Remarks by Harold Hongju Koh at the Forum on the State of Civil Legal Assistance

Remarks at the White House Forum on the State of
U.S. Civil Legal Assistance
April 17, 2012

Harold Hongju Koh
Legal Adviser, U.S. Department of State

I am Harold Hongju Koh, Legal Adviser to the State Department. I find myself here today for many reasons:

• because I am legal counsel to a woman who was President of the Board of the Legal Services Corporation, Secretary of State Hillary Rodham Clinton. (She is in Brussels today, was in Brasilia yesterday, and Cartagena the day before that, but she sends her warm greetings to you all).
• because I have been married for more than 25 years to an attorney who has spent her career providing legal services, and now works for the Legal Services Corporation, Attorney Mary-Christy Fisher (who is here today and also sends her warm greetings!);
• because as a professor and Dean at Yale Law School, like Dean Martha Minow, I worked to provide interns, fellows and attorneys to legal services offices around the world and legal services to clients in need;  
• because in my own career as a human rights lawyer, I have provided pro bono legal services to many clients, particularly refugees and victims of human rights abuse;
• because as Assistant Secretary of State for Human Rights in the Clinton Administration, I saw what denials of access to justice can do to impoverish human rights;
• because as General Counsel to a federal agency, I have worked with my attorneys on weekends –alongside some of you-- to provide advice and referral services through the D.C. Bar’s pro bono program;  
• and because through the work of close friends--like my old roommate Justice Ralph Gants of the Massachusetts Supreme Judicial Court, the head of that state’s Access to Justice Commission-- I know that the problems that we see here in D.C.--which our own Access to Justice Commission seeks to address -- persist not just locally, but nationwide.
• But perhaps the biggest reason that I’m here is that it’s impossible to say no to John Levi, but that’s another story.

In my brief time, let me address three questions: What is the rule of law? How does  access to justice contribute to the rule of law? And how are the problems we discuss here critical, not just to our national well-being, but to our world standing and capacity to lead in the global community?

According to one definition (footnote 1),  a social system reflects the rule of law when it exhibits four features:

1. Accountability: The government and its officials are accountable under the law under a government of limited powers, not ruled by corruption;
2. Transparency and Fundamental Rights: Laws are clear, publicized, stable, and protect basic order and fundamental freedoms
3. Fairness and Due Process: Laws are enacted, administered, and enforced through an accessible, fair, and efficient process; and
4. Access to Justice: Civil and Criminal Justice are meted out by competent, independent, and ethical adjudicators and attorneys in cases decided by judges who are of adequate  number, have adequate resources, and adequately reflect the makeup of the communities they serve.

Rule of law systems stand in contrast to rule by law systems, social systems where powerful elites impose their will on individuals through the tool of law, but are not themselves accountable, act through no clear or predictable rules, which leads to unequal and biased results, and access to justice limited to the powerful.

The United States is the richest country in the world. Thus, most Americans simply assume that we rank at the top on every empirical rule of law measure. In fact, and shockingly, we do not.

One recent NGO study, the 2011 World Justice Project Rule of Law Index, gives the United States high marks for the first three dimensions of the rule of law: accountability, fundamental rights, and due process. But the same report notes that our civil justice system suffers from access to justice deficits in at least four areas:

• First, inaccessibility to disadvantaged groups, where the US. ranks 21st in the world, behind the United Arab Emirates;
• Second, because of expense, the unavailability of legal assistance to many, a measure on which the U.S. ranks 52nd in the world;
• Third, a significant gap remains between rich and poor individuals in terms of their actual use of and satisfaction with the civil courts systems; and  
• Fourth, a general perception that ethnic and linguistic minorities and foreigners receive unequal treatment from the police and the courts.

For a country that prides itself on leaving no stone unturned in search of equal justice under law, these are disturbing grades indeed. Today’s panels discuss why these problems arise in our legal services programs and what we as a nation might do to address them.  But my question is different: why, in an age of globalization, should we care? Let me suggest three reasons, drawn from our development policy, our human rights policy, and our diplomatic credibility.

First, your discussion today is part of not just a national, but a global development movement, known as the global movement for legal empowerment of the poor (LEP). In the late 20th century, the relationship between law and development shifted from a “top-down” approach, narrowly focused on the relationship between elite lawyers, state institutions and law, where initiatives often excluded the voices of the very people they were intended to help, to legal empowerment of the poor, a bottom-approach approach that has sought to bring these excluded voices into the development discourse, by studying the relationship between poverty, exclusion and law and expanding the protections and services afforded to ordinary people.  These ideas were captured in the UN’s Millennium Development Goals, and a UN Commission on Legal Empowerment of the Poor hosted by the UN Development Programme—chaired by former Secretary of State Madeleine Albright and Peruvian economist Hernando de Soto—whose 2008 report, Making the Law Work for Everyone, argued that as many as 4 billion people worldwide are “robbed of the chance to better their lives and climb out of poverty, because they are excluded from the rule of law”  The Report proposed four “pillars” for legal empowerment to enable the poor to become partners in their own development, not just, passive recipients of handouts: first, better access to justice and the rule of law; second, expanded property rights; third, better protection for labor rights;  and fourth, stronger business rights, especially, access to credit and support for the poor to start and operate small businesses.

Second, access to civil justice as part of the rule of law has formed a fundamental plank of a nonpartisan human rights policy that America has long promoted around the world in both Democratic and Republican Administrations. We press the issue with every government we engage—whether rapidly changing countries such as Burma and Colombia; perpetually challenged countries such as Haiti; post-conflict societies like Iraq, Vietnam, and the Balkans;  Arab Spring countries like Libya, Tunisia, Bahrain and Egypt; major powers such as Russia and China; and emerging democracies throughout Latin America and Africa. We will simply have no credibility promoting these values abroad, if we do not seriously advance them at home.

Third and finally, this issue affects our diplomatic credibility. History teaches that the justice we provide here is highly visible to those deciding whether to follow a democratic or authoritarian path. As law professor Mary Dudziak has detailed in her book Cold War Civil Rights: Race and the Image of American Democracy, nonaligned diplomats who represented African countries at embassies here in Washington during the 1950s closely followed the Brown v. Board litigation in trying to decide whether to vote with the United States at the U.N. or other international fora and in trying to decide whether the U.S. deserved their support in the complex geopolitical debates of the day. Today, our most significant foreign policy interlocutors care just as much. Last week’s G-8 summit focused on rule of law and access to justice as a basic plank of the developed nations’ multilateral approach to the Arab Awakening. This coming weekend, along with Assistant Secretary of State for Democracy, Human Rights, and Labor Michael Posner, I will travel to Beijing for a legal experts’ dialogue with the Chinese government that includes comparative discussion of such topics as legal assistance, the role of lawyers, criminal justice, and law reform. The internet has made justice in American, and lapses in it, even more instantly accessible to foreign observers.  I learned this in bilateral human rights dialogues with the Chinese in the 1990s, where they would regularly counter our points about political prisoners and harsh punishment in China by citing cases like O.J. Simpson and  Rodney King and high profile examples of inadequate representation of U.S. capital defendants. At this critical juncture in world history, where so many nations –like Burma, Guinea-Bissau, Mali, Egypt, Libya, and other nations undergoing the Arab Awakening—are at national decision points, what we do here at home to give access to justice can provide either an inspirational example or harsh proof that as a society, we are really in no position to preach.

In closing, this conference illustrates two mottos from the 60s, when the American legal services movement went national. The first was "Think Globally, Act Locally"—which as you know, meant considering the well being of the planet, but taking grass roots action in your own communities and cities to reduce poverty, promote equality, expand inclusion and protect the environment.  Your conference today is really about “Thinking Locally; Acting Globally”: by promoting access to justice at home, contributing to an international development, human rights, and diplomatic movement for legal empowerment of the poor that graphically demonstrates our commitment to the rule of law to allies and challengers alike,  

And what is the second motto? Do I have to say it? Ladies and Gentlemen, I think you know: “The Whole World is Watching.”

Thank you very much.

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Footnote 1: 2011 World Justice Project Rule of Law Index, www.wjp.org