Last week, Nepal’s Constituent Assembly (CA) members drafted citizenship provisions in the country’s long-awaited constitution, causing much consternation and almost guaranteeing that approximately 2.1 million persons out of an estimated population of nearly 30 million will remain stateless.

Nepal’s citizenship laws and eligibility provisions have created a large number of stateless persons who are effectively denied access to formal sector employment opportunities, banking facilities, property and more. Photo by Jon Jamieson.

The specific draft provision that is deeply problematic and regressive refers to how a child may obtain citizenship by descent in the new Nepal: a child would be granted Nepali citizenship if both mother and father prove they are Nepali citizens. In contrast, the current Interim Constitution of Nepal (2007), the Citizenship Act of 2006, and a 2011 Supreme Court directive all provide for citizenship if a child is born to a Nepali mother or a Nepali father.

The “and” provision is likely to increase the number of stateless children in Nepal as it requires the presence of both parents at the time of registration. The absence of either parent would be enough to disqualify the child. It also means that children with one Nepali and one foreign parent would be ineligible for citizenship if the foreign parent cannot (due to conflicting provisions) or does not wish to take on Nepali citizenship.

A compromise suggested by some CA members is that the “and” provision be accompanied by language permitting exceptions to be made in “special situations.” But vague language permitting exceptions abandons the crucial matter of citizenship to bureaucratic discretion and does not provide any assurance that statelessness in Nepal will be reduced or avoided. In fact, even under the relatively liberal provisions of the Interim Constitution, bureaucrats had used their discretion to avoid providing citizenship on the basis of the Nepali mother if the father was identified as a foreigner. Therefore, such cursory appeasement of opposition in the CA cannot credibly be seen as an effective resolution of contending positions on a serious issue.

The debate between “and” and “or” has characterized the current discourse on citizenship with strong and competing notions of gender: proponents of the former favor a stricter law to deter land ownership issues resulting from cross-border marriages of Indians with Nepalis and to preserve what they see as gender equality (both parents’ names will be written on the child’s citizenship certificate); while proponents of the latter advocate for individual identity and value, equal access to rights for all Nepalis, and protection against future generations of stateless persons.

Worryingly, the debate continues with widespread misunderstanding of some critical language, its meaning, and its consequences. Some of those in favor of “and” have expressed fear that if “or” were chosen, Nepal would transform from a patriarchy to a matriarchy. This dangerous conflation of patriarchy with patrilineal, and individual value and independence (or an absence of patriarchy) with matriarchy, should be immediately addressed and clarified in order to ensure a fair, well-informed debate and outcome.

Critical to the citizenship discourse is that it should not be positioned solely as a gender empowering or disempowering debate. Nepal today is a fledgling democracy at a crossroads, and is struggling to achieve a common understanding on the process of nation-building and a national identity. The added complexity of millions of stateless people can pose serious threats to internal peace, stability, and security. Most countries that have faced ethnic and class-based conflicts have struggled with redefining nationality laws and citizenship after conflict. The key has been to naturalize those that are born on your soil (jus soli) and/or whose birth giver (mother or father) are citizens of that country (jus sanguinis). The logic being that if you keep them stateless on your soil, you create a community of people without allegiance – politically, socially, or morally – to your country.

Of course, the fact that current discriminatory provisions negatively affect the rights of minority groups should also be recognized with the understanding that these provisions directly violate a number of Nepal’s international commitments. The proposed requirement that both parents be present for a child to be granted citizenship by descent is of great concern, especially with regard to women. For Nepali women, securing legal proof of citizenship can be difficult, especially when a male family member refuses to assist them (for example, if he does not accept that the child is his) or is simply unavailable to do so because he’s away working in another country like millions of Nepali migrant workers. Denying women proof of citizenship is an expedient way of ensuring that they cannot assert their rights to marital property or inheritance. Furthermore, that Nepali women have been unable to confer citizenship reflects a dependent notion of nationality that is based on and conforms to a patriarchical hegemony. The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) clearly states that nations should grant citizenship rights regardless of gender and goes on to state that, “State Parties shall grant women equal rights with men with respect to the nationality of their children.”

Statelessness also has a particularly pernicious impact on children, which often impinges on their rights to access to education, affordable healthcare, and land ownership. As Article 7 of the Convention on the Rights of the Child states, a child “shall have the right from birth […] to acquire a nationality.” And it continues that “State Parties shall ensure the implementation of these rights, in particular where the child would otherwise be stateless.”

International law requires countries to consider applicants’ “genuine and effective links” with a country when evaluating nationality claims, including the social, cultural, and economic ties they have established over time, which is particularly relevant in context of the residents of Nepal’s southern plains, the Terai, and other areas adjoining India. While other countries strive toward citizenship norms based on international best practices, Nepal’s discourse on citizenship is redolent of its antiquated feudal structures: politicians have expressed fear of creating a matriarchical society and of inciting an influx of Indian settlers in the Terai. Worse, they have shown an unwillingness to work together on statelessness and perhaps most dangerously have, across the board, sidelined the citizenship issue as less important than state restructuring.

In addition to its inability to provide satisfactorily for the development and progress of its people over the past five decades, Nepal’s citizenship laws and eligibility provisions over the same period have created a large number of stateless persons who are effectively denied access to formal sector employment opportunities, banking facilities, property transactions, business opportunities, and a modicum of social security. Excluding even larger swathes of the population through regressive provisions in the new constitution will only exacerbate the situation. Today, approximately 2.1 million Nepalis are without citizenship certificates and are effectively stateless. The Election Commission of Nepal indicates that the number could be even higher. A large number of these did not vote in 2008, and unless the restrictive provisions on citizenship are changed, this number will only increase. Under proposed constitutional provisions, the children of these stateless parents could also be excluded from access to citizenship, and as generations unfold Nepal will see sharp increases in an undocumented, uneducated population that could lead to significant and costly political and administrative hurdles in the near future. The denial of citizenship and, therefore, participation in political process for a significant portion of the population will severely undermine democracy in Nepal.

As Nepal looks to finalize a new constitution, it is critical that its leaders examine the issue of citizenship outside of the context of individual power groups. If Nepal’s lawmakers do not lead by example, the entrenched patriarchy and xenophobia of their constituencies will lead the country toward a looming crisis of statelessness and a potential regeneration of political instability and violence.

Pema Abrahams is a program associate and George Varughese is country representative for The Asia Foundation in Nepal. They can be reached at pabrahams@asiafound.org and gvarughese@asiafound.org, respectively. The views and opinions expressed here are those of the individual author and not those of The Asia Foundation.

On Monday, NATO leaders, with Afghan and Pakistani leaders joining, formally approved the plan for drawing down international forces and handing over security responsibilities to Afghanistan by 2014. The Asia Foundation’s Senior Director for Governance, Law, and Conflict, William Cole, joined experts live on NPR affiliate, KQED’s The Forum with host Michael Krasny to discuss the transition, the implications for the Afghan people, and more. Below is an excerpt from the interview (edited for space and readability).

Michael Krasny:
[Under the agreement] NATO troops will presumably be training and advising Afghans, and NATO Secretary General Rasmussen said the withdrawal will take place over the next two and a half years. How viable is this, particularly with all the strife and corruption in Afghanistan and with only 42 percent of operations presently being led by Afghans?

William Cole:
In terms of the viability of the Afghan state after the transition, there are obviously serious questions. The commitment of the United States to a long-term strategic alliance with Afghanistan is now clear. The U.S. won’t be leaving entirely, there will be something like 15 or 20,000 troops remaining after 2014. The real question is whether the Afghan National Army can carry the ball once the NATO troops are gone, and what happens after the Afghans have taken over the full responsibility for combat. Nobody really knows the answer to that question. What we hear from troops on the ground is that many are impressed with the progress that has been made by the Afghan National Army, but they still have a long way to go. Meanwhile, the insurgency has gotten tougher. There seems to be some willingness to negotiate on the part of the Quetta Shura, but the Haqqani network working out of the Federally Administered Tribal Areas in Pakistan seems less willing to negotiate, so there are a lot of variables here.

Krasny:
Do you see things moving toward an Afghan-led government?

Cole:
If you look at what the international community has constructed over the last decade in Afghanistan, in many ways, it has been based on a development model, which is taking Western institutions and transferring those to developing countries. This is particularly problematic where you have a context of starting from scratch, as was the case in Afghanistan. The difficulty is that what you end up with is “best practice institutions” that you have put in place, but those institutions don’t articulate very well with the underlying distribution of power and influence among the elites. The result is a lot of corruption, a lot of malfeasance, and there will be a lot of difficulty in sustaining that kind of state.

Krasny:
How do we make better connection with the Afghan people?

Cole:
The difficulty is that as long as NATO is present at this troop level, at the level of influence that the international community has in terms of policy and institution building in Afghanistan – as long as that’s there, we can at least on paper ensure rights – rights for women, rights for minorities. But as you move the international presence out, those forces who have the greatest voice in Afghanistan now will be able to reassert themselves and many of those voices are going to lead in a direction in which we’re not going to be very happy on the women’s front. The Asia Foundation has a survey that we do every year in Afghanistan, and one of the things that has been very clear on the issue of women is that most Afghans want their girls educated, they want women to be able to go to the marketplace freely, they want them to be in public freely, they don’t agree with what the Taliban had done in the 1990s. That’s on the one hand. On the other hand, there isn’t as much support as you might expect, and we might hope, for women in senior positions of government. When you combine those things together, they might look incongruent to Americans, but they aren’t necessarily incongruent to Afghans on the ground. As things move forward, and as deals are cut with the Taliban, and as you have more of an Afghan say in what the policies and institutions are going to be, I think you are going to see a slippage of the position of women in Afghanistan. It’s not going to be nearly as bad as it was in the 1990s, but it will slip from where we might have hoped it would be over the next few years.

Listen to full program on KQED.

At the end of a sabbatical team-teaching one course and blogging weekly, I am eager to get back to my work on the ground in the Philippines. At the end of this “Representative Professor” series, it’s interesting to look back at both what I’ve written and some of what has transpired in the past four months.

First, and probably most familiar to international readers, has been the continuing saga of competing Philippine and Chinese claims in the West Philippine/South China Sea. The dispute seems to have spilled over into economic affairs, with banana exports to China being held up (though there are reports of an agreement on joint phytosanitary inspection by the two governments and of joint oil exploration between Philippine and Chinese companies). Japanese interest has apparently been piqued, with reports that 10 coast guard vessels will form part of Japan’s ongoing developmental assistance to the Philippines. Considerable attention is now being paid – with the International Crisis Group examining internal Chinese decision-making on these maritime events, while the Asian Center at the University of the Philippines has launched a useful new website examining international affairs from a Philippine standpoint.   Interesting implications for the conflict in Mindanao have been drawn by the Moro Islamic Liberation Front on their website, suggesting that the government of the Philippines would be well advised to solve the Moro problem in order to be better able to focus on external defense.

But enough about this – I keep trying to insist “it’s not all about China.” I’ve written about the multi-faceted relationship between the Philippines and the United States, which will (one hopes) be on display in the upcoming state visit of President Aquino to the United States next month.

On the domestic front there has been a considerable amount of attention paid to the role of religion. One of the most famous Filipinos in the world, boxer and member of Congress, Manny Pacquiao, became entangled in controversy when his remarks expressing doubt about gay marriage were conflated with a quotation from Leviticus in the Old Testament of the Christian bible (and he was declared persona non grata at a L.A. shopping center). Meanwhile, after her banning in Indonesia, Lady Gaga ran into opposition from religious Christians in the Philippines, but she did manage to have two shows in Manila. Such religiosity might seem surprising since Bob Tebow, missionary father of football star Tim Tebow, thinks that 65 million of the 92 million Filipinos have not had the bible preached to them.

And a good illustration of why I wrote there is controversy about the current level of anti-Muslim prejudice, the Philippine Daily Inquirer ran a photo of a woman in a full burqa (she was the mother of an official of the Autonomous Region in Muslim Mindanao being sworn into office by President Aquino) with a caption, “Security Risk.”  This immediately caused a backlash, accusing the newspaper of being insensitive and biased (while security officials insisted, of course, that she had been properly screened).

Reviewing my first blog, I see that I did not blog about the cherry blossoms in Washington (they came early and were gorgeous) or whether country experts are better at predicting events in-country (I’ve not gotten around to reading Expert Political Judgment by Philip Tetlock).

Looking at the immediate future, it seems that the twists and turns of the dramatic impeachment trial of the Supreme Court Chief Justice Renato Corona requires more devoted attention than casual readers are likely to muster. But given the importance of the event for the Philippines it cannot be ignored. So, I offer one final (and simplifying) recommendation:  the decision is likely very soon, so wait to see if Chief Justice Corona is convicted by the Philippine Senate. If he is, then President Noynoy’s political capital will be very much enhanced and the current administration will for a time be master of all it surveys in Philippine domestic politics. If the Chief Justice is not convicted, the administration will be mortally wounded and attention will turn to the next presidential transition (scheduled for June 2016) – a full four years early.

This is the eighteenth and final posting in the series, “A Representative Professor,” a weekly series during a teaching sabbatical at Johns Hopkins University School of Advanced International Studies.

Steven Rood is The Asia Foundation’s country representative in the Philippines. He can be reached at srood@asiafound.org. The views and opinions expressed here are those of the individual author and not those of The Asia Foundation.

Afghans seem to want their government to be strong and capable, accessible and accountable, modern and democratic. But perhaps Afghans do not compare how Afghanistan is today with how much better it could be, as most internationals seem to: that comparison would surely suggest Afghan governance falls far short of the ideal. Perhaps, instead, Afghans compare how Afghanistan is today with how much worse it could be, possibly with how much worse it has been in recent memory. …

The vision for governance laid out in Afghanistan’s constitution, its national development strategy, and the communiqués of international donor conferences is a vision of good governance and modern democracy – a vision that most Afghans strongly support, at least in principle. But the “rule of law” and the “rule of man” still operate side by side in Afghanistan today, and most Afghans seem to recognize that it will take many years for the latter to give way to the former. Meanwhile, they have lives to live, jobs to create, roads to build, children to educate, problems to solve, injuries to treat, conflicts to resolve, and decisions to make. No community that wants to preserve – or establish – a modicum of peace and stability can afford to wait around for a government (or foreign donors) to catch up to their needs for rules, decisions, institutions, services, and so on; instead they will use whatever governance options are available to them, whether from formal, informal, or even illicit sources. The result, inevitably, is going to be a hybrid system, and Afghans themselves will argue over its form, its rate of formalization, and its fairness, for many decades to come.

The withdrawal of ISAF troops and the transition to Afghan lead over the next few years will be accompanied by a heightened sense of uncertainty and potential for civil war. The top priority for the international community should be to keep the current hybrid system from falling apart so that those arguments can take place without resort to violence. That objective might best be served by helping to give as many Afghans including power brokers and insurgents – a stake in the system as possible. Doing so, however, would require that foreign donors make some uncomfortable compromises to their own visions for Afghanistan’s governance, and take Afghans’ views – contradictory and nuanced as they are – much more seriously.

Download full paper.

The issue of corruption in the Philippines has once again hit international newspapers with reports that the chief justice of the Supreme Court, Renato Corona (currently undergoing an impeachment trial before the Philippine Senate), had dozens of dollar accounts with millions of dollars flowing through them. Of course, reports on corruption are continually in the Philippine media.

In the latest report of corruption in the Philippines, the chief justice of the Supreme Court, Renato Corona, was accused of holding bank accounts with millions of unreported of dollars. Photo by Karl Grobl.

As I have quoted the Political & Economic Risk Consultancy (PERC) before, “the media, even more than the courts, is the forum in which all sides try to wage their battles of defamation.”  I’ve repeatedly written about corruption, and The Asia Foundation has supported efforts to bring more clarity to the discussion – to go beyond politicized battles – most thoroughly represented in the book by Michael Johnston.

A year ago there was another impeachment case against the former ombudsman (anti-graft prosecutor) that led The Economist to ask cynically, “Progress or Payback?”  Now, one year on we are faced with the same conundrum:  Is the trial of the chief justice part of a political vendetta (since he was perceived to be protecting former President Arroyo), or just the next logical step in removing blockages to President Aquino’s successful 2010 campaign slogan, “If there’s no corruption there’s no poverty?”  The plain fact of the matter is that for those outside a small circle of decision-makers it is impossible to tell. An optimistic read could point to broader bureaucratic reforms (to which I have pointed in analyzing presidential power) while pessimists might cite PNoy’s alleged favoritism to classmates, friends, and shooting buddies.

The purpose of this blog is not to argue either the pessimistic or optimistic case. Rather, it is to try to better understand the political economy structure of corruption so as to be able to point to some directions forward.

A long-standing starting point for understanding the logic of corruption is Robert Klitgaard’s formulation: C = M + D – A (Corruption = Monopoly + Discretion – Accountability).

That is, when someone has the monopoly over decisions on how to do things (hire people, contract roads, purchase supplies) and a wide range of discretion in making decisions, there is likely to be more corruption – which can be reduced by introducing accountability mechanisms like transparency of information, independent audits, and the like. Using this heuristic, the Foundation has supported partners in the Philippines working on procurement (particularly with the Departments of Education and Health), cities whose mayors wish to reduce corruption so as to be more investor-friendly, and general civil society (including business associations) efforts to increase accountability.

A recent paper introduces a considerably more complex formal model that includes a bureaucratic decision-maker, different types of clients with differing willingness and ability to pay, and variations in rules about prices, testing, and allocation of the (abstract) good being provided. A warning to fellow non-economists:  slogging through the equations and derivations can be slow. The general logic is clear and some of the implications are interesting, such as the suggestion that “red tape” is more likely in governments serving the poor since poor people have less ability to pay than what a service is worth to them (and thus are more willing to endure red tape).

In checking the formal abstract model against what is known about corruption in the real world, the authors note success stories such as those related by Klitgaard. As is the experience with our programming in the Philippines with cities or government agencies, these anti-corruption successes “all seem to involve a person at the top of each institution who was eager to implement” reforms. But then the question arises: why aren’t such examples more frequent or sustained?  Why don’t leaders pursue these reforms more often?

Politics, of course, is the answer. Repeatedly, in the Philippines it has been demonstrated that reducing bureaucratic corruption in particular agencies, or in particular cities, is possible with the cooperation of the leaders at the top and in partnership with citizens, businesses, and NGOs. But such successes do not yet seem to touch political corruption – the use of corruption to gain, keep, and exercise power as witness the “hello garci” scandal regarding the 2004 election in the Philippines and the continued pervasiveness of money politics. This is where the analysis of Michael Johnston is valuable in laying out the logic of “Oligarchs and Clans,” which is the political economic situation in which the Philippines finds itself. This is where corruption is the most harmful to economic growth since decisions or policies of one administration tend to be arbitrarily overturned by a subsequent one (even within presidential administrations as one faction takes over, for instance, a department and uses it as a platform for the next electoral cycle rather than technocratic policy-making).

Johnston’s medium-to-long-term prescription is rooted in the need to change the relation between citizens and their elected officials. Under Oligarchs and Clans, voters tend to reward particular favors (from purchased votes to paying health expenses) rather than effective performance in managing government and delivering service. He suggests an indicator and benchmark strategy that picks services important to people (for example, education or health), develops indicators of good performance, publishes them against benchmarks, and helps citizens hold officials accountable. In a sense, this is adding direct governmental involvement to some of the ideas involved in “social accountability.”

A recent book, The Institutional Revolution by Douglas Allen, studies the effect of better measures of performance to explain changes in institutions (such as the military) at the beginning of the industrial era in Britain (roughly 1780 to 1850). For example, purchase of offices used to be the accepted method of staffing a bureaucracy, but after time, distances, tasks, and talent became more accurately measured then meritocracy could become a viable recruitment strategy. In Allen’s historical account, the “sovereign” using benchmarks and indicators was the Crown. In the current version, Johnston is proposing to “deepen democracy” in order to empower citizens to hold government accountable against objective measurements.

Put this way, reducing both the demand for and supply of corruption can take decades. With the modern pace of politics, the campaign for the May 2013 midterm elections (regarded as rehearsal for the 2016 presidential elections) is already heating up. Necessary as it might be, designing and implementing a long-term strategy is a daunting task.

This is the seventeenth posting in the series, “A Representative Professor,” a weekly series during a teaching sabbatical at Johns Hopkins University School of Advanced International Studies.

Steven Rood is The Asia Foundation’s country representative in the Philippines. He can be reached at srood@asiafound.org. The views and opinions expressed here are those of the individual author and not those of The Asia Foundation.

It’s May, and as the old saying goes, spring is in the air. In Afghanistan, while spring has surely brought a bounty of roses and wonderful weather, it is probably more apt to say “transition is in the air.” No matter with whom one speaks – from shopkeepers and farmers, to government officials, young and old, junior or senior in rank – the conversation always seems to very quickly turn to the transition; questions about the hand-over, NATO Summit, Tokyo Conference, what happens post-2014, which donors will remain in Afghanistan, and which country is withdrawing its military personnel next.

While some Afghans express relief that foreign military forces are on schedule to withdraw by 2014, others seem uncertain of what this transition will mean.

In my many years working in Afghanistan, rarely have I witnessed such focused dialogue across all levels and sectors of Afghanistan society. During these discussions, some Afghan colleagues are clearly pleased that a “line in the sand” has been drawn for the withdrawal of foreign military forces by 2014. At the same time, I sense trepidation from many Afghans over the uncertainty of what transition, hand-over, and withdrawal of foreign military forces and international support will actually mean for their lives and their country moving forward to 2014 and beyond.

What does seem to be a central theme in many of these discussions, both domestically and internationally, is the ability of the Afghan Security Forces (made up of the Afghan National Police and Afghan National Army) to provide the appropriate security environment for Afghans in the post-2014 era.

Discussions at the NATO Summit in Chicago on May 20-21 will most certainly focus on the considerable effort to address the security challenges faced in Afghanistan. But this time, there will likely be a more positive atmosphere surrounding the core themes of transition and hand-over of security responsibilities from NATO to the Afghan government. There is no longer any doubt that NATO will exit from Afghanistan, as scheduled. In recent statements, NATO Secretary-General Anders Fogh Rasmussen clearly articulated that NATO was sticking to the security transition plan in Afghanistan mapped out in 2010, and that the military alliance will hand over combat operations in 2013 and all security responsibilities of the country to Afghan forces by the end of 2014. Afghan President Hamid Karzai has supported this position, and on Sunday, he announced the next phase of the transition from NATO forces, which would eventually see 75 percent, or 122 more districts, of the country under Afghan control.

The NATO Summit is expected to focus on the following three areas:

• an interim milestone for 2013 whereby the International Security Assistance Force’s mission will shift from combat to support for the Afghan national security forces;

• size, cost, and sustainment of the Afghan forces beyond 2014; and

• a roadmap for NATO’s post-2014 role in Afghanistan.

Amid these big picture discussions about force size and transitions, it’s critical we don’t lose sight of what is really at stake for Afghan citizens, and that this is their future prosperity, their security, and the opportunity to live in peace. Recent well-organized attacks by insurgents in Kabul and elsewhere directed at embassies and Afghan government facilities has lead some to say that Afghan security forces are ill-prepared to combat the insurgency, even with NATO’s ongoing support and training. Unfortunately, following the attacks on April 15 in Kabul in particular, few domestic and international media reported that there has been good progress in the Afghan Security Forces, and that it was likely the Afghan Security Forces’ quick reaction, containment, and efforts that eventually resulted in victory over the insurgents. Things could have gone horribly wrong on this day and surely would have several years ago. Although the operation took place in a densely populated area of Kabul, Afghan Security Forces quickly coordinated an orderly evacuation of bystanders to safety, keeping the civilian casualty rate very low. Afghan Security Forces are also now taking the lead on the controversial, but necessary, night raid operations which has helped them gain trust and respect from the Afghan people.

Recently, a high-ranking Afghan official told me: “It is our country, and while we may need some international assistance going forward, we are ready to take responsibility for our future.” This NATO summit is an opportunity for the Afghanistan government to stand up – with a strong Afghan security force – and accept responsibility for the critical task of providing a safe and secure environment for its citizens.

Bernie Denis advises for The Asia Foundation in Afghanistan. He can be reached at bdenis@asiafound.org. The views and opinions expressed here are those of the individual author and not those of The Asia Foundation.

Below is an interview published by Stanford University on May 3 with Professor Erik Jensen who just returned from Kabul, where he was working on the Afghanistan Legal Education Project at the American University of Afghanistan. Jensen is The Asia Foundation”s senior advisor for governance and law, and co-director of the Rule of Law Program at Stanford Law School.

President Barack Obama’s [recent] trip to Afghanistan to sign the Strategic Partnership Agreement reaffirmed America”s commitment to secure and rebuild the country beyond the 2014 troop withdrawal. The stakes are high as the U.S. embarks on an ambitious and expensive 10-year plan which the American public may be reluctant to support after a decade of war. But Stanford law Professor Erik Jensen argues that staying the course will have positive outcomes for generations of Afghans to come.

Jensen just returned from Afghanistan where he says the streets of Kabul are bustling with life, business and, in modest ways, a sense of pride. Working on rule of law issues in Afghanistan since the fall of the Taliban post-9/11, Jensen sees these small changes as signs of progress in a country that has experienced decades of conflict.

Jensen, an affiliated faculty member at the Center on Democracy, Development, and the Rule of Law at Stanford’s Freeman Spogli Institute, has piloted a program to train Afghan lawyers at the American University of Afghanistan. Funded by the Bureau of International Narcotics and Law Enforcement Affairs at the U.S. Department of State, the project has gained the trust of Afghanistan”s political, judicial and law enforcement officials, and is a model for innovation in legal education.

Jensen discusses U.S. relations with Afghanistan and the legal education project that has required an adjustment of his own career.

Why is the Strategic Partnership Agreement important?

It is a framework for President Obama to ensure Afghans that America will not pull out lock, stock and barrel in 2014. Afghans are palpably apprehensive about the pullout in 2014. President Obama’s trip to Afghanistan to sign this strategic partnership in the presence of President Karzai is a very important signal to Afghans that there is a future to the relationship beyond 2014.

What will happen under the agreement?

What is anticipated is a drastic drawdown on troops and security contractors, but not a pullout. Overall spending levels will be reduced. Some estimates put the post-2014 military budget at $4 billion per year, which might sound like a lot. But the budget currently tops $130 billion. Drastic reductions in funding create opportunities for institutional change. There have been comparisons to the American presence on the Korean Peninsula, which is not inexpensive but you can see a security benefit with relatively modest amounts of money.

How is Afghanistan becoming a stronger, more stable country?

Despite negative publicity that Afghanistan has attracted in the international press, I have seen qualified teachers showing up to teach students who are hungry to learn. On my most recent trip, I drove through Massoud Circle in the heart of Kabul and people handed out photos of fallen Afghan soldiers who had stood up and defended their country against a recent insurgent attack. There was a sense of pride among Afghans. Afghan security forces have been in charge of security in Kabul for several years and I think this is a really modest but positive sign.

There are a number of Afghans who have put their backs into building democratic institutions. It hasn’t all gone that well but they remain committed. The American public owes it to itself and the Afghan people to imagine alternatives and to work hand-in-hand with Afghans to ensure that systems are in place to give Afghans a chance.

What is the Afghanistan Legal Education Project (ALEP)?

Stanford law students and I started this project at the American University of Afghanistan five years ago to build a law curriculum that leads to a legal certificate. The goal of ALEP is to produce capable graduates who can think, write, and behave as professional lawyers early on in their careers before they are stuck in sub-optimal institutions where they develop habits that are not good.

How is ALEP strengthening rule of law in Afghanistan?

To date, the ALEP team has written four legal textbooks critically analyzing the laws of Afghanistan. Another two will be released in the next year. As Afghanistan builds its economy and justice systems it is essential to have lawyers with sound training in commercial and criminal law. A course taught at the American University of Afghanistan introduces students to formal and informal systems of dispute resolution and emphasizes legal pluralisms in customary, Islamic, and national laws. Afghan students puzzle through how they can strengthen rule of law generating recommendations for interventions to reform and change the system. Ethics courses are an integral part of the curricula to encourage students to act ethically and responsibly.

Do you remain hopeful for Afghanistan as you look a decade into the future?

The empirical side of me knows the odds of short or even medium-term success in Afghanistan, but I”m also inspired by the people I have worked with in Afghanistan. The Afghan vision of a better future is there, and those Afghans deserve our support as we move forward. It is a different world in Kabul today than where it was when the Taliban fell.

One question to ask is: To what extent have the changes in Kabul today become so much a part of life or habit for Afghans that they will fight for greater openness, for girls’ education (booming in Kabul), for television shows they find interesting, for a media that is a growing presence in Afghanistan? I am not sure that the clock can be turned back.

On June 3, Cambodians will vote for the third time since 2002 to select their local representatives, or commune councilors. This is a crucial part of the long-term process of decentralizing governance and enabling citizens to play a greater role in decision-making. Cambodia has traditionally been highly centralized, but over more than a decade, the Royal Government of Cambodia (RGC), with the support of donors, such as the World Bank, United Nations Development Programme (UNDP), and Swedish International Development Cooperation Agency (SIDA), has worked to develop capable local government institutions that can bring local government decision-makers closer to citizens and promote more responsive and inclusive governance in the long term.

A series of reforms in Cambodia have helped to decentralize decision-making, however, citizens still struggle to have their voices heard in local development planning. Photo by Karl Grobl.

A series of reforms since 2001, including the development of a basic intergovernmental fiscal transfer system, direct elections of commune/sangkat councils in 2002 and 2007, the passage of core enabling legislation in 2008, and the indirect election of district and provincial councils in 2009, has provided a legal and policy framework for sub-national democratic development. The next critical stage of reform in Cambodia was launched with the adoption of the National Program for Sub-National Democratic Development (NP-SNDD) 2010-2019 in May 2010, and the issuance of the first three-year Implementation Plan (IP3) in 2011.

Decentralization reforms have the potential to enhance democratization and development, but significant governance challenges remain in Cambodia. Citizen voice in local development planning and participation in oversight of publicly funded projects remains weak. Competition between elected councils and local administrators nominated by the central government limits downward accountability. Various aspects of local governance policy and practice can lead to ineffective allocation of the limited resources controlled by decision-makers, and restrict their ability to effectively monitor government spending and project implementation.

To respond to these challenges, policy and practice at the commune level need to ensure that funding and administrative decisions by local authorities reflect community needs and priorities, and thus are built on a solid foundation of participatory planning and community oversight. Government decision-makers and development agencies working together to move forward the process of decentralization need a deeper understanding of the opportunities and challenges presented from the current system, including an analysis of the influence of formal and informal institutions, central government pressures, relationships between political and administrative structures, and how these might be evolving within changing political and policy contexts and social structures.

To identify and analyze the range of formal and informal institutions that enable and constrain participation and decision-making around the local development fund mechanism, The Asia Foundation undertook a just-released study designed and funded by the World Bank on “Voice, Choice, and Decision: A Study of Local Governance Processes in Cambodia.” The Foundation’s multi-national research team was led by Joakim Öjendal from the University of Gothenburg in Sweden, and included Robin Biddulph, Mehr Latif, Min Muny, Pak Kimchoeun, and Duong Viroth.

The study focuses on the dynamics of decision-making, participation, and accountability at the commune level. Cambodia’s 1,621 communes represent the most basic level of governance in the country, and elected commune councilors play important roles through their leadership in local development planning and expenditure, as well as selection of village chiefs and district and provincial councilors. One of the core responsibilities of the commune council is to determine the use of the commune/sangkat fund (CSF) (the main intergovernmental transfer mechanism for financing the administrative and development expenditures of the commune councils) and supervise the implementation of funded projects. In the first stage of the study, the research team analyzed how the CSF has been used over the last decade in a sample of 36 communes, and the relationship between these decisions and community preferences expressed through formal participatory processes. In the second, and primary stage of the study, the research team engaged in intensive fieldwork in 12 communes, where they interviewed a broad range of local officials, community members, and other stakeholders to assess the dynamics around decision-making, voice and participation, and accountability.

In reviewing decision-making by commune councils, the study examines how communes determine the allocation of their modest commune development funds, how they undertake appointment of village chiefs and administrative clerks, and how they address critical non-financial matters, such as natural resource management conflicts in their communities. The researchers concluded that a number of factors affect decision-making in the communes studied, including formal policies and guidelines issued by national authorities, the influence of “higher level” actors, and parallel party structures from the national to the grass roots level.

The second crucial area addressed in the study is how citizens exert influence over commune decision-making, both through formally-designed participatory processes and through other informal and representative mechanisms. Among the findings, the researchers concluded that although formal participatory mechanisms are carried out as prescribed, with a concerted effort by commune administrations to follow procedures, these formal processes have limited value as effective, empowering participatory processes for citizen engagement in local development. In one village in Battambang, for example, the village chief told the research team how frustrated his villagers had become with attending meetings from which they received no benefit.

The dynamics around downward accountability to citizens as well as horizontal accountability relationships (commune clerks to commune councils) are also explored in depth within the study. One interesting finding is that local contributions to development projects have triggered stronger accountability relations. In nine of the 12 case study communes, for example, there is some form of active monitoring of locally funded projects, and commune councils attempt to hold contractors responsible for their performance. In some cases, regular local monitoring has been key to ensuring that standards have been met and that the authorization of payments was not a source of local controversy. In one commune in Battambang, for example, in order to justify the community contribution and account for how it was used, village chiefs kept detailed notebooks and reported at village meetings on the amount collected before delivering the funds to the commune council. In two cases in Kampong Cham, the mismanagement of local contributions led to citizen protests and ultimately to the removal of village chiefs.

Detailed presentation of findings on these issues, including illustrative examples from extensive field interviews conducted by the researchers, as well as conclusions about the lessons that can be drawn and recommendations for policy and future research, can be found in the full report online.

As Cambodians vote for their commune council representatives next week, and the government and its development partners continue to develop and implement the next stage of local governance reforms, we hope that the findings in this report help enhance understanding of local development issues and contribute to bringing greater voice to citizens in their communities.

Gavin Tritt is The Asia Foundation’s country representative in Cambodia and co-editor of the report “Voice, Choice, and Decision: A Study of Local Governance Processes in Cambodia.” He can be reached at gtritt@asiafound.org. The views and opinions expressed here are those of the individual author and not those of The Asia Foundation.

Real GDP growth in Malaysia has slowed considerably over the past decade and domestic investment, measured as a percentage of GDP, has also decreased. These trends raise doubts about whether Malaysia can attain its goal of reaching developed nation status by the year 2020 and suggest it may linger in a “middle-income trap” for years to come. In 2010, the Malaysian government launched comprehensive economic and government transformation programs designed to stimulate growth and development. The Tenth Malaysia Plan seeks to develop small- and medium-sized enterprises as powerful engines of growth.

Malaysia's government recognizes that small- and medium-sized enterprises are critical to growth, but according to the new Business Environment Index, some issues such as infrastructure and informal charges remain a challenge. Photo: Amir Shariff.

On May 8, The Asia Foundation, Monash University Sunway, and RAM Holdings launched Malaysia’s first-ever Business Environment Index (BEI), a new knowledge product that supports both the public and private sectors to improve business conditions at the local level.

“Malaysia’s success in overcoming the middle-income trap hinges critically on the ability to unleash its entrepreneurial talents and innovation capabilities. High-level initiatives designed to foster a business-friendly environment like the Economic Transformation Programme (ETP) and the Government Transformation Programme (GTP) have laid the right track; what is needed now is an enabling environment, said Dr. Yeah Kim Leng, chief economist of RAM Holdings at the launch. “We see the BEI as a tool to bridge the remaining gaps in information, perception, and performance on the ground.”

The BEI ranks the performance of 11 districts and municipalities across six states in Malaysia using nine sub-indices such as entry costs, regulatory costs, informal charges, crime and security, and land access – all critical to growth and a healthy business environment in Malaysia. In partnership with government ministries, national and local chambers of commerce and industry, universities, and research institutes, The Asia Foundation has developed similar tools in Cambodia, Indonesia, the Philippines, Sri Lanka, Vietnam, Bangladesh, and now, Malaysia.

We surveyed 635 business owners face-to-face about their experiences doing business in their localities and their perceptions of local conditions and then compiled information to construct the BEI’s constituent sub-indices. A typical respondent firm – from a batik seller in Kuala Terengganu, to a hardware retailer in Petaling Jaya – is a sole proprietorship and small trading enterprise, and is likely to have five or fewer full-time employees and to operate exclusively within the state in which it is located.

Kemaman in the northeastern state of Terengganu ranks highest in business-friendliness overall. Sepang and Kuala Terengganu are close behind in second and third place, respectively. The poorest performing districts are Ampang Jaya and Petaling Jaya, both in Selangor. In general, the study reveals that districts tend to cluster at several performance levels, that districts in the same state are more similar than those in different states, and that high performers fare consistently well across all sub-indices while low performers rank poorly across many areas. View our interactive data visualization site for a full comparison of districts.

The BEI reveals that entry and regulatory costs are well-managed across the areas surveyed and do not represent substantial hurdles to businesses in peninsular Malaysia. In fact, 90 percent of surveyed firms had both a business registration and a business license – a remarkably high proportion among comparable economies. Maintaining a reliable listing of active businesses allows local government to better understand the local business community and therefore respond to its needs.

Another finding suggests that improvements can be made in the areas of infrastructure (both “hard” – i.e., roads, electricity, and water, and “soft” – i.e., support services). While infrastructure in Malaysia is considered to be among the best in Southeast Asia, electricity supply is still a major obstacle for 27 percent of the firms surveyed. And, access to quality roads and reliable water supplies varies greatly by district. High standards in infrastructure across districts would enhance business owners’ access to broader markets and a wider range of supplies and labor.

Crime and security, informal charges, and transparency registered as the areas of most concern in the BEI. Thirteen percent of business owners reported direct losses from crime in the previous year, including 27 percent in Petaling Jaya. In the face of this risk, many respondents indicated that firms in their line of work find it necessary to hire security services. In two districts, Ampang Jaya and Timur Laut, Penang, this figure stood near 25 percent – a particularly high proportion among very small firms with limited resources.

The threat of informal charges and unfair practices related to government procurement also registered with business owners. Over 80 percent of respondents felt that personal connections to officials or political party backing was important for winning public contracts and, in one district, 35 percent of respondents said that it is sometimes necessary in their line of work to make informal payments.

The survey also revealed that 56 percent of firms do not use computers. Consequently it is not surprising that one-third find it difficult or impossible to access information on government policies and regulations relevant to their sector. Of those that did use computers, only 17 percent use e-government services. This suggests that the current channels employed by the government to provide information and services to the private sector and to receive their feedback are not reaching the majority of SMEs in Malaysia.

As Malaysia mobilizes to achieve its 2020 goal of surpassing middle-income status, we hope that the Business Environment Index will provide a useful metric which illuminates challenges to local business growth and informs efforts to address them.

Reid Hamel is a program associate with The Asia Foundation’s Economic Development Program and Anthea Mulakala is the Foundation’s country representative in Malaysia. They can be reached at rhamel@asiafound.org and amulakala@asiafound.org, respectively. The views and opinions expressed here are those of the individual author and not those of The Asia Foundation.