1. Introduction
Development co-operation between countries in the legal and human rights sector is complex and challenging. It is political, nuanced, involves numerous and often competing stakeholders, and operates across multiple arms of government. Significant time is spent determining suitable fields for co-operation, when an equally important question is how countries should co-operate. Programmes are often subject to complicated design, monitoring, and evaluation processes. Donors strive for a sense of “ownership” of programmes, with tangible results that justify ongoing co-operation. Amid this added complexity, it is easy to forget that good programmes are often simple, well-founded ones that set realistic goals and timeframes. Sense and simplicity can be overlooked.
This article discusses sense and simplicity in legal and human rights co-operation by drawing on lessons learned from personal experiences in two such co-operation programmes. It makes six points which are at the heart of this concept. The points are not exhaustive and are not always easy to implement in the face of political realities. However, they are a starting point for further discussion, and stress the need to get back to basics when planning, implementing, and monitoring legal and human rights co-operation programmes.
The two programmes that inform the comments in this article are the Norwegian government’s Indonesia Program at the Norwegian Centre for Human Rights (NCHR)Footnote 1 and the Australian government’s Australia-Indonesia Partnership for Justice (AIPJ).Footnote 2 These programmes are very different in terms of size and structure, as discussed below.
2. The Indonesia Program, Norwegian Centre for Human Rights
The Indonesia Program at the NCHR began in 2002 and bases its work on current knowledge of Indonesian society, culture, politics, and law. Its overarching purpose is to contribute to the protection and promotion of the basic rights of Indonesian citizens, as set out in international human rights treaties that Indonesia has ratified. During the period I was involved with this Program (2006–10), it focused on:
1. Human rights education (particularly in institutions of higher learning)
2. Human rights in relation to the role and conduct of the military and security sector reform
3. Administration of justice
4. Economic, social, and cultural rights.
The Program had an annual budget of around US$1 million per year, and was funded by the Norwegian Ministry for Foreign Affairs (MFA). There were three staff in the Program, who were all based in Norway but who travelled regularly to Indonesia. All the staff spoke Indonesian and had prior experience with Indonesia.
The Program worked with a wide range of partners, including government bodies such as the Indonesian Judicial Commission, semi-governmental bodies such as the Indonesian National Commission for Human Rights, universities and university-associated organizations such as Centres for Human Rights Studies, civil society organizations (CSOs), and a private law firm.
Together with Indonesian partners, the staff designed and implemented their own programmes, which were approved by the Norwegian MFA on an annual basis. The yearly plans outlined activities to be implemented that year, and were structured pursuant to the Logical Framework Approach (LFA).Footnote 3 Staff took an active role in implementing the activities and sourcing resource persons. The planning and implementation phases of the Program also provided staff with an important opportunity for learning about human rights in Indonesia, how human rights problems were conceived by Indonesians, and how Indonesians thought problems and challenges could best be solved.
Program success was measured partly through anecdotal evidence and by reports written by staff each year and provided to the MFA. Program activities were organic and followed a natural development process where each year’s programme of work built on and expanded on the progress and learning of the previous year’s activities. Considerable time was also spent on teaching, presentations, and publishing by staff of the Program. The Program supported two Indonesian students to study a Master of Philosophy in the Theory and Practice of Human Rights at the University of Oslo, as well as Indonesian researchers on a short-term basis at the NCHR. The Program prepared topics for the annual bilateral human rights dialogue meeting and briefed Norwegian participants prior to these meetings. The Indonesia Program aspired to be seen as a central source of information for journalists and others seeking information about Indonesian politics, society, and culture.
3. Australia-Indonesia Partnership for Justice
The Australian government’sFootnote 4 Australia-Indonesia Partnership for Justice (AIPJ) is a five-year (2011–15) AU$50 million programme which has as its ultimate goal “[i]ncreased access to better quality legal information and services” or, more particularly, an end-of-programme objective to strengthen “Indonesia’s leading law and justice sector institutions to become more effective and eventually provide more cost-effective, accessible and predictable legal services and information.”Footnote 5 Over the first two years of AIPJ, this goal/objective was narrowed and finessed to focus on realizing the rights of Indonesians to legal identity, fair and accessible justice services, and legal information particularly for women who are poor, for vulnerable children, and for people with disabilities. This focus on “realizing rights” is intended to meet both the fundamental purpose of Australian aid to help people overcome poverty, and Indonesia’s objective of empowering the poor in fundamental rights as a means of reducing and overcoming poverty.Footnote 6
Within this framework of “realizing rights,” AIPJ is structured to achieve stated “end-of-programme outcomes” and sets strategies and intermediate steps as to how this will be achieved.Footnote 7 “Realizing rights” is an integrated “programme” with its focus directed at improving the rights of key target populations, rather than a “facility” which primarily responds to the needs of specific institutions.
AIPJ is managed by the Australian government (based at the Australian Embassy in Jakarta, and to a lesser extent in Canberra), but is implemented primarily by a private contractor, Cardno Emerging Markets (Australia) Pty Ltd. According to its website, Cardno “assists the Australian government to achieve the program’s objective and its outcomes through providing management and implementation support services for the program.”Footnote 8 Cardno employs numerous staff, both international and national, who are either based in Jakarta or who fly in and fly out as consultants. Australian government staff who manage the programme do not necessarily have previous experience in Indonesia, speak Indonesian, or have sector knowledge.
AIPJ was designed and is managed by different personnel in the Australian government, and Cardno was not involved in AIPJ’s design. As a five-year programme, AIPJ spans longer than a single person’s posting to the Australian Embassy in Jakarta. It had two different senior managers between 2011 and 2013. AIPJ also has a very robust monitoring and evaluation system in place based on Australian government frameworks and guidelines.
AIPJ has a wide range of partners, including departments and agencies from the executive and judicial arm of government, as well as civil society. It also works with a range of Australian institutions to support co-operation on a peer-to-peer level. Research plays an important role in AIPJ’s work, and is used to inform activities and outcomes, as well as to assess progress towards achieving these outcomes. Partners and staff regularly make presentations at seminars and conferences in Australia and Indonesia.
4. Introductory Remarks
The focus of this article is the need for sense and simplicity in legal and human rights co-operation. However, before addressing this, there are three important points to bear in mind. First, the amount of money involved in a legal or human rights co-operation programme is not necessarily a determining factor in the impact of the programme. Unlike programmes such as infrastructure programmes, co-operation in the legal and human rights sector is not money-intensive; rather, it is human-resource-intensive. This is because much of the co-operation revolves around developing and improving systems, processes, and capacity. These programmes involve changing mindsets and ultimately require sustained reform.
In addition, as has been argued elsewhere, increased size may in fact compromise the quality and effectiveness of aid programmes more generally. For example, private contractors who are engaged to implement programmes can feel pressure to meet disbursement and output goals, sometimes “without adequate consideration for outcomes and impacts.... This approach is diametrically opposed to the basic concept of development as a process of learning, of changing mindsets, cultivating and strengthening local leadership, and facilitating gradual but sustained institutional change.”Footnote 9 Pressure to meet disbursement and output goals may also result in fewer resources being made available to more reform resistant agencies or less developed CSOs (such as those located in remote areas). In the case of CSOs in remote areas, they are likely to have fewer activities, spend less money, and require more time to develop and promote their sustainability.
Second, as with any governance programme, it is difficult to measure “success” in legal and human rights co-operation as change is mostly slow and largely intangible. Co-operation in these sectors invariably involves attitudinal and cultural change, and may also threaten entrenched political and financial interests. Both sectors are fundamentally about reform and reform is often political. AIPJ as an example adds an extra layer of complication. It conducts some of its work together with reform teams that are embedded within judicial or government agencies. An example of this is the Judicial Reform Team (JRT) within the Indonesian Supreme Court. The JRT are non-court staff within the Supreme Court whose role involves a combination of advocating for continued reform with the Court leadership and co-ordinating the implementation of the Supreme Court Blueprint for Reform 2010–2035. In these cases, AIPJ does not implement its own activities directly with independently engaged expertise. It works with the JRT pursuant to the Blueprint to co-ordinate and implement reform. Some of the budget for implementing these reform activities also comes from the Indonesian State Budget. The way AIPJ operates is therefore more indirect than many other development assistance programmes, as it takes on a “facilitation” rather than an “intervention” role. There are many factors that lead to the success or otherwise of reform initiatives such as those of AIPJ, and locating AIPJ’s contribution within this context is difficult.
Third, it can be difficult to slot governance programmes within an overall “aid framework.” For example, when AIPJ was designed, the Australian aid programme’s primary objective was the eradication of poverty.Footnote 10 While there may be an indirect connection to this objective, not all activities in the legal sector (or the human rights sector) can be drawn under such traditional frameworks, or should be forced to come within this framework in order to guarantee ongoing support.Footnote 11
5. Sense and Simplicity
The title of this article is “Sense and Simplicity in Legal and Human Rights Co-Operation.” The reason for the title is that good programmes are simple ones that involve a common-sense approach and set realistic goals and timeframes. However, this can be lost amid complicated internal processes and a rigid approach to the fluidity of development co-operation. The six points set out below are intended to get back to the basics of co-operation. They focus on the “how” and the “why,” or the “journey, not the destination.” There are of course others but, as this article is based on personal experience, and draws on successes and failures and lessons learned, they are six that I consider significant to the concept of sense and simplicity.Footnote 12
5.1 Understand Your Partner
The first is a mutual understanding of one’s partner, including an understanding of the language, culture, as well as pressures a partner may be under and the framework they work within. Such an understanding assists in building trust between partners, as well as more open communication. This type of understanding may materialize in a programme in the form of “quick wins” (to meet pressure for tangible results), or in the inclusion of a miscellaneous discretionary fund to use on an “as needs” basis (to satisfy political realities of a programme). It may also involve something as simple as ensuring senior individuals attend events to demonstrate high-level support for particular initiatives.
Mutual understanding is also important in considering requests for assistance and interpreting the successes and failures of a programme and why these occurred. On a less positive note, it is also important in recognizing whether a partner, potential partner, or even another donor is trying to “pull the wool over your eyes.” As pointed out by Banerjee, if a donor is unprepared, or lacks understanding, “it is easy to lead them [donors] to grandiose and unfocused project designs where none of the details are spelt out clearly and diverting money is a cinch.”Footnote 13
Understanding of one’s partner was a particular strength of the Indonesia Program at the NCHR. Staff already had knowledge of Indonesia and spoke Indonesian. The Program included a research, teaching, and publication component for all staff to build on this understanding. It made provision for staff as the implementers of the Program to attend activities and build relationships that facilitated a strong awareness of the context in which the Program operated, as well as to develop a deeper understanding of human rights in Indonesia, how human rights problems were conceived by Indonesians, and how Indonesians thought problems and challenges could best be solved. The Program also had the flexibility to make small adjustments to activities during the year. This flexibility also supported a quid pro quo relationship with partners; for example, members of staff were often asked to give lectures at partner universities, provide a personal piece for a journal, or to attend seminars to show support for initiatives. Indonesian partners responded in kind with time and information for design, research, and information purposes.
5.2 Identify and Support “Champions of Change”
The second is to identify “champions of change” and to trust, support, and follow them. The best way to achieve long-term reform in the legal and human rights sector is for it not only to be led by Indonesians, but to be seen to be led by Indonesians. Programmes require a certain level of flexibility to provide such support. For example, if a “champion” moves from one institution to another, a programme may then need to support this new institution in some manner, even if it is in a small way. A “champion of change” may also identify an urgent measure needed to combat anti-reform actions. This will require time-critical support that is unlikely to be planned.
These “champions” also benefit from exposure and opportunities to develop their craft. This may include, for example, study and research opportunities overseas. The Indonesia Program at the NCHR provided two scholarships for Indonesian master students in Theory and Practice of Human Rights, as well as visits of one month and other stipends for individuals to come to Norway to conduct research and work with international academics and researchers. Such opportunities provided support for individuals to strengthen and deepen their knowledge, and gave them opportunities in an international environment as well as access to international experts. For some, it simply provided a well needed “rest” from the pressures of working as human rights activists and researchers. It also gave staff at the Indonesia Program, the NCHR, and the University of Oslo more broadly the opportunity to discuss topical human rights issues with Indonesian change champions and to learn from them.
Support for “champions of change” may also involve core funding for CSOs to strengthen the organization and ensure its longevity. Rather than CSOs’ continually needing to apply for funding on an activity basis, this type of funding allows a CSO to conduct internal activities that may, for example, assist in financial management, tender writing, media skills, etc. It may also include more unconventional support such as increased wages for staff or a car for use by the CSO. This type of support is a feature of AIPJ.
5.3 Harmonize Co-Operation
The third is to harmonize co-operation. Many countries have well-established peer-to-peer co-operation, such as the Memorandum of Understanding on Judicial Cooperation (MoU) between the Supreme Court of Indonesia, the Family Court of Australia, and the Federal Court of Australia, most recently renewed in 2012. This type of co-operation provides an important opportunity for judges and court staff to speak directly to one another in an informal environment, and to openly discuss the challenges and complications that arise in the discharge of their duties.
The MoU and its Annex set a long-term framework for co-operation between the three Courts. This framework is integrally connected to activities and the programme of work set out in AIPJ. Hence the co-operation is harmonized. For example, the Federal Court of Australia hosts a bi-annual internship for selected staff of the Indonesian Supreme Court who are mid-level officers and who are expected to be future “champions of change.” This internship focuses particularly on business process re-engineering, which is an integral part of the Indonesian Supreme Court Blueprint for Reform 2010–2035, as well as representing a component of AIPJ as extracted below:
Goal: Realising Rights of Indonesians to... Fair and Accessible Justice Services
Strategic Objective: Fair and accessible dispute resolution... contributes to ensuring equality under the law.
End of Program Outcomes: In order for Indonesians to claim rights and resolve disputes, improvements are required in public access to justice services and the timeliness and consistency of these services. The Courts developed their theory of change through the Supreme Court Blueprint, and together with the Federal and Family Courts of Australia, identified in the Memorandum of Understanding (MoU) how co-operation could contribute to greater consistency of judicial decisions (Courts EOPO1)Footnote 14 and access for justice seekers (Courts EOPO2)...Footnote 15 AIPJ accepts that by working together on the implementation of the Chamber system [and] case management... the Courts will improve timeliness, consistency and access. Timeliness is improved by reducing the number of cases going to trial and streamlining case handling procedures. Consistency is increased by having judges specialize in chambers...Footnote 16
Courts EOPO 1: The Supreme Court is adopting procedures that lead to more consistent, timely, and transparent judicial decisions.
∙ Supreme Court designs and implements chamber system during transition period through participatory and comprehensive approaches.
∙ Supreme Court produces and implements more streamlined case management business process.Footnote 17
Importantly, the Federal Court also follows up on progress that has been made following the internship programmes, hearing directly from former interns what has been achieved and how. The Federal Court is then able to reinforce reform initiatives, and in some instances to make comments that may not be possible for national staff (or AIPJ) to make.
Table adapted from aipj.or.id (2013), p. 12 (emphasis added).
5.4 Don’t Undercut or Replicate Other Donors’ Work
The fourth is not to undercut or replicate the work of other donors, or of agencies from the same country. Co-ordination and co-operation are critical in this regard.Footnote 18 While this sounds relatively simple, in practice it is difficult. In Indonesia, development co-operation programmes in the legal and human rights sectors are carried out by governments, multilateral agencies, international CSOs, and by universities. There are also numerous Indonesian government agencies involved in a single sector; for example, in the anti-corruption sector, there are more than ten agencies active. A country such as Australia may also have more than one government agency operating in the legal sector. It is difficult to have a comprehensive holistic picture of co-operation.
Having said this, it is important not just for the host country to play a co-ordinating role,Footnote 19 but donors should do so as well. In co-ordinating efforts, donors also then have the opportunity to share knowledge and experience in particular sectors. Effective co-operation facilitates programmes that complement others, rather than overlap, or worse still conflict. It also minimizes “donor shopping” and opportunistic behaviour by organizations and individuals seeking assistance from donors. It assists in preventing donors’ offering the same tired programmes of assistance.
Effective co-ordination maximizes the competitive advantage of donors. As a donor, there may be particular areas of expertise, particular innovations, or even a shared history that mean certain areas of co-operation are a more natural fit. There may also be areas that other donors simply do better. Indonesia is developing a system that is best suited for its own needs going forward, and donors can make valuable contributions to this. Indonesia, as it should, will pick and choose from the strengths of donor programmes that are of the most benefit.
One example of effective donor co-ordination is that between AIPJ, the US-funded Changes for Justice (C4J), and the World Bank’s Justice for the Poor (J4P), which all worked with the Indonesian Supreme Court to develop Supreme Court Regulation No. 1/2014 (PERMA 1/2014) regarding Legal Services for the Poor. The co-operation took the form of joint advocacy and co-funding events and technical assistance. The PERMA was effective from January 2014 and is intended to assist people, especially vulnerable groups, to obtain legal services and increase their access to justice in court.
5.5 Ensure a Range of Co-Operation
The fifth is to spread the co-operation—but not too thinly. While there are many deserving areas of support and potential partners, it is important to keep coherence in a programme so that the results do tell a story of reform and change. At the same time, having a balance in partners is also important—not just government, not just civil society, but a combination of both. For example, in the law and justice sector, civil society can work in a dual capacity with government institutions. It may, on the one hand, play an important watchdog and accountability role and, on the other hand, provide an important source of consultancy skills for procedural reform and development, and an important source of data and information for government agencies. One example of this is the role of the Indonesian non-governmental organization (NGO) LeIP (Institute for an Independent Judiciary) in the development of the chamber system in the Supreme Court. Staff of LeIP have played, and continue to play, an important role in consulting with judges and staff of the Supreme Court to assist in the development of a framework and implementation plan for the chamber system. A second example of this is training by the NGO ECOSOC Institute for the local parliament in Lembata, East Nusa Tenggara (a remote area of Indonesia), on budgeting for the realizing of economic, social, and cultural rights. Parliamentarians had not previously received any training in considering, developing, and analyzing budgets. A third example is the co-operation between PEKKA (NGO for the Empowerment of Female Heads of Household) and the Indonesian Supreme Court (Religious Courts and the Directorate-General of Religious Courts). PEKKA was a major source of data and information in an access and equity study that provided the Religious Courts with empirical data on those areas where court users thought the court was providing a high level of service and those where improvements could be made. It led to a planning meeting where it was agreed that initial strategic responses should enable the Religious Courts to (i) become more accessible for groups who do not currently bring their family law cases to this court but come within its jurisdiction and (ii) provide more equitable treatment to those who do bring their cases to the court. Reform in these areas, including fee waiver and circuit courts, continues.Footnote 20 In the implementation of these reforms by the Supreme Court, PEKKA plays an important role in supporting the reform by informing women about these services and preparing them for court. Without this support, many of these women would not bring their cases to court.
5.6 Continuity of Support
The sixth is continuity of support. Change in the legal and human rights sector is a long-term process and requires continuous support. Many organizations have long-term reform action agendas, such as the Indonesian Supreme Court Blueprint for Reform 2010–2035. Continuity is important for sustainability of programmes and reform, as well as for building and maintaining trust with partners. Continuity in co-operation is a particular strength of the Indonesia Program at the NCHR. There has been ongoing and consistent support from Norway in the field of human rights, with a common theme and working predominantly with the same partners. This has strengthened relationships between Norwegian and Indonesian partners, has allowed participants in programme activities to develop a solid working network of professional co-operation, and has developed knowledge upon which to build future programmes. In the case of the AIPJ, there was a one-year limited transition programme between it and the previous programme (Indonesia-Australia Legal Development Facility (IALDF)), followed immediately by a truncated and abbreviated nine-month bridging programme. There was also a change in structure of the co-operation. IALDF was a facility, whereas AIPJ is a programme. This is a markedly different approach and required quite a mind-shift in the approach to co-operation. It took some time to explain differences to partners and the impact that this would have on support. From 2011 to 2013, there were two different senior managers at the Australian Embassy who significantly impacted AIPJ as each had a different approach to the structure, resourcing, and direction of AIPJ. Such changes also meant that corporate memory was reduced and that challenges and problems were more likely to be repeated in this and future programmes.
6. Conclusion
Co-operation in the legal and human rights sphere is complex. It is political, nuanced, involves numerous competing stakeholders, and operates across multiple arms of government. Internal practices and demands can unnecessarily add to this already complex working environment. However, the reality is that sometimes aid programmes work and sometimes they don’t. The reason they don’t work is rarely due to the area or field of co-operation of the programme. It is often because of how the co-operation is implemented. Many projects that succeed are narrowly defined and well-founded. They are based on continuous, stable support by staff who know and appreciate their partners, but who are not afraid to have difficult conversations and provide constructive feedback. Strong relationships survive and prosper, and flexibility is key. The six points outlined above underscore the need for sense and simplicity in legal co-operation and in human rights co-operation. They do not by any means guarantee a programme will be successful. They are also not always easy to implement in the face of political realities. They are a starting point, and stress the need to get back to basics when planning, implementing, and monitoring a programme. This article is based on a paper given at the Indonesia-Netherlands Legal Update which primarily focused on the future of legal co-operation between Indonesia and the Netherlands. I conclude this article in the way I concluded my presentation at this conference: I have always been optimistic about the future of Dutch-Indonesian legal co-operation. I think it can combine the benefits of a small and large programme to form its own model: there is knowledge, goodwill, trust, and longevity in the relationship. And these are essential to successful co-operation.
