In this brief article, the author describes the tasks and activities of the International Cooperation Department of the Research and Training Institute which belongs to the Ministry of Justice of Japan and, further, gives examples of actual activities of legal technical cooperation by comparing Vietnam and Cambodia, the two major recipients of assistance in which the Ministry of Justice of Japan is involved. The Japanese projects for Vietnam and for Cambodia differ in many aspects due to the difference in levels of basic capability of their respective legal community and the difference in concept and approach. While the projects for Vietnam are, in general, comprehensive ones aiming at an overall improvement of its legal system as a whole and, over the years, have themselves developed to a rather complicated cooperation scheme in line with the national strategy for legal system development, the ones for Cambodia are much more narrow-scoped but intensive, focused on the enactment and effective implementation of two big codes, the Civil Code and the Civil Procedure Code. The author hopes that the comparison here will inspire the readers with diverse activities one donor can conduct, based on the actual situation and reality of the recipient country. Lastly in this article, the author expresses some personal opinions as well as concerns on some issues which require broad discussion among stakeholders—the issues of rationale and core values of legal technical cooperation; capacity building of practitioners on the donor side; the need for Japanese legal technical cooperation to be much more “internationalized”.
This article attempts to identify the comparative advantage of Japan's role in the area of international assistance to legal and judicial reforms. Studies in the area of “law and development” seem to have been separated between meta-theories on ultimate ideals of legal assistance and highly practical arguments on how to promote individual projects. The author attempts to go in between these two extremes, to induce lessons from practical cases mostly taken from Japanese assistance to Vietnam, which already has fifteen years' experience. In contrast to the legal-transplant-type approach taken by leading international donors, Japanese approach is observed to be more concerned about the systemic consistency of local legal regime, as well as local socio-economic needs. Perhaps, a comparative advantage of Japanese assistance must lie in the hybrid nature of Japanese law in itself having realized a formal and consistent code system while somehow successfully preserving and incorporating the customary and conciliatory culture as Asian law.
The JICA's experience of legal assistance (Assistance in drafting of the law on administrative procedure) in Uzbekistan shows that in establishing assistance policies for administrative law reforms in Asian countries transiting from the planned economy to a market economy, it is imperative that a “meta-theory of administrative law” shall be examined as the foundation of such assistance.
Why was it not enough just to examine the “administrative law” itself? Why is it that first of all we have to talk about a “meta-theory” that supports the growth and evolution of “administrative law” in the relevant country? The reason is because our experience in Uzbekistan has made us realize that in order to create and develop the “transitional administrative law” in Asian countries that are heading towards market economy, we have to start from the search for a foundational “paradigm”.
In pursuit of the “paradigm”, I would like to refer to the arguments made by Wang Yueshen (Beijing University), a Chinese institutional economist. This institutionalist approach introduces the concept of “process and institutional change” in parallel with a Marxist economist theory. Instead of economic theory, I would talk about “administrative law”, and instead of “China” I would examine the case of “Uzbekistan”.
“Reforms in China, an example of institutional changes, have been offering a valuable “laboratory” for new-institutional economics to verify and develop its own theories. The western macro- and microeconomic theories deal with mature market economies and are far from relevant for the situation of China which is in the initial stage of a market economy. Therefore, Chinese economists are facing difficulties in pursuing researches within the scope of conventional economic studies. However, the new-institutional economics is different. The institutional shortages and confusing orders, the institutional transition from a planned economy to a market economy, the formation of institutions and the resulting process of influences on the economy, have all given rise to an excellent chance for Chinese economic scholars to conduct their researches”.
Property rights in Tanzania provided in the “Village Land Act, 1999” differ from modern property rights in Western law particularly with regard to the “coustomary right of occupancy” and the limited rights, known as the “commons” of community members in villages.
The World Bank's land policy has considerably affected Tanzania and other African countries. Therefore, a need arises for a deeper understanding of the transitional rights provided in the aforementioned act, changes in land policy, and the World Bank's theories on land policy. An overview of the World Bank's land policy, a shift from the neo-classical theory of new development economics to the recognition of the informal system. This overview reveals that Tanzania's “Village Land Act, 1999” is highly compatible with the newly established land policy of the World Bank.
This drastic change in the World Bank's policy was influenced by Hernand de Soto's theory that ownership should be granted on the basis of concrete data.
While Japan has already committed to providing legal assistance in some Asian countries, there is a potential need for legal assistance with regard to land law reform in Africa as well: however, Japan has not taken any action in this regard. Japan could provide assistance separate from that provided by the World Bank, as the former's experience in enacting Civil Laws, during the Meiji era, could benefit African countries.
This article reviews the construction process of newly emerged East Timor. Though the problematic situation of East Timor is not a typical armed conflict, this case show well the complexity of contemporary conflict, as well as relation between peace-building and legal development.
Indonesian invasion of East Timor in 1975 and brutal occupation for almost 25 years are the most serious cause of conflict in East Timor. However, the East Timor conflict is not mere national liberation war by Timorese against Indonesia, but also that of various internal conflicts within Timorese society itself, e.g. conflicts among different political ideologies, attitudes toward Indonesia, ethnicities and localities. This multi-axis confrontation is the characteristic of a “complex political emergency”. Peace-building of East Timor has been fully supported by international society, and the mandate of the UNTAET is broader than any other previous PKOs. Thus, this article tries to review how these two specific situations have affected to legal and judicial development in post-conflict East Timor.
First section outlines the conflict of East Timor. In second section, I review the legal development and constitution making under the UNTAET. Third section focuses on the construction of judicial system. As “Timorization” is a keyword for new Timorese judiciary, the UNTAET tried to employ local but least experienced lawyers. At the same time, Timorese judiciary has to depend on International judges, prosecutors and public defenders in order to address cases after conflict. International supporting projects for judicial reform are reviewed here, too. Finally, in order to identify challenges of judicial reform and judicial independence in post-conflict society, the author takes the status of International judges up, and explains how executive and legislative branches intervene to judiciary.
Law reform assistance has been applied for modernization of law, in particular, in the context of promotion of market economy for development as a practical tool for implementing the Washington Consensus in the age of post-cold war globalization. It is considered a process of implanting global standards convenient for the market. On the other hand, as with the post-cold war paradigm, human security has been advocated for interlinking of development and peace to promote liberal democracy across the world. It has been addressed to the New War phenomena, that is, borderless expansion of civil wars as the controversial concept of “responsibility to protect.” This led to the creation of the International Criminal Court (ICC) as the rule of law in international law. Also it is reflected in the peace building operation. As an element of assistance in governance, the law reform assistance has been promoted by ODA in transitional justice for the rule of law in conflict-affected countries. However, such assistance is not always well supported by local people. Cambodian case study shows that law can be abused by the authoritarian government to bring unexpected effect. The land law, through which international society intends to protect the titles of farmers, is in fact manipulated by the powerful people for land grabbing. As a result, farmers are losing their land and foreign investors are unduly benefitted Resisting farmers and supporting human rights workers are punished by the newly introduced criminal justice legal system and personnel. Providers of such law reform assistance should carefully examine and consider the local people's capacity and social reality. Modern law is not necessarily appropriate in the local context. Local law as customary law might have protected the local people. Thus, human security of the local people should be considered seriously in the law reform assistance. Grass-route assistance is also considered in law reform for human security.
There has been a deep skepticism about Law and Development which doubts whether the law and judicial reform could truly contribute to development and whether the law is a necessary condition for development. This skepticism seems to be attributed to the very conception of Law and Development, which regards the law as an instrument of development so that it needs to evaluate its outcomes by any indicators of economic, political or social development.
But, this evaluation aspect of Law and Development seems to be one-sided, because the development of a legal system may be measured by its consistency, comprehensiveness, efficacy, stability, flexibility, browsability, and other virtues of its constitutive elements, which can be called the integrity of law. This conception of the excellence of a legal system may be used as an original measurement to evaluate the legal development.
In this paper, the author begins with the analysis of the conception of legal development as a promotion of the integrity of law, and seeks to draw some basic and concrete elements from the abstract conception of the law's integrity by focusing on the fields of private law and laws for market mechanism based on the property rights.
At the same time, however, another aspect of the integrity of law should not be overlooked, because the basic function of law cannot be separated from other elements of social, economic and political development and presupposes the provision of primary education, basic needs, or political stability. But, the provision of those basic conditions in turn will be influenced by the existing legal framework.
This shows that the legal development is an independent and constitutive element of development on the one hand, and it is influencing and influenced by the economic, political and social development on the other. Thus legal, economic, political and social development are mutually interrelated like a thickly interwoven textile.
School-based management has been promoted in many developing countries as an effective means to decentralize educational administration and give decision-making authority to the school. In Ethiopia, too, the School Management Committees (SMCs) are formulated in all schools as a multiparty administrative body, with participation of community representatives, school principal, teachers, and local government officers. Regardless of this institutionalized channel of participation, there are schools which have and do not have active community participation. Based on the assumption that the factors determining the levels and the styles of participation exist not only within the SMC and the school itself but also in the societies surrounding the school, the author enlarged the scope of investigation to the traditional social structure and socio-cultural dynamics. The research was conducted at 3 district education offices and 14 primary schools in Oromia Region, Ethiopia, through interviews, questionnaire, focus-group discussion, and participatory workshop. By untangling the perspectives of different actors—especially community members—at different localities, the author demonstrates factors which determine the types and levels of popular commitment to education.
The research revealed that the schools which have active SMC tend to be those in which parents and local people have been actively involved in school matters even before the introduction of SMC. Also, often times, SMCs are supported by non-institutionalized mechanism of participation, such as traditional communal unit called Goti which actually mobilize people and resources. Further, active communities have strong leaders who have either traditional authority like Goti leaders, administrative authority like village administrators or school principal, or connection with outside society and modern knowledge based on higher level of education or better cash income than other people. The paper also demonstrated the ambiguity of the term “community” given the fact that the school catchment areas often transcend the administrative or traditional unit of community and the people's level of involvement varies depending on who has power and how leadership is exercised.