Increasing the value of government lawyers in a developing country : a proposal

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SCHOOL OF INDUSTRIAL MANAGEMENT

MIT fjL&U-uM, ^

JAN 21 1964

DEWEY LIBRARY

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INTRODUCTION

The MIT Fellows in Africa have met together during a fortnight each summer since
1961 to exchange papers and to discuss their experiences as employees of African
Governments. Since its inception in I960, 26 American graduates from the MIT School
of Industrial Management or the Harvard Business School, have performed duties as a
part of the regular establishment of their African governments. The breakdown
according to organizations is as follows:

Economic Planning Ministry or Commission 7

Ministry of Finance or Treasury 6

Development Bank 6

Ministry of Commerce and Industry 5

Publ ic Uti I ity - Rai Iway I

- Posts and Telegraphs I

Nine Law Fellows, graduates of Harvard or Yale Law Schools have similarly served
in legal offices, as follows:

Ministry of Justice - Attorney General 3

Office of the Chief Justice 2

Ministry of External Affairs 2

Ministry of Finance I

Director of Public Prosecution I

Their unusual positions have made the annual two week summer conference a time of
lively and enriching discussion.

Last August, 25 Fellows and wives, along with African guests from the ministries
and offices in which Fellows work, MIT faculty and a small number of governmental and
international civil servants met at the Mont Parnes Hotel outside Athens. The
theme which served as the departure point for discussion was the need for innovators
and innovation. After opening presentations and discussions of issues, the Fellows
separated into four groups: the external aid specialists, the planners and administrators,
those concerned with financing and assisting private entrepreneurs, and the lawyers.
For two days, these working groups met to examine the meaning of innovation in the
context of their experience. Because of the almost unique position from which the
Fellows approached this task, we are reprinting as School of Industrial Management
Working Papers the report which issued after these two days. What follows is the
working report of the Lawyers. The reports of our other working groups are being
published separately.

Carrol I L. Wi I son

Professor of Industrial Management

Director, Fellows in Africa Program

INCREASING THE VALUE OF GOVERNMENT
LAWYERS IN A DEVELOPING COUNTRY:
A PROPOSAL

Group C: Armstrong, Brewster, Cotter,
Mallaraud, Phillips, Verbit.

FLA Athens Conference
August 10 - 2k, 1963

Lawyers in the governments of independent African states are generally con-
centrated in one central legal office such as the Ministry of Justice. Tradition-
ally work has flowed from other ministries to Justice for a legal "check" and then
flowed back again to the various ministries. Our working group believes that gov-
ernment operations would be greatly improved if lawyers were posted to ministries
other than Justice, to serve as legal advisors to the respective ministries. This
proposal springs from the belief that sound legal work is most likely to be forth-
coming when the lawyer has a good knowledge of the subject matter with which he
is dealing,

Working within what might be termed the substantive ministries a lawyer would
fulfill the three following functions.

1, Drafting - Transformation of policy decisions into action formulas:

In order for any decision taken in a ministry to be formally circulated
beyond the covers of the subject matter file, it must be written down in the form
of a law, rule, or regulation. It has always been one of the primary functions
of the lawyer to put down in clear language the substance of what course of con-
duct the government requires or desires, and what procedures need to be followed

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to achieve a desired end. While it is true that the products of lawyers perform-
ing this function are sometimes incomprehensible, this is so because the lawyer
has done a poor job of drafting and not because all legal drafting is necessarily
incomprehensible. Moreover, legal drafting makes use of words and combinations
of words which have through the course of time come to stand as abbreviations for
relatively complex ideas , By utilizing these words, the meaning of which is com-
paratively certain, the draftsman is able to give the law the precision which
any regulation prescribing or proscribing conduct must have.

Drafting as carried on in most African countries with which we are familiar
consists of the following process. A draft of what Ministry X would like to see
included in a new law is sent to the central legal draftsman in the Ministry of
Justice. These drafting instructions are more often than not sketchy outlines
of broad goals and the draftsman is asked to fill in the details. But the
draftsman usually views his job in terms of translating other peoples' ideas
about, legislation into a universally understood terminology; he rarely knows
anything about the subject matter of the legislation. This, it can be seen at
once, severely limits his ability to draft a clear and complete legislative scheme.
What the draftsman usually does in the first instance is to turn to legislation
in other jurisdictions covering the same subject matter. He usually finds that
many items covered in that legislation have not been dealt with in his drafting
instructions. Therefore he consults, either orally or in writing, with the officer
in the substantive ministry desiring the legislation. The consultation process
is lengthy and complicated, the more so because the central draftsman knows little
about the substance of the legislation, whereas the officer knows little and cares
less about the problems of drafting.

Placing a legal advisor in the substantive ministry would cut short this

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unproductive dialogue and save the valuable time of both the draftsman and the
line officer. The legal advisor would ideally have been a participant in the
process leading up to the adoption of the policy which is now to be incorporated
in the legislation, (see below), and would thus be thoroughly familiar with the
substantive problems involved, Moreover, in his role as legal advisor he would
have seen how this issue has been dealt with in other countries. He would then
present the central draftsman with a complete draft leaving the central drafts-
man to ensure that legislation from all ministries follows a consistent form.
The legal advisor would thus facilitate the conversion of policy decisions into
action formulas by his familiarity with the problems facing both the policy
makers and the draftsman and his ability to communicate with each of them in
their own language,

2, Advising - the legal ramifications of the substantive issues within
the ministry:

The lawyer posted to a substantive ministry brings into the process of
decision-making with that ministry a variety of insights from his specialized
education. The inclusion of these insights during the process of policy forma-
tion will insure that they are not neglected completely, and will conserve the
time of policy-makers by avoiding the necessity of repeating the entire decision-
making process because of the original failure to consider factors not immed-
iately the concern of the ministry. First, the lawyer brings to the decision-
making process a special knowledge of the constitutional and legal framework in
which the ministry's policy must operate. He has a special knowledge of the limi-
tations of the powers of the ministry and of possible conflicts between the pro-
posed policies and existing laws. In short, a lawyer alerts the administrator
to the legal ramifications of proposed actions. Second, he is specially trained

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to consider the effects of proposed laws outside the immediate situation which
gave rise to them. He is apt to consider the effect of the proposed laws over
areas of activity other than those in which they were intended to operate.
Third, his training specially equips him to perceive contradications or omissions
in proposed laws. He is apt to discover unanswered and unconsidered questions
to which proposed laws will give rise; this means that these questions of
policy may be considered and answered at the political level as they should be,
rather than at the judicial level. Fourth, the lawyer has knowledge of the way
in which the same areas have been regulated in other countries. He broadens
the alternatives before the policy-makers by showing the solutions of other
legal systems to problems similar to those confronting his ministry. His role
is not the negative one of saying that the means to a goal are illegal; his is
the positive role of discovering alternative means which do not suffer the same
deficiencies as those earlier proposed.

Most important, the lawyer is apt to be the sole spokesman in the decision-
making process for a range of considerations not in conflict with, and very likely
fostering, the goal of economic development. The lawyer has a basic commitment
to the rule of law. He is committed to the proposition that the first task of
a society is to provide law to govern the affairs of men and to institute courts
in order that disputes be settled by law and not by violence. Without law there
is no order, no freedom and no development. One aspect of this commitment requires
that law govern the dealings between men and their governments, that governments
not reward or penalize individuals by whim, but rather according to the laws.
The lawyer is committed to the preservation of civil liberties — the rights of
individuals against governments. Ministries of the government are apt to conceive
of these liberties as obstacles to the attainment of their particular goals. This

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may be less a matter of principle or dogma than of the administrator's personal
distrust of the independent activities of persons not subject to his authority
and control. However, even if the wellspring of the attitude is psychological,
the attitude is a fact which a lawyer in a developing nation will probably con-
front. The lawyer, taking a broader view of the workings of a society, is in a
position to educate policy-makers to the view that the goals of civil liberties
and democratic institutions are not in essential conflict with the goal of devel-
opment sought by the government. The free flow of information, safeguarded by
the right of free speech, is essential to the innovative process. Preventive
detention, when used to silence political opposition, likewise engenders a fear
to criticize, which dampens the innovative processes. Furthermore, the lawyer
must be the spokesman for democratic institutions; he knows that development
not taking account of the wishes of enough people is constantly endangered by
ensuing political instability. He recognizes the fact that the stability of
institutions rests on the adequacy of channels by which dissent may be expressed.
He recognizes the need for orderly methods for the transfer of political power.
He recognizes that the innovative attitudes necessary to economic development
are fostered by a free and democratic society. The particular role of the
government lawyer, when advising on the adoption of laws abridging civil liber-
ties, is to ensure that the law be as narrow as possible to accomplish the felt
need of the policy-makers. He must act as a restraining influence on inroads
into civil liberties.

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3. Negotiating

Placing lawyers in specialized ministries has the further advantage
of providing an on-the-spot legal consultant who can participate in every stage
of bargaining when contracts and treaties are being negotiated . The experience
of some MIT Fellows has been that many important contracts are negotiated by
laymen in the ministry involved and sent to the Ministry of Justice for legal
scrutiny only when it is too late. These draft contracts often omit such essen-
tial features as a definite contract price or a terminal date for the completion
of the work involved. In almost every case there was insufficient time for the
Ministry of Justice lawyer to reopen negotiations and correct this kind of
fault. The parties are usually in too great a hurry to get the job under way
to renegotiate these deficiencies and the Ministry, as a result, must be content
with the good faith performance of the other party. Sometimes, when contracts
or treaties involve foreign firms or governments, the other party has already
left the country when the Ministry of Justice lawyer first sees the contract.
Still worse, some contracts are never sent to the Ministry of Justice for checking.

A lawyer placed directly in the ministry negotiating a contract or treaty
would have foreseen these types of pitfalls and omissions and the resulting agree-
ment would have given the government the necessary legal protection. Lawyers
are more apt to foresee such problems because they are trained to anticipate
failures in contract performance and to provide safeguards in the agreement against
such defaults. Such a lawyer should be intimately connected with all phases of
negotiations from the first time an agreement is contemplated. The lawyer's
participation from the beginning will eliminate the need for last minute checking
of the legal and practical implications of every clause. The presence of such
a government lawyer protecting the interests of the African government is partic-
ularly essential since the foreign party, more than likely, will have had legal

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advice certainly before and perhaps during the negotiations.

Although a lawyer in the Ministry of Justice might be usefully consulted
at all these stages even under the present centralized legal organization in
African governments, it is the experience of FIA lawyers that they are usually
not. And, even if they were, this would not be a wholly adequate substitute for
the substantive as well as legal expertise a lawyer posted in a particular min-
istry can bring to bear.
Manpower difficulties of rapid implementation

Where adequately trained lawyers are available in sufficient numbers, it
will be relatively easy to implement this proposal. It is recognized that since
in many countries the government has available only a few lawyers, it will not
now be possible to give ministries their own legal advisers. Until enough lawyers
are available it might be possible to assign lawyers within the central law
office primary responsibility for particular ministries, so that a lawyer can
begin to build up some knowledge of the affairs of a ministry, although he will
still be available to perform duties not necessarily connected with the ministry
for which he has primary responsibility. As more lawyers become available they
should be assigned to work part time in the substantive ministry itself while
still doing general work in the central law office. Eventually, as the work
increases further and justifies it, the lawyer should be assigned full time in
the substantive ministry.

However, lawyers should be placed in substantive ministries by the director
of the central legal office and should remain under his control. This is desirable
to ensure the coordination of major legal policy throughout the government by the
principal legal officer — the Attorney General, Minister of Justice, or similar

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person. To this end, lawyers should be first trained in the central legal office
before they are placed in a substantive ministry. After placement, they must
remain in close contact with the central legal officers, since discussion among
lawyers on an informal and continuing basis is essential to professional work
and to uniform substantive policy development.

FEB 2 41967

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