Michael Garcia, Associate Editor, Michigan Journal of International Law
Much of the scholarship surrounding law and development has ignored legal aid in favor of an emphasis on more high profile institutions and issues. Issues such as the effectiveness of a “rule of law” approach,[i] the importance of legal reforms calculated to attract foreign investors,[ii] or supporting judicial independence from state government[iii] are no doubt necessary steps towards fostering legitimacy, transparency, and justice in developing countries. One could argue that it is a fundamental problem, however, when Western intellectual influence and investment in a developing country like Cambodia result in little more than a formalist legal system[iv] that no one outside of the entrenched political elites can understand or utilize. There is real value to the creation of an inclusive legal culture that the population in developing countries can trust, even if there are no easy answers as to how we get there.
Cambodia consistently ranks in the bottom fifth of countries in the world in corruption and rule of law measurements.[v] For the legal system to be legitimate in the eyes of Cambodians, there will need to be more than private sector and investment reforms promised by the ruling Cambodia People’s Party (CPP)—there will need to be a meaningful and effective legal aid presence. The term “legal aid” refers to a community-based service institution responsible for providing advice and legal representation to indigent individuals involved in civil cases.[vi] At this time, there is no substantial legal aid presence outside of the capital Phnom Penh. Organizations such as Legal Aid Cambodia (LAC) have been pushing the Bar Association of the Kingdom of Cambodia (BAKC) for substantive legal aid requirements for the legal community as a way to improve overall service coverage.[vii] Though bar staff are faced with a challenging set of local circumstances, there are useful models to assist the Bar Association in setting up effective legal aid requirements.
Legal aid in Cambodia faces large financial and structural hurdles. Cambodia is one of the poorest countries in Asia.[viii] Its population of over 15 million people is currently advised and served by two chronically understaffed legal aid centers, which struggle to keep up with their staggering caseload or to provide volunteers with accurate information.[ix] Even in a country of the United States’ caliber in terms of financial and human resources, legal aid structural and procedural deficiencies exist. A recent study found that less than forty percent of American volunteer lawyers reported that they had received accurate and sufficient information on the client or case.[x] Twenty percent claimed that they did not receive the support they needed to perform their duties at an acceptable professional standard.[xi] Cambodia’s lack of resources simply magnifies such inherent legal aid issues.
Insufficient institutional support for volunteer lawyers is compounded by the lack of availability of competent staff. In its National Legal Aid & Defender System Manual, the National Legal Aid & Defender Association suggests the use of lay advocates, notaries, and law students to support legal aid structures or to take on certain cases.[xii] A report by the UN commission on Legal Empowerment of the Poor suggests that developing countries designing efficient legal aid systems should place greater emphasis on legal assistance provided by paralegals and law students by eliminating “regulatory entry barriers.”[xiii] Unfortunately, the commission presupposes a level of professionalism and proficiency which countries like Cambodia simply cannot count on.[xiv] Members of the BAKC administrative staff bemoan the lack of student competency and supervision, admitting that many students bribe their way through law school and are taught by professors of questionable ability and integrity.[xv] In light of Cambodia’s questionable legal human resources, removing regulatory barriers to providing legal aid without first addressing the corruption in the legal education system could do more harm than good.
Western and regional models of legal aid programs offer some interesting solutions to some of the participatory and structural problems faced by legal aid services in developing countries like Cambodia. In a report on the pro bono work of American lawyers, the American Bar Association’s standing Committee on Pro Bono and Public Service suggested, among other solutions, providing free or reduced-fee continuing legal education incentives.[xvi] The BAKC does not have a legal education program at this time, though the development of one is on the agenda for the president’s new term.[xvii] Fees that would be associated with such a program would necessarily be much smaller such that a reduction may offer a negligible incentive. The development of Western-style pro bono counsel models at Cambodian firms is an intriguing option considering the lack of state investment in legal aid services.[xviii] Regulation requiring law firms to fund in-house pro bono programs, or to at least contribute to the support of existing legal aid organizations, could alleviate at least some of the financial or structural shortcomings of the current system.
In addition, a Dutch working paper on sustainable legal aid offers interesting cost-cutting strategies, especially with regard to standardization reforms for legal aid cases and strategies for devoting scarce resources to priority claims.[xix] Legal simplification and standardization reforms could go a long way towards bridging the gap between Cambodia’s rigid civil legal system and more traditional customary mechanisms.[xx] While the solutions proposed would no doubt transpose to some extent, the financial hardship with which the Dutch legal aid system had to “cope” with was a forty million euro reduction of a four-hundred million euro budget representing less than one percent of Dutch GDP.[xxi]
The success of Malaysia’s Yayasan Bantuan Guaman Kebangsaan foundation, which created an incorporated company to pay lawyers who participated in the country’s legal aid initiative,[xxii] offers an encouraging regional example. With a much more modest budget than some of the aforementioned Western models, fifteen state legal aid centers have been able to provide free legal assistance to upwards of 25,000 clients yearly.[xxiii] Unfortunately, the CPP have not demonstrated any interest in increasing the country’s legal aid centers or in investing in public-private partnership for legal aid services. It is unfortunate for the majority of the population of Cambodia that a basic requirement for legal aid financial strategy is a government amenable to prioritizing legal aid funding and reforms to some meaningful extent.
Studies such as those conducted by the ABA Standing Committee on Pro Bono and Public Service, as well as private conversations with members of Cambodia’s legal community, offer hope that lack of desire to provide legal services to indigents is not among the major factors discouraging pro bono work.[xxiv] The inclination appears to exist among members of Cambodia’s legal community despite immense barriers to provision of legal aid services. What remains to be done is to find solutions that increase participation within the legal community while building upon the limited legal aid structure already in place and improving domestic legal education. Western models provide some viable solutions, but must be tailored to address corruption and government disinterest. Striking the right balance between these complex and interconnected factors is crucial to the long-term success of legal aid services and to the larger goal of the creation of an inclusive, accountable legal culture in Cambodia.
[i] See David M. Trubek, The New Law and Economic Development, in The New Law and Economic Development: A Critical Appraisal 74, 81-94 (David M. Trubek & Alvaro Santos eds., 2006).
[ii] Id. at 83.
[iii] Kenneth W. Dam, The Law-Growth Nexus: The Rule of Law and Economic Development 93 (2006).
[iv] Trubek, supra note 1, at 76 (describing formalism as legal rules “developed, interpreted, and applied without careful attention to policy goals,” cultural traditions, or local norms).
[v] Worldwide Governance Indicators, World Bank, http://info.worldbank.org/governance/wgi/index.aspx#reports (last visited Sep. 24, 2014); see Corruption by Country: Cambodia, Transparency International, http://www.transparency.org/country#KHM (last visited Sep. 24, 2014);
[vi] John Harris & Vicky White, A Dictionary of Social Work and Social Care 96 (2013),
[vii] Interview with Run Saray, President of Legal Aid Cambodia (July 3, 2014).
[viii] See Data: Cambodia, World Bank, http://data.worldbank.org/country/cambodia (last visited Sep. 24, 2014).
[ix] Interview with Run Saray, President of Legal Aid Cambodia (July 3, 2014).
[x] American Bar Association Standing Committee on Pro Bono and Public Service, Supporting Justice III: A Report on Pro Bono Work of America’s Lawyers 33 (2013), http://www.americanbar.org/content/dam/aba/administrative/probono_public_service/ls_pb_Supporting_Justice_III_final.authcheckdam.pdf [hereinafter ABA Standing Committee].
[xii] National Legal Aid & Defender System Manual, National Legal Aid & Defender Association 78-82 (2010), http://hakinetwork.org/wp-content/uploads/2011/06/International_Manual_2010.pdf.
[xiii] 1 Commission on Legal Empowerment of the Poor & United Nations Development Project, Making the Law Work For Everyone, 62 (2008), http://www.unrol.org/files/Making_the_Law_Work_for_Everyone.pdf.
[xiv] See id.
[xv] Interview with Sothun Sang, Secretary General to the President of BACK (June 28, 2014).
[xvi] ABA Standing Committee, supra note 10, at 33.
[xvii] Interview with Sothun Sang, Secretary General to the President of BACK (June 28, 2014).
[xviii] The Association of Pro Bono Counsel http://www.apbco.org/wp-content/uploads/2014/04/Mandatory-Pro-Bono-Is-Not-The-Answer-For-Practicioners.pdf.
[xix] See Maurits Barendrecht & Peter van den Biggelaar, Sustainable Legal Aid and Access to Justice: A Supply Chain Approach 1, 5, 9 (TISCO Working Paper Series on Civil Law and Conflict Resolution Systems, Working Paper No. 005, 2009), available at https://pure.uvt.nl/portal/files/1164861/Barendrecht_Sustainable_Legal_Aid_and_Access_to_Justice_A_Supply_Chain_Approach_091214.pdf [hereinafter Sustainable Legal Aid].
[xx] See generally Robert D. Cooter, Inventing Market Property: The Land Courts of Papua New Guinea, 25 Law & Soc’y Rev. 759 (1991) (an example of a successful integration of customary and Western-style legal systems in Papua New Guinea).
[xxi] Sustainable Legal Aid, supra note 19, at 3.
[xxii] Ragunath Kesavan, Ad Hoc Committee on National Legal Aid Foundation Interim Report, Malaysian Bar Association (Sept. 26, 2011), http://www.malaysianbar.org.my/national_legal_aid/2011/2012_ad_hoc_committee_on_national_legal_aid_foundation_interim_report.html.
[xxiv] See ABA Standing Committee, supra note 10, at 30 (lack of time, family obligations, insufficient structural support and six other factors all ranked higher than a lack of desire or interest in pro bono).