At Home Abroad: Friendship First

A Look at Rule of Law Projects and Other International Insights

Joseph Nadeau

• Publisher: Austin Macauley Publishers
• Year: 2019
• ISBN:
  9781645366270
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

The authors of this book - judges, lawyers, educators, researchers, and administrators - provide personal insights into international cooperative efforts to promote the rule of law in emerging democracies throughout the world. The progress made and the challenges ahead are described with equal doses of idealism and reality. It has been said of many reform efforts that they are not for the faint of heart. Readers will soon discover that the authors of this book are of stout heart. With more than one hundred and fifty years of combined experience, the writers' accounts serve as a roadmap for those who wish to follow in their footsteps and will truly help them to feel at home abroad.

Chapter 1: Beginnings

Attorney Mary Noel Pepys

A golden bore. That’s how I described my life in 1993 as an attorney with a thriving land use practice, a gorgeous view of San Francisco Bay from my home, weekend jaunts to Napa Valley, weekday tennis games, and a local culinary and cultural scene that is the envy of many. A golden life, to be sure, but I was bored.

Having watched with utter fascination, the dismantling of the Berlin Wall, signifying the demise of communism, I wanted to be where the political action was. I wanted to help in the creation of constitutions for the recently liberated republics of the former Soviet Union and for the newly independent central and eastern European countries. I wanted to assist in the drafting of laws, which embraced democratic values and market-based economic principles.

Thanks to two American visionary attorneys, Sandy D’Alemberte and Homer Moyer, a new program was founded by the American Bar Association, ABA ROLI (Rule of Law Initiative, formerly Central and Eastern European Law Initiative, and later Central European and Eurasian Law Initiative). The mission of ABA ROLI, which is funded primarily by USAID, is to promote justice, economic opportunity and human dignity through the rule of law.

At the time of its inception, ABA ROLI had a small staff at its Washington D.C. headquarters and an even smaller group of willing American attorneys who worked pro bono throughout central and Eastern Europe, and the former Soviet Union, to engage in developing the rule of law in these former communist ruled countries.

In the fall of 1993, I succumbed to the unknown and boarded a plane for Sofia, Bulgaria, where I agreed to volunteer with ABA ROLI for six months, to provide legal assistance to enhance Bulgaria’s judicial system, legal profession, and its legal educational system. Not only were Bulgaria’s constitution and laws in need of an overhaul, but also the habit of legal professionals, particularly judges, of yielding to the whims of communist party leaders had to be curtailed. Additionally, the attitude of Bulgarians who were accustomed to State subsidies of housing, food, employment, medical care, and vacations needed a radical change. No longer would the State be responsible for such subsidies. Bulgarians, like their former communist neighbors, had to assume the obligation of freedom, taking responsibility for their own lives.

After settling into my assigned apartment, located in a crumbling utilitarian apartment building, that was surrounded by a dozen identically unattractive buildings, with no heat, despite the freezing temperature (the central heating system was still controlled by the government), little hot water, and darkened hallways (light bulbs were stolen by the other residents), I began my work with the idealistic enthusiasm of a 1960s peace corps volunteer.

But unlike most Peace Corps volunteers, I was inexperienced in the area in which I was to help. Developing the rule of law was a nascent endeavor for Americans. In fact, the term ‘rule of law’ was not only foreign to citizens of former communist countries, but also to most Americans. Today, however, it has been incorporated into the lexicon in describing a country’s governmental system. According to the United Nations, "The rule of law as a concept refers to a principle of governance in which all persons, institutions and entities, public and private, including the state itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards."

Other than USAID’s promotion of democracy in Latin America in the 1980’s, few American attorneys had the opportunity to engage in rule of law work. Thus, while those of us who volunteered for ABA ROLI in the early 90s had significant legal experience, we were novices in developing the rule of law. What set us apart, however, was that we all shared a common vision and a desire to participate in the birthing process of democracy. We were willing to travel paths unchartered and to endure hardships that were still commonplace in countries transitioning from communism.

Our only direction from ABA ROLI was to ‘go forth and do good’ as there were no contractual statements of work or annual work plans. We did not have monitoring and evaluation flowcharts, nor time-consuming reporting requirements. We had few demands and limitations placed upon us and were able to chart our own course. Our work plan, so to speak, emanated from the expressed needs of the people. This was manna to ABA ROLI volunteers, like myself, who were accustomed in their legal career to taking charge.

Under these circumstances, everything was possible. We could meet with anyone we wanted and respond quickly to any type of legal assistance they wanted. We were not hindered by a predetermined set of goals. We were left to our own devices, and those of us who were self-starters, flourished, limited only by our lack of initiative and imagination.

It was a magical time. The spirit of volunteerism, rather than a paycheck, inspired us. I remember well a telephone conversation I had with an ABA ROLI volunteer in Macedonia in 1994, who was awake at 3:00 a.m., as I was, discussing with excitement the ideas we wanted to pursue the following day. We joked with each other that we had no personal life. No wonder we were still single.

At that time, ABA ROLI was the only game in town and everyone in the legal community of the countries we served sought us out. There was no duplication of efforts by other organizations; there was no tripping over other consultants with competing or overlapping projects from American contractors and European entities. In fact, at the time I was in Bulgaria, there was just a handful of American attorneys helping to enhance democratic reforms in Bulgaria.

The early 90s were euphoric and everyone had high expectations and eagerness to pursue democratic reforms. Each day in Bulgaria was a new day of exploration, of meeting anyone who demonstrated an interest in rule of law reform, of responding quickly to their various requests, of being creative in designing solutions to meet their needs, and of forging ahead without fixed expectations or restrictions.

While most governmental officials were eager to seek democratic changes, some were not. Developing a constitutional government with genuine separation of powers resulted in the eventual reduction or elimination of the power of certain governmental officials who, heretofore, had significant power and were reluctant to support such reforms. I encountered this reaction first-hand in Bulgaria.

In those days, the development protocol, such as it was, was a top-down approach. Thus, it was essential to discuss initially with the Ministry of Justice, particularly the Minister, ABA ROLI’s interest in supporting judicial reforms. I made numerous attempts to meet with the Minister, twice arriving at his office at the scheduled time, confronting an empty chair behind his desk. There was speculation regarding the Minister’s failed promises to meet with me, many believing he was anti-American which was not uncommon among other bureaucrats I met, or wanted to hold on to his days of glory under the old regime, as his staff surmised.

Thus, I had to devise another route to pursue judicial reforms. I switched to the bottom-up grassroots approach by reaching out to individual judges, not only those in Sofia, but also in other towns far from the capital’s central government, where citizens were more accustomed to speak and act freely.

With my new approach, I met four Bulgarian women judges, two from Sofia and two from Varna, a beautiful coastal town on the Black Sea, who were eager to implement democratic reforms in Bulgaria. As ABA ROLI had not imposed a precise activity that I was required to pursue with these judges, I spent considerable time with them, ascertaining their needs and how ABA ROLI could respond to their priorities. We had numerous meetings, which I regularly ended with a list of next steps for each of us to complete. And yet, although they were interested in pursuing reforms, they accomplished little between meetings, while I, a typical American attorney, was eagerly checking off each item on the list for which I was responsible. Little did I know they were testing me. Was it worth their time to take the next steps? Could they trust me? Was I genuinely interested in helping them?

After numerous weeks of frustrating perseverance, I was thrilled to learn that they ultimately decided that it was worth their time to spend with me. Together, we decided that ABA ROLI could help create a legal training center that would train prospective prosecutors and judges, as well as provide continuing legal education of current prosecutors and judges. Unlike common law countries where highly experienced lawyers are appointed or elected to the bench, most judges in civil law countries are assigned to the bench shortly after law school.

Consequently, a continuing legal education program is necessary in civil law countries to focus on building the prosecutorial and judicial skills of future jurists. Although I had no mandate or even suggestion by ABA ROLI or USAID to create a legal training center, both ABA ROLI and USAID were enthusiastically supportive of my efforts, given that the need for it emanated from the Bulgarians.

After several months of working closely together, the four women judges drafted by-laws and the initial curriculum for a non-profit legal training center they wanted to create. While appreciating my grassroots approach in pursuing judicial reforms, the judges were well aware of the necessity for the Minister of Justice and the Prosecutor General to support their concept of a legal training center. On their own initiative, they strategized to obtain governmental approval and were eventually successful.

As luck would have it, we learned that Chief Justice William Rehnquist would be visiting Bulgaria at the same time we were pursuing national support for the legal training center. Surely, the most important jurist in the U.S. would be interested in the plight of Bulgarian judges, I thought. With unabashed naiveté, I approached U.S. Ambassador William P. Montgomery with a request that the U.S. Embassy invite Chief Justice Rehnquist to speak at a judges’ seminar in Varna to support the legal training center. He rolled his eyes upward thinking I had gone mad.

But, the four judges and I were determined, and with the ultimate help of the U.S. Embassy and ABA ROLI, Chief Justice Rehnquist was invited and accepted our invitation. We met in Sofia and together with his staff and U.S. government personnel, flew to Varna. During the seminar, he experienced some comic relief when an embarrassed participant reflexively referred to other judges as his ‘comrades’ rather than colleagues. It had only been a few years since that label was de rigueur. Habits die slowly. Due to the intense national publicity surrounding his visit, judges throughout Bulgaria were inspired to join our efforts to create the legal training center, which the four judges called Legal Initiative for Training and Development, PIOR (Cyrillic acronym).

With legal documents in hand, but no funding for PIOR, the four judges and I began a fundraising campaign. Knowing of potential funds at the U.S. Embassy through its Democracy Commission, we met with U.S. Ambassador Montgomery to seek funding. The judges were powerful advocates, and after a convincing presentation, PIOR received $25,000 from the Democracy Commission for its start-up costs. This was a significant amount in the early 90s that had a serious impact in creating PIOR. For several years thereafter, due to the judges’ fundraising efforts, PIOR survived on donor support in conducting numerous seminars and workshops, and international conferences.

Recognizing that judicial training must be government-funded in order to be sustainable, the Bulgarian government, with the support of USAID, created the National Institute of Justice (NIH) in 2004, which assumed the role of PIOR. While PIOR no longer exists, the four women judges continue to thrive in the legal and judicial communities of Bulgaria. Last year, one of them became the Executive Director of the NIH, capitalizing upon her experience in developing PIOR. Prior to that, she had been appointed as the Minister of Justice. One judge served in the European Parliament, while another ran for the Vice Presidency of Bulgaria, and the fourth was promoted to the Supreme Court of Cassation of Bulgaria.

In essence, PIOR was created without an institutional mandate but, instead, with individual initiative. Four Bulgarian judges, one American attorney, and local staff attorneys began their work together without any contractual direction or funding. Yet, because of their shared commitment to meet the needs of Bulgarian judges, their energetic engagement in the development process, the political will of the Ministry of Justice and the Prosecutor General of Bulgaria, and the financial support of ABA ROLI, USAID, and the U.S. Embassy, an essential reform in the judicial system of Bulgaria was created.

In conjunction with working on judicial reform also helped strengthen the Bulgarian Bar Association (BBA), which later became an essential component of ABA ROLI’s assistance in Bulgaria in the mid-90s. Banned by communist rule after WWII in 1945, the BBA, which was created in 1923, was reinstated in 1991 with a membership of 4,000 attorneys.

During one of my first meetings with the President of the BBA, he proudly showed me a fledgling four-page newsletter on flimsy paper that the BBA sent to the offices of the 28 district bar associations. It was startling to see such primitive resources in an important national organization headed by a very intelligent attorney. But it was all the BBA could afford. The President wanted to increase the quality of the articles of the newsletter and to circulate it directly to every member, so that the BBA could become a leader in enhancing democracy and the independence of the judiciary.

We held meetings with other members of the BBA who were eager to improve the newsletter by writing their own articles on developing a legal profession for private practitioners. They wanted the BBA newsletter to educate all attorneys about the private practice of law, particularly law practice management, client relations, and billing. It was not an easy task to have meetings with them as their offices took a treasure hunt map to find, cubbyholes located down long, darkened corridors in buildings with rickety stairwells and uneven steps. Prohibited under the former regime to join together as a law firm, most attorneys practiced solo for years with modest income. That has changed considerably since 1993. Today, numerous law firms exist in Bulgaria occupying premises that rival law firms around the world.

After meetings with several, highly engaged and energetic attorneys, it did not take long to be convinced of their commitment to reform. With the continued flexibility to assist in any way I thought appropriate, I approached, once again, the U.S. Embassy for funding. As a result, the BBA received $8,000 from the Democracy Commission that was sufficient to meet the publication goals of the BBA.

Engaging in a rule of law project was straightforward in those days. And the process for each rule of law practitioner was similar. We ascertained a local need, designed a project to meet the need, obtained political will for the project, engaged locally committed and highly skilled professionals to implement the project, and supported it with international technical assistance and funding.

Concurrently with helping to create PIOR and to develop the BBA newsletter, I was free to meet with anyone else who wanted assistance. Law professors who wanted American legal texts translated into Bulgarian; city planning bureaucrats who were keen on developing privatization laws; parliamentarians who needed law drafting assistance; and lawyers who wanted to learn about commercial laws are just a sample of the disparate requests and welcomed meetings I had. This was all in a day’s work, and each day the requests and meetings varied.

What was steady, however, was ABA ROLI’s assistance. Since much of the assistance requested by the Bulgarians required expert opinions, ABA ROLI would provide substantive information that I could use as a rapid response. I remember being asked by a governmental official with the Ministry of Education for U.S. law school accreditation standards which he wanted me to present in a radio interview the following day. Without hesitation, ABA ROLI was able to draw upon the expertise of a nationally acclaimed law professor and provided me the necessary information in time for the radio interview. This was one of ABA ROLI’s major strengths as it was able to turn to the entire membership of the ABA to provide advice and guidance pro bono.

A project I so enjoyed in Bulgaria was borne out of a meeting with a Bulgarian law professor who had recently visited the U.S. She was a professor at the New Bulgarian University School of Law, which was an alternative to the state-run Sofia University Law School and was founded in 1991 to provide creative opportunities for its law students. Having learned of law reviews in the US, she wanted to create a law review for the students of New Bulgarian University School of Law. Law reviews, written and edited solely by law students, were a foreign concept in Bulgaria.

Why, law students asked, would legal experts, including attorneys and judges, read a scholarly article by a...