Báo cáo Khảo sát về hệ thống pháp luật và Tư pháp tại Hoa kỳ và Canada

ecifically relating to how the lessons learned from 431 Part III. Report on regional Tour to Study the coordination and use of International Assistance for Legal Development in Indonesia... the study tour can be applied in Viet Nam. - Based upon the collected documents, report, seminar, and other reports and studies, a book on the use, impact, and effectiveness - past, present, and future - of ODA and other international assistance in legal development in Viet Nam will be written and distributed. - Concrete recommendations for improving the Co-ordination Mechanism for ODA and other assistance in legal system development in Viet Nam will be formulated. - Based upon the study tour report, seminar, and Report on Decree 103, a draft decree, along with any supporting LNDs, to replace the existing legal framework for the management of ODA in the legal sector will be prepared and forwarded to the relevant authorities. II. Contents of the Study Tour 1. Overview of the legal and judicial systems of Indonesia and the Philippines It can be said that within ASEAN, Indonesia and the Philippines are two countries having a lot of socio-economic similarities with Viet Nam, especially the economic growth rate (there seems to be no big gap in this regard between Viet Nam and the two countries)(1). Indonesia underwent a period under the Dutch colonialists. However, due to different political regimes and cultural traditions, the legal and judicial systems of the two countries vary and have their own characteristics. (1) GDP per capita in Indonesia and the Philippines is USD 807 and 3,700 respectively. 432 report on study tour on legal and judicial reform in some countries 1.1. The legal and judicial system of Indonesia Dutch presence and subsequent colonization during the next 350 years until the end of World War II left a legacy of Dutch colonial law. A number of such colonial legislation continues to apply today. Subsequently, after Indonesian declared independence on 17 August 1945, the Indonesian authorities began creating a national legal system based on Indonesian precepts of law and justice. The Constitution of Indonesia was first built in 1945 under Soeharto's regime. After his resignation in May 1998, the 1945 Constitution was amended four times - in October 1999, August 2000, November 2001 and August 2002. Among other things, these amendments deal with far - reaching issues such as limitations on the powers and term of office of the President; decentralization of authority from the central government to provincial and regional governments; and the creation of additional constitutional bodies such as the House of Regional Representatives (Dewan Perwakilan Daerah) and the Constitutional Court (Mahkamah Konstitusi), the Justice Committee, the Truth Committee and the Amicable Settlement Committee(1). The 1945 Constitution provides for a number of constitutional bodies. Two of the most important are the People's Consultative Assembly (Majelis Permusyawaratan Rakyat or MPR) and the House of People's Representatives (Dewan Perwakilan Rakyat or DPR). The DPR is 500 - strong and consists of elected and appointed (1) A function of the Justice Committee is to select judge candidates for the Supreme Court before submitting to the President for approval. The function of Truth Committee is to investigate and declare the violation of human rights, genocide under Suharto's regime. Function of the Amicable Settlement Committee is to settle disputes between political parties, organisations and individuals relating to violation of human rights. In sum, the main function and duties of the two committees on Truth and Amicable Settlement are to deal with existing historical conflicts in Indonesia. 433 Part III. Report on regional Tour to Study the coordination and use of International Assistance for Legal Development in Indonesia... representatives. Its main function is to make legislation and hold the President and his ministers accountable. The Indonesian judicial system comprises several types of courts under the oversight of the Supreme Court (Mahkamah Agung). Following the civil law tradition of The Netherlands, Indonesian courts do not apply the principle of precedent which is so familiar among common law jurisdictions. Most disputes appear before the courts of general jurisdiction, with the court of first instance being the State Court (Pengadilan Negeri). There are about 250 State Courts throughout Indonesia, each with its own territorial jurisdiction. Appeals from the State Court are heard before the High Court (Pengadilan Tinggi), of which there are around 20 throughout Indonesia. The High Court is a district court of appeal. Appeals from the High Court and, in some instances from the State Court, may be made to the Supreme Court located in Jakarta. The Supreme Court can hear a cassation appeal (kasasi) which is a final appeal from lower courts. It can also conduct a case review (peninjauan kembali) if, for example, new evidence is found which justifies a re-hearing. In 1998, the Indonesian authorities established the Commercial Court (Pengadilan Niaga). Initially, the Commercial Court is tasked to handle bankruptcy and insolvency applications. Its jurisdiction can be extended to other commercial matters. Appeals from the Commercial Court proceed direct to the Supreme Court. There is also a State Administrative Court (Pengadilan Tata Usaha Negara) which hears administrative law cases filed against the government. In the 2001 constitutional amendments, provision was made for the creation of the Constitutional Court (Mahkamah Konstitusi). Among other matters, the Constitutional Court has 434 report on study tour on legal and judicial reform in some countries the jurisdiction to hear cases involving the constitutionality of particular legislation, results of a general election, as well as actions to dismiss a President from office. Regarding judicial-administrative agencies, one of the outstanding characteristics in Indonesia is that there is a quite cumbersome government structure. There co-exist the Ministry of Laws and Human Rights (like our Ministry of Justice) and the Law Committee under the State President - a consulting agency for the President in the legal field. The representatives from those two agencies also admitted that the functions, duties and powers of the two agencies are not always distinguished. The Law/Legal Reform in Indonesia has specific aspects due to its pluralistic characteristics: it consists of many local territories and each territory has different community with different culture and various religions in Indonesia. The legal reform in Indonesia should therefore not be directed to seek pure unification of all aspects of the community life, particularly when it relates to laws in the field should be done cautiously. The existing laws, if any, governing this field are from the period of the Dutch colonialisation. The legal reform in other field are done in various forms: making new law or revising existing law to respond to current needs and developments, and replacing old (Dutch origin) laws into national law, etc. Since the reform period (after the period of the Soeharto's New-Order), there is a growing need to adopt new or to replace old laws and regulations to give more, greater role to the public to participate in the State affairs and administration. In order to speed up the economic recovery from the effect of the financial crisis of the year 1999, many laws and regulations in the field of economy were also adopted or are currently being revised. The Ministry of Justice (the DGL) plays an important role in 435 Part III. Report on regional Tour to Study the coordination and use of International Assistance for Legal Development in Indonesia... the whole process of the above legal development. It serves as the coordinating body for other government bodies in the preparation of draft laws before it is submitted to the parliament, so that the (draft) law does not contradict or overlap with other laws. The Law Reform Policies recommended by the National Law Commission. The National Law Commission was established by President Decree number 15 of 2000 on the National Law Commission (dated 15 February 2000). It has been assigned two principle tasks: - Providing advice and opinions to the president on the poli- cies in the legal field that have been adopted or are being planned by the government, and on legal issues connected with the public and national interest; - Assisting the president by acting as a steering committee for the design of a general plan for law reform in Indonesia based on the concept of a state of laws and having regard to the public's sense of justice. This is essential in order to accelerate the restoration of public confidence in the law and law enforcers/officers, and ensure that Indonesian law is capable of meeting the challenges of globalisation. Based on the work program it has set for itself, the National Law Commission has conducted studies on various legal fields, the finding of which have been set out in these general recommendations for reform. These recommendations represent summaries of the findings of the studies undertaken by six sub-commissions and fourteen working groups established by the National Law Commission. These recommendations by the National Law Commission do not by any means constitute an overall and comprehensive program for the bringing about of law reform in Indonesia. Rather, 436 report on study tour on legal and judicial reform in some countries the recommendations are general in nature, and are intended to serve as the foundations on which a detailed law reform program may be based. Accordingly, their scope is restricted to those areas that must be addressed as part of the process of initiating overall law reform, and its focused on the principal legal institutions, namely, the executive, the courts, the legislature and the legal profession. They are intended to bring about improvements in the following key areas: - The quality of legislation and judicial decisions; - The quality of human resources; - The quality of the support systems involved in the provision of legal services to the public; and - Improving the knowledge and awareness of the public as regards rights, obligations and legal procedures in general. The recommendations set out in the Box number 1 below represent a realisation of the National Law Commission's second mandate under President Decree number 15 of 2000. RECOMMENDATIONS ON LAW REFORM POLICIES IN INDONESIA PART I. CREATING A STATE BUREACRACY THAT IS BASED ON THE PRINCIPLES OF GOOD GOVERNANCE Recommendation 1: Improving the Role of Government Legal Bureaus Recommendation 2: Public Access to Legal Information Recommendation 3: Procedures for the Submission of Public Complaints Recommendation 4: Optimising the Role of the Law in the Restructuring of Corporate Debt. 437 Part III. Report on regional Tour to Study the coordination and use of International Assistance for Legal Development in Indonesia... The legal reform can only be attained if it is accompanied by a similar reform in judicial sector. The two reforms are inseparable. Necessary steps should be taken to that effect. Authorities over the judiciaries are removed from the Ministry of Justice to the Supreme Court in order to create an independent judiciary body. The judges are now selected by an independent commission, not by the Ministry of Justice or even by the Supreme Court itself. Measures are also taken to make some revision to laws and regulations governing the institution of the law enforcers, mainly the police and the public prosecutor. PART II. CREATING RESPECTED AND RESPONSIVE LEGISLATIVE INSTI- TUTIONS Recommendation 5: Research Services in the Legislative Field Recommendation 6: Public Hearings Recommendation 7: National Legislation Program (Prolegnas) PART III. CREATING A JUSTICE SYSTEM THAT IS EQUITABLE AND UPHOLDS THE SUPREMACY OF LAW Recommendation 8: Establishment of an Anticorruption Court Recommendation 9: Judicial Recruitment and Careers Recommendation 10: The Justice System: Establishment of Supervisory Institution for the Integrated Justice System Recommendation 11: Access to Justice Recommendation 12: The Commercial Court PART IV. IMPROVING THE QUALITY AND INTEGRATION OF THE DIFFER- ENT BRANCHES OF THE LEGAL PROFESSION Recommendation 13: Professional Disciplinary Standards Recommendation 14: Examination Standards in the Different Branches of the Legal Profession. 438 report on study tour on legal and judicial reform in some countries Legal and judicial reform with anti - corruption. The legal and judicial reform in Indonesia is undertaken in line with fighting against corruption that makes badly the image of Indonesia. In this circumstance, the Commission for Eradication of Corruption (KPK) was established. The Commission for Eradication of Corruption of Indonesia is a special institution which should be carefully taken into consideration in the context that Viet Nam is in the process of drafting of a Law on Anti - Corruption. Established in December 2003, this Commission is an independent agency and not under supervision of any bodies but under the people's supervision. The selection process of members to the Committee is conducted: the Government proposes a list of candidates, five of whom will be selected by the Parliament. One of the five selected person will be appointed as the Committee President. The term in office of members of the Committee is four years (they may be re-appoint- ed). The Committee members are not allowed to hold concurrent positions and join any political parties(1). - This Committee has the functions of supervision of all state agencies, including prosecution institutes and police agencies; evaluation of activities of all public authorities. - The Committee's power does not overlap the powers of other litigation implementing agencies and such overlap can be seen in the way that litigation implementing agencies (prosecution institutes and police agencies) are still empowered to investigate, initiate criminal proceedings of corruption cases but they then have to report such to the Committee; within its power, the Committee (1) At present, there are 24 political parties in Indonesia (before 1998, there were 44 political parties). The three big ruling parties are the Democratic Party, the Muslim Party and the Goica Party. 439 Part III. Report on regional Tour to Study the coordination and use of International Assistance for Legal Development in Indonesia... has the right to take any cases to settle under its power; when finding out any fact of corruption, the Committee itself investigates the case without permission from any agencies (even from the State President); the Committee is entitled to request any state officials to explain if any fact of corruption is found against them. However newly - established and not having its own system of investigators, the Committee is now using special investigators under the police force. This has much affected the operation efficiency of the Committee. The Committee hasn't had so far its vertically - established system; if any corruption case is found in local areas, the Committee will set up a special force to investigate and settle the case. 1.2. The legal and judicial system of the Philippines The State structure of the Philippines has many points in common with that of the US, especially in the separation of powers. The legislative power, the executive power and the judicial power are definitely divided to supervise and counterbalance each other. The judicial power is highly respected (the Chief Justice of the Supreme Court is the chairperson of the installation of the State President). The legal and judicial system of the Philippines was built based on the Anglo - American and Spanish system models and accepting the jurisdiction of the International Court of Justice with certain reservations. The Philippines Judiciary does not exist in vacuo but operates within a much larger system that includes the Barangay justice system, the quasi - judicial bodies that are empowered by law to perform adjudicatory functions, and the law enforcement, investigative, prosecutorial and correction systems of the Department of Justice as well as the Department of Interior and Local Government. Thus, the Judiciary's performance is significantly affected by the performance of systems external to the judicial organisation. 440 report on study tour on legal and judicial reform in some countries Laws passed by Congress also have a great impact on judicial operations. For example, the laws establishing the Family Courts, transferring commercial cases from the Securities and Exchange Commission to the Regional Trial Courts, and mandating speedy trials, necessitated modifications to court procedures. These laws affect the distribution, volume, mix and effective processing time of cases that are heard before the various tiers of the court system. Under the Philippine Constitution, judicial power is vested in the Supreme Court and in such lower courts as may be established by law. Judicial power includes the duty of the courts of justice to set- tle actual controversies involving rights that are legally demandable and enforceable, and to determine whether there has been grave abuse of discretion in the actions or decisions of the political branches of government, that is, the Executive and Legislative branches. The Supreme Court is the only court created by the Philippine Constitution. All the other courts that comprise the Philippines Judicial System were created through laws passed by Congress. The system of courts in the Philippines is divided into four levels as follows: (1) Court for Islamic people. HIERACHY OF COURTS IN the PHILIPPINES Supreme Court Court of Appeals (CA)/Court of Tax Appeals/Sandiganbayan/ Shari'a Appeal Court(1) 950 Regional Trial Courts/distributed among the thirteen administrative regions 56 Shari'a District Courts/Family Courts 82 Metropolitan Trial Courts (Metro TCs)/141 Municipal trial Courts in Cities (MTCCs)/ 425 Municipal Trial Courts (MTCs)/426 Municipal Circuit Trial Courts (MCTCs)/Shari'a Circuit Courts 441 Part III. Report on regional Tour to Study the coordination and use of International Assistance for Legal Development in Indonesia... The courts in the Philippines are organised according to the jurisdiction levels but not administrative units. The Supreme Court organizationally manages its lower courts (there is a management division of lower courts in the Supreme Court). Under the viewpoint of the Supreme Court, the courts are in a system independent from executive and legislative agencies and the Supreme Court's management of lower courts does not there- fore affect the adjudication independence of judges because judges are only governed by laws in their adjudication. Judges may work until they are 70 years old and they enjoy lifetime appointment (they are only dismissed under one of the three circumstances: constitutional violation, corruption and commission of serious crimes). In addition to law provisions, judges are also governed by the regulations of professional ethics systematized and promulgated by the Supreme Court. Legal and Judicial Reform in the Philippines: One issue very important is that, the Legal Reform is carried out based on and in accordance with overall long-term, medium - term and short - term Strategy Planning approved by the President. For example, in 2004, Philippine President Gloria Macapagal Arroyo signed a Medium - Term Philippine Development Plan for the Period 2004 - 2010. The basic task of the Plan in this period is to fight poverty by building prosperity for the greater number of the Filipino people. The legal reform is set out in the Part III "Social Justice and Basic Needs" and Part V "Anti - Corruption and Good Governance" of this Strategy. As an independent branch from executive and legislative branches, the Supreme Court also launches out its own Judicial Reform. The comprehensive Action Plan for Judicial Reform 2001 - 2006 (APJR) is founded on the vision and mission espoused by Chief 442 report on study tour on legal and judicial reform in some countries Justice Hilario G. Davide, Jr. and enunciated in the Davide Watch. The APJR builds on previous reform efforts by the Supreme Court, including the Technical Assistance to the Philippine Judiciary on Justice and Development Project, which produced the "Blueprint of Action for the Judiciary", and the following diagnos- tic studies: Assessment of Past Judicial Reform Efforts, Formulation of Administrative Reforms, Review of the Criminal Justice System, Review of the Alternative Dispute Resolution Mechanism, Review of the Barangay Justice System, Assessment of the Impact of Judicial Education and Directions for Change and Development, and Formulation of a Medium - Term Public Investment Program for the Judiciary. 2. Actual situation of the receipt and use of ODA in the legal field in Indonesia and the Philippines Although having more developed economies than Viet Nam's, Indonesia and the Philippines have not become newly-developed countries (NIC) but are developing countries. Therefore, attraction of ODA is also a key task of the two countries. 2.1. Actual situation of the receipt of use of ODA in the legal field in Indonesia a. General issues When the financial and monetary crisis strongly hit the South East Asia in general and Indonesia in particular in 1996, the Government of Indonesia issued a Strategy for borrowing and payment of foreign debts, in which the following key fields were in strongly need of foreign loans: - Hunger elimination and poverty alleviation; - Education, health; 443 Part III. Report on regional Tour to Study the coordination and use of International Assistance for Legal Development in Indonesia... - Rural infrastructure, etc. In the industrial field, Indonesia did not intend to borrow foreign loans but mainly mobilized domestic loans or other sources. In the legal reform and the human rights protection, Indonesia mainly used non-refundable ODA and accessed such source in a very limited scope because the Indonesian Government considered those as domestic affairs, proving the national sovereignty. If ODA were much utilized in the fields, internal affairs of Indonesia would be affected through ODA. In 1996, under the regime of the State President Soeharto, the legal aspects, which were in the first priority of ODA attraction, were the democracy reform, the judicial reform, the legal officials training and especially the anti-corruption. There were many international legal cooperation projects, such as the UNDP-funded Project on "Access to Justice", the EC-funded Project on "Legal Reform", the Netherlands funded Project on "Judges Training". Many mechanisms established in order to assist legal and judicial reform in particular and to assist the governance reform in general. These mechanisms also try to contribute to enhance the effectiveness of ODA use and management. Amongst them, Partnership for Governance Reform and Decentralization Support Facility (DSF) are two main mechanisms that Indonesian Government appreciates. Partnership for Governance Reform in I donesia The Partnership was created by a group of eminent Indonesians representing different walks of life, together with UNDP, the World Bank and Asian Development Bank at the end of 1999, in the aftermath of the free and fair General Elections held June of that year. The Partnership was designed to extend and deepen the nature of cooperation between the international donor community and Indonesian 444 report on study tour on legal and judicial reform in some countries The Decentralisation Support Facility (DSF) is a new multi-donor organisation whose purpose is to provide harmonised donor support to Indonesia's decentralisation. The activities supported by this DSF include policy dialogue (local, national and international), programme support and development, direct support to grassroots organisation. The DSF is a mechanism to unify thread of all DSF activities to support to the development of decentralised government services that are effective, accountable and promote economic well-being. Department for International Development (DFID, United Kingdom), ADB, UNDP and the World Bank are active members of the Facility and the funds will be put by donors for harmonisation activities to be managed by a World Bank Trust Fund. b. Attraction process of ODA projects The general attraction process of ODA projects, including projects in legal field, is that ministries and agencies must annually support of the governance reform agenda. At the time of its establishment, the Partnership was headed by a Governing Board comprising of Indonesians representing the government, civil society, and the private sector, and representatives of multilateral sponsors (UNDP, World Bank, and ADB) and representatives of foreign governments extending development assistance to Indonesian development. The Partnership promotes governance reform through two mechanisms, namely: - "The Indonesia Governance Fund" that supports reform-related projects and activities which are financed through contribution from Indonesia's development Partners; and - The Facility for Policy Dialogue and Analysis which is designed to support the Indonesia Governance Fund with reform ideas and the capacity to test their operational relevance in the context of the governance reform agenda. Throughout these years, the Partnership has contributed to the reform process by supporting initiatives in the areas of decentralisation, police reform, anti corruption, parliamentary and electoral reforms, justice sector reforms, and civil service reforms. 445 Part III. Report on regional Tour to Study the coordination and use of International Assistance for Legal Development in Indonesia... prepare their lists of projects in need of ODA to send to the National Planning Agency (BAPPENAS) for gathering; and then the ministries and agencies make TOR to send to the BAPPENAS for review of the contents and financial aspects. The BAPPENAS often provides its viewpoint independent from the sending ministries because there has been a situation where the sending ministries pay any price to have ODA projects or even conditional projects. The BAPPENAS must therefore review and evaluate the proposed projects for the sake of the nation as a whole. If we move back to 15 years ago, we can see that most of ODA projects were adjusted to the subjective intention of foreign partners. However, the situation now changes and there have been an increasing number of proposed projects rejected by the BAPPENAS, thereby showing the independence and sovereignty of Indonesia in international relations. Signing places of projects have also proven such change: in the past, projects were signed in the US (the WB headquarters) or the Philippines (the ADB headquarters) but projects are now signed in Jakarta to avoid the pressure of the foreign partners on the Indonesian negotiation missions. Hiring excellent counselors to give advice to the Government in the process of negotiation, attraction and use of ODA has become a common tendency in Indonesia, especially for ODA projects with big loans. Oriented ODA borrowing is currently a key approach in Indonesia. The Government of Indonesia declared a principle that ODA loan borrowing for new projects will be conducted only when old projects are completed. This principle has reflected the Government's effective use and due disbursement of ODA. In the past, Indonesia borrowed 800 million USD per year from the ADB. However, Indonesia's loan, mainly from the WB has now decreased to a half. The ADB is now of concern that it has money for lending but it can not spend - a phenomenon contrary to 15 446 report on study tour on legal and judicial reform in some countries years ago when such financial institutions often utilized ODA to interfere into the internal affairs of Indonesia. That ODA borrowing must ensure a high safety is a principle stringing along with ODA projects in general and ODA projects in legal field in particular. This principle requires a loan rate proportional to the export and national treasury rates. For ODA projects with big loans, requirement of consultants (domestic consultants are in the first priority) is a prerequisite for legal safety of the projects. c. Roles of the Ministry of Justice in the attraction and use of ODA projects The Ministry of Justice actively participates in and plays an important role in the attraction, management and use of ODA projects in general and ODA projects in the legal field in particular. Firstly, like in Viet Nam, the Ministry of Justice of Indonesia is the agency providing legal opinion to draft agreements on foreign loan. Secondly, the Ministry of Justice is the agency chairing the coordination in international legal cooperation projects. The coordination scheme aims at avoiding overlap in cooperation activities. d. Others Corruption is a national calamity in Indonesia. The Indonesian Government is now utilizing all recourses, including ODA, to the anti - corruption. In December 2003, a National Committee on Corruption Eradication was established and mainly financed by the state budget. In addition, the Committee's operation also attracts support from many foreign donors such as the PGRI (Partnership for Governance Reform Indonesia), the UNDP, the ADB, etc. In particular, the PGRI provides a sum of USD 219,423; the ADB USD 250,000; and the WB USD 350,000. (Corruption Eradication Commission, Indonesia). 447 Part III. Report on regional Tour to Study the coordination and use of International Assistance for Legal Development in Indonesia... A kind of facility for the legal system development is being established in Indonesia. It is expected to be a coordination model of all support resources in the legal field but not a general account. In nature, it is an open fund to attract quickly and easily foreign assistance in the legal field. 2.2. Actual situation of the receipt and use of ODA in the legal field in the Philippines a. General issues According to the viewpoint of the Projects Management Department(1) under the Supreme Court of the Philippines, the following five aspects will be in the first priority in attraction and use of ODA in the legal field: - Law drafting and law implementing institutions (police agencies, investigation agencies); - Strengthening of capacity of prosecution institutes(2); - Strengthening of capacity of courts (firstly the Supreme Court); - Strengthening of capacity of the system of social rehabilitation agencies; - Legal dissemination to the community. At present, the Supreme Court of the Philippines is chairing the judicial reform program with two main objectives: - Development of an independent and effective judiciary; - Development of judges who have good professional qualification and morals. (1) According to the organizational structure of the Projects Management Department under the Supreme Court of the Philippines, there are the Projects Management Division, the Supervision Division and the Financial Division. (2) The General Prosecution Institute is under the Ministry of Justice of the Philippines. 448 report on study tour on legal and judicial reform in some countries The financial source for such program mainly derives from the State budget. ODA will be utilized for the following activities: - Mobile trial programs; - Electronic library; - One-stop shop scheme (provision of services in a court for resi- dents' less traveling). b. ODA attraction and use process Like in Viet Nam, the National Economic and Development Authority (NEDA) is the focal point in the attraction, management and use of ODA. However, the organizational structure and the operation of the NEDA differ from Viet Nam. Put in detail, attraction, management and use of ODA are conducted through a Coordination Committee in the NEDA. The Minister of Planning and the Minister of Finance are the co-presidents of the Committee; members of the Committee are the Central Bank, the Office of the State President and local government representatives. As for its power, the Committee reviews ODA projects with the funding, ranging from 5 to 10 million USD, and reviews the projects in which the State is the main investors with the involvement of private sector. The review process of an ODA project starts from evaluation of financial - economic aspects of the project and then other aspects such as technical, environmental aspects; capacity of the implementing agency (especially central - local relations, the involvement of civil society in the implementation of the project); capacity of the foreign counterpart (experience in related fields, financial - capital capacity…), and finally the interaction between this project and other projects. Upon completion of the evaluation, the evaluated project will be approved (the NEDA has the approval power). In fact, there have been an increasing number of 449 Part III. Report on regional Tour to Study the coordination and use of International Assistance for Legal Development in Indonesia... projects which the NEDA refuses to approve - a phenomenon extremely different from 20 years ago when most of ODA projects were approved and even approved at any price. The viewpoint of the Philippine Government is that more careful consideration on conditional ODA projects should be made because they may affect the independence and the national sovereignty of the Philippines. In regard to projects in the legal field, they have a lot of their own characteristics. First of all, based on the principle of separation of power, judicial agencies nearly have the autonomous right in the ODA field or, in other words, they are entitled to seek donors to formulate ODA projects. In nature, ODA is a part of the State budget and the burden of debt payment falls upon the shoulder of the Government but the courts. Therefore, even in circumstances where ODA projects are those of judicial agencies, such projects are still submitted to the NEDA for approval. However, there hasn't been in fact any refusal of approval of the ODA projects, which are submitted by the Supreme Court, and even the ratio of ODA for projects in the legal field is on the increase, accounting for 32% of the total fund (with a loan of 800 million USD and a non-refundable loan of 200 million USD) for the current ODA projects because of its important role and position. Much importance is attached to project evaluation. In addition to preliminary evaluation, mid-term evaluation and evaluation upon completion of a project, there still exists unexpected evaluation (when unusual sign is found in the project) and post evaluation (evaluation after completion of a project to review how the project affects the economy and society). Moreover, adjustment of project contents is strictly stipulated, whereby any ODA projects must be examined by the NEDA if such projects have any changes of the objectives during their implementation. 450 report on study tour on legal and judicial reform in some countries c. Others As for assistance sources from foreign NGOs to the Philippines, they are not a part of the State budget. As for counterpart fund, the counterpart fund for ODA projects/programs in the Philippines is, likely in Viet Nam, the Government's contribution of personnel, facility and equipment and so on. According to Mr. Liqun Jin, Vice President of the ADB, governments should utilize loans in the legal field in a more intensive manner. China's experience has shown that when acceding to the WTO, China requested the ADB to provide loans for the drafting of bills to serve its implementation of the WTO undertakings. Cambodia has recently gone for the same way. The characteristic of ODA projects in the legal field is that debt recovery is invisible. However, the influence of bills (especially in foreign direct investment, securities, monetary, banking fields…) is so tremendous. Therefore, governments should change their way of approach to loans for legal and judicial reform projects. Last but not least, the Philippines is in the post ODA period, or in other words, it is now paying foreign debts. According to the Ministry of Treasury of the Philippines, one-third of the GDP spends for foreign debt payment, a consequence of ODA project in previous periods. At present, the Government of the Philippines only considers and accepts ODA in a selective manner otherwise it follows the same terrible track of Argentina or some Latin-American and African countries. ODA Assistance for legal Reform and further development i the Philippines In the Philippines, they have secured only one major ODA assistance for legal reform and further development, and this 21.9 million loan from the World Bank. This is the first ODA loan that the Republic has ever tapped for legal development because of its sensitivity and ownerships. 451 Part III. Report on regional Tour to Study the coordination and use of International Assistance for Legal Development in Indonesia... III. Lessons obtained from the study tour and recommendations 1. Lessons obtained and recommendations from the Study Tour This is a very useful study tour in the context that Viet Nam is now in the process of amending and supplementing its norma- tive legal documents stipulating the ODA management and use in general and the international legal cooperation in particular. Through the study tour, the following lessons are drawn: The World Bank assistance is focused on developing a more effective and accessible Judiciary that would foster public trust and confidence through the implementation of the Supreme Court's Action Plan for Judicial Reform. The World Bank loan agreement for the Judicial Reform Support Project was signed last October 2, 2003. It is intended to put up investments critical to the immediate implementation of key components of the Judiciary's Action Plan for Judicial Reform 2001 - 2006. The Project intends to support the achievement of the following reform objectives: (a) To improve case adjudication efficiency and access to justice, (b) Enhance the integrity infrastructure of the Judiciary; and (c) Strengthen the capacity of the Supreme Court to manage the Judiciary. The Project will implement its components/activities in the Supreme Court, Courts of Appeals, Court of Tax Appeals, Sandiganbayan and in the lower courts located in the identified regional pilot sites. Currently, the Philippines is in the process of securing another ODA loan from the Asian Development Bank for Judicial Reform. The objectives of the new project are: to realise the financial and administrative autonomy of the judiciary, as envisaged in the Constitution; to set in place more efficient and transparent business process and support services to strengthen competencies of the bench; and To support core institutional infrastructure, operating mechanisms, technologies and competences that will strengthen the independence and accountability and improve judiciary's operational efficiency. However, it is too early to assess the effectiveness and impact of the World Bank’s assistance. 452 report on study tour on legal and judicial reform in some countries 1.1. Securing the independence and the national sovereignty, and strengthening expedition in the receipt, management and use of ODA Both Indonesia and the Philippines have paid price to their limitations on unconditional receipt of ODA, thereby causing negative impacts: foreign counterparts' utility of ODA to interfere into the internal affairs; and their acceptance of infeasible ODA projects. Such limitations should be taken into account in our country because many agencies and bodies in our country have sometimes poor awareness of receipt of ODA projects and they even lobby ODA projects at any price (this phenomenon occurs in some economic cases which have been recently adjudicated). It has strongly emphasized that the above-mentioned are lessons we should learn to strengthen our expedition in receipt of ODA which is in nature the preferential treatment of foreign countries and international organizations to less developed countries. However, it is not the reason for ODA recipients not to discuss terms of the international legal instruments on ODA. On the contrary, ODA recipients need to strongly request amendment and supplement of the terms for the sake of their countries. On the other hand, ODA recipients do not let ODA give bad influence on or even break their overall socio - economic development strate- gies but have to adjust ODA to their national socio - economic devel- opment. Sector or program - based approach to ODA is an orient- ed choice of ODA recipient governments. 1.2. Careful attention is paid in mobilizing ODA loans We all know that there are two types of ODA: ODA preferential loan and ODA non - refundable loan. As for projects with ODA loans (even soft/preferential loans), they are potential risks to the 453 Part III. Report on regional Tour to Study the coordination and use of International Assistance for Legal Development in Indonesia... recipient governments in balancing their national budget for debt payment. As mentioned above, the Philippines now spends one- third of its annual budget for foreign debt payment. Therefore, if we do not take precaution in receiving ODA projects, the debt payment burden of our current generation will be put on the next generation's shoulder. Through the lessons from the two countries, we should borrow ODA loans for projects of great necessity. In the other hand, governmental agencies' capacity of management of ODA loans, from the attraction to the use of ODA, must be strengthened, and corruption and waste must be avoided because ODA is also a part of state budget. 1.3. Strengthening of delegation of authority of the management of ODA ODA is an assistance source for governments and the international legal instruments on ODA all provide for responsibility of ODA recipient governments in the implementation of ODA projects, but ODA beneficiaries are finally people. Therefore, delegation of authority of the management of ODA to the local level to effectively and strictly receive and use ODA is a requirement for ODA projects and donors' expectation. In the two surveyed countries, local governments are allowed to take initiative in accessing, mobilizing and attracting ODA based on the principles set forth by the central governments, and taking into account the possibility of balancing local budget for foreign debt payment (for projects with ODA preferential loan). On the other hand, the two countries also attach much importance to encouragement of the involvement of NGOs, like universities, research institutes, etc. (civil society), in the attraction, management and use of ODA. 454 report on study tour on legal and judicial reform in some countries 1.4. Attention is paid to the sustainability of ODA p rojects after completion For decades of the ODA attraction, Indonesia and the Philippines all draw a lesson that the ODA attraction is not as difficult as how to effectively use ODA. To effectively use ODA, attention should be paid to not only efficiency of ODA projects during their implementation but also their output and outcome. In addition to economic impact, much importance is also attached to other criteria (such as social impact: employment increase, social welfare improvement…; environmental impact; capacity of law implementation institutions) when impacts of ODA projects are reviewed. 1.5. Attention is paid to the role of the Ministry of Justice in the state management of ODA project in the legal field In the current international integration context, when negotiation of international treaties in general and international legal instruments on ODA in particular is conducted, review of legal aspects of such legal instruments is inevitable. Through the study tour, the Delegation found that in both Indonesia and the Philippines, the Ministry of Justice plays a very important role in review and provision of legal opinion to international legal instruments on ODA, especially agreements on foreign ODA loans (mainly loans from the WB and the ADB). Especially, in the Philippines, a board of review and approval of ODA Programmes and Project (Investment Coordination Committee) established by President, comprises various representatives of Ministries and agencies, not only the National Economic and Development Authority - NEDA (like Ministry of Planning and Investment in Viet Nam). This job is to secure legal safety for ODA projects to be signed so as to avoid unexpected disputes and to be in conformity 455 Part III. Report on regional Tour to Study the coordination and use of International Assistance for Legal Development in Indonesia... with international legal standards in the ODA field. 2. Remarks about the Study Tour The program was conducive to achieving the objectives of the study tour. Both programs in the Republic of Indonesia and the Republic of Philippines were full of meetings and discussions with various representatives of the Indonesian and Indonesian legal and judicial systems and their officials in charge of ODA management. Information and experience gained in the tour are useful for the Delegation generally and for each of its participants specifically. In addition to substantive knowledge, personal contacts with Indonesia and the Philippines counterparts have been established and strengthened. Existing cooperative programs between Vietnamese legal and judicial authorities/organizations will achieve further momentum and certain future cooperative projects have been discussed. 3. Recommendations and follow-up actions Substantive observations and recommendations are in Part II of this report. This part recommends immediate follow-up actions: - A seminar/workshop organized to brief on the results of the study tour and on information and knowledge obtained in the tour; - Translation of this report into Vietnamese for distribution to the Vietnamese legal and judicial agencies concerned and to those organizations and individuals who are interested in the subject matters of the report; - Translation of selected materials that were obtained from the study tour, if needed and justified; - Further study of specific parts of the report which are relat- 456 report on study tour on legal and judicial reform in some countries ed to the task/work of specific Vietnamese agencies, including Ministry of Justice and other beneficiaries of Project VIE/02/015. (Suggestion of further study tours to these two countries on more specific matters that are covered in the report); - Study and suggestion for cooperative possibilities with Indonesia Agencies such as Corruption Eradication Commission, National Law Commission, and Philippine Agencies such as the Supreme Court in terms of cooperation in drafting and implementing Law on Anti - Corruption, preparing Action Plans for implementing the Vietnam's Legal System Development Strategy and Judicial Reform Strategy; - Providing documents and reports collected during the study tour for preparation of a book on the use, impact, and effectiveness - past, present, and future - of ODA and other international assistance in legal development in Viet Nam; and - Further studying on a feasible and appropriate co-ordination mechanism for ODA and other assistance in legal system development in Viet Nam based on lessons and experiences studied in the two countries. IV. DOCUMENTS AND MATERIALS FOR REFERENCE 1. Law Reform Policies in Indonesia; 2. KPK: The Corruption Eradication Commission of Indonesia; 3. The Philippines Court System; 4. Medium-Term Philippine Development Plan; 5. Action Program for Judicial Reform 2001-2006 of the Philippines Supreme Court; 6. Partnership for Governance Reform in Indonesia; 457 Part III. Report on regional Tour to Study the coordination and use of International Assistance for Legal Development in Indonesia... 7. Introduction to the Decentralisation Support Facility (DSF); 8. International Assistance for KPK (Corruption Eradication Commission, Indonesia); 9. Official Development Assistance in the Philippines; 10. Investment Coordination Committee of the Philippines; 11. Role of the Department of Budget And Management in Official Development Assistance; 12. Reporting Requirements - Foreign Assisted Projects (Faps) 13. Status of Philippine Action Plan for Judicial Reform Projects and the Use of International Aid for Legal and Judicial Development in the Philippines; 14. ADB’s Publications on Law Reform in Asia; 15. The United Nations Development Assistance Framework in the Philippines (2005 - 2009). 458 report on study tour on legal and judicial reform in some countries