See alsoEurope, EasternHuntley, Lynn W., 93Huq, Fazlul, 134Hutchcroft, Paul, 200–201Illiteracy, 10, 127Immigrants, rights of, 100–102,336–337Immigration and NaturalizationService, 101Impact litigation, 2, 29, 73Implementation, legal: China,164–165, 180, 188; education, pub -lic, 112–113; Europe, Eastern, 245;international perspective on publicinterest litigation, 289–290;Philippines, 212–221; roots of poor,6–7; South Africa, 28–29; UnitedStates, 102, 112–113, 117India: alternative dispute resolution,307; clinics, law school legal aid,144, 269, 271, 272–273; communitymobilization, 309–310; epistolaryjurisdiction, 286; nonlawyersas legal resources for their communities,305–306; untouchables,290–291Indigenous people’s rights, 104–105,199, 212, 239, 295Indigent clients, 247, 278Institute for Commonwealth Studies,34, 317Institutional identity, refocusing,115–116, 336Institutional support approach,205–206Inter-American Commission of HumanRights, 9, 61, 62, 64, 66, 294, 295Inter-American Court, 294

354 INDEXInter-American Legal ServicesAssociation, 58INTERIGHTS, 133Interior Department, U.S., 104International Commission of Jurists,61–62International Committee for thePromotion of Legal Reform inRussia, 319International Defense and Aid Fund,22International Human Rights andMigration Project, 320International Human Rights InternshipProgram, 133International Labour Organization, 33International Legal Center (ILC), 56International Memorial Society, 331International perspective on publicinterest litigation: change, encouraginglegal, 290–292; clinics, lawschool legal aid, 268–270; collaborativeexperiences, 286–287; creativestrategies, 283–284;g o a l s / a p p r o a c h e s / a d a p t a t i o n s ,284–287; implementation, legal,289–290; international law, using,292–295; preview, chapter, 13;repressive regimes, exposing,287–289; research, uses of lawrelated,315; summary, chapter,2 9 5Iodine deficiency, 143Islamic law, 130, 139Israel, 289–292, 321–322, 325Jagiellonian University Law Clinic,248, 270Jansen, Eirik, 131Jenkins, Alan, 107Jiahong, He, 169Jones, Elaine, 103, 114Judiciary: educated, 68, 76; governancestructure influencing thecourts, 285–286; reform, 162–163,174–179, 186–187, 236, 276Justice Department, U.S., 93Kabir, Khushi, 146Kaisahan, 210, 211, 213–215, 311–312Karnataka Women’s Legal EducationProgram, 309–310Kendall, George, 107Kentridge, Felicia, 24Kentridge, Sidney, 23Kenya, 300, 305, 310–311Kesaj, 252–253Korten, Frances, 204Koszeg, Ferenc, 249Krieger, Stefan, 242, 249, 281Labor movement, 32–33Lamberth, Royce, 104–105Land tenure, 37Lanye, Zhu, 169Latin America, 24, 57, 294–295. Seealso Andean region/Southern coneof South America; Human rightsrelatedlaw effortsLa Viña, Antonio, 206, 211Law and development movement,56–58Law-in-action, 173, 179–185Law-related work. See Public interestlawLaw school legal aid clinics. SeeClinics, law school legal aidLawyering skills, 271. See alsoClinics, law school legal aidLawyers’Committee for Civil RightsUnder Law, 92LDF, 103–104, 108, 113–114Leadership, development of secondtier,253, 280Legal Action Center, 92Legal Advice Centre, 310–311Legal Aid in South Africa Conference(1973), 23Legal Assistance Centre (LAC),300–303, 305, 312, 332Legal Awareness Forum, 146,152Legal Center for Arab Minority Rights,322Legal Defence Bureau for Nationaland Ethnic Minorities (NEKI),247–248, 252–253, 257, 292Legal Defense Institute (IDL), 61, 65,67, 69, 334–336Legal literacy, 298

INDEX 355Legal profession, strengthening the,246–251Legal Resources Centre (LRC), 23–33,35, 37, 47, 285, 332Legal Resources Foundation, 300Legal Resources Fund, 305Legal Rights and Natural ResourcesCenter, 209, 210, 217Legal Services Corporation, 91Legislation: (Bangladesh) ChildMarriage Restraint Act of 1929,130–131; (Bangladesh) DowryProhibition Act of 1980, 130;(Bangladesh) Muslim Family LawOrdinance of 1961, 130, 131;(China) Administrative LitigationAct of 1989, 171; (India)Prevention of Atrocities Act,290–291; (Israel) Basic Law:Human Dignity and Freedom, 322;(Israel) National Health InsuranceLaw, 322; (Philippines) LocalGovernment Code of 1991, 207,215; (Philippines) UrbanDevelopment and Housing Act,209; (South Africa) Black (UrbanAreas) Act, 25; (South Africa)Group Areas Act, 29; (SouthAfrica) Labor Relations Act of1979, 32; (South Africa) LaborRelations Act of 1988, 32; (SouthAfrica) Restitution of Land RightsAct, 39Legislative Affairs Commission, 172Leonen, Marvic, 209, 214Lichtman, Judith, 115, 116Liming, Wang, 168, 170, 178Limits of litigation, 111–116Lincoln, Catherine, 144Literacy, 10, 127; legal, 298Litigation as a social change strategy,13, 74–76, 89–90, 95–96, 111–116,216. See also International perspectiveon public interest litigation;individual subject headingsLos Angeles County (CA), 108–109Los Angeles Times, 109Madaripur Legal Aid Association(MLAA): Bangladesh Legal Aidand Services Trust, 143; collaborativeexperiences, 147; conferenceorganizer, 134, 149; mediation,128, 136–141; reform, law, 133;shalish, 306Magno, Alex, 201Majola, Bongani, 42, 47Malepe, Lebo, 273Malik, Shahdeen, 146Mandela, Nelson, 33Marcos, Ferdinand, 11, 197Marriages, underage, 130–131Martial law tribunals, 64–66Maryland, 98–99, 321Mayo-Anda, Grizelda, 207McClymont, Mary, 106, 344McCutcheon, Aubrey, 29–31, 35, 345McQuoid-Mason, David, 23Media efforts: Andean region/Southerncone of South America, 9–10, 80;balance of coordination/policyanalysis/focus, 112; China, 184;Philippines, 217; South Africa,26–27Mediation, 128, 136–141, 148–149,182, 218, 306–308Medicaid funding for abortion,100Memorial, 331Mendoza, Magistrado, 202Metropolitan Transportation Authority(MTA), 108–109Mexican American Legal Defense andEducational Fund, 92Michelsen, Ernesto, 72, 76Microenterprise development, 37Mignone, Emilio, 63, 65Military juntas, 57Ming’an, Jiang, 171, 177Mingxia, Chen, 181, 182Mistrust of legal systems, 235, 238,247Mohsin, A. F. M., 144Monitoring mechanisms, 102, 117Montana, 100Moral commitment to social justiceand to rule of law values, 89Morano, Cindy, 107Motsei, Mmatshilo, 36, 37Murombedzi, James, 37

356 INDEXNagaraj, V., 271, 273, 277–278Namibia, 300–303, 305, 312, 332Narasaki, Karen, 109–110National Asian Pacific American LegalConsortium, 94, 109–110National Association for theAdvancement of Colored People(NAACP), 92, 97, 113, 233, 321,336National Commission on Truth andReconciliation, 287, 323National Committee AgainstDiscrimination in Housing, 92National Committee AgainstRemovals, 29National Committee on U.S.-ChinaRelations, 165, 170National Consumers’Service, 77National Corporation for theDevelopment of Indigenous People,77National Foundation to OvercomePoverty, 78National Immigration Forum (NIF),337National Immigration Law Center,101National Institute for CitizenEducation in the Law, 133National Institute for Public InterestLaw and Research (NIPILAR), 36,42National Law School (NLS), 269, 271,273National Partnership for Women &Families, 115–116, 336National Party (NP), 21–22National Women’s Law Center,94National Women’s Service, 77Native American Rights Fund(NARF), 92, 104–105Native American treaty obligations,enforcing, 104–105Navsarjan Trust, 291Nepal, 144Network support service, 255–256Neuborne, Burt, 102Neuborne, Helen, 107New York Times, 26NGOs. See Nongovernmental organizationsNigeria, 288, 292–293, 318Nijera Kori, 1461980’s and political retrenchment fromsocial programs, 93–94, 96Nongovernmental organizations(NGOs): accountability, government,6; Bangladesh, 132, 134,139–140, 148, 150, 151–152;China, 187–188; clinics, law schoollegal aid, 79, 145; communitybasedadvocacy, 2, 7; creativity andadaptability, 7; drain of NGOs talentinto the government, 46;Europe, Eastern, 242, 248, 253;expanding contacts, 77–78; fundingchallenges, 46–47; governmentorganized,165; implementation,legal, 7; media, relationship withthe, 80; National Institute forPublic Interest Law and Research,36; role of, 1–2; South Africa, 47.See also Funding challenges forNGOs; Nonlawyers as legalresources for their communities;Political transitions, NGOs adaptingto major; individual organiza -tionsNonlawyers as legal resources for theircommunities: alternative disputeresolution, 306–308; collaborativeexperiences, 299; community,impact beyond the, 311–312; communityand group mobilization,308–311; dissemination of legalinformation, 299–301; genderissues, 307, 309–310; literacy,legal, 298; NGO personnel andcommunity-based volunteers, 297;Philippines, 220, 303–304,307–308, 311–312; preview, chapter,14; professional paralegals,301–303; summary, chapter,312–313; voids, helping to fill hugelegal aid, 298; volunteer paralegals,303–306Norwegian Agency for DevelopmentCooperation (NORAD), 129, 134,137

INDEX 357Novib, 143Nucleus for the Study of EthnicRelations (NUER), 322–323NWLC, 105–106O’Brien, Edward, 245Office for the Defense of the Rights ofWomen (DEMUS), 77Oligarchic nature of the Philippinepolity, 200–201Open Society Institute (OSI), 235, 272Organization for Security andCooperation in Europe, 238Other Path, The (de Soto), 209Overlaps among grantee efforts, 37Pakikisama, 211Palakasan system, 215Palawan Province Council forSustainable Development, 210Palermo University Law School, 76,79, 275Palestinians, 291–292, 321–322Palestinian Society for the Protectionof Human Rights and theEnvironment, 289–290Palous, Martin, 244Pan African Congress, 25Paraguay, 295Paralegal development, 213–215,220–221, 297–299. See alsoNonlawyers as legal resources fortheir communitiesPartnerships, Ford/grantee, 7–9Pass laws, 21, 25–26, 30, 285Patient’s bill of rights, 116Peking University, 176, 183, 275, 276People’s organizations (POs), 200,214–215People’s Republic of China (PRC),161, 162. See also ChinaPerformance assessment, 255Permanent Assembly for HumanRights, 63Peru, 56–57, 334–336. See alsoAndean region/Southern cone ofSouth America; Humanrights–related law effortsPeruvian Society for EnvironmentalLaw (SPDA), 71–72, 74, 78Petranov, Borislav, 252Petrova, Dimitrina, 239Philippines: alternative dispute resolution,307–308; alternative lawgroups, 197–202; changes and contributions,218–219; clinics, lawschool legal aid, 206, 278; donorprogramming approaches, 221–223;evolution of ALGs andFoundation’s support, 202–208;funding challenges for NGOs,205–206, 222, 223; future, visionof the, 223–224; gender issues,199, 210; human rights–related lawefforts, 202–204, 207; implementation,legal, 212–221; interviews forthis study, people involved in the,226–231; lessons and insights,219–223; nonlawyers as legalresources for their communities,220, 303–304, 307–308, 311–312;oligarchic nature of the Philippinepolity, 200–201; paralegal development,213–215; people’s organizations,214–215; personal relationsand human interaction, 201, 211;policy advice and regulatoryreform, 208–212; political transitions,NGOs adapting to major,333–334; preview, chapter, 11–12;research, uses of law-related,217–218; summary, chapter,218–224Pinochet, Augusto, 323Planning, strategic long-term, 255Platek, Monica, 245, 250, 252Poland, 238, 240, 247. See alsoEurope, EasternPolice/official violence: Bangladesh,135, 143; Europe, Eastern, 238;Israel, 291; Roma people, 293–294;South Africa, 21, 26–27, 35Policy advice and regulatory reform,97–102, 208–212, 249, 311–312,316–320Political transitions, NGOs adapting tomajor, 327; Argentina, 329–330;climate, dealing with changes inpolitical, 334–337; Europe, Eastern,330–331; human rights–related law

358 INDEXefforts, 66–69; Philippines,333–334; preview, chapter, 14–15;regime shifts, dealing with,328–334; South Africa, 331–332;summary, chapter, 337; UnitedStates, 336–337Political violence, 59–60, 64, 202Politics by Other Means (Abel),26Politics of transition, 244Poverty, 91, 127, 273, 292Press freedom, 238Proactive and reactive programming,8, 244–246, 259Pro bono work, 247, 278Professional paralegals, 301–303Project-specific support, 47Przywara, Danuta, 245, 254Public interest law (PIL): balancedportrait of, 3–4; case studies, seven,4; development, equitable and sustainable,5–6; goals, 5–7; humanrights–related law efforts, 5; implementation,legal, 6–7; nongovernmentalorganizations, 1–2; partnerships,Ford/grantee, 7–9; thematicperspectives, five, 4–5. See alsoindividual subject headingsPublic Interest Law Initiative (PILI),127–129. See also BangladeshPublic Interest Law Initiative inTransitional Societies, 255–256Public opinion, influencing, 79–80Public transportation, 108–109Puerto Rican Legal Defense andEducational Fund, 92Pulgar, Manuel, 70Pull system, 215Qianxi County Rural Women’s LegalServices Centre, 181Racial classifications, 21Rahman, Anika, 100Rahman, Mizanur, 144, 272Rajshahi University, 144Ramgobin, Asha, 37, 39Ramos, Fidel, 211Reactive and proactive programming,244–246, 259Reform centers, university-based,31–33, 44–45Regime shifts, dealing with, 328–334Regulatory reform and policy advice,208–212, 249Rekosh, Edwin, 237, 255Replication of community-level activities,311, 312Repressive regimes, exposing,287–289. See also Political transitions,NGOs adapting to major;specific countriesReproductive choice, 99–100Reproductive Rights Alliance,36Research, uses of law-related: China,163–164, 166, 170–171, 175–176,186, 317, 319; debate, enhancingthe public, 324–325; disciplines,drawing from a variety of,315–316; Europe, Eastern, 322;expansion of, 67–68; factual basisfor litigation, 320–324; internationalperspective on public interest litigation,315; Philippines, 217–218;policy and law reforms, 316–320;preview, chapter, 14; South Africa,317, 318; summary, chapter,325–326; United States, 320, 321,324–325Resource management, 37Rights and responsibilities, publiclegal education on, 176Rights Implementation for SocialEmancipation, 147Rockefeller, John, III, 99Rockefeller Brothers Fund, 24Rockefeller Foundation, 95, 114Rodriguez, Carlos, 66Role playing, 299Roman Catholic Church, 62Roma people, 237, 238, 252, 257,293–294, 322Romero, Anthony, 95Rubio, Marcial, 57Russia, 274, 319, 331. See alsoEurope, EasternRussian Foundation for Legal Reform,268

INDEX 359Saba, Roberto, 73Sachs, Albie, 30, 34, 317Saich, Anthony, 164Saligan, 199, 209–210, 213–214, 216,303–305, 311–312Santiago Nino, Carlos, 72Sarmiento, German, 72Schneider, Elizabeth M., 112–113Schools. See EducationSchuler, Margaret, 298Schull, Joseph, 234, 236–237, 241,258Security laws and actions, 21Seeding the field, 205–206Self-help, individual, 299–301Sentro ng Alternatibong LingapPanlegal. See SaliganSentro ng Batas Pantao, 210Separate development, 21Service litigation, 29Sexual harassment, 106Shalish, 136–141, 148, 306–307Shapiro, Steven R., 99Shaw, Theodore M., 93Shelter Rights Initiative (SRI), 292,318Shifter, Michael, 67, 345Shining Path, 59Shuzhen, Wang, 181Sidel, Mark, 166Sikkuy, 325Siskel, Suzanne, 212Site visits, 251Slovakia, 238. See also Europe,EasternSmulovitz, Catalina, 71Social and Economic Rights ActionCenter (SERAC), 292–293Social change, time needed for,8Socioeconomic conditions, 58–59,127. See also PovertySoliman, Hector, 200, 211South Africa: apartheid, taking on,24–33; appellate level, litigation atthe, 25–28; Centre for AppliedLegal Studies, 23–34; changes andcontributions, 42; clinics, lawschool legal aid, 38–41, 45, 269,272–273, 277, 282; communitymobilization, 28–30; constitutionalstructure, creating a new, 33–35;donor programming approaches,45–46; funding challenges forNGOs, 46–47; future, vision forthe, 46–47; goals and values oflaw-related grantmaking, 19–20;governance structure influencingthe courts, 285–286; interviews forthis study, people involved in the,49–54; Legal Resources Centre,23–33; lessons and insights, 43–46;new, building a, 33–41; nonlawyersas legal resources for their communities,301–303, 308, 312; politicaltransitions, NGOs adapting tomajor, 331–332; preview, chapter,8–9; public interest law movement,building a, 20–24; reform centers,university-based, 31–33; research,uses of law-related, 317, 318; socialand economic rights, 35–37; summary,chapter, 41–47South African Defense and Aid Fund(SADAF), 22South America. See Andeanregion/Southern cone of SouthAmerica; Human rights–related laweffortsSouth Central University of PoliticalScience and Law, 176–179Southwest Council of La Raza, 92Sparer, Edward, 91Sri Lanka, 144, 269State courts used to reform publicschools, 97–99Steytler, Nico, 34Street Law concept, 242, 299Street Law Inc., 248Student practice rules, 281–282Sudan, 269Suli, Zhu, 176Sustainability and organizationalcapacity building of grantees,252–255, 259“Symposium on Public Interest LawAround the World” (1991), 223Synergistic relations and public interestlitigation, 286–287. See alsoCollaborative experiences

360 INDEXTadiar, Alfredo, 201Tanggapang Panligal ng KatutubongPilipino, 210Tanggol Kalikasan, 200, 211, 214,216–218Tenure track positions, 280Thematic perspectives, five, 4–5,13–15. See also individual subjectheadingsThomas, Franklin, 19, 60, 92Thompson, Leonard, 24–25Time and social change, 8Training programs: Andeanregion/Southern cone of SouthAmerica, 78–79; apprenticeshipswith experienced practicinglawyers, 278–279; China, 178; nonlawyersas legal resources for theircommunities, 304–305, 309–310;Philippines, 216, 221Transactional lawyering, 107Transition, politics of, 244Transitional societies. See Europe,EasternTransnational linkages, 63–64. Seealso Collaborative experiencesTransportation, public, 108–109Transvaal Rural Action Committee, 29Treason Trial Defense Fund, 22Tshwaranang Legal Advocacy Centreto End Violence Against Women,36, 273Tungo sa Kaunlaran ng Kanayunan atRepormang Panasakahan. SeeKaisahanTver State University, 272United Nations: Children’s Fund(UNICEF), 130; Commission onHuman Rights, 62; DevelopmentProgramme (UNDP), 127, 170,174, 180; International Covenanton Economic, Social and CulturalRights, 292; World Conference onWomen (1995), 181United States: change,implementing/enforcing/monitoring,102–106; community mobilization,106–111; donor programmingapproaches, 118–119; future, visionfor the, 119; history of Ford’s U.S.law-related grantmaking program,91–95; interviews for this study,people involved in the, 120–125;lessons and insights, 116–119; limitsof litigation, 111–116; litigationused to advance civil rights, 89–90,95–96; policy reform, public,97–102; political transitions, NGOsadapting to major, 336–337; preview,chapter, 10; research, uses oflaw-related, 320, 321, 324–325;summary, chapter, 116–119Unit of analysis, 218University-based reform centers,31–33, 44–45University legal aid clinics. SeeClinics, law school legal aidUniversity of Cape Town (UCT), 31University of Chittagong, 144, 151University of Khartoum, 269University of Natal, 23, 38–40, 45, 277University of Philippines ParalegalVolunteer Organization (UPPVO),203University of the Philippines, 206University of the Western Cape(UWC), 34, 318University of Warsaw, 249University of Wisconsin Law School,57Untouchables, 290–291, 309Uprimy, Rodrigo, 75, 76Urban poverty, 91Ursua, Evalyn, 205–206, 214U.S. Agency for InternationalDevelopment (USAID), 141, 212,223, 307U.S.-China Committee for LegalEducation Exchange (CLEEC),167–171, 177, 179–180, 186Valdeavilla, Ermelita V., 210Varas, Augusto, 73Vicariate of Solidarity, 61–62, 65–67,287, 323Victa-Labajo, Marie, 211Videla, Jorge R., 65Villanueva, Rocio, 56–57Violence: ethnic, 257; gender, 36, 127,

INDEX 361130, 141, 213–214, 307; police/official, 21, 26–27, 35, 135, 143,238, 291, 293–294; political,59–60, 64, 202Volunteer paralegals, 303–306Voting rights, 20–21Wall Street Journal, 104Wan E’xiang, 169, 183Weifang, He, 176Wilde, Alex, 71Williams, Verna, 106Women/girls. See Gender issuesWomen’s Law Fund, 92Women’s Legal Bureau (WLB), 210,307–308Women’s Legal Defense Fund,115–116, 336World Bank, 127, 141, 268World Council of Churches, 62Wortham, Leah, 235, 248, 250, 270Wuhan University, 169, 172, 183–184,272Xiaobing, Gong, 180Xinxin, Yang, 184–185Yale University Law School, 79Zalaquett, José, 62Zielinska, Eleonora, 249, 251, 277,281