Eman Elshrafi, Intern for ABA ROLI's LAC Division
In 2013, the American Bar Association’s Rule of Law Initiative (ABA ROLI) launched the New Advocates for Justice Program in Mexico. This project, funded by The United States Department of State Bureau of International Narcotics and Law Enforcement Affairs (INL), was implemented to support reforms to Mexico’s criminal justice system.
Prior to the introduction of these reforms in 2008, Mexico operated primarily under an inquisitorial, written-based system. Under this system, the presumption of “innocent until proven guilty” was not the standard. Rather, the justice process was fraught with wrongful convictions, corruption, and inefficient procedures. In an effort to address these issues, Mexico’s Congress adopted a series of constitutional reforms, to be implemented over an eight-year time period, transitioning the nation to an adversarial, oral-based system. The significance of this shift rests on how justice is processed. Whereas under the former system, court procedures were largely conducted behind closed doors at the helm of a judge reviewing written material, the New Criminal Justice System (NCJS) is based on oral trials that allow litigants to present their cases in a public courtroom. This transformation was not only meant to provide greater due process rights to those accused of crimes, but it also sought to increase efficiency, where, for example, there is an expanded use of alternative dispute mechanisms and judges are given greater power to dismiss faulty cases and to issue decisions that consider alternatives to prison for misdemeanor cases. [1] Perhaps most notably, these efforts sought to strengthen the public’s faith in the rule of law. [2]
As with all systems, however, any input must account for a holistic view. In the case of legal systems, in particular, it is nearly impossible to think about the field without considering the role of lawyers. In the same vein, it would be quite difficult to think about the legal profession without crediting the function of a legal education. Such aspects are interconnected links that feed into the operation of the greater system. Therefore, any changes to one of those links will necessarily impact the others. Similarly, with the adoption of the NCJS in Mexico, it became necessary to assess the interplay between the reforms and existing institutional dynamics, such as the legal education system.
According to the Legal Profession Reform Index for Mexico in 2011, successful implementation of the NCJS required significant modifications to the legal curriculum (American Bar Association, 2011). At the time the NCJS was introduced, law schools offered chiefly theoretical courses that emphasized written material in accordance with the former inquisitorial system. Where this form of instruction fell short, however, when considering the NCJS, was in providing practical training to students. Recognizing this defect, INL funded the New Advocates for Justice Program, to be implemented by ABA ROLI, to strengthen the capacity of law schools to properly train in oral-based litigation skills in alignment with the NCJS. Other objectives, included, increasing the capacity of law schools to train in the use of ADR mechanisms, supporting their ability to improve on teaching practices, and providing opportunities to law school graduates for placement in government agencies involved with the criminal justice system.
The initiatives designed around these goals proved fruitful. In an outcome evaluation completed by an external party, it was found that ABA ROLI trainees reported significant improvements in their knowledge and skills of oral litigation and ADR mechanisms. For example, 92% of respondents reported improvements in creating a case theory; 90% in using evidence; and 86% in written pleadings in preparation for oral proceedings as well as in conducting closing arguments and hearings. Additionally, trainees noted improvements in narrating a mediation process (92%); clarifying the different interests of conflicting parties during a mediation process (91%); and drafting a settlement agreement (70%). These areas of growth helped respondents improve their job prospects (91%) and job performance (90%). Such data was further reinforced by employers who iterated that trainees not only had characteristics that they were looking for, such as knowledge in the NCJS and practical experience, but that trainees ultimately performed better than other staff in their institutions.
Aside from the technical necessity and impact of such efforts, however, it is important to recognize the significance of education-based programming within the scope of rule of law promotion as well as from a systemic perspective.
At the recent DRG conference held by USAID’s Center for Democracy, Human Rights, and Governance, in a session on USAID’s new rule of law policy, Scott Carlson, Associate Executive Director of Global Programs at ABA, emphasized the value of focusing on legal education in rule of law promotion, noting that because “law schools are an entry point for all legal professionals and justice sector actors,” investing in the same is critical to “capture[ing] the imagination of the next generation of legal professionals.” The merit of this sentiment is paramount. Ultimately, as recognized by USAID, the rule of law requires a whole systems approach. Thus, change cannot just happen at the top. Rather, there must be a comprehension of all of the moving parts, and how those parts interact with the larger system. In the same respect, there has to be greater recognition for how micro-level change can lead to macro-level impact. When applying this understanding to legal education training as a rule of law promotion mechanism, the potential influence of the latter becomes manifest.
Law Schools host the actors that hold the future of the criminal justice system. In Mexico, specifically, those actors must not only be prepared to operate under the NCJS, but the skills, training, and values that they take from their legal education will shape the trajectory of the nation’s ability to successfully sustain the new system, and ultimately to maintain the rule of law. By supporting the capacities of law schools to develop teaching and training mechanisms in compliance with the NCJS, it pushes into the ether a workforce that is able to reinforce the changes at the top. This, in turn, helps to bolster the goals behind the transition to the adversarial system of fostering transparency, accountability, and efficiency and combatting corruption and impunity, while providing a stable foundation for the rule of law to flourish. These implications also extend into the areas of peacebuilding and development. For instance, the focus on mediation training creates a cohort of individuals literate in conflict resolution, which incrementally builds on the peacebuilding capacity of the state. Furthermore, as iterated by Scott Carlson, in order to ensure effective development, there needs to be processes in place that allow the system to fully absorb development initiatives in a sustainable way, and such processes are often largely dependent on a well-functioning rule of law structure that has proper feedback loops in place. Fundamentally, the lessons gained from the New Advocates Program are not confined to the context of Mexico, but rather are applicable to settings across the board.
In a recent report by UNESCO, titled Reimagining our Futures Together – A New Social Contract for Education, education is emphasized as the “foundation for the renewal and transformation of our societies,” a fundamental “factor for making progress towards desirable developmental outcomes, building skills and competencies for work, and supporting engaged and democratic citizenship,” and the key to “unlocking potential futures.” [ 3] In other words, schools are the breeding ground for change agents, and “to shape the futures we want, education itself must be transformed.” [4] Therefore, it is critical that we continue to invest efforts and resources into the education sector if we are to promote just, peaceful, and inclusive societies in accordance with UN Sustainable Development Goal 16. After all, “it is in the roots, not the branches, that a tree’s greatest strength lies (Matshona Dhliwayo).”