The Japan International Cooperation Agency (JICA) has been providing “Cooperation for the Rule of Law Promotion” in developing countries for more than twenty years. The Japan Journal spoke with lawyer Isoi Miha to find out more about JICA’s work overseas, supporting the establishment of laws that fit with the times.
To create a society in which people can enjoy living prosperous lives free from concerns, it is essential to establish legal and judicial systems based on the rule of law in which those in authority are themselves bound by the law and guarantee equal rights for everybody. In some developing countries, economic development and lifestyle improvements are hindered due to the lack of established legal and judicial systems, a shortage of legal professionals and insufficient efforts to ensure that people remain knowledgeable about the law.
In response to this situation, the Japan International Cooperation Agency (JICA) has provided “Cooperation for the Rule of Law Promotion” since 1996. JICA’s support in the field comprises three main pillars: developing laws and regulations; strengthening the functions of law management organizations, such as administrative organizations, courts, the public prosecutors’ office and bar associations; and creating an environment in which citizens can utilize laws easily. To support these activities so that they take root in recipient countries, JICA has always focused on developing the human resources of local people.
Japanese projects under the Cooperation for the Rule of Law Promotion banner are characterized by their focus on civil legal systems. Behind this is the fact that a great deal of attention is paid to how economic activities were supported by civil legal systems in Japan, an Asian economic power, amid the progress of democratization and the introduction of market economies in Asian socialist countries following the collapse of the Soviet Union in 1991.
Japanese activities for rule of law promotion have characteristics that differ from those of other donors. Japanese projects are carried out through strong collaboration among legal professionals both in Japan and abroad. Japan not only sends legal professionals in active service, such as judges, public prosecutors and lawyers, to many countries, but also forms advisory groups of legal professionals and organizes regular meetings .
“Japanese cooperation for the rule of law promotion is not intended to simply translate Japanese laws and propose them to other countries, but to draw up drafts in the languages of recipient countries, to have discussions with people in those countries and to make laws that they can actually utilize in their countries,” says Isoi Miha, who is a lawyer and a senior advisor for JICA. “This process takes a great deal of time, but it leads to other countries nurturing human resources who can really understand laws. In addition, it enables Japan to build strong trust with recipient countries.”
This style of support is closely associated with Japan’s own experience in legal and judicial reform. After the Meiji Restoration of 1868, Japan introduced Western knowledge and technologies and promoted social modernization. Many laws were also modernized to revise unequal treaties that Japan had signed with Western powers. Japan studied European legal systems, including the British, French and German systems, and applied them where appropriate. For example, Japan drafted its civil code modeled on the German civil code, but customized it with respect to property and contracts to include British and French stipulations, and in the case of family, formulated original articles in accordance with Japanese traditions and customs. Japanese people who engage in cooperation for the rule of law promotion in developing countries recognize the importance of examining foreign laws comparatively and customizing laws with a focus on foreign cultures and customs on the basis of Japan’s own experience.
Instituting the Cambodian Civil Code
JICA has provided support for the promotion of the rule of law in Cambodia for many years. In Cambodia, old laws and systems were abolished under the Pol Pot regime beginning in the mid-1970s, when most legal professionals were also killed. Accordingly, after the civil war ended in 1991, general elections were held and a new constitution was instituted, but it was difficult for Cambodia to establish legal systems immediately on its own due to the shortage of human resources. In this situation, the Cambodian government requested that Japan, which had conducted legal technical assistance activities in neighboring Vietnam since 1996, cooperate in establishing laws such as a civil code and code of civil procedure. In response to this request, JICA launched the Legal and Judicial Development Project (Phase 1: 1999–2003, Phase 2: 2004–2008) in 1999.
In this project, to draw up a draft civil code and code of civil procedure, a Working Group comprising scholars and judges was established on the Japanese side, and a Working Group of senior officials of the Ministry of Justice and judges was established on the Cambodian side. First, the Japanese members drew up a draft in Japanese on the basis of local information related to laws provided by the Cambodian side and translated it into the Khmer language. The Cambodian members deepened their understanding of the draft according to explanations by Japanese scholars at workshops and advice offered by JICA’s long-term experts, and made comments. In response to these comments, the Japanese members worked on a final draft and again held discussions with the Cambodian side. The draft was completed in 2003. Subsequently, JICA has continued to cooperate with the Ministry of Justice in the process of passing bills through parliament and modifying articles. The code of civil procedure was promulgated in 2006 and the civil code was promulgated in 2007 following discussions by the Council of Ministers and the National Assembly.
The Cambodian civil code, which consists of about 1,300 articles, resembles the Japanese civil code, with adjustments appropriate for the Cambodian culture. For example, the Japanese civil code stipulates that a property that is acquired by either the husband or the wife in the course of the marriage in his or her name should belong to him or her as a personal property. But Cambodian civil code stipulates that a property that is acquired by either the husband or the wife in the course of the marriage should belong to both of them with respect for the Cambodian systems that were established before the civil war.
“It can be said that the institution of the civil code and the code of civil procedure in Cambodia was a very significant achievement of Japan’s Cooperation for the Rule of Law Promotion activities,” says Isoi. “The Cambodian civil code is so progressive that it can respond to modern business needs.”
Isoi worked for the Ministry of Justice in Phnom Penh as an expert on JICA’s Cambodian Legal and Judicial Development Project Phase IV (2012-2017) for a year starting from 2013. This project was intended to improve the ability of Cambodian core legal professionals, such as Ministry of Justice officials, judges, public prosecutors, lawyers and staff of the Royal University of Law and Economics, to settle the civil code and the code of civil procedure in Cambodian society. A Working Group consisting mainly of young members in their 20s to 30s belonging to each organization received lectures by Japanese experts and held discussions based on real cases to improve their abilities in a more practical way.
In addition, JICA conducted cooperation for the registration of the real estate necessary for implementing the civil code and the code of civil procedure. Isoi cooperated in formulating rules on the registration of real estate in collaboration with officers of the Ministry of Justice and Ministry of Land Management, Urban Planning and Construction. For example, Isoi helped to formulate registration methods and sample formats for changing owners at sale and when inheriting real estate.
The Legal and Judicial Development Project Phase V commenced in 2017. The cooperation project is carried out on the basis of three pillars: making laws of ministerial orders related to the registration of real estate; the development of forms related to the civil code and the code of civil procedure; and the disclosure of judgments.
“It is important that local people understand the law and learn to utilize it,” says Isoi. “When I hear about specific court judgments and cases of registration of real estate based on new articles, I am happy to realize that our cooperation has been of service.”
The Mediation System in Mongolia
In Mongolia, civil problems have increased alongside the increased economic activity after the market economy was introduced in 1990, and the need has arisen for legal systems to tackle these problems and settle disputes. In response to a request from the Mongolian government, JICA began sending Japanese lawyers as long-term experts in 2004 and started to cooperate by pressing for the disclosure of civil judgments, strengthening bar associations and establishing legal consultation and mediation centers.
After a Japanese expert was able to persuade the Supreme Court to disclose its judgments, a case book of civil judgments was published in 2005. This case book was widely referred to by legal professionals such as judges, lawyers and scholars. Now all cases can be viewed online.
The Legal Reform Project was implemented for two years starting from 2006. This project was intended to strengthen the roles of bar associations to provide citizens with high-quality legal services. Isoi, who was sent to the Ministry of Justice and Internal Affairs in Ulan Bator as an expert, cooperated in revising the Attorney Act, compiling journals and lists of bar associations, public relations activities for lawyers through the media and managing bar association mediation centers.
“Mediation centers are for solving problems through discussions between the parties concerned in the presence of lawyers, rather than in court. I cooperated in introducing the Japanese mediation system and training and public relations activities for lawyers as a mediator,” says Isoi. “When I explained the samples of successful resolution of Mongolian bar association mediation centers and introduced the Japanese mediation system to local judges, they decided to consider introducing the mediation system to courts in Mongolia as well.”
In response to a request from the Mongolian Supreme Court, the Project for Strengthening Mediation System commenced in 2010 and JICA cooperated in instituting the Law on Mediation, training mediators and running a public relations campaign for the mediation system. In 2012, the Law on Mediation was enacted by parliament, and in 2013, mediations began to be implemented at lower courts around the country. Currently, more than 10,000 cases are mediated in courts every year.
Promoting the Rule of Law around the World
Today, Japanese Cooperation for the Rule of Law Promotion activities, which commenced in Vietnam in 1996, have spread to thirty-three countries, including Asian countries such as Laos, China, Indonesia, Nepal and Myanmar, Uzbekistan in Central Asia and Côte d’Ivoire in Africa, as well as Cambodia and Mongolia as outlined above. The nature of the cooperative activities differs according to country. In Nepal, for example, JICA began to cooperate in improving a draft civil code from 2009 through training sessions in Japan and seminars in Nepal. In 2017, the civil code was finally enacted after a great deal of political confusion.
JICA sent a lawyer as an expert to Côte d’Ivoire for two and a half years starting from 2014 and cooperated in establishing a call center modeled on the Japanese system to improve citizens’ access to legal services. The call center was established within the Ministry of Justice in 2016 and is used as a counter for easy consultation about civil enquiries regarding legal and court procedures.
“Japan’s assistance has concentrated on civil legal and economic matters connected with the market economy. Recently, however, demands for improving the process of drafting laws and reforming criminal laws have been increasing,” says Isoi. “Goal 16 of the Sustainable Development Goals (SDGs) declares that access to justice should be provided to all people. To achieve this goal, JICA will continue to cooperate in realizing a society in which all people can utilize the law.”
By SAWAJI Osamu, The Japan Journal