Committee on International Relations
Report on Technical Cooperation in the Legal and Judicial Sectors in Vietnam
Member of the Committee on International Relations
I was dispatched to Hanoi, the capital city of Vietnam, for two years from June 2001 until June 2003, by the Japan International Cooperation Agency (JICA), with the mission of supporting the development of the legal system in that country. In this report, I would like to outline some of the specific activities undertaken as part of this mission and also to share some thoughts I had while I was in Vietnam.
Vietnam has been pursuing a market economy policy, known as the Doi Moi policy, since 1986, and is now actively seeking the support of advanced nations in the adaptation of its legal system to meet the needs of such a market economy. Japan has played and is still playing a major role in this area. Our assistance in the reform of Vietnam's legal system was spearheaded by Professor Akio Morishima of Nagoya University, after which it was taken over by the JICA, which initiated Phase One in 1996. This was extended to Phase Two, which ended in March 2003. Phase Three started in July 2003.
Phase One consisted of visits made by Japanese legal experts to Vietnam to hold seminars on the legislation to be enacted, and training for Vietnamese legislative staff in Japan under the "Support to Individual Legislative Drafting Activities" (SILDA) program, as well as a survey of Vietnam's extremely complicated real estate system.
Phase Two, in which I participated, consisted of the three major projects. The first project consisted of SILDA program activities, which continued from Phase One. Although considerable results were achieved under this program, it was not easy to evaluate accurately how much it contributed to the legislation as different themes were chosen for seminars and training sessions within a limited span of time. In view of this, we decided in Phrase Three to provide legal support on a continuing, consistent basis with a focus on specific themes.
The second project was a joint research program in which Vietnamese and Japanese experts carried out research projects with a common theme. One example of the themes chosen was reform of the civil code. The civil code of Vietnam, which provides for the framework of the market economy, was promulgated in 1996. However, in less than four years after its enactment, it became apparent that this law was not compatible with the reality of Vietnam and needed reform. Japan was asked to assist in this task. Through this joint research on the reform of the civil code, we provide total support for the entire legislative process: our activities consist of draft preparation, based on comments from Japanese legal experts, and field surveys of the legislative environment. Initially, the civil code was scheduled for amendment by the end of 2002, which coincided with Phase Two of our support activities. However, the Vietnamese Minister of Justice decided to make a thorough review of the reform plan in response to the multifarious issues raised by Japanese legal experts. Consequently, the scheduled enactment was postponed until 2005 and research into the reform of the civil code has continued as a main project in Phase Three. The fact that the Justice Minister decided to postpone enactment is evidence of the seriousness with which he took the advice of the Japanese legal experts.
The third project was our support of "human resource development" in Vietnam, with lectures by long-term legal experts and advice on the preparation of manuals for judges and attorneys, mainly directed towards judiciary training institutions. In Phase Two, the Japanese participants had no concrete strategy for the human resource development project and local experts were still groping their way forward. But it was recognized that even with the establishment of the most perfect laws, they would be useless without people who could operate them. Thus, Phrase Three involved a more strategic approach to human resource development.
In Phase Three, taking the results of Phase Two into account and with a policy of further strengthening these achievements and developing them, we set up two major projects. One was support to the legislative drafting of the civil code and other relevant civil and economic laws; the other was support to the strengthening of human resources in the judicial sector. The former provides continuous aid, focusing specifically on basic legislation as the civil code, the code of civil procedure, and a number of related laws, learning from the ILS program activities mentioned above. The latter provides for "training for the trainers" by developing members of the bar, including judges, as well as instructions for the preparation of judgements. In Phase Three, for the first time we started offering instructions in the preparation of judgments. In many cases, their judgment lacks clear, logical reasoning, merely stating the fact of the case and the decision. It was against such a background that the need for retraining of judges was recognized as part of our human resource development project.
Next, I would like to share some of the impressions I had while I was in Vietnam. The country is in the midst of developing a legal system, but this does not mean that Vietnam has no law. On the contrary, it has an excessive number of laws and ordinances, and numerous legal professionals. I may be wrong, but it seems to me that liberalism is based on skepticism of human nature, while socialism is based on trust in humans (or, one could say, trust in human infallibility.) Due perhaps to such difference in basic thinking, there is no clear legal provision for, for example, the double transfer of property in Vietnam because it is assumed that no one would take such an irrational action. (There are many other similar instances.) Basically, despite the fact that law exists to deal with social maladies, the Vietnamese legal system is established on the assumption that there are no such maladies. With regard to, for example, the code of civil procedure, I feel that it is premised on the assumption that judges are infallible and that the truth will be found without fail.
I would like to end my report by expressing my deep gratitude to the Japan Federation of Bar Associations for providing me with the valuable opportunity to work in Vietnam.
The LAWASIA Tokyo Conference
Deputy Chair,The Committee on International Relations
The Eighteenth Biennial Conference of the Law Association for Asia and the Pacific (LAWSIA), a non-governmental organization established in 1966 to serve as a forum for exchange among jurists and to promote development of legal systems in Asia and the Pacific Region, was held in Tokyo, from September 2 to 4, 2003. The last such conference to be held in Tokyo was 28 years ago, in 1975. Prior to the Conference, the Japan Federation of Bar Associations (JFBA) became an official member of LAWASIA, and appointed Mr. Harumichi Uchida, Deputy Chair of the Committee on International Relations, as representative of Japan. As the leading supporting organization, JFBA also dispatched numerous members to take part in the 2003 LAWASIA Tokyo Conference Organization Committee as well as in the Finance, Program and Administrative, and other Committees that provided cooperation and assistance. On September 3, a JFBA Day was held, with three human rights sessions led by the JFBA and a cocktail party hosted by JFBA President in the Cleo Hall of the JFBA Building, all of which served to create a strong impression among Japanese and foreign participants of the significant position occupied by JFBA in the legal community. The Committee on International Relations took charge of planning and preparations for the party, using its extensive experience in international exchange seminars and receptions.
It has been traditional for the biennial LAWASIA Conference to be held in conjunction with Conference of the Chief Justices of Asia and the Pacific, and this time too the Conference was held in tandem with a Chief Justice Conference hosted by the Supreme Court. Thus, the opening ceremony, the closing ceremony, and the plenary session, which focused on the independence of justice, were held jointly by the two hosting organizations. The opening ceremony was honored by the attendance of the Crown Prince and Princess. Many jurists including chief justices from countries in Asia and the Pacific participated. Mr. Tohru Motobayashi, President of JFBA, delivered the welcoming address on behalf of supporting organizations.
The three sessions organized by JFBA on human rights dealt with "Human Rights Structure in the Asia-Pacific Region," "Protection of the Rights of Migratory Workers and Legal Aid," and "Recent Human Rights Issues in the Asia-Pacific Region and Human Rights Situation since 9/11." There was also a session on "Money Laundering and Gate Keeper Restriction on Attorneys." Numerous participants engaged in candid and spirited exchange of views .
During the preparation for the Tokyo Conference, in the spring of 2003, the number of people applying to register leveled off temporarily due to the outbreak of the SARS epidemic. In response to a call by Mr. Akira Mikazuki, Chair of the Organizing Committee, however, applications from China and South Korea started to come in. The International Office and other units at JFBA established a back-up structure to encourage member attorneys to attend the Conference and also took the decision to pay the total cost of the 25,000 yen participation fee for younger members on condition that they attend the sessions. As a result of these efforts, the number of domestic registrants reached 645, while that of international registrants reached 308, both figures that surpassed our initial targets.
The cocktail party hosted on JFBA Day on September 2 was attended by a large number of these participants, as well as many people who were invited as guests, and with whom JFBA has built close relationships through international exchange and cooperation programs. They included diplomatic corps working in the embassies of various countries as well as people helping in the development of international law on behalf of government agencies and organizations. The venue of the cocktail party, Cleo Hall, was filled to capacity. Notwithstanding the fact that the party followed long hours of conference sessions, and many participants were doubtless exhausted, and the fact that a severe thunderstorm hit the Tokyo metropolitan area on that evening (the National Diet Building was struck by a bolt of lightning), there were nearly 400 guests. After speeches by Messrs. Tohru Motobayashi and Gordon Hughes, President of LAWASIA, Mr. Ikuo Gunji, Vice President of JFBA, proposed a toast. President Motobayashi, Vice President Gunji and Mr. Tadashi Yoshino, Chair of the Committee on International Relations, provided outlines of JFBA's initiatives for judiciary reform and international activities. The party greatly contributed to the fostering of mutual understanding and personal ties among legal professionals of Asia and the Pacific Region.
The closing ceremony on the last day of the conference was conducted in a friendly atmosphere, jointly presided by Mr. Harumichi Uchida, Deputy Chair of the Committee on International Relations, and ASIMO, Honda's humanoid robot. There was a splendid musical performance by the Marimba Ponies, a young percussionist group. It was announced that the Gold Coast in Queensland, Australia would be the next host of the conference, and Dr Gordon Hughes handed over presidency of LAWASIA to Mr. G. L. Sanghi, after which the three-day conference came to an end.
I was appointed Deputy Chair of the Administrative Committee on the JFBA's recommendation and worked as an assistant to Ms. Aiko Noda, Chair of the Administrative Committee. At the cocktail party and also on other occasions, I received words of thanks from Mr. Akira Mikazuki, Chair of the Organizing Committee, and Mr. Takeo Kosugi, Chair of the Executive Committee (and a previous LAWASIA President) to JFBA for its cooperation in bringing about the Tokyo Conference, as well as congratulatory remarks about the planning and organization of the sessions and cocktail party. I would like to express my deep gratitude to members of various committees, the Office of International Affairs and Committee on International Relations of JFBA, as well as to the staff of the Secretariat, for their cooperation.
Report on the Fourth Seminar on International Cooperation Activitie
Member of the Committee on International Relations
On July 19, 2003, the Fourth Seminar on International Cooperation Activities was held in Bengoshi Kaikan Hall in Tokyo. This seminar has been designated as a forum to draw up a roadmap for "Information, Communication and Technology (ICT) Legal Framework Assistance in the New ASEAN Member Countries," a research project commissioned by the Ministry of Economy, Trade and Industry (METI). We had planned under this project to hold a comprehensive seminar in Singapore attended by relevant parties representing Cambodia, Laos, Myanmar, and Vietnam (hereinafter referred to as the "CLMV countries"), but in March 2003, this was called off for a variety of reasons. (Please refer to the 6th issue of the Committee on International Relations News for a survey report on the above-mentioned project and cancellation of the seminar.) The Fourth Seminar was held in place of the seminar planned in Singapore.
The seminar started with Mr. Harumichi Uchida, Deputy Chair of the Committee on International Relations, in the chair. The program was as follows:
Ms. Kazue Okuni (Vice President, the Japan Federation of Bar Association, "JFBA")
Ms. Hiromi Watanabe (commercial information policy planner for METI)
ii.Outline of the IT Project
Mr. Masatoshi Ikeuchi (member of the Committee on International Relations)
Cambodia: Ms. Mariko Mimura (attorney registered for international cooperation activities)
Laos: Mr. Takashi Sohma (member of the Committee on International Relations)
Myanmar: Ms. Miha Isoi (attorney registered for international cooperation activities)
Vietnam: Mr. Shunji Miyake (member of the Committee on International Relations)
iv.Questions and Answers
v.JFBA's Approach to International Cooperation Activities
Mr. Kimitoshi Yabuki (Director of the Office of International Affairs)
The time allowed for the presentation of each country report was limited to 20 minutes. Presentations were concise and to the point despite the considerable length of actual texts in many cases, and the considerable effort involved in explaining survey findings in sufficient detail.
The survey focused primarily on the three areas of the legal system dealing with (i) intellectual property rights, (ii) electronic commerce, and (iii) criminal legislation on cyber field. The stage of development of the legal system in these areas varies widely from country to country. While some countries have established a basic legal system for intellectual property rights (patent, trademark, design, utility model, and copyright), others are still in the stage of drafting bills. Moreover, not all of these countries have acceded to the international conventions for the protection of intellectual property rights. The international harmonization of the CLMV countries with regard to IT legislation is clearly an issue that will need to be addressed in the future.
Nearly all of the surveyed countries are still in the process of drawing up legislation for electronic commerce. In countries in which the use of the computer is not yet widespread, the development of legislation specifically geared to electronic commerce is slow. Even though some countries have announced their draft bills, the pace of approach to legislation is markedly different from country to country. Since electronic commerce takes place across borders, one of the objectives of our survey has been to ascertain the possibility of supporting international harmonization in electronic commerce. In view of the survey findings, I think that we can support such an initiative.
The situation is the same for the cyber field, though the number of actual cases surveyed was limited.
Highly expert opinions were actively exchanged in the Q&A session, and the seminar came to an end. With this seminar, JFBA completed the research project commissioned by METI. This project, which was carried out with funds provided by METI, can be considered to have established a new form of international aid by JFBA.