CONTENTSPREFACE

Legal education is experiencing rapid globalization. To meet the demand, Keio
University Law School aims to develop law programs at universities throughout Asia.
In 2015, our faculty and partner universities in the Mekong region countries launched,“Programs for Asian Global Legal Professions (PAGLEP),” a joint program fostering
legal professions to solve legal issues from global perspectives.
Keio University Law School has established legal education research projects inJapan and the Mekong region countries in the teaching methods of private and publiclaw. For law students, we promoted bilateral and multilateral law programs in Hanoi, Ho
Chi Minh City, Phnom Penh, Vientiane, Bangkok, Yangon, and Tokyo.
Thanks to the support from our partner universities and collaboration from all the
program participants, our results have been published in “Programs for Asian Global
Legal Professions (PAGLEP) Series,” Volume One to Four.
2020 was a milestone year for the PAGLEP. Unfortunately, the impact of the
COVID-19 pandemic forced universities to postpone all in-person international
programs. Despite this crisis, our universities worked diligently to develop online
programs in law and international collaboration. I am convinced the outcome will be
fruitful.
This book, Volume Five of the PAGLEP Series, is a part of them. It includes
presentations and discussions at the PAGLEP Symposium 2020: University’sContribution toward “the Rule of law Ubiquitous World” held on 21 November, 2020,
by way of the Internet. Online legal education will cultivate a new paradigm of research,development, collaboration, and connection among professors and students in Asia.
The new path will grant access to anyone interested in legal education whenever andwherever they are. We hope it will be a democratizing tool for the rule of law promotion-i-in Asia, which is the central theme of this volume.
Finally, I convey sincere gratitude to the Ministry of Education, Culture, Sports,
Science, and Technology in Japan for their continuous support. Due to their financial
contribution over the last five years, we met our goal of opening a new dimension ofresearch on collaborated legal education and the rule of law promotion in Asia.

Isao Kitai
Professor and Dean, Keio University Law School
10 January 2021

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CONTENTS

OPENING REMARKat the Symposium on University’s Contribution
toward “the Rule of Law Ubiquitous World”

The Programs for Asian Global Legal Professions (PAGLEP) Symposium 2020 isbeing held in unprecedented circumstances this year during the COVID-19 pandemic.
We would like to express our great appreciation to Keio University as the organizing
school for their efforts to hold this symposium.
The Inter-University Exchange Project, for which Keio University was one of theuniversities selected, aims to strengthen the global network of Japanese universities
by offering high-quality education that is compatible with international programs. Our
objective to promote strategic student exchanges and collaborative programs that havemet quality assurance standards with universities in countries and regions that areimportant to Japan.
Under this initiative, to date, a total of 32 new projects targeting the ASEAN
countries have been selected over four periods: three in fiscal 2011, fourteen in 2012,seven in 2013, and eight in 2016.
At the end of the subsidy period, Keio University Law School has continued to carryout various initiatives, such as the establishment of the Foundation for Legal Educationin Asia, in order to maintain a steady stream of international students from the Mekong
countries and other countries in Asia.
With the big boost given by the Inter-University Exchange Project, the number ofJapanese and international students who have participated in exchanges with the ASEAN
nations has dramatically increased, from 3,416 Japanese outbound students in 2011 to
21,865 in 2018, and from 13,400 inbound international students in 2011 to 96,736 in- iii -

2019.
This fiscal year, the COVID pandemic has seriously impacted the internationalizationof university education by sharply restricting student and faculty mobility. Nevertheless,through ingenuity and cooperation, and by taking advantage of advantages like small
time differences, within the consortium of universities, we have seen a number ofinternational education and exchange programs conducted online, including the joint
webinar held by students of the collaborating universities in September of this year. For
now, we would like universities to maintain their collaborations and continue to advancetheir efforts for high-quality student exchanges even during the pandemic.
Lastly, we sincerely hope this symposium will prove of great value for the further
development of projects between Keio and the other collaborating universities.

Representative, the Office for International Planning, Higher Education Bureau,
the Ministry of Education, Culture, Sports, Science, and Technology (MEXT)
21 November 2020

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CONTENTS

CONTENTSPREFACE
Isao Kitai

i

Representative, the Office for International Planning, Higher Education Bureau,
the Ministry of Education, Culture, Sports, Science, and Technology (MEXT)

iii

OPENING REMARKat the Symposium on University’s Contribution
toward “the Rule of Law Ubiquitous World”

PART I
Chapter 1:

THE RULE OF LAW PROMOTION IN ASIAN DYNAMICS:
Toward the Rule of Law Ubiquitous World
Hiroshi Matsuo

3

1. Introduction: Issues on the Rule of Law Promotion in the Asian Context
2. The Use of Law as a Government’s Measure to Promote Economic
Development
3. The Construction of the Rule of Law in the Development Dynamics of aState
4. The Rule of Law Construction in the Globalizing World
5. The Role of the University in the Rule of Law Construction
6. Conclusion: The Asian Challenge for the Rule of Law Ubiquitous World
References
Chapter 2:

THE ROLE OF FACULTY OF LAW, THAMMASAT UNIVERSITY,
IN PROMOTING ACCESS TO JUSTICE IN THAILAND
DURING THE COVID-19 PANDEMIC
Ronnakorn Bunmee
1. Introduction
2. Change in Circumstances under Thai Law
3. The Faculty’s Role in Promoting Access to Justice:

-v-

33

TU Pandemic Legal Aid Center4. Conclusion
Chapter 3:

ACCESS TO LEGAL INFORMATION:
A Case of Vietnam
Phan Thi Lan Huong

39

1. Why Access to Legal Information Is Important in Building a Rule of Law
State
2. Current Situation Regarding Access to Legal Information in Vietnam
3. Conclusion
4. References
5. Annex
Chapter 4:

THE RULE OF LAW IN LAO PDR:
Problems and Perspectives
Reginald M. Pastrana

59

1. Introduction
2. The President of the State
3. The Government: The Executive Branch
4. The Judicial Branch
5. The Legislative Branch
6. The Rule of Law and Access to Justice: Some Challenges
7. The Legal Education Campaigns
8. Capacity Building Programs
9. Access to Justice in Lao PDR: Some Perspectives
Chapter 5:

DEVELOPMENT OF ADMINISTRATIVE LAW
AND THE RULE OF LAW IN LAOS
Latdavanh Donkeodavong

71

1. Introduction
2. Development of Administrative Law in Laos
3. Rule of Law and Its Promotion in Laos
4. Lack of Access to Legal Sources and Academic Research
5. Conclusion
Chapter 6:

LEGAL ASPECT ON CHILD’S RIGHTSIN MYANMAR
Khin Phone Myint Kyu/ Khin Khin Su- vi -

91

CONTENTS

1. Introduction
2. Definition of Child in Myanmar
3. Survival and Development Rights
4. Non-Discrimination
5. Best Interests of the Child
6. Protection
7. Conclusion
Chapter 7:

GLOBALIZATION IMPACT ON THE RULE OF LAW:International Trade Law and Domestic Law Reform
Dao Gia Phuc111

1. Economic Globalization and the Rule of Law
2. The Proliferation of Regional Trade Agreements and the Rule of Law
3. Economic Integration and Domestic Law Reform in Viet Nam
Bibliography

PART IIDISCUSSION:

THE RULE OF LAW PROMOTION AND
THE ROLE OF UNIVERSITY IN ASIA
135

ON-SITE REPORTFROM LAW CLASSROOMS IN ASIAN UNIVERSITIES:A Short Report on the Collaboration Program with Myanmar andthe Future Development of the Common Topic Method
Hitomi Fukasawa

INDEX

179

ABOUT KEIGLAD

185

ABOUT THE AUTHORS

186- vii -

163

PART I

Chapter 1

THE RULE OF LAW PROMOTION
IN ASIAN DYNAMICS:
Toward the Rule of Law Ubiquitous World

Hiroshi Matsuo*(Keio Universiy)

1. Introduction: Issues on the Rule of Law Promotionin the Asian Context
Since the 1960s, countries in East and Southeast Asia have achieved rapid
and sustained economic growth. Among its possible reasons, some economists
and political scientists focused on the role of political regimes described as “thedevelopmental state,” in which technocratic bureaucrats devised and implemented rational plans based on development policies.1 Those bureaucrats were protected by government leaders, which tended to be “authoritarian,”2 though they
maintained cooperative relationships with the private sector.3* Professor, Keio University Law School, and Director, Keio Institute for Global Law andDevelopment.
1

As for the meaning of the developmental state, see Johnson 1982: pp. 17-33.

2

For instance, on the authoritarian nature of the Japanese government, see Johnson 1982: pp.

37, 270. However, there are different types of authoritarian regime and Japanese one is different from Korean one (ibid., pp. 316-317). For the Authoritarian regimes in Southeast Asia,
see Morgenbesser 2020.
3

World Bank 1993: p. 13. Besides, for some democratic elements in the authoritarian govern-ment, see Studwell 2013: p. xxvi.
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However, state-led rapid growth managed by government officials has had
some side effects. The democratic control of political powers exercised by governments with authoritarian tendencies has been central problems related to theprocess of economic development, such as structured corruption (“kōzō-oshoku”
in Japanese) caused by the coalition of bureaucrats, politicians, and businesses.4
The authoritarian nature of government is not the same, even within East andSoutheast Asian countries,5 and the problems experienced by individual statesvary. But issues on the control of government powers have repeatedly matteredin each of these countries’ development context.
In a recent case in Japan, the Cabinet decided on 31 January 2019 that the retirement age of 63 years for public prosecutors6 shall be extended for an additional six months, particularly for Mr. K. It was an extraordinary Cabinet decision
without any legal ground. For ordinary government officials, there is a provision
for the extension of the retirement age under certain circumstances, for example,
due to the special expertise of a particular official who cannot be replaced by another official for the moment.7 It aims to avoid serious harm to the public interest.
But this provision shall not be applied to public prosecutors because the Law on
Public Prosecutors is enacted as a special law to the Law on Central Government
Officials, and there is no provision on the extension of the retirement age in the
Law on Public Prosecutors to avoid political intervention in the prosecutor’s
personnel. The government has officially confirmed this interpretation8, andit had been kept in practice without exception until the Cabinet decision on 31
January 2019, as mentioned above. In response to the critics, the Prime Minister
responded on 13 February 2020 that the Cabinet had changed the former interpretation of the relevant provision of the Law on Central Government Officials tothe effect that it shall be applied to public prosecutors. Subsequently, on 16 April
4

For the governmental corruption scandals in Japan, see Johnson 1982: p. 68 with note 83.

5

Johnson 1982: pp. 316-317.

6

Section 22 of the Law on Public Prosecutors Office.

7

Section 81-3 of the Law on Central Government Officials.

8

For instance, the remark by the Director of General Office, Personnel Bureau on 28 April 1981.
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THE RULE OF LAW PROMOTION IN ASIAN DYNAMICS

2020, the Cabinet submitted a Bill to Amend the Law on Public Prosecutors thatenabled the Cabinet to decide on the extension of the retirement age for certain
high-ranked prosecutors within one year after turning 63 years old. Further criticism was levied by former prosecutors, including the former Prosecutor General
to the Minister of Justice, on 15 May 2020.9 This incident illustrates the current
state of the rule of law in Japan through the treatment of a provision of a particular law by the government, which is thought to be authoritarian.10
Recently, government measures for the COVID-19 pandemic have also been
important issues concerned with the rule of law. What are the correct restrictions
on people’s free activities to protect their lives and health from infectious disease in the name of the public interest? In Japan, the Special Measures Law forCountermeasures against the New Influenza, etc. (SMLCNI)11 was amended in
response to the COVID-19 pandemic. On 26 March 2020, the Headquarters for
the Control of New Coronavirus Infectious Disease was established within the
Cabinet Secretariat based on Sec. 15 (1) SMLCNI. However, measures to avoid
the spreading of the epidemic taken by the SMLCNI are currently very limited,12
and the government cannot take any compulsory measures to restrict people’s
activities. It is difficult to coordinate effective measures from the viewpoint of
security as a whole and the freedom of individuals. What is the most effective
legal response to the COVID-19 pandemic? Which country has been the most9

The Opinion of the Volunteers of Former Prosecutor, drafted by Isao Shimizu, 15 May

2020, Asahi Shimbun, 16 May 2020, p. 29.
10

The Opinion (Fn. 9) criticized the change of interpretation of Sec. 81-3 of the Law on Cen-

tral Government Officials (see Fn. 7 and the corresponding text) announced by the Prime
Minister on 13 February 2020 as it is reminiscent of Louis XIV (1638-1715) who said “I am
the State.” See also Fn. 2 supra.
11

Law No. 31, 2012.

12

In the state of emergency announced by the central government (Sec. 32 SMLCNI), (i) the

prefectual governor may request the inhabitants necessary cooperation and the manager of
certain facilities measures necessary to avoid infections; (ii) if the manager of facilities did
not follow the request without justifiable reason, the prefectural governor may instruct the
manager necessary measures; and (iii) the prefectual governor must publicly announce thatthe request and instruction were given to the manager of facilities (Sec. 45 SMLCNI).
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successful in managing it? The difference in the number of infected persons andthe mortality rate from country to country divides the evaluation of restrictive
governments’ measures between reevaluating the authoritarian system on the
one hand and warning against surveillance and controlled society on the other.13
Furthermore, democracy promotion and human rights protections are major
objectives to which the rule of law is expected to contribute through the management of government powers. Access to legal information that the government
holds, compensation for damages caused by government actions, the protectionof the rights of minorities, children, workers, etc., have all tended to be subordinated to the developmental issues prioritized by authoritarian governments in thedevelopmental state.14
But, issues on the rule of law are not limited to the control of the politicalpowers of authoritarian governments, as discussed above. The rule of law presupposes that the law can bind people backed by the centralization of government powers. There are two sides to the promotion of the rule of law, in the sensethat the law can on the one hand bind people, and on the other hand bind thegovernment. However, it is not easy to achieve both at the same time. There is adilemma in that the former must be a prerequisite for the latter15, and countries in
East and Southeast Asia are still seeking to strengthen the binding force of law,
yet strengthened powers are difficult to restrain.
There is no fixed answer to this puzzle. However, our experiences in Asian
countries can provide some suggestions for possible solutions, although they
will vary depending on each country’s political and economic conditions. Even
within the countries of East and Southeast Asia, the people and governments arefacing different problems of the rule of law, suggesting that the concept, structure, and method of promotion of the rule of law may be flexible per a country’s
development process.
13

For the rule of law approach to issue on the COVID-19 pandemic, see 2.2 infra.

14

These issues are treated in the following chapters in this Part.

15

That the law must be capable of being obeyed is the original sense of law and the basic ideaof the rule of law. See Raz 2009: pp. 212-214.
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THE RULE OF LAW PROMOTION IN ASIAN DYNAMICS

2. The Use of Law as a Government’s Measure
to Promote Economic Development
2.1 The Rule of Law versus Rule by Law?
It is recognized that governments played a central role in achieving the remarkable economic growth from the 1960s to the 1980s in Korea, Taiwan, Hong
Kong, Singapore, Malaysia, Indonesia, Thailand, and Japan, called the High
Performing Asian Economies (HPAEs). They did so by implementing various
economic policies16, including industrial policy, financial policy, export promotion policy, medium- and long-term planning policy, and infrastructure provision
policy, such as a railway, port, airport, communication facilities, electric power,
etc. For instance, governments selectively intervened in industries, and they gavethem financial supports and tax privileges to enhance their competitive strength,
which was linked with the stimulation of exports and contributed to swift economic growth in Korea, Taiwan, Malaysia, Singapore, and Japan17. The governments passed special laws to implement those policies.
The legislation seemed to have three meanings. Firstly, it was used as ananchor to prevent political interference by opposition parties, making the policies difficult to be changed, and facilitating their precise execution. Secondly,
the legislation of policies secured a source of financing from the government
budget. And thirdly, it was regarded as a type of social contract which helped
governments gain the understanding of the citizens for the legislated policy andcontributed to providing a platform for cooperation between the state and theprivate sector18. The instrumental usage of the law can also be seen in China,
Vietnam, and Laos since the middle of the 1980s when they introduced market
mechanisms.
However, when authoritarian governments use legislation as a nominal jus16

World Bank 1993: pp. 1-3.

17

Matsuo 2016: Chapter 6, Section 2; Chapter 7, Section 2; Chapter 8, Section 1, 2, Chapter 9,

Section 2; Chapter 10, Section 2.
18

Matsuo 2016: the last paragraph of Section 2, Chapter 6.
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tification of development policies without deliberated discussion in the assemblyand by restraining the opposition both inside and outside the assembly, it cancause critical reactions from civil society alleging that their substantial rights
have been affected. Such an instrumental usage of the law by authoritarian governments has been often criticized as “rule by law” as opposed to the rule oflaw.19 But is it always correct to conceptualize rule by law as the opposite of therule of law? Various aspects have been developed around the concept of rule bylaw and its relationship with the rule of law.20 It depends on the conception of
19

For instance, the term of “rule by law” is used to mean “the use of the legal form as a cloak

for arbitrary power”, or “the use of law as a tool of abuse.” See Balasubramaiam 2008: p. 211.
However, it recognizes two other “non-prejorative” ways of understanding rule by law: (i) an
avoidable side-effect of legal order that the law is not always successful in discipling politicalpower even when the legislator conscientiously attempted to impose such discipline; (ii) the
idea which is more akin to the rule of law understood as a moral idea (ibid., pp. 211-212, note3). On the rule of law and rule by law in Singapore, see Silverstein 2008: p. 1131; Rajah 2012.
20

They include Lugosi 2003, Silverstein 2008, Balasubramaniam 2008, Rajah 2012, Tushnet

2014, Li 2015, Ng 2019, Waldron 2019.
A comprehensive review of the contrasts between rule by law and the rule of law is given
by Waldron 2019. (i) The most common contrast is: under rule by law, law is used by theauthoritarian government as an instrument to achieve the political ends, but it is not used tocontrol the government itself (legal authoritarianism); under the rule of law, the government
itself is constrained by law (government subjection to law) (ibid., pp. 3-6). (ii) Another contrast between them is found in the different conception of law: under the rule by law, the law
is understood as enacted legislation and government regulation; under the rule of law, the law
includes that is not subject to government, that is, “autonomous law” such as common law andcustomary law (or natural law) (ibid., pp. 12-13). The legal thought might have influenced thedistinction (ibid., pp. 10-12). The supporters of neo-liberal thought dislike the legislative andregulatory restrictions on free transactions to be imposed by the discretionary government.
The term “rule by law” has often been used in a critical context as the antithesis of the ruleof law. In this context, rule by law is a “debased version of the rule of law,” and rule “by”
law adopts “a much maligned” usage of a preposition (ibid., p. 3). However, it is questioned
whether the difference between rule by law and the rule of law is a difference of kind or adifference of degree. Rule by law can be distinguished from rule by the despotic governmentthat does not use law at all (rule by law can be the antithesis of rule by evil men). The legality, which rule by law implies, can be interpreted as demanding the rule of law. And the ruleof law cannot restrain all government actions for the public good. If these points are consid-8-

THE RULE OF LAW PROMOTION IN ASIAN DYNAMICS

rule by law and the rule of law. The contrast between rule by law and the ruleby law is correlated with the contrast between formal definition and substantive
definition of the rule of law.
According to the formal definition of the rule of law, it is recognized as existing when a state has a set of articulated laws made by a legislature, the laws
are precisely executed by a reliable executive, and a conflict can be solved by ajudgment which is given in an open court of an independent judiciary in an open
trial and is equally enforced.21 The formal conception of the rule of law can becompatible with rule by law as it means the use of political power through law.22
The government can effectively regulate people’s actions through legislation.
However, it cannot guarantee that the content of the law is “good” enough suchthat it substantially protects the people’s rights. In this sense, the formal definition can be considered a “thin” definition 23 or “rule-book” conception of the ruleof law24.

ered, the difference between rule by law and the rule of law is subtle and not the difference ofkind, and the usefulness of the distinction is beginning to evaporate (ibid., pp. 14-21).
I agree with Waldron’s review of rule by law that it captures “a considerable element ofwhat the rule of law is supposed to involve” (ibid., p. 23). The problem is how we should
identify the elements that make up the entire structure of the rule of law. As a tentative assumption, I will capture figuratively the entire structure of the rule of law as a three-story
building, in which the first and second stories correspond to the elements of rule by law. See
the text corresponding to note 39 in 3.3 infra.
21

For the summary of formal definition, see Stephenson 2001; Matsuo 2005: p. 59. J. Raz

who defends the formal conception developed it in 8 principles. See Raz 2009: pp. 214-219.
22

We should not regard the rule of law defined in a formal sense as the same as rule by law,because there are variations in the formal rule of law and in rule by law so that they do notalways overlap each other. However, if we understand the concept of rule by law not in thenegative sense but in the positive sense that even the authoritarian government shall exercise
its political power through law, which is stipulated in advance by a legislature, executed precisely by officials, and adjudicated in a particular case by the independent court, rule by law
shares largely common elements with the rule of law in the formal definition.
23

Peerenboom 2004: p. 2. A thin conception focuses on the formal or instrumental aspects ofrule of law.
24

Dworkin 1985: p. 11. The rule-book conception insists that the state’s power should never-9-

If we follow the substantive definition and identify the rule of law with therule of good law, rule by law must be distinguished from the rule of law because government actions to be characterized as rule by law may infringe on therights of the people, which should be provided according to the good law that isnormatively just and right.25 According to this conception, the rule of law is notnecessarily sufficient, even with the existence of laws enacted by the legislature,
executed precisely by the executive, and interpreted by the independent judiciary; it is only so if the substantial content of the law is recognized as normatively
just and right. In this sense, the substantive definition is considered the “thick”
definition 26 or the “rights” conception of the rule of law27. Under the substantive
understanding of the rule of law, the government should primarily protect the lifeof the people, guarantee freedom of the people’s actions, and manage the balance
between regulation and freedom.
Why is the definition of the rule of law split into two (or more) meanings?28
The reason is that we can be satisfied neither with the formal definition nor withthe substantive definition. Two (or more) definitions would converge if we had acompleted legal system which is equipped with good laws with perfect integrity,
rightly created and enforced by a strong government, and voluntarily obeyed by
be exercised against individual citizens except in accordance with rules explicitly set out ina public rule book available to all. It implies that not only the government but also ordinary
citizens must play by these public rules until they are changed, in accordance with further
rules about how they are to be changed, which are also set out in the rule book.
25

For the summary of substantive definition, see Stephenson 2001; Matsuo 2005: p. 59.

26

Peernboom 2004: p. 4. A thick (or substantive) conception incorporates elements, in ad-

dition to the basic elements of the thin conception, of political morality such as economic
arrangements, government forms, or human rights conceptions.
27

Dworkin 1985: pp. 11-12. The rights conception assumes that citizens have moral rights

and duties one another, and political rights against the state as a whole. These moral and political rights shall be recognized in positive law and enforced.
28

On the functional definition of the rule of law, which focuses on “how well the law and le-gal system perform some function” such as constraining the government discretion, making
legal doctrines predictable, etc., see Stephenson 2001. It seems to include both elements ofthe formal and substantive definition.
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THE RULE OF LAW PROMOTION IN ASIAN DYNAMICS

the people; a perfect state with good laws, good government and good governance will find the right answer in response to any questions. But where is sucha legal system? Nowhere. Then, if we followed the formal definition, it would
be dangerous to blindly follow the law legislated by the authority of the government. As our experiences tell us, the legislated law might infringe on the basic
rights of the people. But if we follow the substantive definition, it may be difficult to identify which law is good, just, and right objectively, and we would not
be able to determine what the law is when different views are competing on the
goodness, justness, and rightness of the content of the law. This is the dilemmathat is inherent to the definition of the rule of law.
However, this dilemma seems to be caused by the very question which asks
abstractly and statically, “what is the rule of law?” It seems to be a classroom
question rather than an empirical and practical question. In reality, especially inthe development process of a country, the question of what the rule of law is canhardly be separated from the question of how the rule of law is created, developed and established. If we combine the question of what the rule of law is with
the question of how it is established in the development process of a country,
the formal definition of the rule of law can be compromised with the substantive definition by dividing development into stages: the early stage, in which therule of law by the formal definition shall be installed, and the advanced stage, inwhich the rule of law by the substantive definition should be implemented.29
From the viewpoint of this dynamic conception of the rule of law as a process starting from the formal and the thin rule of law and developing toward thesubstantive and the thick rule of law, the element of rule by law can be included
29This sequential conception of the rule of law starting from the formal or thin to thesubstantive or thick rule of law would not contradict with the recognition that “the core
meaning” or “basic element” of the rule of law refers to a system in which law can impose
restraints on the government, because the latter recognition of the rule of law is described incontast to “a rule by law.” See Peerenboom 2004: p. 2. Similarly, Tamanaha recognizes as “thefirst cluster” of the rule of law meaning that the government is limited by the law, in contrast
to “the second cluster” which is characterized as the “formal legality” or “the rule by rules.”Tamanaha 2004: pp. 137-141.
- 11 -

in the process of establishing the rule of law to be coordinated by the concept ofgood governance of a state. The reason is that in the development process, therule of law is not an independent goal but is rather an instrument for achieving
the more comprehensive goal of good governance of the state.30
As mentioned above, during the development process of the countries of Eastand Southeast Asia, which experienced rapid and sustained economic growthunder government leadership, governments must have been strong enough to devise and implement development plans by the instrumental use of the law. In thisprocess, “rule by law” has been in the construction process of the rule of law as apart of good governance to promote the economic development of the state.31

2.2 Should the Best Law or the Best Man/Woman Rule?
In addition to the question of the relationship between rule by law and therule of law, another question to be considered regarding the authoritarian governments of the Asian developmental state is whether the rule of man or woman canbe an alternative to the rule of law. The authoritarian government which uses law
as an instrument to attain the political goals can be conceptually distinguishedfrom the authoritarian (or despotic) government which does not use law at all or
pretends to use law only nominally, though, in practice, it is difficult to classify aparticular government into either of them.
From the East and Southeast Asian experiences, we can ask why the authoritarian government has so often been needed for development. Can we understandthat the authoritarian state is still in a period of transition to the rule of law, andauthoritarianism is a necessary condition for establishing strong government
through the centralization of political powers? In that sense, is the rule by man/woman a tentative state on the way to the construction of the rule of law? Or can
the rule of best man/woman be an alternative to the rule of law?
30

Matsuo 2009: pp. 53-55.

31

A typical example is the implementation of industrial policies by enacting the laws to pro-

mote certain industries, which have been held important for the state, as mentioned above inthe first paragraph in this Sub-section.
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THE RULE OF LAW PROMOTION IN ASIAN DYNAMICS

It is recognized that effective economic institutions must ultimately be undergirded by political institutions that contain the power of the legal enforcementof contracts.32 Although there is no automatic process to produce political organizations that will create the necessary legal system and precisely enforce it,
there are, allegedly, two ideal political models of the authoritarian version andthe consensual version: While an authoritarian ruler who sincerely dedicateshim/herself to promoting economic growth has a substantial advantage in the
short run, in the longer run, a polity based on the consensus of the people inaccordance with the rule of law will become dominant. The reason is explainedthat the ruler’s dedication to good economic performance will eventually be undermined by unexpected crises and the mortality of the genius rulers. However,
not only does the creation of a stable consensual polity, bound by the rule of law,take time33 but also, more fundamentally, matters to be deliberated in detail andjudged promptly cannot be prescribed in law. As a matter of fact, there appearedsome successful authoritarian regimes that have shown stable economic growthin the Asian region. Here the discussion comes to the starting point that asks theAristotelian question of whether the best man or the best law should rule.
But some things can, and other things cannot, be comprehended under thelaw, and this is the origin of the vexed question whether the best law or thebest man should rule. For matters of detail about which men deliberate cannot
be included in legislation. Nor does anyone deny that the decision of such matters must be left to man, but it is argued that there should be many judges, andnot one only. For every ruler who has been trained by the law judges well; andit would surely seem strange that a person should see better with two eyes, orhear better with two ears, or act better with two hands or feet, than many with
many; … These are the principal controversies relating to monarchy.

32

North 2005: p. 118.

33

North 2005: pp. 157, 161. It requires to develop “a deep underlying set of norms to con-strain players” (ibid.: p. 161).
- 13 -

But may not all this be true in some cases and not in others? For there is bynature both a justice and an advantage appropriate to the rule of a master, another kingly rule, another constitutional rule; but there is none naturally appropriate to tyranny, or to any other perverted form of government; for thesecome into being contrary to nature. …34
The first paragraph makes critical comments both on the rule of law and therule of man. The law cannot be comprehensive enough to provide necessary matters, and there are “matters of detail about which men deliberate” and which cannot be included in the law, so they must be left to a person.35 However, a person
cannot see, hear, or act better than many persons.
But the second paragraph implies that there are variations on good government, including monarchy, depending on the nature of the people.
A people who are by nature capable of producing a race superior in the excellence needed for political rule are fitted for kingly government; and a people
submitting to be ruled as freemen by men whose excellence renders themcapable of political command are adapted for an aristocracy; while the people who are suited for constitutional freedom are those among whom there
naturally exists a warlike multitude … [which is] able to rule and to obey inturn by a law which gives office to the well-to-do according to their desert.36
These comments on the rule of law and the rule of man may seem to apply tothe development process of Asian countries, which are on the way to rapid economic development. The rule of man/woman still seems to be a rival of the rule

34

Aristotle, Politics, Book III, 1287b 16-41 [Barnes (ed.) 1984: pp. 2043-2044].

35

As for the so-called “third source” of government authority in British-style legal systemor the Presidential prerogative in the U. S.-style legal system to act for the public good, when
law cannot stipulate in advance what the government should do for the public good, see Waldron 2019: pp. 18-21.
36

Aristotle, Politics, Book III, 1288a 8-15 [Barnes (ed.) 1984: p. 2044].
- 14 -

THE RULE OF LAW PROMOTION IN ASIAN DYNAMICS

of law if he/she is full of providence and free from all types of corruption. In thedevelopment process, there are so many things to be deliberated by the government, which are difficult to be prescribed in law. In this circumstance, the rule oflaw is not an absolute value but is the best of the second-best alternatives to therule of man/woman, who often lacks foresight and is inseparable from corruption.
Not only in the process of development but also in the state of an emergency
such as the COVID-19 pandemic, the correct measures that should be taken by
the government are difficult to be stipulated by the legislation in advance. Somecountries under authoritarian governments seem to manage the epidemic better
than other countries, as measured by the number of infected persons and themortality rate, although there are warnings against excessive surveillance andtoo strict control of society. Y. Harari puts it:
In their battle against the coronavirus epidemic several governments have already deployed the new surveillance tools. … By closely monitoring people’ssmartphones, making use of hundreds of millions of face-recognising cameras, and obliging people to check and report their body temperature and medical condition, … authorities can not only quickly identify suspected coronavirus carriers, but also track their movements and identify anyone they cameinto contact with. A range of mobile apps warn citizens about their proximity
to infected patients.
…
Even when infections from coronavirus are down to zero, some data-hungry
governments could argue they needed to keep the biometric surveillancesystems in place because they fear a second wave of coronavirus, or because
there is a new Ebola strain evolving in central Africa, or because … you get
the idea. A big battle has been raging in recent years over our privacy. The
coronavirus crisis could be the battle’s tipping point. For when people are
given a choice between privacy and health, they will usually choose health.37
37

Harari 2020.
- 15 -

The government of every country has been facing the dilemmas of balancing regulations for public health with guarantees of human liberty. However, it
should be noted that there is a governmental success story (such as that of Taiwan), which has thoroughly disclosed the information needed by its citizens according to a special law and created norms for their voluntary cooperation, providing us with a model to balance public health and democratic liberty. It implies
that there may be a possible solution to the freedom versus health dilemma, alongwith the promotion of the rule of law. For that purpose, we need to understandthe rule of law flexibly, as a dynamic process to be constructed corresponding to
the unique conditions of society.

3. The Construction of the Rule of Law
in the Development Dynamics of a State
3.1 The Promotion of the Rule of Law as a Process of Constructionof a Building on Preexisting Ground
The rule of law is not a uniform and static entity found in some countries, butrather a diversified and dynamic construction based on the development context
of each country. It is like the construction of a building, which will consist of atleast three stories to be constructed on the ground as a basis of the building.
First of all, it is important to confirm that the rule of law building cannot be
constructed without any preexisting ground on which a new building could beconstructed. As for the rule of law building, the ground consists of the existingnorms of a society, including traditional norms, customs, beliefs, religions, andother social norms that have been shared by the members of the society and thus
are binding. We cannot neglect, ignore, or disregard those existing norms, eventhough they may seem to be irrational, outdated, or ritualistic. The problem is
how to treat them when a new law is introduced in the society.

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THE RULE OF LAW PROMOTION IN ASIAN DYNAMICS

3.2 The First Floor of the Rule of Law Building
To build the rule of law structure, we have to start from the existing rules,
which include the traditionally evolved informal rules; we cannot make a fresh
start by removing the existing norms. The new laws, which will either replace
the existing rules or amend them, can be introduced by accommodating them insome way. In this respect, the government must pay close attention to the voicesof the people about what they think of the current rules and the new laws to be
introduced in the society. This is the first floor — the ground floor — of the ruleof law construction. The introduction of new laws in a society can be achieved inaccordance with the rules to change rules, if any. However, it is often difficult to
identify the rules that are used to change rules — the rules of change — in traditional society because traditional rules are not intended to be changed; and ifthey are changed, the rules of change are not articulated or published.38 Conflicts
may occur when provisions of a new law have some gaps with the existing rules.
In this case, it may take time to compromise with the dissenting members of society on the new provisions.
But for the governments of developmental states in Asia, it has been difficult
to take enough time to accommodate new provisions with the existing rules, towhich changes have been carried out with little delay. Authoritarian governments
have often applied new laws with little political pressure from society. In thiscase, however, the gaps between the new and traditional rules have remained inplace for a long time.

3.3 The Second Floor of the Rule of Law Building
Statutory law is not recognized as existing unless it can be applied and enforced in individual cases. The second stage of the rule of law construction is
to build the enforcement mechanism to apply the created law to concrete cases
and to execute it according to the provisions of the law. In this process, the law
38

The rules to change rules are the secondary rules in the sense of Hart’s Concept of Law (seeHart 2012: pp. 95-96). The traditional society does not always have the distinct secondary
rules to be distinguished from the primary rules.
- 17 -

should be correctly interpreted and legitimately enforced by the central and local
governments, including the courts. In this respect, the government must be bothstrong and legitimate. It presupposes the centralization of political powers by acountry’s unified government. This is the second floor of the rule of law building
and the stage at which the “rule by law” system can be established, in which thelaw shall be obeyed by the people as well as by the government.39 It also conforms to the rule of law in the formal definition.40
Through the centralization of political powers, the government must be
strong and stable enough to enforce the laws such as those for taxation, for example, and to execute the final judgment of the court. The centralization process,however, differs depending on the historical conditions of each country. Even in
the Asian region, this process has significant variation. It should be noted that
centralization appears to be a precondition of the rule of law, rather than a resultof the rule of law, even though the promotion of the rule of law may support
and consolidate centralization, which would ultimately be based on the people’s
confidence in the government. A centralized and strong government can be compatible with a democratic government, and thus it becomes more stable. A centralized, strong, and stable government should not be confused with a despotic or
autocratic government, which is inherently unstable and weak in the long run.

3.4 The Third Floor of the Rule of Law Building
The rule of law will make further progress when it develops the mechanism
to regularly review whether the law’s content is right and just in accordance withthe fundamental principles of the country’s basic laws and in consideration of thesocial change following legislation. Through this progress, the rule of law canadvance toward the entity in its substantive definition. This review mechanism
can be described as the third floor of the rule of law building.
This mechanism includes a judicial review of the constitutionality of laws

39

As for the element of rule by law, see 2.1 supra.

40

As for the formal definition of the rule of law, see 2.1 supra.
- 18 -

THE RULE OF LAW PROMOTION IN ASIAN DYNAMICS[Figure] The Rule of Law Building

Third floor

Principles to review justness andrightness of existing laws andgovernment actions for avoiding
abuse of government powers

Second floor

Enforcement laws with execution
mechanism backed by thegovernment powers

First floor(Basement floor)

Enacted laws accommodated withthe existing rules

GroundExisting norms (traditional norms,
customs, beliefs, religions…)

Globalnorms

and regulations and of government actions by the normal court and the constitutional court if any. Judicial review, however, should not be enough because
the court, including the constitutional court, if any, may be subject to politicalpressure from the administrative, government party, political parties, and otherpolitical groups. The most important and fundamental element of the review
mechanism is that the principles to review the content of laws can be analyzed,
deepened, and debated so that they reflect the common sense of the society. In
this respect, the role of the university is crucial in studying the fundamental
principles and methods of dissemination so that they will become articulated andincorporated into people’s thoughts.41
A vital object of this mechanism is the review of government actions.
Through this function, the rule of law should restrain the government from deviating from the law and abusing its powers. In this regard, the rightness andjustness of government actions shall be reviewed according to the fundamental
principles of law, the power of which should ultimately be based on the people’s
concern about, acceptance of, and support for them. However, such principles
41

As for the role of university in the rule of law promotion, see 5.2 infra.
- 19 -

are always subject to cross-border debate in a globalizing world; the rule of law
construction in one country cannot be isolated from the emerging supranational
norms that have developed at the level of the globalizing community of states.

4. The Rule of Law Construction in the Globalizing World
The principles to review the rightness and justness of laws are influenced by
the globalization of certain norms. For instance, on 4 September 2013, the Supreme Court of Japan held that Section 900, Item 4, Proviso, First sentence of the
Civil Code, which had provided that the inheritance share of an illegitimate childshall be half that of a legitimate child, had been unconstitutional for violating
Article 14 (1) of the Constitution42 when the succession took place for the plaintiff (the illegitimate child) in July 2001 at the latest.43 It unanimously changed theestablished precedent, which held on 7 July 1995 that the provision was constitutional, although four judges gave dissenting opinions.44
What was the cause of this change to precedent? As is indicated in the reasoning for the judgment, international norms appear to have influenced the decision, including Section 24 (1) and Section 26 of the International Covenant on
Civil and Political Rights (1966)45, and Sec. 2 and Sec. 3 of the Convention on the
Rights of the Child (1989)46. In addition, Japan received recommendations fromthe United Nations Human Rights Committee for the elimination of discrimination since 4 November 1993. After this change to precedent, the Diet removed
42

Article 14 (1) of the Constitution of Japan provides: “All of the people are equal under thelaw and there shall be no discrimination in political, economic or social relations because ofrace, creed, sex, social status or family origin.” The English translation of the Constitution ofJapan is available at: [http://www.japaneselawtranslation.go.jp/law/detail_main?id=174].
43

Supreme Court Decision (Grandl Bench) 4 September 2013 Minji-hanreishū Vol. 67, No. 6,

p. 1320 [https://www.courts.go.jp/app/hanrei_en/detail?id=1203].
44

Supreme Court Decision (Grand Bench) 7 July 1995 Minji-hanreishū Vo. 49, Nor. 7, p.1789.

45

Japan ratified it on 4 August 1979 and it came into effect on 21 September 1979.

46

Japan ratified it on 16 May 1994 and it came into effect on 22 May 1994.
- 20 -

THE RULE OF LAW PROMOTION IN ASIAN DYNAMICS

Section 900, Item 4, Proviso, First sentence of the Civil Code.47 The former
Section. 900, Item 4, Proviso, First sentence of the Civil Code was based on theprinciple of respect for legal marriage and protection of marital units. To note isthat this principle was neither changed nor abrogated, but rather restricted by theprinciple of non-discrimination by birth and respect for a child as an individual,
which had gradually been diffused into the consciousness of the people.48
These globalizing norms are not necessarily “hard laws”, ratified and to be
enforced by the state such as treaties, but rather “soft laws”, which are neither
ratified nor enforced by the state, such as the Declaration of the United Nations
Conference on the Human Environment (1972), Declaration on the Right to Development (1986), Rio Declaration on Environment and Development (1992),
Declaration on the Rights of Indigenous People (2007), Sustainable Development
Goals (2015), etc. Similarly, companies can no longer neglect Principles for Responsive Investment (PRI: 2006), which aim to incorporate Environmental, Social, and Corporate Governance (ESG) issues into investment analysis and decision-making processes, Corporate Social Responsibility (CSR) evaluation, Task
Force on Climate-related Financial Disclosures (TCFD: 2017), etc. Althoughthese soft laws are not executed by the state, they are actually binding throughthe concerns of the related parties. In this sense, the rule of law does not mean
the rule of hard law which is created and enforced by the state. Current globalizing norms have been woven with hard laws and soft laws to form a complex webof rules created and evolved in the globalizing world. Even national legislation,such as the Civil Code, is within reach of this global web of norms.
An example of this dynamic in Japan is the Law on the Promotion of Policies
for Realization of the Society Where the Pride of the Ainu People Shall Be Respected, which passed the Diet on 19 April 2019.49 Section 1 of this law explicitly
47

Law No. 94, 11 December 2013.

48

See the concurring opinion by Justice Kiyoko Okabe attached to the court opinion in theSupreme Court Decision (Grandl Bench) 4 September 2013 Minji-hanreishū Vol. 67, No. 6, p.
1320 [https://www.courts.go.jp/app/hanrei_en/detail?id=1203].
49

Law No. 16, 26 April 2019.
- 21 -

recognizes that the Ainu people are the indigenous people in Japan, the first time
so recognized in Japanese legislation. This law was also influenced by the Declaration on the Rights of Indigenous People (2007), together with proposals andactivities by global non-governmental organizations.
However, global norms cannot be the legal basis on which the global rule oflaw shall be constructed, as this would require establishing a centralized world
government with united political authority over all states that make up the international system. As I. Kant warned, such a global, centralized world government,
either “a universal monarchy”50 or “a world-republic”51 would be dangerous because if it abuses its powers or deviates from its laws, there is no higher authoritythat can effectively restrict it.
The idea of international law presupposes the separate existence of a numberof neighbouring and independent states; and, although such a condition ofthings is in itself already a state of war, (if a federative union of these nations
does not prevent the outbreak of hostilities) yet, according to the Idea of reason, this is better than that all the states should be merged into one under apower which has gained the ascendency over its neighbours and gradually
become a universal monarchy. For the wider the sphere of their jurisdiction,
the more laws lose in force; and soulless despotism, when it has choked
the seeds of good, at last sinks into anarchy. Nevertheless it is the desire ofevery state, or of its ruler, to attain to a permanent condition of peace in thisvery way; that is to say, by subjecting the whole world as far as possible toits sway. But nature wills it otherwise. She employs two means to separate
nations, and prevent them from intermixing: namely, the differences of language and of religion.52

50

Kant 1795 (translated by M. C. Smith 1903): Second Section, Second Definitive Article fora Perpetual Peace, p. 155.
51

Kant 1795 (translated by M. C. Smith 1903): First Supplement, 2, p. 136.

52

Kant 1795 (translated M. C. Smith 1903): First Supplement, 2, pp. 155-156.
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THE RULE OF LAW PROMOTION IN ASIAN DYNAMICS

Instead of establishing a world government, either a universal monarchy ora world republic, a system of global governance can be created in which the ruleof law building could be constructed in each country as explained above.53 But,in that system, global norms must be shared by all state members;54 the systemof global governance is destined to fail if each country sticks to a home-countryfirst policy.

5. The Role of the University in the Rule of Law Construction
5.1 Fostering Legal Intermediaries Who Bridge between Laws andCitizen’s Daily LifeIn the process of the rule of law construction, the university should play animportant role through its education and research activities. As explained above,
the principles to review the content of laws and government actions and their effectiveness to restrict government powers could be based on the people’s concern
about, acceptance of, and support for them. However, the details of legal rules
are too complex and technical to be easily understood by ordinary people. They
need individuals who can translate technical legal terms into ordinary language
and explain complicated legal rules through easy-to-understand examples. Anintermediary can provide a bridge between legal matters and citizen’s daily life,
and whom ordinary citizens can easily access at a reasonable cost. To develop
the required number of such intermediaries, the university should provide appropriate curriculums at a reasonable cost within a reasonable period.55 They will53

See 3.1 to 3.4 supra.

54

It can be modeled on “a federation” or “a federative union” in the sense of “an alliance” ofnations based on “a covenant of peace” (foedus pacificum) in Kant 1795 (translated by M. C.
Smith 1903): Second Section, Second Definitive Article for a Perpetual Peace, and First Supplement, 2, pp. 134, 136, 155.
55

From this perspective, we should review the legal education programs and the content ofstate examination or bar examination. Legal abilities to become the intermediary person
should be trained in university and measured by examination.
- 23 -

include candidates for judges, prosecutors, and lawyers, and other legal professionals. But that’s not all. Graduates of the faculty of law or law-related faculty
who do not take or pass the state examination or bar examination to become
legal professionals, but find employment in private companies and government
offices, can also become intermediaries. The range of persons who can be legal
intermediaries could expand through effective legal education. They can include
elementary, junior high, and high school teachers who will provide education oflaw to their students.56
Legal education in university has been an academic venture because it aims
not only to acquire knowledge of legal rules but also to understand the primary underlying principles through which the meaning of laws, the process oflaw-making, and the administration of the law can be realized rationally andcomprehensively through reflection that coordinates various bodies of legal
knowledge.57
In order to develop this system of intermediaries who can provide advice forthe solution of global issues, not from the narrow view of national interests but
from a global perspective, it is worth considering the formation of an international collaborative network among the universities. Pilots of this collaboration
among universities to share experiences have already been launched.58

5.2 Study of the Rule of Law and Its Promotion
5.2.1 Study Aspects of the Rule of Law
Another role of universities in the rule of law construction is the study of acountry’s rule of law structure, including traditional norms of the society; theconstruction process of the rule of law, including the enforcement mechanisms;
and the underlying principles, which are the ultimate ground to review the rightness and justness of laws. This study will contribute to identifying impediments
56

As for the education of law for the ordinary people, see 5.3 infra.

57

See Vinogradoff 1913: pp. 8-9.

58

The Programs for Fostering Asian Global Legal Professions (PAGLEP) are one of the chal-lenges for that purpose. As for PAGLEP, see [http://keiglad.keio.ac.jp/en/paglep/].
- 24 -

THE RULE OF LAW PROMOTION IN ASIAN DYNAMICS

that may hamper the promotion of the rule of law in a country. Obstacles may
include the gap between traditional norms and newly enacted laws, which havenot been accommodated even after the legislation, the incomplete or immature
centralization of the political powers of government, or the change of awarenessby society about some principles of laws.
5.2.2 Study of the Structure and Construction Process of the Rule of Law
It should be noted that there would be no uniform rule of law structure
because all steps in the rule of law construction must start from existing institutions, which vary greatly from country to country as a part of its governancestructure. Therefore, the rule of law must be carefully promoted in conformity
with the existing institutions to maintain the governance of each state. The history of Asian countries shows us that efforts by authoritarian governments tochange governance by adopting comprehensive new laws have caused confusionand distortions, as well as achievements. In this regard, the historical, socio-legal, and comparative study of the rule of law structure and its construction process in Asian developmental states would be useful. We will find various typesof rule of law buildings within the Asian region, with different structures built on
different terrain.
At the same time, however, we will also find some similarities in the region
as a result of common struggles in the rule of law construction, such as seeking
to accommodate the rule of law construction in authoritarian governments with
global norms and global legal order.
5.2.3 Study of the Principles Underlying Laws and Government Actions
A crucial aim of legal study is the analysis of underlying principles of laws.
It is based on the legal-philosophical analysis of a country’s comprehensive legal
system by confirming the consistency of laws in conformity with the constitution. However, the object of analysis is not limited to hard laws under the constitution, but also includes soft laws, which are now a part of a country’s legal
system through the influence of globalizing norms. The study of principles is- 25 -

the normative interpretation of the legal rules that form a country’s legal systemthrough reflection. Such an interpretation should also involve an empirical survey of the people’s awareness of these legal principles; a serious gap between theprinciples and the people’s awareness and understanding of them, as evidenced
by widespread disregard of or disgust with those principles, would hinder a normative force of them as the basis for reviewing laws and government actions.
At the same time, however, the principles and the people’s awareness of them
are not always perfectly aligned; the gap or tension between them may result
from the psychological pressure one feels to follow the principles.59
For instance, Article 13 of the Constitution of Japan stipulates: “All of thepeople shall be respected as individuals. Their right to life, liberty, and the pursuit of happiness shall, to the extent that it does not interfere with the publicwelfare, be the supreme consideration in legislation and in other governmental
affairs.”60 It recognizes individualism in the sense of respecting everyone as anindividual as the underlying principle of the Japanese legal system. The meaningof respecting everyone as an individual and the scope of its restriction for reasons of public welfare can be interpreted by considering the normative sense ofthem in the comprehensive Japanese legal system (including traditional rules andglobalizing norms) and the people’s awareness of them.

5.3 Making Communication between the Principles and the People’s Awareness of Them
If there are a certain gap and tension between the principles underlying thelaws and government actions and the people’s awareness and understandingof those principles, it is vital for people to make an effort to understand thoseprinciples. A better alignment is likely to strengthen people’s acceptance of andsupport for the principles. This is the agenda of education of law to be provided
59

This tense relationship is a natural consequence of providing a norm, which is supposed to

guide the people’s action by restraining his/her free decision making.
60

The English translation of the Constitution of Japan is available at: [http://www.japanesel-

awtranslation.go.jp/law/detail_main?id=174].
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THE RULE OF LAW PROMOTION IN ASIAN DYNAMICS

to ordinary people.61 We should recognize that it is a very important and indispensable process of the rule of law construction.62
Improving education so that it is provided not only to “gentlemen” but also toa wider circle of people in society, Vinogradoff “would like to explain as briefly
and simply as possible the main principles which underlie legal arrangements”.63
One need not be a barrister or a solicitor, a member of parliament, a justiceof the peace, or even an elector, to take an interest in and feel responsibilities
towards laws: all those who pay taxes and own property of any kind, whohire and supply labour, who stand on their rights and encounter the rights ofothers, are directly concerned with laws, whether realize it or not. Sometimes
a knowledge of law may help directly in the matter of claiming and defending
what belongs to one; on other occasions it may enlighten a juror or an elector
in the exercise of his important functions; in any case, every member of thecommunity takes his share in the formation of public opinion, which is oneof the most potent factors in producing and modifying law.
… Although the details of legal rules are complicated and technical, the operations of the mind in the domain of law are based on common sense, andmay be followed without difficulty by persons of ordinary intelligence andeducation.64
In the education of law, the legal intermediaries mentioned above65, including
law teachers in universities, are expected to provide not just technical knowledgeof the law but also explanations of the underlying principles by using easy-to-un61

As for the education of law to be provided by elementary, junior high, and high school

teachers for their students, see 5.1 supra. But the education of law is not limited for students
but should also be provided for ordinary persons.
62

Strengthening the people’s awareness of underlying principles is a part of the third floor

construction in the rule of law building as mentioned above (see 3.4 supra and Figure).
63

Vinogradoff 1913: pp. 7, 9.

64

Vinogradoff 1913: pp. 8-9.

65

As for the legal intermediaries, see 5.1 supra.
- 27 -

derstand terminology in ordinary language for individuals who have had an
ordinary education and who may take an interest in and feel a sense of responsibility toward the law.66 If those principles could be transformed into “common
sense” of the people and could create a “public opinion” on crucial occasions,they would become the strongest aspect of the law. In this sense, the method of
education of law is a significant object of study to contribute to the rule of law
construction.

6. Conclusion: The Asian Challenge for
the Rule of Law Ubiquitous World
The rule of law cannot be established in a shorter period of time, and Asian
countries are still seeking its promotion. In the process of modernization67 andindependence from colonial rule68, Asian countries embarked on building therule of law through the transformation of a governance structure into either aconstitutional monarchy or a republic. The first priority on the agenda was thecentralization of political powers following the feudal rule or the colonial rule.
The second item on the agenda was economic growth to strengthen the financial
basis of the state led by the newly-established, but often still centralizing government. The government enacted laws as a measure to implement government
policies, which was characterized as rule by law. The rule of law in the sensethat the law should restrain centralized and strong government power has been
demanded by some governments in Asia that are still in the process of centralization. This pressure to promote the rule of law has been increasing in the

66

Different from the legal education, the education of law may be expected to provide forordinary persons by the legal intermediaries on a volunteer basis.
67

Since the end of the 19th century, modernaization of Asian countries was promoted by thegovernment officials who studied in and foreigners whom the government hired from European countrie, so that it was mostly Westernization in its substance.
68

The exceptions were Nepal, Thailand, and Japan.
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THE RULE OF LAW PROMOTION IN ASIAN DYNAMICS

globalization movement. However, it should be noted that, as the structure andthe construction process of the rule of law in Asian countries tells us69, without
the construction of rule by law as the first and second floors of the rule of law
building, the rule of law would not be established. The construction of the ruleof law building in Asian countries is still ongoing. The point is how to combine
the strengthening of the government through centralizing political powers withrestricting those political powers in order to avoid abuse and irregularities. How
can the “law” effectively restrict “politics”? Kant has already taken up this issue.
Now certainly, if there is neither freedom and nor a moral law founded upon
it, and every actual or possible event happens in the mere mechanical courseof nature, then politics, as the art of making use of this physical necessity inthings for the government of men, is the whole of practical wisdom and theidea of law [der Rechtsbegreff] is an empty concept. If, on the other hand, we
find that this idea of law necessarily to be conjoined with politics and even to
be raised to the position of a limiting condition of politics, then the possibility of reconciling them must be admitted. …70
Kant proposed relying on “a moral politician,” who “understands the principles of statesmanship to be such as do not conflict with morals,” and who isdifferent from “a political moralist,” who “fashions for himself such a system of
ethics as may serve the interest of statesmen.”71 We can add the following story by paying attention to the education of law for the people, who can become,foster, or watch “a moral politician,” and legal education for the legal intermediaries who will provide the education of law.72 This is a common challenge of the69

As for the rule of law’s structure and its construction process, see 3.1 to 3.4 supra.

70

Kant 1795 (translated by M. C. Smith 1903): Appendix I, p. 165. A part of translation ischanged in accordance with the original text.
71

Kant 1795 (translated by M. C. Smith 1903): Appendix I, pp. 165-166.

72

Also they can become, foster, and watch “a moral politician” for themselves. For the edu-

cation of law and legal education, see 5.1 and 5.3 supra.
- 29 -

Asian countries that are currently constructing the rule of law. Their experiences
will provide useful lessons on how we can use law to manage politics under theunique conditions in each country. They will enrich the general theory of thepromotion of the rule of law applicable under different conditions in different
countries.
By using these experiences, if the rule of law as described — as a three-story
building on the own ground — were constructed in as many countries as possible, and if global governance were established as a federation of peaceful states
without creating a world government73, the rule of law would be enjoyed in many
places on the globe. It would contribute to creating a space in which anyone, at
any time, and anywhere could enjoy the fair and effective protection of rights andfreedoms as a benefit of the rule of law, just like the air we breathe wherever we
happen to be on the planet. We can call that space “the world in which the rule oflaw is ubiquitous” or abbreviatedly “the rule of law ubiquitous world.”74 It is an
ideal, which is still far from the present conditions, but it is worth the challenge.75

References:
Aristotle, Politics, in Jonathan Barnes (ed.), The Complete Works of Aristotle, the Revised Oxford Translation, Vol. 2, Princeton University Press, 1984.
Balasubramaniam, Ratna Rueban, “Has Rule by Law Killed the Rule of Law in Malaysia,” Oxford University Commonwealth Law Journal, Vol. 8, No. 2, 2008, pp. 211-236.
Dworkin, Ronald, A Matter of Principle, Harvard University Press, 1985.
73

For the establishment of a sustainable world peace through the formation of a federation ofpeace (foedus pacificum), see Kant 1795 (translated by M. C. Smith 1903): Second Section,
Second Definitive Article for a Perpetual Peace, pp. 134, 136.
74

For the concept of rule of law ubiquitous world, see [http://keiglad.keio.ac.jp/en/keiglad/].

75

It will contribute to the realization of inclusive institutions expressed in the Goal 16 of

the Sustainable Development Goals (SDGs), which aims to promote peaceful and inclusive
societies for sustainable development, provide access to justice for all and build effective,
accountable and inclusive institutions at all levels. As for the SDGs, see [https://sdgs.un.org/
goals].
- 30 -

THE RULE OF LAW PROMOTION IN ASIAN DYNAMICS

Harari, Yuval Noah, “The world after coronavirus,” [https://www.ft.com/content/19d903086858-11ea-a3c9-1fe6fedcca75], Financial Times, 20 March 2020.
Hart, H. L. A., The Concept of Law, Third Edition, with a Postscript edited by Penelope A.
Bulloch and Joseph Raz, and with an Introduction and Notes by Leslie Green, Oxford
University Press, 2012.
Johnson, Chalmers, MITI and the Japanese Miracle: The Growth of Industrial Policy, 19251975, Stanford University Press, 1982.
Kant, Immanuel, Zum ewigen Frieden: Ein philosophischer Entwurf, Königsberg, bei Friedrich Nicolvius, 1795; translated by M. Campbell Smith M.A., Perpetual Peace: Completewith Introduction, Notes, Supplements, Appendices, and Index, Wildside Press, 2009.
Li, Ji, “The Leviathan’s Rule by Law,” Journal of Empirical Legal Studies, Vol. 12, No. 4,
2015, pp. 815-846.
Lugosi, Charles, “Rule of Law or Rule by Law: The Detention of Yaser Hamdi,” American
Journal of Criminal Law, Vol. 30, 2003, pp. 225-278.
Matsuo, Hiroshi, “The Rule of Law and Economic Development: A Cause or a Result?”, in: Y.
Matsuura (ed.), The Role of Law in Development: Past, Present and Future, Nagoya University, CALE Books, 2005, pp. 59-70.
Matsuo, Hiroshi, “Let the Rule of Law be Flexible to Attain Good Governance,” in: Per Bergling, Jenny Ederlöf and Veronica L. Taylor (eds.), Rule of Law Promotion: Global Perspectives, Local Applications, Iustus, Uppsala, 2009, pp. 41-56.
Matsuo, Hiroshi, “Access to Justice in Indochinese Countries,” in Michèle and Henrik
Schmiegelow (eds.), Institutional Competition between Common Law and Civil Law,
Springer-Verlag, 2014, pp. 249-277.
Matsuo, Hiroshi, Hattensuru-ajia-no-seiji-keizai-hō: Hō-wa-seiji-keizai-no-tameni-nani-gadekiruka [Politics, Economics and Law in Developing Asia: What Can Law Do for Development?], Nihonhyoron-sha, 2016.
Morgenbesser, Lee, The Rise of Sophisticated Authoritarianism in Southeast Asia, Cambridge
University Press, 2020.
Ng, Kwai Hang, “Is China a Rule-by-Law Regime,” Buffalo Law Review, Vol. 67, No. 3, 2019,
pp. 793-821.
North, Douglass C., Understanding the Process of Economic Change, Princeton University
Press, 2005.
Peerenboom, Randall (ed.), Asian Discourses of Rule of Law, Routledge Curzon, 2004.
Rajah, Jothie, Authoritarian Rule of Law: Legislation, Discourse and Legitimacy in Singapore,
Cambridge University Press, 2012.
Raz, Joseph, The Authority of Law: Essays on Law and Morality, Clarendon Press, Oxford,
1979.
Stephenson, Mattew, “The Rule of Law as a Goal of Development Policy,” [https://www.securewebexchange.com/metamodequadrant.com/stephenson.html], 2001.

- 31 -

Silverstein, Gordon, “Singapre: The Exception That Proves Rules Matter,” in: Tom Ginsburg
and Tamir Moustafa (eds.), Rule by Law: Politics of Courts in Authritarian Regimes,
Cambridge University Press, 2008.
Studwell, Joe, How Asia Works: Success and Failure in the World’s Most Dynamic Region,
Grove Press, 2013.
Tamanaha, Brian, On the Rule of Law: History, Politics, Theory, Cambridge University Press,
2004.
Tushnet, Mark, “Rule by Law or Rule of Law,” Asia Pacific Law Review, Vol. 22, No.2, 2014,
pp. 79-92.
Vinogradoff, Paul, Common-sense in Law, Williams & Norgate, 1913.
Waldron, Jeremy, “Rule by Law: A Much Maligned Preposition (25 April, 2019),” NYU Schoolof Law, Public Law Research Paper, No. 19-19, Available at SSRN: [https://ssrn.com/abstract=3378167 or http://dx.doi.org/10.2139/ssrn.3378167].
World Bank, The East Asian Miracle: Economic Growth and Public Policy, Oxford University
Press, 1993.

- 32 -

Chapter 2

THE ROLE OF FACULTY OF LAW,THAMMASAT UNIVERSITY, IN PROMOTINGACCESS TO JUSTICE IN THAILAND
DURING THE COVID-19 PANDEMIC

Ronnakorn Bunmee*(Thammasat University)

1. Introduction
The coronavirus disease 2019 (COVID-19) pandemic hit Thailand traumatically as it did virtually all countries worldwide. To limit the outbreak, the government imposed a lockdown on almost all businesses between March and July
2020. The lockdown measures were intended to prevent a catastrophic healthcrisis. As a result, there were just 4,261 confirmed cases and 60 deaths1 against
the previous estimate of over 350,000 patients.2 Therefore, it came as no surprisethat the World Health Organization praised Thailand as a “successful model forcontaining the spread of COVID-19.”3 Conversely, the World Bank anticipated* Assistant Professor, Faculty of Law, Thammasat University.
1

World Health Organization, WHO Coronavirus Disease (COVID-19) Dashboard, accessedfrom https://covid19.who.int/ on 18 December 2020.
2

Faculty of Science Mahidol University, The estimation of the COVID-19 pandemic growthrate, accessed from https://stang.sc.mahidol.ac.th/kb/?p=766, on 18 December 2020.
3

UN News, Thailand’s COVID-19 response an example of resilience and solidarity:

a UN Resident Coordinator blog, accessed from https://news.un.org/en/story/- 33 -

that Thailand’s economy would contract significantly to become the worst affected nation in the East Asia and Pacific Region.4
In short, Thailand’s success in containing the virus’s spread has glaringly
devastated the country’s economy. This economic failure is partly because of thenear halting of international tourist arrivals and near cessation of global trade,which are the aorta of Thailand’s economy. Thailand relies heavily on international trade and tourism to thrive, so it was evident that the economy would
suffer greatly when both dropped. The lockdown measures rubbed salt into thewound since private consumption, especially of retail and recreational services,
has practically halted due to these measures. When the economic arteries andcapillaries are both blocked, the lifeblood of the economy stops flowing. There
are at least two issues concerning debts that have arisen due to a ruined economy
and related mobility restrictions. First, many debtors probably cannot meet their
obligations. Second, debtors cannot seek quick, reliable legal advice about what
they should do when performance is rendered impossible due to their change incircumstances.
The first part of this paper will outline some legal consequences under Thailaw when repaying debts is impossible. The next part will explain the role that
the Faculty of Law of Thammasat University has played in this dire situation to
help people access justice.

2020/08/1069191 on 18 December 2020; ThaiPBS, WHO director praises Thailand as a good model for containing COVID-19, accessed from https://www.
thaipbsworld.com/who-director-praises-thailand-as-a-good-model-for-containingcovid-19/, on 18 December 2020.
4

The World Bank, Thailand Economic Monitor June 2020: Thailand in the Time of COV-

ID-19, accessed from https://www.worldbank.org/en/country/thailand/publication/
thailand-economic-monitor-june-2020-thailand-in-the-time-of-covid-19, on 18 December 2020.
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THE ROLE OF FACULTY OF LAW, THAMMASAT UNIVERSITY, IN PROMOTING ACCESS TOJUSTICE IN THAILAND DURING THE COVID-19 PANDEMIC

2. Change in Circumstances under Thai Law
There are two sections provided in the Thai Civil and Commercial Code thatdeal with a situation where performance has been rendered impossible, sections
205, 218, and 219, shown below.
Section 205

If the performance is incomplete due to a circumstance forwhich the debtor is not responsible, the debtor is not in default.
Section 218 If the performance becomes impossible due to a circumstancefor which the debtor is responsible, the debtor shall pay the creditor the compensation for non-performance damages…
Section 219 If the performance becomes impossible due to a circumstancethat occurred after the obligation formed, for which the debtor is not responsible, the debtor is relieved from the obligation…
Since this paper discusses the impossibility of performing due to the COVID-19 pandemic, which is not the debtor’s fault, section 218 is not applicable.
It will not be mentioned again in this paper. The difference between the tworemaining sections is that while section 205 deals with temporary impossibility,
section 219 deals with permanent impossibility.
These two sections are applied automatically to all contracts unless they
include a specific clause that says otherwise. The impossibility of performancecan occur as a permanent or temporary impossibility. The difference between
the two categories is the potential removal of obstacles leading to the inability to
repay the debt. Suppose the debtor, for instance, is a singer contracted to perform
in a concert. However, due to government-imposed restrictions on movement andcrowd gathering, the debtor cannot perform. This is a case of temporary impossibility since the debtor can still sing at a concert when the restrictions are lifted.
One needs to differentiate between a performance that is impossible todeliver and one that is extremely difficult, which would require the debtor toendure substantial hardship or expense. The latter case still refers to potential- 35 -

performance; thus, the obligation is not excused. Then we shall consider whether
the COVID-19 mobility restrictions and economic hardship have rendered performance impossible. To the best of the author’s knowledge, there is no direct
Supreme Court ruling stating that COVID-19 constituted a force majeure. None
the less, according to previous precedents, one should not have any difficulties
understanding that COVID-19 will be considered a force majeure and rendered
many contractual performances impossible to deliver. The exact answer to thequestion depends on the nature of the performance and how the pandemic affected the debtor’s ability to perform.
Here are some notable relevant Supreme Court’s rulings;
Supreme Court Decision 3546/2546 (2002)5
The 1998 Asian financial crisis that caused the collapse of most financial
institutions and gross damage to all business sectors in Thailand, and severely affected many debtors’ ability to repay the debts owed to financial institutions, did not automatically render the performance impossible. The Court
must verify the impossibility of performance on a case-by-case basis to determine whether the debtor is relieved from the obligation without liability.
Supreme Court Decision 2934/2522 (1979)6
The debtor agreed to sell construction materials made of crude oil to thecreditor. However, an increase in the price of crude oil in the international
market led to a sharp increase in the domestic market’s construction materials and affected their availability. The debtor refused to perform the obligation on the grounds of the impossibility of performance. The Supreme Court
held that it was not an impossibility of performance.

5

Translated by Associate Professor Dr Munin Pongsapan.

6

Translated by Associate Professor Dr Munin Pongsapan.
- 36 -

THE ROLE OF FACULTY OF LAW, THAMMASAT UNIVERSITY, IN PROMOTING ACCESS TOJUSTICE IN THAILAND DURING THE COVID-19 PANDEMIC

3. The Faculty’s Role in Promoting Access to Justice:
TU Pandemic Legal Aid Center
Since virtually no major legislative changes exist to cope with the COVID-19
pandemic situation, the Faculty, guided by Dean Munin Ponsapan, initiated the
TU Pandemic Legal Aid Center7 to help people, regardless of nationality or financial status, receive legal advice online free of charge. The only criterion wasthat the client must not be from a for-profit organization as the Faculty offering
the service based on charity. This ad hoc legal aid center is in line with the university’s core values, which holds the rule of law and the people as paramount. It
was established with the view that both Thai and foreign people’s opportunities
to access legal advice has been severely limited due to the restrictions. Without
proper knowledge, people are considerably disadvantaged when facing a legal
dispute that must be settled.
Since this was an ad hoc legal aid center with limited resources, the cases eligible for consultations had to relate to the COVID-19 pandemic. Otherwise, theclient could contact the LAW TU Legal Aid Center, which has been established
for more than 40 years and still ran concurrently with the COVID-19 legal aid
center. In exchange for free legal advice, every client had to provide their consent
to the Faculty to publish redacted data relating to their case in the public interest.
Up to July 2020, there were 80 cases deemed eligible and thoroughly consulted.
Of that number, 55% and 30% were labor cases and contract disputes, respectively; only a little over 10% about criminal matters. Most of the clients (85%) choseto receive consultations through Facebook Messenger.
Besides providing free legal consultations, the TU Pandemic Legal Aid
Center also published academic papers about law and the pandemic through online platforms to transfer knowledge and increase outreach. This was implemented in the hope that people residing in Thailand might better understand theirrights in the middle of the crisis, therefore reducing the disadvantages suffered
7

For more information of the centre, visit https://www.facebook.com/tulawcovid19.
- 37 -

by vulnerable people.

4. Conclusion
Although 2020 will be remembered as one of the most distressing and difficult years on record, it will also be remembered as one year where people came
together to help those in need get through this unprecedentedly tough time. The
Faculty of Law, Thammasat University, is proud to serve the community asa source of legal knowledge and the home of leading lawyers working for thecountry and as one of the beacons of hope for people in need. We will continue
to champion more effective legal instruments and lawyers and the equality of all
the people before the law.

- 38 -

Chapter 3

ACCESS TO LEGALINFORMATION:
A Case of Vietnam

Phan Thi Lan Huong*(Hanoi Law University)

1. Why Access to Legal Information Is Importantin Building a Rule of Law State
According to the Oxford English Dictionary, the term “rule of law” is defined as: “The authority and influence of law in society, especially when viewed
as a constraint on individual and institutional behavior; (hence) the principle
whereby all members of a society (including those in government) are considered equally subject to publicly disclosed legal codes and processes.”1 This term
is interpreted from the French phrase la principe de legality (the principle of legality), which is defined as government based on tenets of law and not the whimsof men.2 Rechtsstaat is the term used in German legal and political terminology.
The United Nations (UN) refers to “rule of law” as “a principle of governanceby which all persons, institutions, and entities, public and private, including* Law lecturer, Deputy Head of International Cooperation Department, Hanoi Law University
1

Oxford English Dictionary online, See Garner, Bryan A. (Editor in Chief). Black’s Law

Dictionary, 9th Edition, p. 1448 (Thomson Reuters, 2009).
2“Origin and Concept of Rule of Law,” accessed August 4, 2020, https://www.lawteacher.net/free-law-essays/administrative-law/origin-and-concept-of-rule-of-law-administrative-law-essay.php.
- 39 -

the State itself, are accountable to laws that are publicly promulgated, equally
enforced and independently adjudicated, and which are consistent with international human rights norms and standards.”3 The Association of Southeast Asian
Nations (ASEAN) Charter also obliges member states to adhere to the rule oflaw and to promote and protect human rights and fundamental freedoms.4
However, the rule of law is interpreted differently from country to country,
depending on political and social conditions. In other words, the concept is transplanted differently in different societies. For example, in common law countries
which follow separation principles, jurisdiction of the courts is crucial important, therefore, the judges hold power to interpret the laws and case precedents
are important sources of laws. Whereas, in civil law countries, laws are the main
sources for resolving disputes. Nonetheless, there are some common elements,
such as: “(1) a government bound by and ruled by law; (2) equality before thelaw; (3) the establishment of law and order; (4) the efficient and predictable application of justice; and (5) the protection of human rights.”5 The rule of law embodies the principle that all people are equal under the legal system and attempts
to ensure that everyone is accountable to the law. Put more succinctly, the rule oflaw means that no one is above the law.
In Vietnam, rule of law is quite a new concept and officially stipulated under the 2013 Constitution: “The Socialist Republic of Vietnam is a socialist
rule of law State of the People, by the People and for the People”6 Vietnam
has instituted legal reforms intending to build a comprehensive legal system in

3

UN Security Council, The Rule of Law and Transitional Justice in Conflict and Post-Con-

flict Societies: Report of the Secretary-Genre-al to the Security Council, S/2004/616, 23 August 2004. https://digitallibrary.un.org/record/527647?ln=en, accessed 1 December 2020.
4

Charter of the Association of Southeast Asian Nations, Chapter I, Article 1 (7).

5

“Origin and Concept of Rule of Law,” accessed August 6, 2020, https://www.lawteacher.

net/free-law-essays/administrative-law/origin-and-concept-of-rule-of-law-administrativelaw-essay.php.
6

The 2013 Constitution, Article 2(1).
- 40 -

ACCESS TO LEGAL INFORMATION

which human rights are protected and state powers are controlled. Vietnam isin a transitional period, government has made great efforts in developing freemarket policies. The 2013 Constitution defines the concentration of state power
as follows: “The State powers are unified and delegated to state bodies, whichshall coordinate with and control one another in the exercise of the legislative,
executive and judiciary powers.”7 Although, there is no separation of powers orchecks and balances between the legislative, executive, and judicial branches inVietnam, Vietnam under the Communist Party has developed a comprehensive
legal framework to provide impartial control of the use of power by the state asa key factor in building a rule of law state. The 2013 Constitution also stipulates
that: “(1) The State is organized and operates in concordance with the Constitution and the law, manages society by the Constitution and the law and practices
the principle of democratic centralism; (2) All state agencies, cadres, officials
and employees must show respect for the People, devotedly serve the People,
maintain close contact with the People, listen to their opinions and submit totheir supervision; resolutely struggle against corruption, wastefulness and all
manifestations of bureaucracy, arrogance and authoritarianism.”8
Like the other developing countries in Asian, promoting rule of law and legal
reform are very important conditions for achieving the Millennium Development
Goals in Vietnam. Globalization is influencing legal system of Asian countries.
It requires each country to reform its legal system towards rule of law and good
governance standards. Vietnam has been struggling for building a rule of law
state. Socialist rule of law state in Vietnam includes the following features: (1)state power belong to people; (2) distribution of state power; (3) separation ofparty leading role and state management; (4) development of consistent and stable legal system: (5) effectiveness of law in administration; (6) equal legal protection; (7) and the independent of the judicial system.9
7

The 2013 Constitution of Vietnam, Article 2(3).

8Ibid., Article 8.

9Hongyi Chen, Constitutionalism in Asia in the Early Twenty-First Century (Cambridge

University Press, 2014), 198.
- 41 -

In addition, human rights are also protected by the Constitution. It is the firsttime that the term “human rights” has been officially recognized in the Constitution. Article 14 (1) provides that: “In the Socialist Republic of Vietnam, humanrights and citizens’ rights in the political, civic, economic, cultural and social
fields are recognized, respected, protected and guaranteed in concordance with
the Constitution and the law.” According to this article, human rights are protected and guaranteed by the State. In other words, State agencies are responsible
for ensuring that all citizens can exercise their rights and enjoy their freedom in
all aspects of daily life. Vietnam has embarked on reforming its legal system toensure detailed implementation of human rights.
Access to information is a fundamental right of the people and plays an important role in building a rule of law state. “The right to access to official documents is considered essential to self-determination of the people and the exerciseof the fundamental human rights, while helping administrative agencies appear
more legitimate and trustworthy in the public eyes.”10
Currently, there is a proposal for a UN Convention on the Right of Free
Access to Public Legal Information as an independent and substantive right incorporated in the Hague Conference Guiding Principles.11 The right to access to
information is crucial for building an accountable and transparent government,
as well as promoting access to justice. It is evident that lack of legal access to information may infringe on human rights or the legitimate interests of individuals
and groups. For example, during the COVID-19 pandemic, persons with disabilities and ethnic minorities had difficulties accessing information about allowanc-

10

Hermann-Josef Blanke and Ricardo Perlingeiro, The Right of Access to Public Information:

An International Comparative Legal Survey (Springer, 2018), 3.
11

Mitee, Leesi Ebenezer, The New Human Right of Free Access to Public Legal Informationand its Proposed United Nations Convention (October 6, 2019). Mitee, Leesi Ebenezer, The
Human Right of Free Access to Public Legal Information Book Series, Upcoming Volume
1 (2020), Available at SSRN: https://ssrn.com/abstract=3131610 or http://dx.doi.org/10.2139/
ssrn.3131610- 42 -

ACCESS TO LEGAL INFORMATION

es or healthcare services.
Every member country of the UN has to develop a comprehensive legal
framework for promoting their citizens’ access to justice. The Principles asserts
the right of free access to public legal information as a legal right and emphasizes its importance in the international human rights framework. People needaccess to legal information as one key element for ensuring justice.12
Enabling individuals and organizations to access legal information is crucial
for promoting accountability and transparency of government. Every government needs to guarantee this right by developing legal regulations and building
effective data systems. This is also necessary for citizens to be protected. Accessto legal information is also a key element for access to justice. A key challenge
for every country trying to build a rule-of-law State is ensuring access to legal
information in criminal proceedings, in administrative disposition processes,
and in decision-making.

2. Current Situation Regarding Access to Legal Informationin Vietnam
The right to information is one of the fundamental human rights guaranteed
under the 2013 Constitution: “Citizens have the right to freedom of speech andfreedom of the press, and have the right of access to information, the right toassembly, the right to association, and the right to demonstrate. The exercise of
those rights shall be prescribed by law.”13 Access to information is one of the fundamental rights needed to ensure democracy. In 2016, the National Assembly en-

12Beth Bilson, Brea Lowenberger, Graham Sharp, REDUCING THE “JUSTICE GAP”

THROUGH ACCESS TO LEGAL INFORMATION: ESTABLISHING ACCESS TO JUSTICE ENTRY POINTS AT PUBLIC LIBRARIES, Windsor Yearbook of Access to Justice,2017, page 100 https://wyaj.uwindsor.ca/index.php/wyaj/issue/view/479, accessed August 4,
2020.
13

The 2013 Constitution, Article 25.
- 43 -

acted legislation on access to information to clearly define the term: “Informationrefers to details and data that are contained in existing documents and papers andstored in writings, printouts, electronic texts, pictures, photos, drawings, tapes,
disks, video recordings, audio recordings or in other forms produced by stateagencies.”14 This law also laid out the rules for ensuring access to information:
1. All citizens are treated equally and not discriminated against in exercising
their right of access to information.
2. The information must be provided in an accurate and sufficient manner.
3. The provision of information must be made in a timely and transparent
manner, convenient for citizens to access, and in conformity with procedures
regulated by the law.
4. Restrictions on the right of access to information must be regulated by thelaw, where necessary, for the purpose of ensuring the national defense andsecurity, social security, social ethics, and community health.
5. The exercise of the citizens’ right of access to information must not be
harmful to national interests, lawful rights, and the interests of other agencies, organizations, and individuals.
6. The Government grants favorable opportunities for the disabled and those
who reside in border regions, islands, mountainous regions, and other areas
with difficult social and economic conditions, to practice their right of accessto information.15
The legislation mandates that the following documents must be accessible tothe public: administrative documents with universal effect; drafts of legislative
documents; national and local socio-economic development strategies, programs,
projects, schemes, and plans…16 Significantly, Vietnam also enacted measures

14

Law on access to information, 2016.

15

Law on access to information, Article 3.

16

Law on access to information 2016, Article 17 (see annex).
- 44 -

ACCESS TO LEGAL INFORMATION

to ensure that citizens were informed about their legal right to information, with
the State having responsibility for such public education initiatives (Article 2).
This law also defines the methods of informing citizens about their rights, suchas press releases, mass media, loudspeakers, internet, panels, posters, publicationin the official gazettes; publishing on government websites; posting in a head office, on the notice boards of agencies, organizations, and residential areas.17
Legal information is found in legislative documents, judgments, and administrative decisions. Every legislative, executive, and judicial organizations
must provide adequate and free access to its laws and law-related publications.18
Currently, these documents are stored in a database system, mostly under the 4.0
technology renovation period. The legal information is usually searched throughweb portals that are maintained by public and private institutions.19 In Vietnam,
there are some portals that provide free access to legal information—the Ministry of Justice; government website, and the Supreme People’s Court. However,this is very limited access since the database system has not yet been developed.
Vietnam has carried out administrative reforms to create e-government infrastructure. According to the UN’s e-Government Assessment Report in 2016,
Vietnam’s e-Government Development Index (EGDI) placed the country in 89th
place out of 193 countries. This was an advance of ten places over the past two
years, with the component index of online public services (OSI) increasing by
eight places to reach 74th place (compared to the year 2014.) In 2018, Vietnam’s
EGDI ranked 88th out of 183 countries, moved up one place, including the online
service component index (OSI) which rose by 15 spots to 59 out of 193 countries(compared to the year 2016.) In 2019, the Government of Vietnam issued Res-17

Law on legal popularization and education 2012, Artilce 11.

18

Beth Bilson, Brea Lowenberger, Graham Sharp, REDUCING THE “JUSTICE GAP”

THROUGH ACCESS TO LEGAL INFORMATION: ESTABLISHING ACCESS TO JUSTICE ENTRY POINTS AT PUBLIC LIBRARIES, Windsor Yearbook of Access to Justice,2017, page 100 https://wyaj.uwindsor.ca/index.php/wyaj/issue/view/479, accessed August 4,
2020.
19

Ibid.
- 45 -

olution No.17/NQ-CP which specified the tasks and measures required for thedevelopment of electronic government for the period 2019–2020 and up to 2025.
This Resolution listed as a key goal the development of a “system for consultation of policies and legal documents in order to shorten the time to handle work,
reduce meetings, reduce administrative paperwork, publicly disclose the processof collecting opinions and improve the quality of drafted legislative documents,
special documents and increase the accountability of drafting agencies, putting
it into operation in December 2019, and continuing to develop and complete it
during the period 2020–2015.” 20 This shows that Vietnam has tried to promote
the right to access to legal information through developing e-government. Accessto legal information is considered part of “self-help services” and will promotetransparency and knowledge of the legal system.21
In general, access to legal information is guaranteed in the following areas:

2.1 Access to law enactment
The Law on Promulgation of Legal normative documents (Law on Laws
2015, amended in 2020) requires that draft laws and decisions issued by competent organs must open for public comments before enactment. “During theformulation of legislative documents, the drafting agencies and relevant organizations must enable other organizations and individuals to provide opinions
about formulation of legislative documents and draft legislative documents; seek
opinions from entities regulated by legislative documents.”22 According to thisprovision, the drafting agencies are responsible for collecting public comments.
Currently, drafts of legal documents are often published on the government portal for public comment. The amended Law on Laws 2020 also defines the responsibility of drafting agencies to consider and respond to the comments during thedrafting phase.23 Legal documents may be translated into ethnic languages and20

Resolution No.17/NQ-CP dated 7 March 2019, IV Major tasks, and solutions, 3 (b).

21“Law and Policy Reform at the Asian Development Bank,” n.d., 3.

22

Law on Promulgation of Legal normative documents, 2015, Article 6 (2).

23

Law on Promulgation of Legal normative documents amended 2020 and comes into force- 46 -

ACCESS TO LEGAL INFORMATION

foreign languages for reference purposes.24 This provision enables ethnic minority groups or foreigners living in Vietnam to access legal information. However,the number of translated documents is very limited. In addition, the legal documents are published on the portal of the related government agencies. Regarding
publishing legislative documents in the Official Gazette, Article 150 lays out thefollowing guidelines:
1. Legislative documents of central regulatory agencies must be published in
the Official Gazette of Socialist Republic of Vietnam, except for those that
contain state secrets.
2. Legislative documents of the People’s Councils and the People’s Committees of provinces, local governments of administrative-economic units mustbe published in the official gazettes of their provinces.
3. Legislative documents of the People’s Councils and the People’s Committees of districts and communes must be posted publicly and broadcast on
local media. Time and location for posting shall be decided by the Presidentof the People’s Committee of the district or commune.
4. Within 3 days of the publishing or signing date, the agency or personcompetent to promulgate legislative documents must send the document to
the regulatory of Official Gazette (Vietnam News Agency) for publishing or
public posting.
The Vietnam News Agency shall publish the legislative document in full on
the Official Gazette within 15 days if it is promulgated by a central regulatory agency or within seven days if it is promulgated by the People’s Council orthe People’s Committee of a province or local government of an administrative-economic unit from the day on which the document is received.
5. Legislative documents published on paper and electronic Official Gazetteare official and as valid as the original documents.

from January 01, January 2021, Article 2 (amended article 6 of Law 2015).
24

Law on Promulgation of Legal normative documents, 2015, Article 9.
- 47 -

6. The Government shall provide regulations on Official Gazette and postingof legislative documents.
All this shows that the right to access to legislation is guaranteed in Vietnam.
Legal documents can be accessed by different sources, including the web portalsof the National Assembly, Vietnamese Government, Ministries, Ministry-level Agencies and the Government’s Agencies, local government, as well somewebsites that focus on specific certain areas of laws. For example, the Vietnam
Chamber of Commerce and Industry under the Ministry of Industry and Tradeprovides free and open access to legal information about business, commerce,
and investment, including legal texts and cases.25 However, the number of suchopen access websites is quite limited. Currently, there are some database systems
that provide these services, such as the Law library website.26 In addition, officialtranslated legal documents to foreign languages and ethnic minority languages
remain as a crucial challenge for Vietnam to ensure all ethnic minority groups
and foreigner to access legal information effectively.

2.2 Access to judgments and decision-making by judicial organs
Under the Criminal Procedure Code 2015 or Civil Procedure Code 2015, a
trial will be open for participation. For example, Article 25 Criminal Procedure
Codes provides that “A Court tries publicly, and every person is entitled to attend the trial, unless otherwise stated in this Law. For special cases involved instate secrets, national traditions, protection of persons aged below 18 or personalprivacy as per litigants’ rational requests, a Court may try in closed session but
must pronounce its judgments publicly.” However, access to the Court judgment
is still limited. Only the relevant parties can get the judgment from the Court.
The laws do not determine clearly the right to access legal information during the25

Le Thi Hanh, Open Access to Official and Authenticated Legal Information in Vietnam,

2013, Creative Commons Attribution 3.0 Unported License: http://creativecommons.org/
licenses/by/3.0/26

https://thuvienphapluat.vn/- 48 -

ACCESS TO LEGAL INFORMATION

investigation process. Since 2016, Vietnam has introduced case precedents, with
the Justice Council of the People’s Supreme Court deciding which cases shall be
included in case laws. Those selected case precedents have been published on thewebsite.

2.3 Access to decisions issued by executive organs
During the decision-making process, administrative organs must follow administrative procedures prescribed by laws. However, Vietnam still lacks legislation on administrative procedures that would mandate a public hearing as compulsory procedures in advert disposition. Consequently, people cannot get accessto full legal information before issuing decisions. Hence, the number of administrative disputes remains very high in Vietnam. Currently, Vietnam has developed
e-government platforms that enable individuals or organizations to access legal
information for applications, such as online investment certificate application.
The laws on access to information define the responsibility of state agencies toprovide information when requested by citizens. Article 10 states that citizens
may obtain information through one of the following methods: (1) Exercise thefreedom of access to information announced by state agencies; (2) Request stateagencies to provide information. “Information is provided free of charge for citizens, except for other cases of fee collection as regulated by law.”27 According
to this provision, access to information is usually free of charge, but not for allcases. Citizens can access decisions and other information generated by administrative agencies such as the annual reports. However, annual reports are not often
disclosed online. In practice, individuals often submit requests to state agencies
for annual reports and statistical reports. However, this access is quite limited,since some state agencies are reluctant to share their reports with the public. For
example, the Viet Nam Provincial Governance and Public Administration Performance Index (PAPI) 2019 indicated that only 34.3% and 51.7% of respondents
indicated that they were, respectively, “Very pleased” and “Pleased” with public27

Law on access to information 2016, Article 12 (1).
- 49 -

Table: Satisfaction with Public Administrative Services by Accessibility to
Information about Procedures, 2019
Access to Certification Access to Construction
Procedures
Permit Procedures

Access to Land Use
Rights Certificates
Procedures

One-stop Government One-stop Government One-stop Government
Shop
PortalShop
PortalShop
PortalVery Displeased

0.47%

0.13%

0.80%

3.55%

2.54%

Displeased

1.80%

1.42%

2.78%

1.07%

7.07%

2.25%
3.82%

Normal11.69%

8.30%

16.39%

24.33%

21.15%

17.06%

Pleased51.73%

47.11%

48.47%

44.23%

45.77%

45.51%

Very Pleased

34.31%

43.04%

31.56%

26.82%

23.48%

31.35%

Mean(5 point scale)

4.17

4.31

4.07

3.90

3.81

4.00

(Source: UNDP, The Viet Nam Provincial Governance and Public Administration Performance Index(PAPI) 2019, page 21)

administrative services by accessibility to information about procedures (see table above).
Significantly, access to decisions issued by administrative agencies is crucial
for protecting the rights of individuals and organizations. For example, land acquisition in Vietnam is an enforcement to transfer of land use rights from land
users to the government through local administration agencies. Land acquisition
decisions are made on several grounds: national defense, public security, or
socio-economic developments for the benefit of the nation and the community.
In such cases, the land user has no recourse and is primarily concerned about
compensation and resettlement. Hence, individuals or organizations need accessto information related to land acquisition decisions issued by administrative
agencies. It is crucial to ensure the balance of interests among the parties: thegovernment, the investors, and the people whose land is acquired. Such access isalso necessary to ensure democracy through exercising the right of supervisionof people with seized land.28

28

PGS.TS Phan Trung Hien, Quyền tiếp cận thông tin trong thu hồi đất, bồi thường, hỗ trợ,tái định cư - nhìn từ thực tiễn Thành phố Cần Thơ, http://lapphap.vn/Pages/tintuc/tinchitiet.
- 50 -

ACCESS TO LEGAL INFORMATION

2.4 Access to free legal aid services
Legal advice and legal aid play an important role in ensuring non-discrimination in the protection of human rights. Legal aid should not cover only thecost of using services, but also the requirement to provide information, advice,
mediation, and other support services as judicial or quasi -judicial proceedings.29
Access to legal aid is also guaranteed by Vietnamese laws. Legislation enables
disadvantaged groups to access legal aid services. These groups can obtain legal
information in the process of seeking legal redress. However, free access to all
information is still limited in Vietnam. Moreover, only a small number of people
are eligible for legal aid, hence this is a “justice gap” since many low- and middle-income people cannot pay for legal advice.30 Under Article 7 of Law on Legal Aid 2017, the only groups who can get free legal aid provided by government
are: (1) persons recognized for their meritorious services in the revolution: (2)poor households; (3) children; (4) ethnic minority people permanently residing in
exceptionally difficult socio-economic conditions (5) accused persons from between 16 and 17 years of age; (6) accused persons in near-poor households; and (7)poor persons who are elderly, have disabilities, or victims of domestic violence.

2.5 Protection of the right to access to information
To ensure the implementation of the right to access to information, the Law
on Access to Information 2016 defines the right to file complaints or lawsuits asfollows: The applicant for the provision of information is entitled to complain or
file a lawsuit against the relevant state agency or the information provider in thefollowing cases: (1) when competent agencies deny to provide information without reasonable legal grounds; (2) provide information that does not fit the request

aspx?tintucid=21044, accessed August 24, 2020.
29

Council of Europe Committee of Ministers and Council of Europe Steering Committee for

Human Rights, Effective Access to the Law and to Justice for the Very Poor: Recommendation No. R (93) 1 Adopted by the Committee of Ministers of the Council of Europe on 8 January 1993 : And Explanatory Report (Council of Europe, 1994), 11.
30“Law and Policy Reform at the Asian Development Bank,” 3.
- 51 -

of individuals; (3) provides insufficient or inappropriate information; (4) does notprovide information in a timely fashion.31
These complaints or lawsuits will be handled in accordance with Law on
Complaint 2011 or Law on Administrative Lawsuit 2015. Individuals or organizations also can claim for compensation of damages. Article 15 of Law on
Access to Information provides that: “(1): Persons who commit acts of violation
against the access to information law shall, depending on the nature and severity of their violations, be disciplined or face administrative penalties or criminal
prosecution as regulated; (2) If the information provider commits any of prohibited acts stated in Article 11 of this Law and causes damage, the state agency incharge of providing information must provide compensation and the individual
who has such act of violation must assume reimbursement liability as regulatedby the law on state compensation liability.”32 The administrative procedures must
be disclosed to the public and everyone can access and follow all proceduresof application for a permission/certificate since, if an individual does not know
about procedures, he/she cannot fulfill his/her rights. For example, A applies fora land used right certificate but, after an inordinate wait, still has not yet received
any information from the relevant agencies, yet fails to file a complaint about thedelay. His complaints centers on the act of not issuing the land used right certificate, but not the act of not providing information.

3. Conclusion
Access to legal information has played important role in the protection of human rights and building a rule of law State. Access to legal information enables
citizens to know their rights and access the judicial system to seek legal redress.
Legal information is a key element of information and access to information is31

Law on Access to Information 2016, Article 14, Article 34.

32

Ibid., Article 15.
- 52 -

ACCESS TO LEGAL INFORMATION

recognized as a fundamental right of citizens. Vietnam has developed a legal
framework to ensure the right to access to legal information through many areas,
including law–making, decision-making, and judicial proceedings. Access to
information promotes transparency and accountability of governments as one of
the standards of good governance. Hence, government has to ensure that citizens
can exercise their rights without any obstacles or barriers. In other words, thegovernment should eliminate all barriers that prevent people from access to information and ensure all information directly affecting the rights and interests ofcitizens is made public.
The Government of Vietnam plans to create an e-Government platform to
improve the effectiveness and efficiency of the state administrative apparatus
and the quality of service rendered to people and businesses. The goal is to develop e-Government based on data and open that data in a Digital Government.
Vietnam aims to become one of the top four ASEAN countries in the e-Government ranking by 2025.33 Hence, developing e-government is crucial for promoting access to legal information by individuals and organizations. To promote therights access to legal information as one of the key factors for promoting accessto justice, Vietnam needs to focus on the following measures:(1) Public participation in the decision-making process should be guaranteedby laws. Government should not only bear responsibility for creating open
forums/channels for public participation, but should also determine the legal
liability of relevant agencies in responding to public comments. For example,
the laws should mandate the decision-drafting organs to respond to publiccomments in written form which explains clearly the reasons for adoption or
rejection of public comments. If the agencies cannot provide a reasonable explanation for their adoption or rejection, people can file a complaint or bringthem to Court.
(2) To develop a data-based system that provides open access to all legislative
33

Resolution No.17/NQ-CP 2019.
- 53 -

documents and decisions issued by relevant agencies. All these legislative
documents and regulations must translated into English for reference, sinceforeign enterprises and individuals living in Vietnam need to know about Vietnam’s legal system.
(3) To increase the number of people who qualify for access to legal aid services. For example, while victims of domestic violence have such access,other people who are at high risk of violence, such as sex workers, do not.
Hence, the law on legal aid should be revised to enable all disadvantaged
groups access to free legal aid services. In addition, the government should
also provide other support services during judicial proceedings. Governmentis responsible for eliminating all barriers that prevent people from access tolegal information—for example, providing signed language interpreters fordeaf people, or referring victims of sexual abuse to the healthcare system fortreatment and collecting evidence.
(4) The Law on Access to information should be revised to ensure that all annual
reports of state organs should be disclosed publicly. This will promote accountability and transparency in government. Access to official documents helps toincrease people’s trust and enables them to monitor government’s activities.
(5) Public hearings should be made compulsory procedures in the decision-making of administrative agencies. Participation in decision-making
will enable individuals and organizations to contribute their ideas and opinions about policies that directly affect their rights and interests. Such participation also promotes transparency and accountability of government andprevents government from making decisions based on group interests insteadof the public interest.
In brief, access to legal information enables people to know about their rights
and seek for legal redress. Legal information are disclosed to public is a value of
democratic society because it makes government more accountability and transparently. It also promotes equality before laws because people can participate inlaw – making, decision – making process that ensure laws and decisions respond- 54 -

ACCESS TO LEGAL INFORMATION

to public interests. Access to legal information should be recognized as a fundamental right and promoting effective mechanism to ensure the rights to accesslegal information is one of key element for building rule of law state.

4. References
The 2013 Constitution
Law on legal popularization 2012
Law on Promulgation of Legal Normative Documents 2015, amended in 2020
Law on Access to information 2016
Beth Bilson, Brea Lowenberger, Graham Sharp, REDUCING THE “JUSTICE GAP”
THROUGH ACCESS TO LEGAL INFORMATION: ESTABLISHING ACCESS TOJUSTICE ENTRY POINTS AT PUBLIC LIBRARIES, Windsor Yearbook of Access toJustice, 2017, https://wyaj.uwindsor.ca/index.php/wyaj/issue/view/479
Charter of the Association of Southeast Asian Nations, Chapter I, Article 1(7).
Le Thi Hanh, Open Access to Official and Authenticated Legal Information in Vietnam, 2013,
Creative Commons Attribution 3.0 Unported License: http://creativecommons.org/licenses/by/3.0/
Mitee, Leesi Ebenezer, The New Human Right of Free Access to Public Legal Informationand its Proposed United Nations Convention (October 6, 2019). Mitee, Leesi Ebenezer,
The Human Right of Free Access to Public Legal Information Book Series, Upcoming
Volume 1 (2020), Available at SSRN: https://ssrn.com/abstract=3131610 or http://dx.doi.
org/10.2139/ssrn.3131610
Origin And Concept Of Rule Of Law,” accessed August 6, 2020, https://www.lawteacher.net/
free-law-essays/administrative-law/origin-and-concept-of-rule-of-law-administrativelaw-essay.php
Oxford English Dictionary online, See Garner, Bryan A. (Editor in Chief). Black’s Law Dictionary, 9th Edition, p. 1448 (Thomson Reuters, 2009).
UN Security Council, The Rule of Law and Transitional Justice in Conflict and Post-ConflictSocieties: Report of the Secretary-Genre-al to the Security Council, S/2004/616, 23 August 2004.

- 55 -

5. Annex
Law on access to information, 2016.
Article 17. Information subject to mandatory disclosure
1. The following types of information must be disclosed publicly:a) Legislative documents; administrative documents with universal effect; international
treaties of which the Socialist Republic of Vietnam is a member or international agreements to which Vietnam is a signatory; administrative procedures and working procedures of state agencies.
b) Information regarding the dissemination and guidance on the implementation of laws andpolicies in sectors under the state management.
c) Drafts of legislative documents as regulated by the law on promulgation of legislative
documents; contents and results of the referendum and acquisition of people’s opinions
about issues which are under the decision of state agencies and have to be asked for people’s opinions as regulated by the law; schemes and their drafts on the establishment,
dissolution, merger or division of administrative units or modification of administrative
areas;d) National and local socio-economic development strategies, programs, projects, schemes
and plans; sector/field planning, methods and results thereof; annual working programs
and plans of state agencies.
dd) Information regarding state budget estimates; reports on state budget enactment; statebudget statements; estimates, enactment reports, statements of budgets of fundamental
construction programs/projects funded by state budget; state budget procedures.
e) Information regarding the provision, management and use of official development assistance (ODA) and non-governmental aid as regulated; information about the management
and use of social relief and benefits; and information about the management and use ofpeople’s contributions and types of funds;g) Information about lists of public investment and public procurement projects/programs,
and the management and use of public investment funding, the situation and results of theexecution of public investment plans/programs/projects; bidding information; informationon land use plans; land price; land appropriation; plans for compensation, site clearance
and resettlement concerning regional projects/works;h) Information about investment activities funded by state budget, the management and useof state capital in enterprises; reports on business and ranking of enterprises; reports on
the supervision of the disclosure of financial information of enterprises and state agencies
representing owners; information about the organization and operation of state-owned
enterprises;i) Information about products, goods and services that have adverse influence on the healthand environment; inspection conclusions in the fields of environmental protection, com- 56 -

ACCESS TO LEGAL INFORMATION

munity health, foods safety and labor safety.
k) Information about functions, tasks, powers and organization structure of agencies andtheir affiliated units; tasks and powers of officials in charge of dealing with people’s issues; internal regulations and rules promulgated by state agencies.
l) Periodical working reports; annual financial statements; information about the statistics
on sectors under the state management; sector/field-related national database; information
regarding the recruitment, use and management of officials and public employees; information about lists of scientific programs/topics and results thereof;m) The list of types of information subject to mandatory disclosure as regulated in Point b
Clause 1 Article 34 of this Law; name, address, telephone number, fax number and email
address of the state agency or the official in charge of receiving information requests;n) Information concerning public interests and community health.
o) Information concerning taxes, fees and charges.
p) Other information that must be disclosed as regulated by the law.
2. Apart from types of information prescribed in Clause 1 of this Article, state agencies shall,depending on actual conditions, actively disclose other information that they generate or manage.

- 57 -

Chapter 4

THE RULE OF LAW
IN LAO PDR:
Problems and Perspectives

Reginald M. Pastrana*(Luxembourg Agency for Development Cooperation)

1. Introduction
The Lao PDR has a long history written in the Lao people’s struggle throughthe years to build an independent and prosperous country. The nation adopted
its first Constitution in 1991 and amended it in 2003 and 2015 meet the changing
needs of socioeconomic development, as well as regional and international cooperation and integration.
The Constitution clearly establishes a political system that reflects that theLao PDR is a people’s democratic state; all powers belong to the multi-ethnic
Lao people and are exercised by the people and for their interests. The Lao people’s rights as masters of the country are exercised and guaranteed through thepolitical system they chose based on their right to self-determination, which thepeople expressed by electing a National Assembly whose members represented
their rights, powers, and interests.
The administrative system of the Lao PDR consists of the organs of state
powers, namely, the National Assembly, the government itself, the people’s* Chief Technical Advisor (LAO/031) Luxembourg Agency for Development Cooperation (LuxDev).
- 59 -

courts, and the People’s Prosecutor Offices. There are also newly establishedprovincial assemblies tasked with drawing policies, overseeing the activities intheir respective jurisdictions, and representing their local constituents on varied
local issues and concerns. In addition to these formal organs, the Lao Front for
National Construction organizes mass sociopolitical and professional organizations such as the Lao Federation of Trade Unions, the Lao People’s Revolutionary
Youth Union, the Lao Women’s Union, the Federation of Military Veterans, andothers to unite and mobilize the Lao people of all social strata in carrying out thetasks of protecting and developing the country and protecting its citizens’ rights
and legitimate interests.

2. The President of the StateThe President of the State is the head of state of the Lao People’s Democratic
Republic and the representative of the multi-ethnic Lao people both within the
country and abroad.1 The President of the State is also the head of national defense and national security and the general of the armed civilian army for independent protection, democracy, defending the homeland, and securing the peaceand stability of the nation.2
The President of the State is elected by the National Assembly by two-thirds
vote of all members present,3 and the term of office of the president is the sameas that for the National Assembly:4 The president can remain in office for notexceeding two consecutive terms.5 The president has a vice-president who is also
elected by two-thirds vote in the National Assembly.6 The vice-president exe-

1

Article 66, Chapter VI of the Lao PDR Constitution (2015).

2

Article 66, Chapter VI of the Lao PDR Constitution (2015).

3

Article 67, Chapter VI of the Lao PDR Constitution (2015).

4

Article 67, Chapter VI of the Lao PDR Constitution (2015).

5

Article 68, Chapter VI of the Lao PDR Constitution (2015).

6

Article 68, Chapter VI of the Lao PDR Constitution (2015).
- 60 -

THE RULE OF LAW IN LAO PDR

cutes all tasks assigned by the president and acts on the president’s behalf when
the president is occupied on other matters.7 In the event that the President of theState is unable to continue performing duties and responsibilities, the vice-president assumes the role until the National Assembly elects a new president.8

3. The Government: The Executive Branch
The government is the executive branch of state powers, administering ina unified manner the State’s duties in the political, economic, and sociocultural
fields, including national defense and security and foreign affairs. The government consists of the prime minister, deputy prime ministers, ministers, andchairmen of the ministry-equivalent organizations.9 The government’s term ofoffice is the same duration as that of the National Assembly;10 members can remain in the same position not exceeding two consecutive terms of office.11
The prime minister is the head of the government and represents the government in leading and managing the work of the government and local administration, having rights to appoint, transfer, or remove the vice-minister, the deputy
head of ministry-equivalent, head of division, deputy head of division, and headof sectorial; appoint or remove provincial governors and the Vientiane governor
on the approval of the provincial representatives meeting; and propose promotions and demotions for generals, colonels, and other high-ranking national
defense and security officials.12 The deputy prime ministers are assistants to theprime minister and execute the tasks assigned to them by the prime minister,13

7

Article 68, par. (2), Chapter VI of the Lao PDR Constitution (2015).

8

Article 66, par. (3), Chapter VI of the Lao PDR Constitution (2015).

9

Article 71, Chapter VII of the Lao PDR Constitution (2015).

10

Article 71, par. (2), Chapter VII of the Lao PDR Constitution (2015).

11

Article 71, par. (2), Chapter VII of the Lao PDR Constitution (2015).

12

Article 72, Chapter VI of the Lao PDR Constitution (2015).

13

Article 73, Chapter VI of the Lao PDR Constitution (2015).
- 61 -

who may assign particular deputies to carry out duties on his behalf.14
The government of the Lao PDR consists also of 14 ministries and two
ministry-equivalent organizations; the local administration is composed of 16
provinces and the capital city of Vientiane, 143 districts, and 8,955 villages. The
ministers and ministry-equivalent organizations disseminate and implement resolutions of the National Assembly and the government; supervise, monitor, and audit all tasks performed by divisions under their jurisdictions; and coordinate andparticipate in signing agreements and treaties with foreign countries as approvedby the government.15 However, the National Assembly may pass a vote of distruston the government or any member of the government provided that the vote is issued by the National Assembly Standing Committee or by the votes of more than
one-fourth of the National Assembly total members.16 In the case that the National Assembly files for distrust of the government or any individual member, thepresident reserves the right to request that the National Assembly reinvestigate
and reconsider such cases case or approve the resignation of the member.17

4. The Judicial Branch
The People’s Court is the judicial branch of the state.18 It is the only entitywith the right to examine and review cases within the Lao’s People Democratic
Republic,19 processing cases through a circuit of trial courts, appellate courts,
and the Supreme Court.20 The People’s Court of the Lao’s PDR is composed of
the People’s Supreme Court, local people’s courts, and military courts as spec-

14

Article 73, Chapter VI of the Lao PDR Constitution (2015).

15

Article 74, Chapter VI of the Lao PDR Constitution (2015).

16

Article 75, Chapter VI of the Lao PDR Constitution (2015).

17

Article 75, par. (2), Chapter VI of the Lao PDR Constitution (2015).

18

Article 90, Chapter X of the Lao PDR Constitution (2015).

19

Article 90, Chapter X of the Lao PDR Constitution (2015).

20

Article 90, Chapter X of the Lao PDR Constitution (2015).
- 62 -

THE RULE OF LAW IN LAO PDR

ified by the law.21 In necessary cases, the court may be summoned based on theapproval of the National Assembly Standing Committee.22
The People’s Supreme Court is the highest judicial organ of the State,23 andthe people’s courts make collective decisions on lower court cases.24 In their adjudication, judges must be independent and must strictly comply with the laws,25
and final court judgments are to be respected by all organizations and individuals
including the mass sociopolitical organizations; all organizations and individuals
are expected to implement any court judgments.26 The vice-president of the People’s Supreme Court is appointed or removed by the president of the state,27 andjudges of the People’s Supreme Court as well as the president, vice-president,
and judges of appellate courts are appointed or removed by the National Assembly Standing Committee.28
The Office of the Supreme Public Prosecutor of Lao People’s Democratic Republic is an organization that supervises the implementation of laws with respect
to protecting rights and benefits for individuals in society through prosecution ofwrongdoing including calling witnesses and defendants in accordance with thelaw.29 The Office of the Public Prosecutor is composed of the Office of Supreme
Public Prosecutor, the offices of local public prosecutors at provincial and citylevels, and the office of the military prosecutor as the law permits.30 The Office of
the Supreme Public Prosecutor supervises the activities of the public prosecutor
offices.31 The deputy supreme public prosecutor is appointed or removed by the21

Article 91, Chapter X of the Lao PDR Constitution (2015).

22

Article 91, Chapter X of the Lao PDR Constitution (2015).

23

Article 92, Chapter X of the Lao PDR Constitution (2015).

24

Article 92, Chapter X of the Lao PDR Constitution (2015).

25

Article 94, Chapter X of the Lao PDR Constitution (2015).

26

Article 98, Chapter X of the Lao PDR Constitution (2015).

27

Article 93, Chapter X of the Lao PDR Constitution (2015).

28

Article 93, Chapter X of the Lao PDR Constitution (2015).

29

Article 99, Chapter X of the Lao PDR Constitution (2015).

30

Article 100, Chapter X of the Lao PDR Constitution (2015).

31

Article 101, Chapter X of the Lao PDR Constitution (2015).
- 63 -

president of the state.32

5. The Legislative Branch
Under the Constitution of the Lao PDR, the National Assembly plays a vitalrole in government; it is described as a great institution because its members are
directly elected by the people and thus represent their hopes and aspirations. In
its role, the National Assembly is the highest policy-making organ of the state.
Its collective acts formulate sound policies; promote peace, order, and national
reconciliation; provide or provide for health, housing, and education services;
alleviate poverty, and protect the nation’s environment. Indeed, the National Assembly’s collective effort at law-making helps shape the national welfare.
Other than its law-making, oversight, and representation functions, the National Assembly also has pervasive and diametrically executive powers in the affairs of the government: to elect or remove the president and vice-president of thestate; to consider and approve the proposed appointment or removal of the prime
minister; to consider and approve the organizational structure of the government
and the appointment, transfer, or removal of members of the government; to elector remove the president of the People’s Supreme Court and the Supreme Public
Prosecutor; and to decide on the establishment or dissolution of the ministries,
among others.
In 2015, the Lao PDR introduced some amendments to its Constitution, particularly to establish the provincial assemblies in all provinces and in the capital.
It was also decreed that the National Assembly through its Standing Committee
would establish the National Electorate Committee to ensure credible elections.
The Lao PDR National Assembly was to be at the center of the operations toestablish the local provincial councils to shape important local policies; theaim was the effective decentralization and devolution of some social services
32

Article 102, Chapter X of the Lao PDR Constitution (2015).
- 64 -

THE RULE OF LAW IN LAO PDR

directly to the local populace. Given this expectation, the government organ
took paramount importance, and after the difficult years of protracted civil war,
the National Assembly is now in the mainstream, enjoying peace and providing
vital reforms to lead the Lao PDR onward to progress and development. At theforefront of that work was the newly established provincial assemblies. The assemblies are the law-making bodies of the local governments in Lao PDR as well
as of the capital. As legislative bodies, they are authorized to formulate a limited
range of public policies and local laws; members also represent their respective
local constituents and oversee the various activities of the local governments under their respective jurisdictions.

6. The Rule of Law and Access to Justice: Some Challenges
In general, the rule of law in Laos is in a fledgling state, particularly in thearea of access to justice, although the country has made remarkable progress
through the span of time. As the Lao justice system is entering a significant
phase, it offers citizens numerous options for legal recourse when their rights
are violated. The Government of Laos (GoL) has instituted a strong legal enabling environment to promote law and expand the Lao people’s access to justice.
Notably, GoL adopted Prime Minister (PM) Decree No. 77 to establish legal aid
offices. Currently, the government is attempting to upgrade the village mediationcommittees (VMCs), local, nonformal justice systems, into a PM decree as well.
LuxDev Project LAO/031 is helping the governance program of Lao PDR
through its “Promoting the Rule of Law and Improvement of the Legal Education– Phase 2” project in which LuxDev, together with the support of the Institutefor Legal Support and Technical Assistance (ILSTA), assists the GoL to address
key capacity and structural gaps that limit the effectiveness of the justice system
actors and that inhibit inclusive participation in rule of law reform initiatives,
including legal education, law enforcement, and access to justice. To bridge thegap between Lao citizens and the justice system, Project LAO/031 has already- 65 -

established 5 provincial and 15 district legal aid offices around the country.
These offices rely on trained district and provincial Ministry of Justice (MoJ) officers, together with members of the Lao Bar Association, to educate their fellow
citizens about their legal rights and how to defend their rights in Lao’s formal
and informal justice systems. While the rule of law in Laos is still in its fledgling
state, the project has already gained significant milestones: Last year, LAO/031
was able to support the establishment of four legal aid provincial offices in theprovinces of Bokeo, Luang Namtha, Bolikhamxay, and Khamouane, and thisyear, it is determined to complete the establishment of 15 district offices in 5
targeted provinces: Bokeo, Luang Namtha, Vientiane, Bolikhamxay, Vientiane
Khamouane.

7. The Legal Education Campaigns
Using a variety of public education materials including comic books, pamphlets, and multimedia CDs, Project LAO/031 together with the ILSTA supported
the various government functionaries, especially the MoJ, to spread informationon access to justice, particularly for women and children, to schools, provinces,districts, and villages. Important laws were also disseminated and explained suchas against human trafficking and other violations of human rights, land rights,
and several others. The Clinical Legal Education program at the Faculty of Law
and Political Science (FLP) of the National University of Laos, together withsome members of the bar association, provide free legal consultations. They also
provide legal referrals and information on human rights and other forms of legal
assistance
However, many people, especially women, do not know their legal rights or
how to use the formal justice system. Additionally, many do not know where toturn when they face legal problems that could be resolved through the courts orcommunity mediation. To reach the greatest number of vulnerable Lao citizens,
the FLP teams held a mobile legal clinic outreach mission in the far-flung prov- 66 -THE RULE OF LAW IN LAO PDR

ince of Attapeu; many citizens were able to attend and receive information on
their legal rights, obtain one-on-one counseling, on specific issues and in somecases, request for a competent lawyer to represent them in court litigations.

8. Capacity Building Programs
It must be noted that the Lao People’s Supreme Court, the State Inspection
Authority, the Office of the Supreme People’s Prosecutor, the MoJ, and security
sector institutions are critical actors in enforcing the rule of law, increasing security, and protecting citizens’ rights. However, they are still not operating at theirfull capacity, and their authority is still not fully developed. These roles need forfurther improvement.
To address some of these issues, Project LAO/031 together with ILSTA andin partnership with the GoL’s justice institutions is undertaking a broad set of activities in the area of justice sector capacity building and modernization. The primary goal of the program is to support the Lao’s justice institutions to strengthen
their capacity with the ultimate purpose of improving the rule of law in Laos.
Activities include developing capacity in the officers of these justice institutions
including focused training on key legal developments such as anti-money laundering and anti-human trafficking efforts.

9. Access to Justice in Lao PDR: Some Perspectives
A strong and reliable justice system in Laos is key to a secure society anda growing economy. The success of our society relies in large part on the trust
we all put in the rule of law and the knowledge that the courts will be there to
enforce our rights should something go wrong. PM Decree 77 on Legal Aid
aimed to increase access to justice for disadvantaged and vulnerable people in
Lao PDR, and Project LAO/031 now aims to improve the implementation of the- 67 -

decree. Specifically, the project aims to ensure that people on low income, certain senior citizens, people with disabilities or mental illness, persons without
legal capacity and their guardians, orphaned children and their guardians, andchildren in institutional care all have better access to legal services and that theircivil rights are better protected. Publicly funded legal services and other formsof free legal advice and assistance are targeted effectively, and, as a result, increasing numbers of disadvantaged and vulnerable Laotians are pursuing legal
services to protect their civil rights.
The project has improved access to justice for many marginalized community members through legal aid services, raised awareness of legal rights amongnearly 17,915 people (include viewers on social media), and built the capacityof 3,622 legal practitioners, legal educators, and key players in the government
sector. Through ILSTA, the project has enhanced professional development for
both women and men in the legal sector by providing legal skills trainings, andthe project significantly invested in improving the quality and reach of legal aid
services to ensure justice for the poorest and most vulnerable people.
In this vein, the project and its government counterparts are currently developing a legal aid “toolkit” to guide legal aid practitioners and drafting a manual
for the VMCs. In one of the training workshops on legal aid and VMCs, Ms.
Manichanh Chanthavilay, officer of the MoJ Judicial Promotion System Department and individual in charge of the legal aid program, said that in Khamouneprovince, the legal aid has benefited already 71 cases for citizens who appreciated the free legal assistance on vital matters such as human trafficking and land
disputes.
Project LAO/031 has also promoted the rule of law and protected humanrights in Laos, while supporting the judicial system to better serve and address
the needs of its citizens. The team worked alongside key government stakeholders to implement reforms and rendered technical assistance and capacity-development support to provincial legal aid offices. Among the reforms it supported
was institutionalizing PM No. 77 and holding campaigns to increase awarenessof the new law and of the amendments to the VMC legislation to enact them
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THE RULE OF LAW IN LAO PDR

through a separate PM decree. Lately, the project is providing support to institutevital reforms through amending the court enforcement of cases. Responding to
the prevalence of human trafficking and money laundering, the project, throughthe cooperative effort of ILSTA, conducted several seminar-workshop series andoffered technical support on how to combat these crimes and assisted the Lao
PDR in complying with its agreements with other countries on mutual legal assistance.

- 69 -

Chapter 5

DEVELOPMENT OF ADMINISTRATIVE LAW
AND THE RULE OF LAW IN LAOS

Latdavanh Donkeodavong*(National University of Laos)

1. Introduction
This paper describes the link between administrative law (in the form ofstate compensation and administrative case litigation) and the overall role thatlaw plays in the concrete state of the rule of law in Laos. For this, it is important
to consider the general ideal of the rule of law to indicate how it is connected tostate compensation (also known as state liability, redress, or remedy) and litigation of administrative cases, as Laos does not have fully established versions ofthese systems.1
The idea of the rule of law is a central consideration in development policies* Deputy Head of Research and Academic Service Division, Faculty of Law and Political
Science, National University of Laos. Doctor in law, Graduate School of Law of the Nagoya
University, Japan. The author would like to express sincere gratitude to the Keio University
Law School. The author is also grateful to reviewers whose comments were valuable in thispaper. All shortcomings and any errors are assumed full responsibility by the author.
1

This paper uses the term “state compensation.” In Japan, state compensation can be trans-

lated as “state redress.” It could be found in the Japanese Law Translation Database System
for State Redress Act of 1947 (Kokka Baisho Ho). See http://www.japaneselawtranslation.
go.jp/?re=2.
- 71 -

at the present time.2 A state that is under the rule of law, its agencies, and its
public servants are generally liable for illegal acts or inaction. If the population
cannot seek remedies or enforce their rights, the rule of law is undermined.3 In
principle, the basic conditions of the rule of law are respected, protected, andguaranteed by the present Constitution in Laos.4 In practice, the right of the citizen to bring tort claims in court against the State for financial compensation does
not exist. This system involves a special type of tort liability arising from inaction (also known as omission or the non-use of regulatory power), wrongful acts,or negligent lack of use of public authority by the State. The legal system in Laosdoes not provide the ability to bring litigation against the State. Judicial review
of administrative action in the interest of protecting the fundamental rights of thecitizenry has not been established, and the administration has greater power than
the judiciary. This makes it extremely difficult to litigate against the State due tothe lack of standing to bring suit against it.
Laos has been actively implementing reform of its administrative law system following the issuance by the Ministry of Justice and other ministries of the“Master Plan on Development of the Rule of Law in the Lao P. D. R” in 2009. In
2019, the National Assembly established a specialized Chamber of the Administrative Court to adjudicate administrative cases. Following a resolution of the
National Assembly’s Resolution, the People’s Supreme Court has also been drafting an “Agreement on Organizational Structure and Activities of the Chamber of
Administrative Courts.” The Ministry of Justice likewise has been working on a
“Presidential Decree on Administrative Case Proceedings” and a Law on State
Compensation. These systems are based on the Master Plan on the Rule of Law.

2David M. Trubek, “The ‘Rule of Law’ in Development Assistance: Past, Present, andFuture,” in The New Law and Economic Development. A Critical Appraisal, ed. David M.
Trubek and Alvaro Santos (Cambridge: Cambridge University Press, 2006), 74.
3

William Lucy, “Access to Justice and the Rule of Law,” Oxford Journal of Legal Studies 40,

no. 2 (2020): 378.
4

Chapter IV (Arts. 34–51) of the Constitution guarantees the Fundamental Rights and Obli-gations of Citizens.
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DEVELOPMENT OF ADMINISTRATIVE LAW AND THE RULE OF LAW IN LAOS

The State, aid agencies, and inter-university cooperation systems are also promoting the rule of law. The universities are among the key institutions that are promoting the rule of law as part of inter-university cooperation and academic research.
This paper, which demonstrates administrative law reform, the role of law
in the rule of law, and the promotion of this concept in Laos, is divided into fiveparts. Part one contains the introduction. Part two offers an account of the development of administrative law in relation to a newly proposed system of statecompensation and administrative case litigation under the rule of law. The thirdpart presents the connection between administrative law and the rule of law in
Laos, along with its promotion. Part four concentrates on the lack of access tolegal sources and the lack of academic research. The final part provides the conclusion.

2. Development of Administrative Law in Laos
2.1 Historical Development
This part reviews the history of administrative law in Laos from 1975–2014.
Laos adopted the Soviet judicial system in 1975,5 in which the State was a centralized system, similar to those seen in China and Vietnam. At the point when
the socialist State was established, administrative law was virtually non-existent,
and from 1975 to 1990, there was no Constitution.6 State functions were based on
the policies of the Lao People’s Revolutionary Party (hereinafter Party) and waslargely ruled by administrative decrees and orders, with no existing legislative
procedure.7

5

Martin Stuart-Fox, A History of Laos (Cambridge: Cambridge University Press, 1997),

168–169.
6

Government of Laos, “Constitution of Lao PDR,” accessed November 28, 2020 http://laogov.gov.la/pages/Constitution.aspx?ItemID=56&CateID=3.
7

Ministry of Justice et al, “Master Plan on Development of the Rule of Law in the Lao P. D.

R Toward the Year 2020” (Ministry of Justice, Office of the Supreme People’s Prosecutor,- 73 -

The first step of basic legislative referendum for Laos was taken with theconvocation of the first nationwide People’s Representative Congress.8 The administration also issued Prime Minister’s Decree, No. 53/PM, October 15, 1976,9
which established three branches of state power. First, the legislative power inhered in the People’s Supreme Assembly (presently National Assembly). Second,
executive power was placed in the government. Last, judicial power was in the
People’s Courts.10 Three other basic acts were the Establishment of the Councilof Ministers, No. 100, July 30, 1978; the Establishment of the People’s Supreme
Assembly and Local Administration, No. 101, July 31, 1987; and the Establishment of the Council of Ministers, No. 01/80/SPA, August 10, 1982. These laws
were issued in the form of Prime Minister’s decrees and orders, along with the
Resolution of Local Administration.11
Laos was ruled by administrative fiat and had no parliamentary body.12 It
did not recognize any legal precedent or democratic parliament, but only therule of the Party. No separation of powers seen. The three branches worked together to form a centralized system.13 The judiciary was part of administration,
appointed by the Ministry of Justice.14 The system of the judiciary was foundedon the policies of the Party and administrative instructions.15 The judiciary and
People’s Supreme Court and Ministry of Security, August 2009), 4.
8

National Assembly, “Brief History of the National Assembly,” accessed November 30, 2020

http://www.na.gov.la/index.php?r=site/detailcontent&id=9&left=103.
9Boupha Phongsavath, The Evolution of the Lao State, 2nd ed. (New Delhi: Konark Publish-

ers, 2003), 121.
10

For more details of the People’s Supreme Court and lower courts, see http://www.people-

court.gov.la/la/1/1-2.html.
11

Ministry of Justice et al., “Master Plan on Development of the Rule of Law in the Lao P.D.R

Toward the Year 2020,” 8.
12

Marcus Radetzki, “From Communism to Capitalism in Laos: The Legal Dimension,” Asian

Survey 34, no. 9 (1994): 799–800.
13

Michael Bogdan, “Legal Aspects of the Re-Introduction of a Market Economy in Laos,”

Review of Socialist Law 17, no. 1 (1991): 107–108.
14

Phongsavath, The Evolution of the Lao State, 121.

15

The present Constitution in Article 3 declares “the rights of the multi-ethnic people to be- 74 -

DEVELOPMENT OF ADMINISTRATIVE LAW AND THE RULE OF LAW IN LAOS

the administration applied re-education the violators of the law as part of justice, based on their traditional system, in the absence of a constitution or overallsystem of law.16 In October 1978, the State enacted an unpublished regulation
which it then developed so that civil and serious criminal offenses would be triedby the People’s Provincial Courts and District Courts (abolished or converted tothe present People’s Regional Courts). However, civil liability and petty crimes
were handled at the village level.17 At the village level, the village chief (Naibanin Lao) and mediators mediated both small civil liability and petty crime.18 Most
conflicts were not dealt by the People’s Courts, but by Village Mediation Units.19
Village level was an important factor in Laos.20
In 1986, the government introduced its New Economic Mechanism (at thesame period as the Doi-Moi [Renovation] in Vietnam).21 This transition offered
opportunities for the development of administrative law. The State began fromnothing, lacking a Constitution or laws. On March 26, 1989, the People’s Supreme Assembly Second Legislature elected its members and became the Constitution Drafting Committee. On August 14, 1991, the first Constitution waspromulgated (later amended in 2003 and 2015) by the sixth ordinary session of
the People’s Supreme Assembly Second Legislature.22 It acknowledged the elements of a state governed by law23 and called for “rule by law of the people, by

the master of the country are exercised and ensured through the functioning of the politicalsystem with the Party as its leading nucleus.”
16

Bogdan, “Legal Aspects of the Re-Introduction of a Market Economy in Laos,” 108.

17

Ibid.

18

Radetzki, “From Communism to Capitalism in Laos: The Legal Dimension,” 804–805.

19

Ibid., 804.

20

Ian G. Baird, “Village Law in the Lao Context,” International Institute for Environmentand Development (2000): 11.
21

UNDP et al., Development Finance for the 8th National Socio-Economic Development

Plan and the Sustainable Development Goals in Lao PDR (Vientiane: UNDP, June 2016), 20.
22

National Assembly, “Brief History of the National Assembly.”

23

Constitution of the Lao People’s Democratic Republic, art. 10 (1991).
- 75 -

the people, and for the people.”24
A number of laws were passed.25 The Law on the Government was enacted in
1995 (amended in 2003 and 2016) while the Law on Local Administration passed
in 2003 (amended in 2016).26 Nevertheless, no legal act, law, or regulatory act
regarded the state liability of administrative authority. Certain provisions of theConstitution of 1991 (Arts. 56–64) and the laws mentioned above declared theadministrative power of the central and local governments. The government wasdetermined to implement the “duties of State in all fields: political, economic,
cultural, social, national defense and security, and foreign affairs.”27 These activities sometimes led to disputes between the citizens and administrative agencies. Beginning with economic reform in 1986, the government concentrated on
economic development. Much investment was placed on dams and mining. Land
disputes arose between the State and private persons. In some cases, a stateowned enterprise or a joint investment project between the state and private sector impacted the life or health of local people.
In these cases, victims of administrative actions faced extreme difficulty insuing the enterprise responsible due to the government’s involvement. To deal
with such cases, the Prime Minister’s Office issued its Decree on Compensation
and Resettlement, No 192/PM, July 7, 2005 (amended in 2016). This Decree,however, was unclear and did not cover compensation for prejudice arising inpublic administration, criminal proceedings, or civil proceedings, as well as theenforcement of the Criminal Court agreement and Civil Court decisions. Indeed,
the ordinary courts had no power to deal with administrative cases. The con-24

Article 2 of the 1991 Constitution declared “all powers are of the people, by the people andfor the interests of the multi-ethnic people of all strata in society with the workers, farmers
and intellectuals as key components.”
25

Radetzki, “From Communism to Capitalism in Laos: The Legal Dimension,” 805.

26

Government of Laos, “Government considers to approve a number of draft law amend-

ments in November,” accessed December 2, 2020 http://laogov.gov.la/activities/pages/press.
aspx?ItemID=57.
27

Constitution of the Lao People’s Democratic Republic, art. 56.
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DEVELOPMENT OF ADMINISTRATIVE LAW AND THE RULE OF LAW IN LAOS

trolling administrative actions were weak due to a weak judiciary, poorly trained
judges, and lawyers, and corruption involved. The administration had more power than the judiciary as well. Thus, it was very difficult for victims to bring suitagainst the State.

2.2 Present Situation
This part reviews the developments in administrative law in Laos from 2015
to the present day. The Lao government has the power to deal with all fields related to the State.28 Recently, the government has focused on economic growth.
The building of dams, mining, railways, and highways has accelerated, which
has resulted in positive developments. However, the life and health of citizens
have been impacted, as has the environment.
According to Japan International Cooperation Agency (JICA), many companies in Laos pollute water resources, which impacts people’s health.29 The World
Health Organization also reports that the lives and health of many Lao people
have been adversely impacted by economic developments.30 In the current stateof affairs in Laos, victims have few means of obtaining recompense for theirharms. The legal system does not recognize litigation against the responsible
entities because they are in part run by the State. The government has significant
power in Laos. No judicial review of administrative action is possible, so all suchavenues are closed.
Laos has recently been pursuing a reform to its system of administrative law.
On February 7, 2019, the National Assembly Standing Committee issued Resolution No. 15/NASC to establish a Chamber of Administrative Court. This special
Chamber Court will increase managerial capacity, force more responsibility on
administrators for government actions, perform public duties, and to protect the28

Law on the Government, art. 3 (2016).

29

JICA, Profile on Environmental and Social Considerations in Lao P.D.R. (Vientiane:

JICA, December 2013), 3–1.
30

WHO, “Heath and Environment,” WHO, accessed November 20, 2020 http://mobile.wpro.

who.int/laos/topics/environmental_health/en/.
- 77 -

rights of all citizens.31 The Chamber of Administrative Court is to adjudicate
cases of contract or tort claims distinct from those applied in private law. The
Chamber Courts are in the People’s Supreme Court, Central People’s Court, andCapital People’s Court.32 After the establishment of the Court, the National Assembly Standing Committee appointed the Chamber’s President of Administrative Court on September 25, 2019.33
Since its establishment, however, no legal acts on organizational structure
and activities of these Chambers have been issued. Currently, the administrationof Laos is drafting the “Presidential Decree on Administrative Case Proceedings.” This Draft Decree provides important elements of administrative law toprotect the interests of public and support the rule of law.34 The People’s Supreme
Court has also been drafting its “Agreement on Organizational Structure and Activities of the Chamber of Administrative Courts.” This Draft Agreement has fivechapters. Chapter I (Arts. 1–2) provide for the Status and Roles of this Chamber
Court while Chapter II (Art. 3) considers the Personnel Structure of the Chamber of Administrative Courts. The Rights and Duties of the Courts are declaredin Chapter III (Arts. 4–10). Chapter IV (Art. 11) and Chapter V (Arts. 12–14)
describe the Pattern of Its Works and Final Provisions. According to Article 4 of
the Draft Agreement, the Central People’s Court will decide administrative caseproceedings in the first instance. The Central People’s Court will decide appeals
from decisions at the first instance as an appellate court (or second instance), and31

People’s Supreme Court, “Draft Presidential Decree on Administrative Case Proceedings,”(People’s Supreme Court, latest revision February 27, 2020), art. 1.
32

National Assembly Standing Committee, “Resolution on Establishment of the Chamber of

Administrative Court”, no. 15 (National Assembly Standing Committee, February 7, 2019),
art. 1.
33

National Assembly Standing Committee, Resolution on

Appointment the Chamber’s

President of Administrative Court, no. 155/NASC (National Assembly Standing Committee,
September 25, 2019), art. 1.
34

People’s Supreme Court, “Draft Presidential Decree on Administrative Case Proceedings,”

art.1.
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DEVELOPMENT OF ADMINISTRATIVE LAW AND THE RULE OF LAW IN LAOS

the Chamber of Administrative Court in the People’s Supreme Court will havejurisdiction to review on cassation appeals from the decisions of the appellate
court.35
The establishment of these special Chamber Courts entails significant support for administrative reform in Laos. This system allows citizens to file lawsuits against the public servants to allege mistreatment or inappropriate exercise
of administrative power and regarding any carelessness or negligence in serving
the public. Many legal disputes regarding land, the environment, public payment,
hospital treatment, and other public services have arisen, but no lawsuits can beheard because there has been no body that has jurisdiction or a relevant legal
framework for financial compensation.36 After the establishment of the Chamber
Court, it will be possible to litigate administrative cases. The Ministry of Justicehas drafted its “Law on State Compensation.” This Draft Law is “to ensure theprejudiced persons received proper compensation from the State” and to protect“the legitimate rights and interests of citizens and organizations.”37 Section 1(Arts. 8–14) of the Draft Law allows filing suit only to an individual and not toan administrative agency or the State.
Administrative case litigation and state compensation systems are importantdevelopments for Laos to allow it to protect the rights and interests of its citizens.
Under the socialist regime, the State is centralized, and the separation of powers
dose not exists. The administration currently has more power than the judiciary.
Judicial power is weak, and is serves the administration. No idea of judicial review has been established to review administrative actions. Instead, the judiciary

35

People’s Supreme Court, “Draft Agreement on Organizational Structure and Activities of

the Chamber of Administrative Courts,” (People’s Supreme Court, latest revision October 27,2020), art. 4.
36

Somsack Pongkhao, “Laos to Establish Administrative Courts,” Vientiane Times, July 19,

2017.
37

Ministry of Justice, Draft Law on State Compensation, (Ministry of Justice, latest revision

March 3, 2020), art. 1.
- 79 -

followed Party policies and administrative interventions. Whether it is set up as
an administrative court, judicial power is important to review the administrative
activities. In a possible future for the judiciary of Laos, an ordinary court would
also be able to deal with administrative questions, as is done in Japan and othercountries. If a state agency makes an error in the course of its administration,such as an incorrect administrative decision or a wrongful act, a court shouldhave the power to review and order such state agency to respond to this or pay
for financial compensation. Laos has recently committed to becoming a rule oflaw State. If this is to be accomplished, Laos must guarantee judicial independence to ensure the lawfulness of administrative actions.

3. Rule of Law and Its Promotion in Laos
3.1 Rule of Law Situation
The rule of law is of central importance and is considered a key dimension ingood governance.38 Different thinkers define the rule of law in a large variety ofways.39 One broader sense of the rule of law is that it refers to “a set of laws thatpeople in a society must obey and everyone is subject to the rule of law.”40 It isalso broadly linked to constitutionalism, separation of powers, and judicial review.41 All state organizations and their public officers, including the legislature,38

For more details of the rule of law, see Maurice Adams et al., Constitutionalism and theRule of Law: Bridging Idealism and Realism (Cambridge: Cambridge University Press,
2017). Paul Gowder, The Rule of Law in the Real World (Cambridge: Cambridge University
Press, 2016).
39

Harvard Law School is provided a broadly concept of the rule of law. See https://orgs.law.

harvard.edu/ruleoflaw/what-is-the-rule-of-law/.
40

Cambridge Dictionary, “Rule of Law,” accessed November 20, 2020 https://dictionary.

cambridge.org/dictionary/english/rule-of-law. For more senses of this word, see Bryan Garner (Editor in Chief), Black’s Law Dictionary, 11th ed. (Thomson Reuters, 2019).
41

C. I. Ten, “Constitutionalism and the Rule of Law,” in A Companion to Contemporary Po-

litical Philosophy, ed. Robert E. Goodin, Philip Pettit, and Thomas Pogge (Wiley-Blackwell,- 80 -

DEVELOPMENT OF ADMINISTRATIVE LAW AND THE RULE OF LAW IN LAOS

the executive, administrative agencies, and law courts, are required to follow
legal prescribed procedures and observe the guarantees of individual rights.42
This is also the condition under which all members of society, including politicalleaders, accept the authority of the law.43 This perspective describes limitations
to the powers of political authorities and administrators and those of the governing elite. Under the idea of the rule of law, the state, its agencies, and its public
officers are considered responsible for violations of the Constitution or any otherlaw.44 This is ultimately part of the national effort to become a Rule of Law State.
The rule of law in Laos is closely tied to economic reform. Rule of law was
broadly declared as an ideal in Article 10 of the first Constitution of 1991 andagain in the same Article of the present 2015 Constitution: “the State manages
the society through the provisions of the Constitution and the laws.” “Party andstate organizations, the Lao Front for National Construction, mass organizations,social organizations, and all citizens must function within the bounds of the Constitution and the laws.”45 Rule of law gained influence in Laos after it appeared as
the guiding objective for the development of the rule of law, as announced by the
Resolution of the VIII Part Congress.46 The Resolution of the Party marked Laos’s official commitment to becoming a Rule of Law State, in terms of its adoption of the 2009 Master Plan on Development of the Rule of Law in the Lao PDR
Toward the Year 2020. This Master Plan calls for the Lao State to respect the ruleof law in terms of a State administered “through the Constitution and Laws.”472017), 493.
42

Almon Leroy Way, “Constitutionalism, and the Rule of Law,” accessed December 1, 2020

https://www.proconservative.net/CUNAPolSci201PartTwoB3.shtml.
43

Oxford Dictionary, “Rule of Law,” accessed November 20, 2020 https://www.oxfordlearn-

ersdictionaries.com/definition/english/law#rule_idmg_17.
44

Leroy Way, “Constitutionalism, and the Rule of Law.”

45

Constitution of the Lao People’s Democratic Republic, art. 10 (2015).

46

Ibid. The 8th Congress of the Party was held in Vientiane Capital from March 18–21, 2006.

47

Ministry of Justice et al., “Master Plan on Development of the Rule of Law in the Lao P.D.R

Toward the Year 2020,” 1.
- 81 -

The central idea of this concept is to “secure the extension of ownership of Laoand ethnic people, rights of citizens, rights and interests of children, equality between men-women, ethnic groups, as well as for ensuring the implementation of
obligations under international treaties to which Laos is party.”48
To become a Rule of Law State, the legal system must be connected with thefundamental principles of the Article of the Constitution. The implementation ofthese principles requires the Constitution and Laws to become supreme legislation. The effective implementation of such legislation requires Laos to develop
its mechanisms, political system, and the establishment of law-implementation
agencies. All State agencies and their civil servants must perform in accordancewith the Constitution and Laws of Laos.49 Almost all laws are open for administrative interpretation in opposition to the intentions of the legislators. They haveoften been drafted by administrative bodies, especially by the Ministry of Justice. Constitutional rule, however, designates that the final interpreter of the law
is the National Assembly Standing Committee (as an administrative body), notthe People’s Courts.50 According to Article 56 of the Constitution, the National
Assembly Standing Committee has the legal power to remove the President andVice President of the People’s Supreme Court. This makes for a system that is
weak in terms of the rule of law.
The development of the rule of law in Laos is currently being supported bymany international organizations. JICA is supporting the project for “Promoting
Development and Strengthening of the Rule of Law in the Legal Sector in Lao
PDR,” which is to support “legal and judicial sector acquire abilities to study
legal theories, to implement and enforce basic laws on legal theories and to
improve laws and practices (…) as well as the trainer and lecturers of legal education and training sector acquire abilities to train high quality legal practition-

48

Ibid., 2.

49

Ibid.

50

Articles 56–57 of the Constitution prescribe the rights and duties of the National AssemblyStanding Committee.
- 82 -

DEVELOPMENT OF ADMINISTRATIVE LAW AND THE RULE OF LAW IN LAOS

ers.”51 The first history of the Lao Civil Code was supported by JICA. The Civil
Code was approved by the National Assembly on December 6, 2018 (in effectfrom January 18, 2019).52 This is coincident with the “Citizen Engagement forGood Governance, Accountability and the Rule of Law” (CEGGA), funded jointly by the EU, Germany, and Switzerland.53 Similar projects include the UNDP’s
Strategic Support to Strengthen the Rule of Law in Lao PDR” (3S-ROL) and theAsia Foundation’s “Law and Justice” Program. Both of Luxembourg’s Rule ofLaw projects: the Luxembourg Development Cooperation Agency (LuxDev),
LAO/031 project entitled “Support Project to Legal Teaching and Training andto the Promotion of the Rule of Law Concept in Lao PDR” and Inter-University
Cooperation Project (University of Luxembourg) are dedicated to strengthening
the rule of law through higher legal education. These international organizations
are playing the significant roles in supporting the rule of law in Laos.

3.2 The Promotion of the Rule of Law
This section regards the promotion of the rule of law in Laos by legal institutions and Faculty of Law and Political Science (FLP) of the National Universityof Laos (NUOL) in particular. Since 1994, this legislation has discussed in manysources. Legal data and information have been published through libraries, publication of law books, and the official websites of State agencies. The National
Assembly has passed many in this area and published items on in its own official
website. The Ministry of Justice and other agencies have also published statutes
on their official websites. The official Lao Gazette is the most updated legal website in Laos. Legal acts, laws, and regulatory acts have been published in Lao,and there are growing official and unofficial translations of these legal sources

51

JICA J-ROL Project, “Project Summary,” accessed November 30, 2020 https://www.jica.

go.jp/activities/issues/governance/portal/laos/ku57pq00002khhw3-att/leaflet_eng.pdf.
52

JICA, “JICA’s Long-Term Law Drafting Support Contributes to Establishment of FirstEver Civil Code in Lao,” accessed December 2, 2020 https://www.jica.go.jp/English/news/
field/2018/- 190327_01.html.
53

CEGGA has currently been supporting the Lao Draft Law on State Compensation.
- 83 -

into English, although translation in general is still limited. Furthermore, legal
developments are described in newspapers and magazines, as well as on radio
and television and in other media.54
Education in the legal sector was identified by the 2009 Master Plan as a necessary part of building the legal system. To become a judge, public prosecutor,
or lawyer, a candidate must graduate from a law school. Universities are a main
State institution. They play a significant role in developing the rule of law due tothe improvements they bring to the legal system and training competent judges,
public prosecutors, and attorneys. One of the main law schools in Laos is the
FLP. It was created by the Ministry of Justice in 1986 and then was integrated
into NUOL and renamed the FLP. It recently operates under the supervision of
the Ministry of Education and Sports.55 It has benefited by international assistance to promote the rule of law through the Swedish International Development
Cooperation Agency on “Strengthening Legal Education and Training in Lao
PDR,” beginning in 2000. It was replaced by the first LuxDev (LAO/23) and thenby present LuxDev (LAO/031) in the “Supporting Project to Legal Teaching andTraining and to the Promotion of the Rule of Law Concept in Laos.” The University of Luxembourg is also filling the gaps through an inter-university cooperation for the development of legal research at the FLP. Lecturers from the University of Luxembourg lecture on important legal topics for Laos and its transition
toward a Rule of Law State.
The FLP is cooperating with many State organizations to promote the rule oflaw, such as the National Assembly, the Ministry of Justice, the People’s Courts,
Public Prosecutors, and Law Schools in the North, Center, and South of thecountry. Indeed, it is also cooperating with many universities across the world,
including the Japanese universities Nagoya University and Keio University Law
School, the University of Luxembourg, Umeå University (Sweden), University of

54

Ministry of Justice et al., “Master Plan on Development of the Rule of Law in the Lao P.D.R

Toward the Year 2020,” 36.
55

Ibid., 27.
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DEVELOPMENT OF ADMINISTRATIVE LAW AND THE RULE OF LAW IN LAOS

Lyon (France), and Hanoi Law University (Vietnam). Five universities in Thailand, Thammasat University, Chulalongkorn University, Chiang Mai University,
Mahasarakham University, and Mae Fah Luang University, are also cooperating.56 This internal and external cooperation with both has improved knowledge
and the quality of teaching over the last two decades.
The FLP is now the best Law School in Laos. Many lecturers are working at
a high level of quality. A large number of external lecturers from the Ministryof Justice, People’s Courts, and Public Prosecutors are also delivering lectures.
Many law lecturers have been involved in drafting laws, including the Civil
Code and Penal Code. However, the promotion of the rule of law has not beenstraightforward, and many challenges remain to be overcome. The quality standards of FLP are far behind those of Western university and ASEAN standards.
Its development will take time and must proceed step by step.

4. Lack of Access to Legal Sources and Academic Research
4.1 Lack of Access to Legal Sources
The basic conditions of the rule of law are accessibility, publicity, and accessto justice.57 Article 38 of the Constitution guarantees the fundamental rights ofcitizens to “receive education, research, knowledge, and skill development.”
This Article appears to include the right to legal information. At the heart of theconcept of the rule of law is citizens’ capacity to access legal information andmaterials from state agencies. Accessibility is a main issue for scholars and law
students as they conduct legal research and draft their reports.

56

Faculty of Law and Political Science, National University of Laos, “External Cooperation,”

accessed December 2, 2020, https://flp.nuol.edu.la/.
57

Perrine Simon, “The Role of Law in the Rule of Law, the Contribution of Academics in

Lao PDR,” KritV Kritische Vierteljahresschrift für Gesetzgebung und Rechtswissenschaft
102, no. 3 (2019): 217.
- 85 -

While legal information is currently much more available in Laos than itwas, it remains limited and not up to date. The People’s Supreme Court has
published a small number of judgments on its own website.58 The lower courts,
however, do not have their own websites, and their judgments are not public. It isa challenging task to do legal research in Laos. When a researcher or law student
needs to read a judgment, an official letter must be sent requesting it. There is nocentralized database of judgments and no statistics available on how many cases
are decided by the courts per year. Secondary sources include a limited range oflegal studies, law books, law journals, reports, and other materials.
Many State agencies have overlapping legal acts, laws, and other regulatory
acts, and they are not systematically published. According to the Master Plan on
the Rule of Law, there are four main weaknesses in legal information. First, “legal
information center has not been effectively and systematically developed and theservice is not widely and timely.” It is also not established broadly. Second, theprovision of legal data and information is insufficient and cannot meet public demand. Third, “budgetary support, funding to develop legal data and information,and dissemination law are not sufficient enough.” Finally, dissemination throughmass media is not done according to any plan, and there is little a variety of Law
dissemination, and it is not effectively suitable to the target group.”59 There isalso no e-Library system among State agencies, with the exception of the FLP.
It seems that it would be difficult to promote the rule of law in Laos. Sourcesof legal and judicial data must be systematically developed step by step, based on
the State of the Rule of Law. Dissemination of information to the people createsthe conditions necessary to secure the ownership of rights and justice, which,in turn promote the effective implementation of and respect for the laws. Thisis necessary to ensure the development of legal information in a systematic andmodern manner.60
58

See for more details of the People’s Courts, http://www.peoplecourt.gov.la/la/.

59

Ministry of Justice et al., “Master Plan on Development of the Rule of Law in the Lao P.D.R

Toward the Year 2020,” 36–37.
60

Ibid., 37.
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DEVELOPMENT OF ADMINISTRATIVE LAW AND THE RULE OF LAW IN LAOS

4.2 Lack of Academic Research
Legal research is an important function of universities around the world.
However, it has been limited in Laos due to low lecturer qualifications. Manylecturers at Lao Law Schools have recently completed their bachelor’s degrees,
while some have master’s degrees. The FLP has a large number of lecturers withmaster’s degrees, and some with doctoral degrees. However, the majority of lecturers “lacked adequate numbers of lecturers and all are required lecturers withmore experience in the role law plays in the market economy.”61 There are somelegal researchers, and many lecturers are from the field of political science.62
However, there are some researchers on the doctoral level. The low level of qualified lecturers and the weak academic qualifications are severe restrictions on thedevelopment of research activities.63
The government has been promoting academic research. A new grading system for teaching staff was introduced by the government in the late 1990s andwas then replaced with the “Decree on Teacher Academic Positions in Higher
Education Institutions,” No. 03/GO, January 10, 2020. This system includes four
categories of university lecturer: Professor, Associate Professor, Lecturer, andAssistant Lecturer.64 This enables teaching staff to conduct academic research.
After this point, legal research has increased in Laos, but it remains low quality.
Most academic studies conducted by lecturers are not to high-quality standards and are not in the field of law. Most lecturers do not clearly understand thedistinction between law and political science; in particular, what is implied forresearch. Many lecturers have understood legal research to be field research in

61

Ibid., 27.

62

Seven lecturers have currently completed doctoral degrees at the FLP, but only two of them

are in the field of law, including the author while other lecturers are in the field of politicalscience and education management.
63

Bourdet, Strengthening Higher Education and Research in Laos (Stockholm: Sida, 2001),

14.
64

Government of Laos, “Decree on Teacher Academic Positions in Higher Education Institu-

tions,” no. 03/GO (Government of Laos, 2020), art. 5.
- 87 -

interviews and collected qualitative data. In general, the conception of legal
research clearly refers to black letter research, using primary sources (statuses,
treaties, and cases) and secondary sources (doctrine), such as law books and law
journal articles. Lecturers and law students are thus often unable to analyze law
properly. They are not encouraged to develop independent or creative thinking,and their legal memoranda and examination are not conducted in a scientificway.65
Various forms of inter-university cooperation are ongoing at present. The
University of Luxembourg, along with the LuxDev Project (LAO/031), supports
the FLP’s academic staff. This cooperation has the intention of building legal
knowledge and academic law research. This has taken the form of supporting
legal research by providing a grant for a short research stay at the University of
Luxembourg and publishing a paper in English in a law journal.66 Some lecturers
are conducting research in cooperation with other foreign universities as well.
This will help improve the qualifications of the lecturers for doing legal research
and allow them to approach common international standards in the future.

5. Conclusion
Laos is developing into a Rule of Law State. Under the rule of law, constitutionalism, separation of powers, judicial review, and court protection must berecognized. Judicial review must be established to enable administrative actions
to be reviewed. The court must have the power to order administrative agencies
to exercise its legal authority. The rule of law is linked with state compensation
and administrative case litigation. Illegal actions or inaction by the State, its
agencies, or its public servants must entail the payment of compensation. A rule

65

Simon, “The Role of Law in the Rule of Law, the Contribution of Academics in Lao PDR,”

215.
66

Ibid., 216.
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DEVELOPMENT OF ADMINISTRATIVE LAW AND THE RULE OF LAW IN LAOS

of law state cannot be established without legal guarantee for individual rights.
The State has been reforming its administrative law system by in the Presidential
Decree on Administrative Case Proceedings and Law on State Compensation.
However, the statutes face some problems about financial compensation and judicial power.
Another basic condition of the rule of law involves accessibility, publicity,
and access to justice. Accessibility to legal information is limited in Laos. Judgments and law are in no way systematically published. Therefore, it is difficult
for researchers and law students to find legal sources. Law books, law journals,
and other legal materials are also of limited availability. Most law lecturers
have low quality standards. The studies conducted by law lecturers are often of
low quality. It is difficult to access to legal sources, which limits academic legal
scholarship. Because international organizations and inter-university cooperation
are supporting its development, legal institutions in Laos have been improved
and are promoting the rule of law. However, this requires time and is a long-termgoal.
In sum, Laos is positively pursuing its goal of becoming a Rule of Law State.
The strengthening of its legal system and the promotion of the rule of law aresupporting academic research. Law school is the main institution where good
legal research is being conducted, and this can be used to improve the legal system. Therefore, Laos must be invested in legal institutions and continue to cooperate with inter-university initiatives to achieve its goal. This requires time andeffort, and it must be done step by step.

- 89 -

Chapter 6

LEGAL ASPECT ON CHILD’S RIGHTSIN MYANMAR

Khin Phone Myint Kyu*
Khin Khin Su**
(University of Yangon)

1. Introduction
In Myanmar culture, the welfare of children is always the chief priority insociety. Myanmar acceded to the Convention on the Rights of the Child on July
15, 1991, with reservation on Articles 15 and 27 and became State Party to theConvention on August 14, 1991. Myanmar now endeavors with utmost effort toimplement the Convention in accordance with its sociocultural context and legislative systems. Because Myanmar is a member of the United Nations Convention
on the Rights of the Child, the Myanmar Child Law1 was promulgated on July 14,
1993, and the reservations were withdrawn on October 15, 1993. However, ChildLaw 1993 was repealed by the Pyidaungsu Hluttaw (the Union Parliament) in
2019, and it enacted the Child’s Rights Law on July 23, 2019. Among child rights,
the most important, such as survival and development, non-discrimination, bestinterest, and protection, will be discussed in this paper. These rights can be seen

* Dr, Professor, Department of Law, University of Yangon.
** Dr, Lecturer, Department of Law, University of Yangon.
1

The State Law and Order Restoration Council Law No. 9/1993.
- 91 -

in the 2008 Constitution, the Child’s Rights Law, Myanmar Customary Law, thePenal Code, the Civil Procedure Code, and some labor laws of Myanmar.

2. Definition of Child in Myanmar
Under the Convention on the Rights of the Child (CRC), “a child means
every human being below the age of 18 years unless under the law applicable tothe child, majority is attained earlier.”2 However, in Myanmar, there are various
definitions and different ranges of age demarcation for defining a child. Under
the 1993 Child Law, “child” means a person who has not attained the age of 16
years, and youth means a person at least age 16 but younger than age 18.3 Somehuman rights activists criticized that the 1993 Child Law was not consistent with
the CRC although the CRC itself includes the clause “unless the law applicableto the child, majority is attained earlier.” Under this clause, state parties can stipulate the age of majority according to their national laws.
Section 4(1) of the Guardians and Wards Act provides that a minor is a person
who under the provisions of the Majority Act has not attained majority. Under Section 3 of the Majority Act,4 “a person shall be deemed to have attained his majority
when he shall have completed his age of 18 years and not before.” According to these
two laws,5 child means a person who has not attained the age of 18 years. Age of majority issues arising from family matters are determined by the respective family law.
Under the 1951 Factories Act, child means a person age at least 14 but not
yet 16 who is permitted for employment by a registered practitioner.6 Adolescentmeans a person who has attained age 16 years but not age 18.7

2

Article 1 of the Convention on the Rights of the Child, 1989.

3

Section 2(a) and (b) of the Child Law, 1993.

4

India Act No. IX of 1875.

5

The Guardians and Wards Act, 1890 and The Majority Act, 1875.

6

Section 2(a) of the Factories Act, 1951.

7

Section 2(b), Ibid.
- 92 -LEGAL ASPECT ON CHILD’S RIGHTS IN MYANMAR

According to Sections 2(a) and (b) of the Oil Field (Workers and Welfare)
Act, “child means a person who has not attained the age of 15 years and youth
means a person who has attained the age of 15 years but has not attained the ageof 18 years.”
According to the Anti-trafficking in Persons Law, a child is under age 16 anda youth has reached age 16 but not age 18.8
Finally, under the Child’s Rights Law, child means a person who has notreached age 18.9 At the present time, irrespective of the laws except the 2019Child’s Rights Law, a person who has attained the age of 18 years becomes the
majority in Myanmar.

3. Survival and Development Rights
In Article 6 of the CRC, state parties recognize that every child has the inherent right to life. Regarding these rights, some statutory laws of Myanmar
offer the children these survival rights. A child shall enjoy the survival rights
before and after birth including citizenship, health, and education.
Under the Child’s Rights Law, the state recognizes that every child has theright to survival, development, protection, and care and to participate actively inthe community.10 Under Section 19(a) of said law, “every child has the inherent
right to life.” Similarly, disabled children enjoy these same fundamental freedoms including the inherent right to life and freedom of speech and religion as
well as the rights expressed in the Rights of Persons with Disabilities Law.11
As part of protecting the child’s rights to the government provides for miscarriage prevention measures. Sections 313 to 318 of the Penal Code provide forimposing punishment to the person who commits the offense of causing miscar8

Section 3(j) and (k) of the Anti-trafficking in Persons Law, 2005.

9

Section 3(b) of the Child’s Rights Law, 2019.

10

Section 18, Ibid.

11

Section 50, Ibid.
- 93 -

riage without the woman’s consent as well as acts intended to cause miscarriage,to prevent a child’s live birth or to cause it to die after birth, or to cause the deathof a quick child by an act likely to cause death to a pregnant woman. The law
also provides for punishment for exposure and abandonment of children underage 12 by caregivers and for concealing a birth by secret disposal of a dead body.
These are the measures that aim to protect an unborn child’s right to live.
After a child’s birth, the law mandates immediate birth registration. Everychild born in the state has the right to free registration of his or her birth without discrimination, and the law imposes on parents, guardians, or any suitableperson to inform the relevant government department for birth registration as
described.12 Every child with a registered birth in Myanmar has all rights of citizenship in accordance with the provisions of the existing law,13 which is stipulated in the constitutions.
According to the constitutions,14 every person becomes a Myanmar citizen
who is born of parents who are both nationals of the Republic of the Union of
Myanmar or who are already citizens under the law. Because being a citizen is
so important, it is necessary to know the criteria for citizenship. Section 7 of the1982 Myanmar Citizenship Law describes the citizenship criteria in detail as follows:“The following persons born in or outside the State are also citizens: (a) Persons born of parents, both of whom are citizens;(b) Persons born of parents, one of whom is a citizen and the other an associate citizen;(c) Persons born of parents, one of whom and the other a naturalized citizen;(d) Persons born of parents one of whom is citizen or an associate citizen ora naturalized citizen; and the other is born of parents, both of whom areassociate citizens;

12

Section 21(a) and (b), Ibid.

13

Section 22, Ibid.

14

Section 345 of the Constitution of the Republic of the Union of Myanmar, 2008.
- 94 -LEGAL ASPECT ON CHILD’S RIGHTS IN MYANMAR(e) Persons born of parents, one of whom is a citizen or an associate citizen
or a naturalized citizen; and the other is born of parents, both of whom
are a naturalized citizen;(f) Persons born of parents one of whom is a citizen or an associate citizen
or a naturalized citizen; and the other is born of parents, one of whom is
an associate citizen and the other is a naturalized citizen.”
Therefore, every child shall immediately become a citizen after birth. “Citizenship” is a legal concept describing an individual’s relationship to the state.
Myanmar’s constitution limits that a child can be a citizen only after filling therequirements stipulated in the laws. However, Myanmar never ignores the rightsof children who are not citizens. Myanmar obeys all provisions of the CRC. Article 6 of the CRC states that “States Parties shall ensure to the maximum extent
possible the survival and development of the child. In order to get survival in
live, the child must be healthy and be educated.” With regard to health and healthservices, Article 24 provides in specific detail the right of access to the highest
level of health possible and to medical services, with special emphasis on primary and preventive health care, public health education, and decreasing infantmortality.
Similarly, one of the aims of the 2019 Child’s Rights Law of Myanmar is tolay down and carry out fundamental measures including health, nutrition, andaccess to education for children’s all-round development.15 Section 44 of the law
grants every child access to health facilities without discrimination and to healthcare in line with the health policies laid down by the State as well as the right tobe able to enjoy physical and mental health in line with health criteria. Toward
this goal, every child including newborn children can enjoy all health facilities
and measures provided by the Ministry of Health and Sports.16 Under WHO
direction, Myanmar operates its public health services through the relevant ministry. The nation also adopted the Prevention and Control of Communicable Dis-

15

Section 4(c) of the Child’s Rights Law, 2019.

16

Section 45(b), Ibid.
- 95 -

ease Law17 to carry out the child survival measures.
Children’s education rights are also important for survival. According to
Article 28 of the CRC, every child should have access to the facilities of education provided by the government, and in Myanmar, the Constitution guarantees
that every citizen shall have the right to education as compulsory; the state pays
special attention to the comprehensive education of its children. Measures in the2008 Constitution strive earnestly to improve education mandating the provisionof free, compulsory primary education under a modern education system18; forinstance, every citizen has the right to conduct scientific or arts research freely.19
All citizens irrespective of race, religion, and sex shall be proudly assisted by
the Union according to their qualifications,20 and Section 46 of the 2019 Child’s
Rights Law provides that “every child shall have the rights to education without
discrimination and in line with the National Education Law.”21 In addition, children with disabilities have access to education, including early childhood careand lifelong learning.22
Section 47 of the 2019 Child’s Rights Law stipulates that the Ministry of
Education (MoE) shall focus on providing free basic education in state schools
to give children full access to education. The ministry’s duty includes establishing any measures necessary for supporting school enrollment and regularschool attendance and minimizing untimely drop-out rates. The ministry is also
responsible for establishing practical vocational education programs including
non-formal education to grant access to children who are unable to attend thestate schools.23
The specific laws that govern education rights in Myanmar are the National

17

The State Law and Order Restoration Council Law No. 1/1995.

18

Section 28 of the Constitution of the Republic of the Union of Myanmar, 2008.

19

Section 366, Ibid.

20

Section 368, Ibid.

21

Section 46(a) and (b) of the Child’s Rights Law, 2019.

22

Section 51(a), Ibid.

23

Section 47, Ibid.
- 96 -LEGAL ASPECT ON CHILD’S RIGHTS IN MYANMAR

Education Law24 and the Basic Education Law.25 The MoE is also drafting otherspecific laws such as the Technical and Vocational Education and Training Law
and the Private Education Law. There are not as yet any provisions related to thecompulsory free education. The National Education Law (NEL) strengthened
the quality, effectiveness, and efficiency of the national education system. The
law provides an excellent national framework for implementing a wide rangeof complementary reforms across the nation, such as recognition of the right of
all citizens to free, compulsory education at the primary level; establishment ofa standards-based education quality assurance system; expansion of the basic
education system to 13 years; support for the learning of nationalities’ languages
and cultures; and greater decentralization in the education system. An additional
benefit of the NEL is that Myanmar is now fully aligned with ASEAN members
in terms of the number of years of schooling in basic education.26 Furthermore,
new basic policies in the 2014 NEL include special education programs andservices to grant rights to education under the Education for All policy to every
school-aged child and youth, including citizens with disability or citizens who
have not had a chance to study for whatever reason,27 as well as implementing
the successful free and compulsory education at the primary level and extending
step by step.28
To implement those policies, the Pyidaungsu Hluttaw enacted the Basic Education Law in 2019. Now the MoE has implemented free and compulsory primary education and is striving to extend it to middle school; basic education is
to continue for a total of 12 years after kindergarten is completed.29 The government has increased the education sector’s budget allocation in recent years, andthis has enabled the MoE to introduce new policies and national programs, such

24

Pyidaungsu Hluttaw Law No. 41/2014.

25

Pyidaungsu Hluttaw Law No. 34/2019.

26

National Education Strategic Plan 2016–21 Summary.

27

Section 4(c) of the National Education Law, 2014.

28

Section 4(j), Ibid.

29

Section 5(a) of the Basic Education Law, 2019.
- 97 -

as hiring new teachers, free basic education and the school grants and stipends
programs for basic education schools. Furthermore, the department is in the process of drafting the Technical and Vocational Education and Training Law as aneffort to reform the technical and vocational education system.

4. Non-Discrimination
Discrimination is the unjustified act of making discriminations between human beings based on the groups, classes, or other categories they are perceived
as belonging to. Under the Child’s Rights Law,30 “discrimination is the discriminate treatment on the basis of citizen, tribe, race, cast birth, skin color, sex,
language, religion, official position, status, culture, wealth, disability, politicalbelief or sexual orientation.” Children should not be discriminated against basedon any traits or characteristics; discrimination against children has physical andmental effects on their health that are to be avoided.
Under Article 2.1 of the CRC, all rights apply to all children without exception. It is the obligations of the state to protect children from any form of discrimination based on their or their parents’ race, color, sex, language, religion,
political or other beliefs or opinions, national, ethnic or social origin, property,
disability, birth or other status. Separately under the 2008 Constitution, the Union shall not discriminate against any citizen, based on race, birth, religion, official position, status, culture, sex, or wealth.31 In short, the law establishes clearly
that discrimination is prohibited in Myanmar against any citizen on any basis.
However, some human rights activists criticize the word “all citizens,” arguingthat this stipulation allows for discriminating against noncitizens in Myanmar.
However, the Union guarantees any and every person equal rights under the law

30

Section 3(u) of the Child’s Rights Law, 2019.

31

Section 348 of the Constitution of the Republic of the Union of Myanmar, 2008.
- 98 -LEGAL ASPECT ON CHILD’S RIGHTS IN MYANMAR

and including equal legal protection.32 Therefore it can be said that there is nodiscriminatory provision in the 2008 Constitution.
Under Section 4(f) of the Child’s Rights Law, all children have equal rights
and protections under the existing laws and are not to be discriminated against
for any reason.33 Children born in Myanmar are entitled to freely register theirbirths without discrimination,34 and the laws hold for health and education rights
as well.35 In addition, under Myanmar Customary Law, there is no discrimination based on gender in adoption and inheritance. Adoption has long been recognized and practiced under Myanmar Customary Law. Any person whether man
or woman who is competent to contract can adopt a child, and any adult and any
child whether boy or girl can be adopted; in short, adoption is an equal right in
Myanmar. Separately, because there is no distinction between male and female
for inheritance under Myanmar Customary Law, female children have the rightto inherit from either natural or adoptive parents. Therefore, it can be stated that
there is no discrimination in Myanmar related to child rights.

5. Best Interests of the Child“Best interests of the child” is a child rights principle that derives from Article 3 of the CRC: “in all actions regarding children, the best interests of the childmust be the first priority to take account into consideration.”Therefore, all actions concerning children such as all custody discussions and decisions are madewith the ultimate goal of fostering and encouraging the child’s happiness, security, mental health, and emotional development into young adulthood. In addition,
public or private social welfare institutions, courts of law, administrative authorities, and legislative bodies shall consider primarily this principle in their action
32

Section 347, Ibid.

33

Section 19(d) of the Child’s Rights Law, 2019.

34

Section 21(a), Ibid.

35

Sections 44(a) and 46(a), Ibid.
- 99 -

concerning children. Accordingly, Myanmar considers the best interests of thechild the highest priority, and the Child’s Rights Law reflects this principle. Oneof the purposes of this legislation is to promote the child’s best interests.36
The best interests of the child mean the child’s rights and access to the greatest physical and mental benefits as provided under the 2008 Constitution and theChild’s Rights Law to enjoy their survival, development, protection, and right toparticipate in society.37 Under Section 19(b) of this law, meeting the child’s interests includes in cases of child care, disabilities, juvenile justice, and adoption,
and Article 21 of the CRC also recognizes inter-country adoption as an alternative for ensuring that the child’s best interests are being met.
In Myanmar, adoption is governed under Sections 25 to 32 of the Child’s
Rights Law. A Myanmar citizen has the right to adopt a child in accordance withthe stipulations of law if he can treat and nurture the child as the child’s naturalparents would.38 Under this section, only Myanmar citizens can adopt, and thisprohibition against foreign adoption is the state’s effort to avoid sanctioning or
supporting child-related offenses such as human sale or trafficking or abduction to a foreign country. Persons in Myanmar who want to adopt can do so by
registering an adoption deed in either the social welfare office or the relevant
registration office in accordance with the Registration of Kittima Adoption Act
of 1939.39 Under this Act, adopted children are protected against such offenses as
smuggling, sale, forced labor, and torture committed by or in collaboration withthe adoptive parents.40 Adopted children also have the right to inherit ancestral
property of adoptive parents and other rights.41
At present, Rules 61, 62, and 63 of the Rules Relating to Child Law, 1993 (although the 1993 Child Law has already been repealed, the new rules have not yet

36Section 4(b), Ibid.

37

Section 3(d), Ibid.

38

Section 25, Ibid.

39

Section 27(b), Ibid.

40

Section 29(c), Ibid.

41

Section 32(b), Ibid.
- 100 -LEGAL ASPECT ON CHILD’S RIGHTS IN MYANMAR

been enacted) are the provisions for adoption procedures. Adoption in Myanmar
is related to not only parental but also property rights, and toward the latter goal,
the Registration of Kittima Adoption Act is an existing provision for strong legal
protections of a child’s inheritance rights.
The best interests of the child must also be taken into account in caring forchildren.42 If parents are separated, either or both must still consider the child’sbest interests in the child’s upbringing.43 Child Rights Law Section 38(b) stipulates that a person who wants to take care of a child can apply to the court fora guardianship decree, but the person must want the best interests of the child.
The relevant court is responsible for appointing said guardian, whether a parent,
grandparent, or blood relative, considering the child’s best interests based on age
and maturity.44
In terms of legal matters and juvenile justice, the Juvenile Court in Myanmar
has duties in consideration of a child offender’s best interests. Specifically, thecourts have the duty to consider the child’s age and character as well as environmental circumstances, the reason for committing the offense, and any probation
officer report as well as other matters, and the courts are mandated to prioritize
the process of child custody and diversion, if possible, without compromising thechild’s freedom.45
Myanmar Customary Law also adjudicates some matters related to a child’sbest interests. Family separations incur child custody issues. According to the
Dhammathats,46 if the divorce is by mutual consent, the husband is entitled to thecustody of the sons and the wife to that of the daughters except that very youngsons should remain with their mothers until they are more mature. However, parents do have the discretion to make their own custody arrangements irrespective

42

Section 34, Ibid.

43

Section 36(b) Ibid.

44

Sections 39(a) and (b), Ibid.

45

Section 87, Ibid.

46

U Gaung, A Digest of the Burmese Buddhist Law Concerning Inheritance and Marriage,

Volume II, Marriage, Section 234.
- 101 -

of the Dhammathats with the stipulation that courts will not support a parent’s
rights against the child’s interests or welfare. When children are old enough tomake a rational determination, their wishes are paramount.47 In the case of a divorce by matrimonial fault, Dhammathats do not clearly say which parent has theright to custody of the children; questions relating to divorce and child custody
are the concern of solely the Guardians and Wards Act of 1890 with the focus asever on the best interest of the child.

6. Protection
Children have the right to be protected from physical and mental violence,neglect, sexual abuse and exploitation while they are in the custody of theirparents or any other person. Article 3.2 of the CRC ensures children the right tothis protection, and Article 19 makes it a state’s responsibility to protect children
from all forms of maltreatment by responsible others including undertaking
prevention and treatment programs in this regard. Children without families areprotected by the Social Welfare Department; the Ministry of Social Welfare, Relief and Resettlement; and some religious organizations.
Myanmar protects children from economic exploitation and from performing
any work that is likely to be hazardous or to interfere with the child’s education,or to be harmful to the child’s health or physical, mental, spiritual, moral or social development in line with Article 32 of the CRC. Myanmar also ratified the
Optional Protocol to the Convention on the Rights of the Child on the Sale ofChildren, Child Prostitution and Child Pornography and the Optional Protocol,
which followed the enactment of the new Child Rights Law in July 2019. Thatlaw defines the terms “sale of children, child prostitution, child pornography, andexploitation” in accordance with “the optional protocol.”48 The 1993 Child Law

47

Po Cho v. Ma Nyein Myat, 5 L.B.R. 133.

48

The Optional Protocol to the Convention on the Rights of the Child on the Sale of Chil- 102 -LEGAL ASPECT ON CHILD’S RIGHTS IN MYANMAR

did not provide these definitions.
Protecting children in the criminal justice system is governed under both thePenal Code and the Child’s Rights Law. Under Section 82 of the Penal Code, achild under seven years of age is absolutely exempted from criminal liability, andunder Section 83, a child above seven and under twelve years of age is exempted from imposed punishment if he or she lacks the maturity to understand thenature and consequence of the offending conduct. Somewhat differently, under
the Child’s Rights Law, children under age 10 years can be entirely exemptedfrom criminal liability, as can children over age 10 and under age 12, if they do
not understand the consequences of their acts.49 Briefly, children under age 10
in Myanmar are legally innocent and cannot be convicted of or punished for any
crimes, and the same can apply to children over 10 but under 12 under certain
circumstances. Therefore, it is necessary to amend the Penal Code to bring it inalignment with the Child’s Rights Law.
Before Myanmar joined the CRC, the Penal Code protected the nation’s minors. Under the Penal Code, kidnapping was punishable by imprisonment for up
to seven years and could incur a fine as well.50 Procuring minor children for saleor purchase for the purpose of prostitution51 was punishable with imprisonment
up to ten years and potentially a fine. Rape against a girl under age 12 was punishable for at least 20 years and up to life.52 After Myanmar joined the CRC, thenation passed a specific law for children, namely, the 1993 Child Law. Under the
1993 Child Law, the above offenses are punishable with imprisonment up to two
years, a fine of up to 10,000 kyats, or both.53 Although this law clearly imposes
fines, it is overall more lenient than the Penal Code, and it was repealed by the2019 Child’s Rights Law.

dren, Child Prostitution and Child Pornography, 2000.
49

Section 78 of the Child’s Rights Law, 2019.

50

Section 363 of the Penal Code, 1861.

51

Sections 366 A, 372, and 373, Ibid.

52

Section 376(c), Ibid.

53

Section 66 of the Child Law, 1993.
- 103 -

Under the 2019 law, it is prohibited to commit physical, mental, or sexual
violence against a child,54 even during armed conflict, and children are also protected from neglect and exploitation.55 The 2019 Child’s Rights Law also prohibits any sexual exploitation, forced sex work, or child pornography and imposes
specific penalties on perpetrators of such crimes.56 Other punishable crimes
include mental and physical violence such as spanking, and this offense is punishable with one to six months in prison, a fine of 100,000 to 300,000 kyats, orboth.57 It is also prohibited to allow children to work in any clubs, karaoke bars,
or massage parlors; this crime is punishable with imprisonment for five months
up to two years, a fine of between 500,000 and 1,000,000 kyats, or both.58
Other violations of a child’s rights include forcing a child to beg, which
punishes the accused with imprisonment of six months to three years, a fine of
600,000 to 1,200,000 kyats, or both,59 as well as the following: committing offenses of violence, abuse, exploitation, or discrimination against children withdisabilities; employing children in work that causes physical, emotional, or reputational harm; or torture, cruelty, inhuman or degrading treatment. These crimes
are punishable with imprisonment of eight months to maximum of five years ora fine of 800,000 to 1,600,000 kyats.60 Committing physical or mental violenceagainst a child during armed conflict shall be punished with imprisonment for
one to six years and a fine of 900,000 to 1,800,000 kyats.61
Further protections for children under the 2019 Child’s Rights Law include
prohibitions against forced marriage and against knowingly allowing a childunder one’s guardianship to live with a prostitute or work as a prostitute. These

54

Section 56 of the Child’s Rights Law, 2019.

55

Section 62(a), Ibid.

56

Section 66, Ibid.

57

Section 100(a), Ibid.

58

Section 101(b), Ibid.

59

Section 102, Ibid.

60

Section 103(a), Ibid.

61

Section 103(b), Ibid.
- 104 -LEGAL ASPECT ON CHILD’S RIGHTS IN MYANMAR

crimes are punishable with prison terms of one to seven years and fines between
1,000,000 and 2,000,000 kyats.62 Crimes of employing children as prostitutes
and attempting to exchange money to abduct or sexually exploit a child is punishable with imprisonment for a minimum of two and a maximum of ten years anda fine of a minimum of 1,200,000 and a maximum of 1,500,000 kyats.63 Finally,
any offense related to selling, purchasing, or illegally removing, transferring, or
knowingly replacing a child’s internal organs incurs a penalty of imprisonment
between 10 and 20 years and a fine between 50,000,000 and 100,000,000 kyats.64
In short, the 2019 Child’s Rights Law provides for more severe punishments
than either 1993 law or the Penal Code, and Myanmar protects children from all
forms of sexual exploitation and sexual abuse.
Exploitation of children can also take place in the context of drug use. Under Section 22(c) of the 1993 Narcotic Drugs and Psychotropic Substances Law,
using children under age 16 to commit offenses provided in Sections 16 to 21 of
the law is punishable by the maximum penalty allowed under the law. This law
protects children exploitation in drug smuggling. However, since the enactmentof the Child’s Rights Law, child-related drug smuggling offenses are now only
punishable under that law.65
Moreover, the Civil Procedure Code of 1909 provides for some legal actions
involving children, for instance the right to sue and be sued through the next
friend for the minor plaintiff and the guardian for the minor defendant.66 Suchnext friend or guardian for the suit is prohibited from entering into, without theexpressly recorded leave of the Court, any agreement or compromise on behalf ofthe minor in the suit. Such agreements are voidable against all parties other thanthe minor.67 Therefore, it is clear that Myanmar always considered children’s best

62

Section 105(a), Ibid.

63

Section 105(b), Ibid.

64

Section 106, Ibid.

65

Section 119, Ibid.

66

Rule 1 of Order XXXII of the Civil Procedure Code, 1909.

67

Rule 7, Ibid.
- 105 -

interests under the Penal Code and the Civil Procedure Code before the country
passed the Child’ Rights Law, 2019.
The Republic of the Union of Myanmar prohibits human enslaving andtrafficking and forced labor,68 and the laws discussed above indicate that no one
including children is allowed to commit human trafficking or forced labor. Moreover, mothers and children as well as expectant women including fallen soldiers’
families enjoy equal rights as prescribed by law.69 Meanwhile, the Ministry ofLabor, Immigration and Population protects children with regard to workplacesafety and prevention of infringement and loss of their rights.70 Other laws onchildren’s rights to work are the 1951 Factories Act, the 1951 Oil Field (Workers
of Welfare) Act, the 2016 Shops and Establishments Law, and the 2019 Child’s
Rights Law.
The 1951 Factories Act prohibited employing any child under age 14 to workin any factory.71 The 1951 Oil Field Act sets 13 as the minimum employment
age72; additionally, children over 13 without a medical fitness certificate are also
prohibited from working in an oil field.73 A medical practitioner can certify achild over 15 years as fit to work as an adult,74 so this Act needs to be amended toprohibit children under 14 years from working in oil fields. Children over age 15
should also be prohibited from this hazardous work.
The Shops and Establishments Law, 2016, prohibits children under the ageof 14 to be employed in shops and establishments,75 in line with the International
Labor Standards. This Act allows the children between 14 and 16 to work if certified by a registered medical practitioner.76 Under the Child’s Rights Law, 2019,68

Sections 358 and 359 of the Constitution of the Republic of the Union of Myanmar, 2008.

69

Sections 32(a) and 351, Ibid.

70

Section 24 of the Child’s Rights Law, 2019.

71

Section 75 of the Factories Act, 1951.

72

Section 52 of the Oil Field (Workers of Welfare) Act, 1951.

73

Section 53, Ibid.

74

Section 54(2) (b), Ibid.

75

Section 13(a) of the Shops and Establishments Law, 2016.

76

Section 14(a), Ibid.
- 106 -LEGAL ASPECT ON CHILD’S RIGHTS IN MYANMAR

14 is the age for a child to work unless the stipulated age for free and compulsory
basic education is over the age of 14. Children over the stipulated age who are ingood health and able to work can engage in work in accordance with the laborlaws.77 It can be seen that the age limit for a child to work differs across different
laws, and these require uniformity as well as alignment with international standards.
With regards to the working hours, no child shall be employed or permitted
to work in any factory for more than four hours in any day.78 With respect to theworking hours for young workers aged between 16 and 18 years, those who havebeen granted a fit certificate to work as adults can work the same working hours
as adults.79 Otherwise, those young workers who have not been granted a fit certificate are governed under Section 79(1) (a) of this law, which sets four hours as
the young workers’ maximum. International Labor Standards allows same working hours as adults for young workers beyond 15 years. Therefore, it should be
amended to align with the International Labor Standards.
However, the 2016 Shops and Establishments Law stipulates that a person
who has not attained the age of 16 years shall not be allowed to work overtime
more than prescribed working hours in any shop or establishment.80 Moreover,children between 14 and 16 years with a fit certificate for work cannot be allowed to work for more than four hours a day.81 Young workers over 16 years areallowed the same working hours as adults. This is in line with the International
Labor Standards stipulated for young workers over 15 years, but the Act allows
overtime and night work for young workers over 16 years, and therefore it should
be amended.
Myanmar signed ILO Convention No. 182, Worst Forms of Child Labor Convention, 1999 in 2013. Therefore, the forms of child labor mentioned in the Sec77

Section 48, of the Child’s Rights Law, 2019.

78

Section 79(1) (a) of the Factories Act, 1951.

79

Section 78(1), Ibid.

80

Section 13(b) of the Shops and Establishments Law, 2016.

81

Section 14(a), Ibid.
- 107 -

tion 2(t) of the 2019 Child’s Rights Law protect the child from being employed in
the worst forms. The child shall be prevented from engaging in the worst formsof child labor.82
The ILO Convention No. 6 on Night Work of Young Persons (Industry), 1919,
was ratified by Myanmar in 1921. Article 2(1) of that Convention No. 6 prohibits
employment of children under the age of 18 years to night work.
In Myanmar, the children are prohibited to employ or permit to work at nightin any factory.83 Moreover, any youth who has not got fit certificate for employment by a registered medical practitioner shall not be employed or allowed to
employ at a factory at night.84
But, according to the Shops and Establishments Law, 2016, any person who
has attained the age of 14 years, but not 16 years shall not be compelled or allowed to work at night.85 Therefore, it is necessary to amend these provisions inline with the Convention No. 6.
Children under 18 years old are forbidden from doing dangerous, unhealthy
work that is bad for their morals and physical situations. The government, therefore, needs to make a list of hazardous work that a child should not be doing under 18 years.86
In Myanmar, it is provided in the Child’s Rights Law that the Ministry of Labor, Immigration, and Population shall specify the types of hazardous works andworkplaces in consultation with the organizations of employers and the relevant
trade unions.87 However, the ministry has not provided any such list of hazardous
works, and there are no provisions in the 1951 Factories Act and the 2016 Shopsand Establishments Law.
In the 1951 Factories Act, no young person shall work or be required to work

82

Section 48(a) of the Child’s Rights Law, 2019.

83

Section 79(1)(b) of the Factories Act, 1951.

84

Section 78(3), Ibid.

85

Section 14(b) of the Shops and Establishments Law, 2016.

86

Article 3 of the ILO Convention No. 138 and Article 4 of the ILO Convention No. 182.

87

Section 49(a) of the Child’s Rights Law, 2019.
- 108 -LEGAL ASPECT ON CHILD’S RIGHTS IN MYANMAR

at any machine unless he has been fully instructed as to the dangers arising inconnection there with and the precautions to be taken.88 Moreover, no woman
or child shall be employed in any part of a factory in which a cotton opener is atwork.89 Then, no youth shall be instructed to work by means that cause danger,
health impacts, hindrance the right to education, hurt to the character and dignity.90 Young workers under 18 years are prohibited from working in dangerous
work.91 If any child has been forced to work in a hazardous workplace, the employer shall be punished as mentioned in the Child’s Rights Law.92 Therefore,
the provisions for the protection of children should be updated in line with thecurrent Child’s Rights Law and the International Labor Standards.
The 2005 Anti-Trafficking in Persons Law declares that it is a “national duty”“to prevent and suppress the trafficking in persons as it damages the pride andpedigree of Myanmar nationality that should be valued and safeguarded by the
Myanmar race”.93 The law further pays particular attention to women, children,and youth for preventing and suppressing trafficking in persons.94 Under this law,persons who traffic women and children shall be punished with serious imprisonment.95 This law is certainly welcoming and commendable in light of the highincidences of human trafficking. Nonetheless, in order to effectively eliminate
child trafficking, some improvements should be made.

88

Section 25(1) of the Factories Act, 1951.

89

Section 29, Ibid.

90

Section 75 A, Ibid.

91

Section 14(d) of the Shops and Establishments Law, 2016.

92

Section 103(a) (2) and (3) of the Child’s Rights Law, 2019.

93

Section 4(a) of the Anti-trafficking in Persons Law, 2005.

94

Section 4(b), Ibid.

95

Section 24, Ibid.
- 109 -

7. Conclusion
Children are regarded as “jewels” of the society. Promulgation of the ChildLaw in 1993 (this law has been already repealed) two years after Myanmar’s
accession to the Convention on the Rights of the Child in 1991 and subsequent
adoption of the Rules of the Child Law are significant achievements in promoting and protecting the rights of the children in Myanmar. Then, in 2019, the State
newly enacted the Child’s Rights Law to define a child as anyone under the ageof 18. Today, all children born in Myanmar are guaranteed the fundamental andunconditional right to register at birth. Birth registration is the first right of thechild and a stepping stone to enjoying other rights such as the right to health,education and protection. With the establishment of a minimum age for marriage(18 years) and for employment (14 years), the value of childhood is recognizedand helps allow children to be children. The law also recognizes that children
affected by armed conflict need special protection by criminalizing grave violations against children and providing stronger legal protection for children in thecontext of armed conflict.
We are today trying our utmost to create better opportunities for the children
so that they can live in a better world enjoying the full range of their rights. Today’s enactment of the Child’s Rights Law demonstrates Myanmar’s commendable efforts to align national policies and regulatory frameworks with the UN
Convention on the Rights of the Child. Therefore, children in Myanmar have got
the rights and protection especially given by Child’s Rights Law, 2019 including
the constitution and other statutory laws.

- 110 -

Chapter 7

GLOBALIZATION IMPACT
ON THE RULE OF LAW:International Trade Law and Domestic Law Reform

Dao Gia Phuc*(The University of Economics and Law)

1. Economic Globalization and the Rule of Law
In recent decades, the term “economic globalization” has been widely usedby politicians, businesspeople, environmentalists, economists, and lawyers; it describes one of the defining features of the world we live in today. Joseph Stiglitz,
former Chief Economist of the World Bank and winner of the Nobel Prize for
Economics in 2001, described the concept as follows:
The closer integration of the countries and people of the world which has
been brought about by the enormous reduction of costs of transportation andcommunication, and the breaking down of artificial barriers to the flow ofgoods, services, capita, knowledge, and (to the lesser extent) people acrossborders.1* Vice-Director of the American Law Center, The University of Economics and Law, Viet
Nam National University in Ho Chi Minh city.
1

Joseph Stiglitz, Globalization and Its Discontents (Penguin UK, 2015), 9.
- 111 -

Thomas Friedman, the award-winning journalist of the New York Times,
also defined globalization as follows:
It is the inexorable integration of markets, nation-states, and technologies
to a degree never witnessed before – in a way that is enabling individuals,
corporations, and nation-states farther, faster, deeper, and cheaper than everbefore.2
Bossche and Zdouc expanded on the concept to state that economic globalization is the gradual integration of national economies into one borderless global
economy by compassing (free) international trade and (unrestricted) foreign
direct investment (FDI).3 Thus, it affects people everywhere in all aspects of
their daily lives, such as jobs, health, education, and even leisure time. Technology and trade liberalization have been recognized as main drivers of economic
globalization.4 The former has erased the natural barriers of time and space thathindered national economies have faded through advances in computing andcommunications, the latter makes these changes happen. Today, businesses areeven able to fragment production across continents, thanks to technological innovation and the emergence of a rules-based trading environment.
Indisputably, in the past 30 years, many countries have experienced rapid
growth in foreign trade, FDI, and inflows and outflows of foreign capital.5 The
accession in domestic markets by multinational corporations and the increased
cross-border movement of technology, information, capital, and management
skills have altered the domestic production patterns in many states. By acceding to various treaties and joining international organizations such as the World

2

Thomas L. Friedman, The Lexus and the Olive Tree (HarperCollins, 2000), 9.

3Peter Van den Bossche and Werner Zdouc, The Law and Policy of the World Trade Organi-zation: Text, Cases and Materials (Cambridge University Press, 2017), 4.
4

Martin Wolf, “Globalisation,” Financial Times, June 13, 2013.

5

Robert Wade, “Globalization and Its Limits: Reports of the Death of the National Economy

Are Greatly Exaggerated,” National Diversity and Global Capitalism 8 (1996): 62–64.
- 112 -GLOBALIZATION IMPACT ON THE RULE OF LAW

Trade Organization (WTO), states have created a supranational legal order thatthreatens their sovereignty. In the more radical view, some commentators believethat the nation-state as an economic unit has ended and the birth of a borderlessworld has just begun.6
There has been a notable rise in anti-globalization and anti-trade rhetoric
by populists in many countries owing to widespread concern about the harmful
effects of economic globalization and international trade, including jobs andwages, global ecosystems, economic development, cultural identity and diversity, and national sovereignty. However, the figures have shown that international
trade is a vital generator for reducing poverty.7 Specifically, the countries withintensified links with the global economy through trade have proliferated overa sustained period and have experienced more significant poverty declines. Although at low levels, globalization does often appear to hurt the poor, beyond acertain threshold it in fact reduces poverty.8 Therefore, trade liberalization is oneof the few policies that virtually all economists can agree on.
Likewise, FDI is arguably even more critical as an engine of global economic
integration. Businesses build plants, bring in machinery, and supply technology,
which all create jobs. Although some potential issues are inherent, an OECD
study showed that the benefits of FDI generally greatly outweigh the costs.9 Said
benefits to host countries include not only jobs, tax revenues, and economic
growth but also “spill over benefits” such as improving the quality of the local
labor force and improving management skills, as well as the introduction of newtechnology and the transfer of technical know-how.10 The study findings dispute
See generally Arthur Selwyn Miller, “The Global Corporation and American Constitution-

6

alism: Some Political Consequences of Economic Power,” J. Int’l L. & Econ. 6 (1971): 235;
Kenichi Ohmae, “The Borderless World.,” McKinsey Quarterly, no. 3 (1990): 3–19; and Susan Strange and Scholar of International Relations Susan Strange, The Retreat of the State:
The Diffusion of Power in the World Economy (Cambridge University Press, 1996).
7

See Pierre-Richard Agénor, Does Globalization Hurt the Poor? (The World Bank, 2002).

8

Ibid.

9

OECD, Foreign Direct Investment for Development, 2002.

10

Ibid.
- 113 -

the anti-globalization claim that multinational corporations move production todeveloping countries to avoid stringent labor and environmental standards. In
the OECD study, foreign-owned enterprises operating in developing countries
typically paid higher wages and followed higher environmental standards when
they invested.11 The report concedes that FDI can result in some unintended side
effects, including competition with local firms, job losses at those firms, and volatility in the balance of payments related to major investors’ import and export
activities. However, the report also notes that such problems are generally temporary and can be mitigated by appropriate host country policies.12
However, it is noteworthy that all these engines of economic development
depend on the rule of law. In defining this term, scholars and practitioners often
refer to Fuller’s list of the virtues inherent in an actual system of law: (1) the law
is general in its application; (2) the law is public; (3) the law operates prospectively; (4) the law is reasonably clear; (5) the law is internally consistent; (6) the
law is practicable to comply with; (7) the law is relatively stable; and (8) there isa congruence between the letter of the law and how it is enforced.13 These eight
criteria specify necessary conditions for law-making, which is “the enterprise of
subjecting human conduct to the governance of rules.”14 Raz borrows from Fuller’s formal components to include principles of institutional design, namely theguaranteed independence of the judiciary and the principles of natural justice,
judicial review, and access to justice.15 Tamanaha also states that the rule of law
exists, in its most basic terms, when government officials and citizens are generally bound by and abide by the law.16 Through this lens, the fundamental, instru-

11

Ibid.

12

Ibid.

13

Lon L. Fuller, The Morality of Law (New Haven, Conn.: Yale Univ. Press, 1964), 39.

14

Ibid. at 106.

15

Joseph Raz, “The Rule of Law and Its Virtue, The Authority of Law: Essays on Law and

Morality,” Oxford: Oxford University Press 210 (1979): 214–18.
16

Brian Z. Tamanaha, “The Primacy of Society and the Failures of Law and Development,”

Cornell Int’l LJ 44 (2011): 9.
- 114 -GLOBALIZATION IMPACT ON THE RULE OF LAW

mental virtue of a legal system is, therefore, manifest as the rule of law.
In today’s complex world, the rule of law is more critical to those ends.
The flows of capital, international trade, and foreign investment require legal
certainty and transparency, and these requirements are demanding in many
developing countries.17 Carothers identifies three types of rule of law reform
undertaken in countries transitioning to democracy, distinguishing among
them based on the extend of reform.18 Type one reform focuses on rewriting
laws, mainly commercial and criminal. Type two reform involves strengthening
law-related institutions through increasing salaries for judges and court staff;
training police, prosecutors, public defenders, and correctional officers; andimproving legal education and local government legislatures. Type three reform
focuses on the government’s compliance with the law – the type of reform mostneeded in emerging democracies around the world. As Carothers notes, rewriting constitutions, laws, and regulations is comparatively easy against the burden of institutional reform because much of the impetus must come from inside
government.19
Unfortunately, many studies have shown that such institutions might be difficult to change.20 Moreover, it is unclear that these institutions are responsive tochange from external forces. One problem is that these institutions are intimately
linked to particular distributive outcomes, and therefore, attempts to change
them may run into significant political opposition, as Srinivasan argues.21 However, other researchers have been more optimistic in highlighting that several de17

Delissa A. Ridgway and Mariya A. Talib, “Globalization and Development - Free Trade,

Foreign Aid, Investment and the Rule of Law Essay,” Cal. W. Int’l L.J. 33, no. 2 (2002–2003):
337.
18

Thomas Carothers, “The Rule of Law Revival,” Foreign Aff. 77 (1998): 95.

19

Ibid.

20

Kevin E. Davis and Michael J. Trebilcock, “The Relationship between Law and Devel-

opment: Optimists versus Skeptics,” The American Journal of Comparative Law 56, no. 4(2008): 895–946.
21

Thirukodikaval N. Srinivasan and Jessica Seddon Wallack, “Globalization, Growth, and

the Poor,” De Economist 152, no. 2 (2004): 251–272.
- 115 -

veloping countries have achieved high growth rates over long periods by adopting good policies and sound governance. Braithwaite clarifies that developing
countries can sometimes benefit from institutional links formed by developed
countries in an interconnected world.22 Barr also argues that positive institutional growth can occur in developing countries despite governmental frameworks’
weakness.23
From the perspective of international law, international trade and investment treaties complement the pursuit of humanitarian and other normative ends,
which contributes to sustainable development. The 164 Member States to the
Marrakesh Agreement (1994), the founding document for the WTO, agreed inprinciple to make
optimal use of the world’s resources in accordance with the objective of sustainable development, seeking both to protect and preserve the environment
and to enhance the means for doing so in a manner consistent with their respective needs and concerns at different levels of economic development.24
While the language used does not impose binding obligations on WTO
members, the agreement implies an obligation to work in good faith toward integrating and accommodating sustainable development principles in international
trade and investment practices. International treaties like the Convention on the
Illegal Trade in Endangered Species and national custom and environmental
laws prohibiting the importation of illegally sourced forest and marine resources
demonstrate states’ interest in preventing environmental destruction, further
constraining the scope for transnational organized crime. Even though countries

22

John Braithwaite, Regulatory Capitalism: How It Works, Ideas for Making It Work Better(Edward Elgar Publishing, 2008).
23

Michael S. Barr and Geoffrey P. Miller, “Global Administrative Law: The View from Ba-

sel,” European Journal of International Law 17, no. 1 (2006): 15–46.
24

Marrakesh agreement (also Agreement establishing the World Trade Organization) (1994).

https://www. wto.org/english/docs_e/legal_e/04-wto.pdf. Accessed 14 November 2020.
- 116 -GLOBALIZATION IMPACT ON THE RULE OF LAW

that depend on timber and fisheries exports are concerned that the documentationlevels necessary to satisfy legal requirements stretch the limits of their regulatory and law enforcement capacities, such prohibitions do not constitute a restraintof trade under WTO rules.25 Though we might expect all humanitarian, humanrights, and sustainability norms to run second to state and private commercial
priorities, these are not incompatible ends.26

2. The Proliferation of Regional Trade Agreements
and the Rule of Law
The history of regionalism can be observed in many parts of the world. Regional economic integration first became an essential focus in Europe in the
1950s and 1960s, mainly intending to build peace after World War II through theestablishment of the European Economic Community in 1958. In Latin America,
efforts at economic cooperation focused on promoting industrialization by substituting imports from the US with regional production. In Africa, the establishmentof regional institutions, such as African Unity in 1963 (nowadays the African
Union), was concurrent with the increase of independent states. In Asia, the Association of Southeast Asian Nations found their association in 1967 (ASEAN).27
Traditionally, regional economic integration was negotiated to address needs

25

See generally Paul Battersby, The Unlawful Society: Global Crime and Security in a Com-plex World (Springer, 2014).
26

See Diane A. Desierto, “The International Mandate for Development: Building Compliant

Investment within the State’s Development Decision-Making Processes,” in International
Investment Law and Development (Edward Elgar Publishing, 2015), 333–68; and Valentina
Sara Vadi, “Access to Medicines versus Protection of ‘Investments’ in Intellectual Property:
Reconciliation through Interpretation?,” Law in the Pursuit of Development: Principles into
Practice?, 2009, 52–67.
27

Theresa Carpenter, “A Historical Perspective on Regionalism,” in Multilateralizing Re-

gionalism: Challenges for the Global Trading System, ed. Richard Baldwin and Patrick Low(Cambridge University Press, 2009), 13–27.
- 117 -

for cooperation beyond the nation-state that could form the basis for a more
profound political coalition.28 More recently, regional arrangements on tradedeveloped with other aims beyond geographic proximity. This trend can beenreferred to as the “new regionalism,” which accepts that groups can be definedby features other than geographic location such as cultural, linguistic, social or
historical bonds.29 Thus, governments today recognize regional trade agreements(RTAs) by the mutual interests of parties rather than the geography.
This new regional approach to trade cooperation featured deeper economic
integration with the formation of the European Union (EU), the North American
Free Trade Agreement, and MERCOSUR (Southern Common Market-Mercado Común del Sur).30 Inspired by the establishment of these trade blocs in theAmericas and Europe in the late 1980s and early 1990s, the number of RTAs hasflourished in the last two decades.31 The reasons for this proliferation of RTAs
originated from the difficulties confronted in the Uruguay Round, which motivated several countries to pursue preferential deals as an alternative in case multilateral trade negotiations with the WTO failed.32 Additionally, over the past 50
28

David Mitrany, “A Working Peace System,” in The European Union (Palgrave, London,1994), 77–97; and Ernst B Haas, Beyond the Nation State: Functionalism and International
Organization (ECPR Press, 2008); and Ernst B. Haas and Desmond Dinan, The Uniting ofEurope: Political, Social, and Economic Forces, 1950–1957, vol. 311 (Stanford University
Press Stanford, 1958).
29

For instance, under the WTO definition of RTAs, an agreement between the United States

and Jordan is considered “regional.” See Tanja A. Börzel and Thomas Risse, “Introduction:
Framework of the Handbook and Conceptual Clarifications,” in The Oxford Handbook ofComparative Regionalism, ed. Tanja Börzel and Thomas Risse (Oxford University Press,
2016), 3–15.
30

Louise Fawcett, “Exploring Regional Domains: A Comparative History of Regionalism,”International Affairs 80, no. 3 (2004): 440; Fredrik Söderbaum, “Early, Old, New and Comparative Regionalism: The Scholarly Development of the Field,” 2015, 18.
31

By December 2018, the WTO had received 681 notifications of RTAs, 467 of which werein force at that time. See https://www.wto.org/english/tratop_e/region_e/region_e.htm#facts,
accessed on 11 May 2019.
32

For instance, the expansion of the European RTAs network included countries from Cen-

tral and Eastern Europe, the Balkans, and the Mediterranean; the influence from the U.S for- 118 -GLOBALIZATION IMPACT ON THE RULE OF LAW

years, the number of WTO Member States grew to 164 as of 2019, and this broad
membership might have caused an impasse in multilateral trade liberalization.
Such difficulties were revealed in the collapse of the trade deal during the 2013
WTO Ministerial Conference in the Doha Round.33 Therefore, WTO members
have considered RTAs possible alternatives for improving economic welfare anddomestic industries’ profits.34
In actuality, the WTO with its 164 member countries is the only international
trade organization; it provides the necessary legal infrastructure of trade and amechanism for enforcement. The RTAs, meanwhile, could provide new rules that
the WTO has failed to create and those that could elaborate and refine the organization’s rules. In this regard, the WTO and RTAs complement to each other, andthe combination of rules between them can help international trade regime be
more transparent and comprehensive. Specifically, RTAs would support deeper
commitments than the ones typically granted at the multilateral level, moving
forward a trade agenda among a small group of countries.
Consequently, RTAs could experiment as laboratories for new and sensitive
trade-related issues.35 Moreover, RTAs may cover not only trade matters in anarrow sense, but also other issues that cannot be settled at a multilateral levelsuch as labor, environmental and competition standards.36 Once an RTA is cona strong preference towards preferential agreements; the regionalism-oriented policies from
Chile, Mexico, and Singapore aim to establish preferential relations with their major trading
partners; the fragmentation of the former Soviet Union states looked for new trade organizations. See Rafael Leal-Arcas, “Proliferation of Regional Trade Agreements: Complementing
or Supplanting Multilateralism,” Chi. J. Int’l L. 11 (2010–2011): 597–630.
33

Doha Round is the most recent round of trade negotiations within WTO. It was launched in

November 2011. See https://www.wto.org/english/tratop_e/dda_e/dda_e.htm. Accessed July,
29th.
34

Scott L. Baier et al., “Do Economic Integration Agreements Actually Work? Issues in Un-

derstanding the Causes and Consequences of the Growth of Regionalism,” World Economy
31, no. 4 (2008): 465.
35

Richard E Baldwin, “Multilateralising Regionalism: Spaghetti Bowls as Building Blocs on

the Path to Global Free Trade,” World Economy 29, no. 11 (2006): 1451–1518.
36

E. K. Kessie, “The World Trade Organization and Regional Trade Agreements : An Analy- 119 -cluded among a small number of WTO members, other members may follow thisapproach and multilateralize the idea. Practically, many WTO members started
to negotiate several sensitive trade-related issues at the bilateral or at regional
level and only then brought to the multilateral negotiations in the WTO.37 Ironically, several developed countries such as the US and EU, nowadays, substituted
its multilateralism strategy with an ambitious bilateral and plurilateral tradeliberalization agenda, aimed at removing the behind-the-border barriers to tradethrough regulating “deep” disciplines, including public procurement, intellectual
property rights protection.38 Notably, in along and largely in synergy with “deep”
disciplines, the “new generation” or “21st century” RTAs have been marked by
the proliferation of non-trade-related measures, such as sustainable development
and human rights.39 For example, the two critical developments mark the EU’s
contemporary development agenda concerning trade liberalization and the ruleof law. The first one deals with a growing recognition of the role that laws andtheir observance play in promoting sustainable development in general and its selected aspects, such as sustainable trade.40 On the other hand, trade liberalization
is often increasingly viewed as a means to foster fundamental values, including
the rule of law, in third countries.41
sis of the Relevant Rules of the WTO,” Sydney (Thesis, The University of Technology, Doctor of Juridical Science, 2001), 31–55.
37

Joy A. Kim, “Harnessing Regional Trade Agreements for the Post-2012 Climate Change

Regime,” Climate and Trade, 2009, 57.
38

For the EU’s alteration to the bilateral and plurilateral trade agenda, see: European Com-mission, Communication to the Council, the European Economic and Social Committee andthe Committee of the Regions “Global Europe: Competing in the World,” COM (2006) 567
final of 4 October 2006.
39

For the concept of the EU’s “new generation” of RTAs, see: European Commission DG“Trade” (2016) Strategic Plan 2016–2020. https://trade.ec.europa.eu/doclib/docs/2016/august/tradoc_154919.pdf.
40

See Maryna Rabinovych, “Where Economic Development Meets the Rule of Law? Pro-

moting Sustainable Development Goals Through the European Neighborhood Policy,” Brill
Open Law 2, no. 1 (April 3, 2020): 140–74.
41

Axel Marx et al., “Global Governance through Trade: An Introduction,” Elgar Online: The- 120 -GLOBALIZATION IMPACT ON THE RULE OF LAW

A typical new-generation RTAs with non-traded-related measures concerning the rule of law entails two elements. Firstly, it contains a clause specifying
the core values “underpinning the relationships between the Parties” (a substantive “essential element” clause).42 Secondly, a “suspension clause” defines theprocedure for suspending an agreement or parts thereof in case of a violation of“essential elements.” Such a structure creates the conditions under which humanrights violations of a particular scale in partner countries could be qualified asa material breach of the treaty in terms of Article 60 of the Vienna Convention
on the Law of Treaties and could justify the suspension of the treaty or the application of other countermeasures.43 The first binding “essential element” clause
was introduced in the 1995 revision of the EU-ACP Lomé Convention that distinguished the rule of law as an “essential element”.44 While not containing an“essential element” clause in its conventional form, the EU-Viet Nam FTA refers
to the 2012 Framework Cooperation Agreement between contracting parties.45
According to Article 1, democratic principles, human rights, and the rule of law
represent “essential elements” under the Agreement. An important peculiarity ofthis norm is an emphasis on the relationship between international and domestic law, that requires Viet Nam’s compliance with “the purposes and principlesof the Charter of the United Nations...” and international human rights treaties.

Online Content Platform for Edward Elgar Publishing, November 27, 2015, https://www.
elgaronline.com/view/edcoll/9781783477753/9781783477753.00005.xml.
42

Tobias Dolle, “Human Rights Clauses in EU Trade Agreements: The New European Strat-

egy in Free Trade Agreement Negotiations Focuses on Human Rights—Advantages andDisadvantages,” in The Influence of Human Rights on International Law (Springer, Cham,
2015), 214.
43

Vienna Convention on the law of treaties, U.N.T.S., 1155, I-18232.

44

Agreement amending the Fourth ACP-EC Convention of Lomé, signed in Mauritius on 4

November 1995, OJ L 156/3 of 29 May 1998, Art. 5.
45

EU-Vietnam Trade Agreement (“EU-Vietnam FTA”). https://trade.ec.europa.eu/doclib/press/index .cfm?id=1437; Framework Agreement on Comprehensive Partnership and Cooperation between the European Union and its Member States, of the one part, and the Socialist
Republic of Viet Nam, of the other part. OJ L 329, 3.12.2016, pp. 8–42.
- 121 -

Article 1 also refers to “the commitment to further cooperate toward the fullachievement of internationally agreed development goals...” as an “essential
element.” Article 2 of the Framework Agreement, highlighting the aims of cooperation, does not more broadly mention the rule of law and its components in thecontext of the advancement of trade and investment and economic cooperation.
Instead, the rule of law is referred to as a part of the justice and security agenda,
alongside legal cooperation, data protection, migration, and countering organized crime.
More importantly, most of the RTAs in question stipulate that a party’s failure to provide administrative cooperation and report customs-related irregularities or fraud can result in the temporary suspension of preferential treatment.46
As understood by the RTAs, the notions of customs irregularities or fraudencompass several breaches of the legality and legal certainty principles, suchas customs authorities’ “repeated failure to respect the obligations to verify theoriginating status of the product(s) concerned.”47 Moreover, the respective provisions emphasize the accountability and transparency dimensions of the rule oflaw by recognizing the authorities’ “repeated refusal or undue delay in obtaining
authorization to conduct administrative cooperation missions” as “a failure toprovide administrative cooperation.”48 The fundamental instruments that theframework administrative cooperation standards utilize to promote the rule oflaw include the imposition of basic standards and consultations with the relevant
treaty bodies.49
As opposed to framework norms on administrative cooperation, the RTAs’“Customs and Trade Facilitation” chapters are marked by the numerous rule oflaw standards. Compared to customs cooperation, trade facilitation is a broader

46

EU-Kosovo SAA, Art. 48; EU-Ukraine AA, Art. 37(1); EU-CARIFORUM EPA, Art. 20(1).

47EU-Kosovo SAA, Art. 48(3); EU-Ukraine AA, Art. 37(3); EU-CARIFORUM EPA, Art. 20(3).

48

Ibid.

49

For instance, the Subcommittee on Customs, Trade Facilitation, and Rules of Origin as set

by Art. 168 of the EU-Peru- Colombia FTA or the Trade Committee, according to Article 2.8of the EU-Viet Nam FTA and a sanctions mechanism.
- 122 -GLOBALIZATION IMPACT ON THE RULE OF LAW

concept, encompassing an indefinite range of trade-related issues. Thus, it ismore likely to generate spill overs in other issue areas. Accordingly, Article 75 of
the EU-Ukraine DCFTA and Article 4.3.2(a) of the EU-Viet Nam FTA requires
the parties’ efforts in the customs cooperation and trade domain and aims to promote “legitimate trade.” Nonetheless, the teleological analysis of the “Customs
and Trade Facilitation” chapters under the EU-Ukraine DCFTA and the EU-Viet
Nam FTA indicates that their objective is immediately concerned with the legality dimension of the rule of law. Consequently, Article 76 of the EU-Ukraine
DCFTA and Art. 4.3.2(a) of the EU-Viet Nam FTA stipulates that legitimate
trade protection requires “effective enforcement of and compliance with legislative requirements.”

3. Economic Integration and Domestic Law Reform in Viet Nam
Viet Nam has experienced 34 years of market-oriented reforms in conjunction with international economic integration since Doi Mo (Economic
Renovation) was launched in December 1986. The resulting socio-economic
achievements were impressive - from a poor country, Viet Nam has now reacheda lower-middle-income economy. The country initiated trade negotiations once
it became an official member of the Association of South East Asian Nations(ASEAN) in 1995. A year later, in January 1996, it joined the ASEAN Free Trade
Area (AFTA), the first FTA of Viet Nam. 2007 marked a significant milestonewhen Viet Nam became the 150th Member of the WTO. This opportunity provided comprehensive steps toward trade and investment liberalization, alongsideeconomic reform. Also, 2015 has remained highly successful as it signed four
RTAs with some of its largest trading partners, namely the EU (EVFTA), South
Korea, Eurasia Economic Union (EEC), and Comprehensive and Progressive
Trans-Pacific Partnership (CPTPP).50 By April 2020, Viet Nam has signed 13
50

CPTPP had a total of 11 members, including Australia, Brunei, Canada, Chile, Malaysia,- 123 -

FTAs, and all of them have already come into effect. Prominently, Viet Nam
signed five FTAs as an ASEAN member and the rest as an independent country.
The establishment of the ASEAN Economic Community as a replacement of
AFTA in 2016 could enhance the regional cooperation for Viet Nam. Moreover,
Viet Nam’s effort to integrate its economy with the rest of the world is also marking it as an FTA hub in South East Asia, presently a strategic region globally.
Like other nations, the underlying economic benefits have played a vitalrole in Viet Nam’s efforts to participate in many FTAs in a relatively short time.
Moreover, the FTA drive seems to have paid off in the form of increased tradeand FDI. A study argues that exporters in Viet Nam have benefited from theenlargement of export markets and reduced tariff and non-tariff barriers, thanks
to FTAs.51 Viet Nam was also given more extended implementation periods fortariff reduction and elimination compared to ASEAN-6 (Brunei, Indonesia,
Malaysia, Phillipines, Thailand, and Singapore) and its FTA partners. Presently,
Viet Nam is linked with the largest trading partners and the primary FDI sourcesby the FTAs, such as the EU, Japan, Korea, China. Nonetheless, a look at theconstituents of FTAs reveals Viet Nam’s both trade and international relations
strategies that diversify and multilateralize external relations. For example, Viet
Nam focuses on regional and geographically scale as well as traditional markets
through FTAs. Also, its FTA partners are at different levels of development andhave less similar trade structures. In the medium to long run, Viet Nam would
improve its domestic and international competitiveness and reduce its dependence on any single trade partner, as is China’s case at present. Besides, throughthose agreements, Viet Nam has been recognized as a full market economy by
many countries, including India, Australia, and New Zealand.52
However, the active participation of Viet Nam in the trade agreement has
Mexico, New Zealand, Japan, Peru, Singapore, and Viet Nam. The USA has withdrawn fromthe deal in 2016.
51

Asia Regional Integration Center, Viet Nam’s Participation in Free Trade Agreements:

History and the Way Forward, 4.
52

Ibid.
- 124 -GLOBALIZATION IMPACT ON THE RULE OF LAW

not remained free of challenges. Although various institutional reforms that
Viet Nam has enacted so far to become an FTA partner with other economies
should have a long-term positive impact on its future development, its participation in new-generation FTAs, specifically, has created several challenges forboth economy and institutional reforms. The quality and coverage of these FTAs
have evolved continually to cover various fields, far beyond the traditional ones.
Some of Viet Nam’s FTAs, such as EVFTA and CPTPP, now cover primarysectors such as trade in goods, services, and investment and the extent to which
non-economic issues such as intellectual property, government spending, competitive policies, labor, and environmental standards The improvement of industry-specific performance, economic competitiveness, labor, and environmental
standards is difficult and time-consuming. The decline in tax revenue due tovarious tariff reduction commitments to the FTAs is emerging to be an issue forthe government. Therefore, Viet Nam could be a good case study for its effort totransform from a socialist economy to a market-based socialist economy where
globalization and trade agreements have become an instrument of transition.
Many authors believed that trade agreements positively impact legal andinstitutional reforms and improve the national image and position of Viet Namin the international infrastructure.53 The commitments under FTAs require thecountry to comply with international rules and standards and revise the national
legal system and government regulations toward a transparent business climate
and fairer competition to attract foreign investors and trading partners. One of
the fundamental reforms in preparing for joining FTAs was the revision of trade
and tax policies. Before 2000, Viet Nam employed an “import substitution” trade
policy; even the government had no tariff elimination schedule or reduction.
However, since 2001, Viet Nam has pursued the export-oriented trade policy to
53

See generally Vo Tri Thanh, “Vietnam’s Perspectives on Regional Economic Integration,”

Journal of Southeast Asian Economies 32, no. 1 (2015): 106–24; and Nguyen Trinh Thanh
Nguyen, “The Reform of Vietnamese Economic Institutions under the Impact of Free Trade
Agreements A Case Study of the EU and Vietnam Free Trade Agreement,” Köz-gazdaság Review of Economic Theory and Policy 13, no. 3 (2018): 191–203.
- 125 -

join WTO and participate in AFTA and other FTAs. To meet these requirements,
Viet Nam has restricted its policy space, especially trade protectionism policies,
through domestic companies’ protection mechanisms such as tariff and non-tariffbarriers.54
Additionally, Viet Nam amended and adopted a new Import-Export Tariff
Law in 2005, which had the largest number of amendments. The new law highlighted the government obligations of implementing tariff reduction and elimination commitments under FTAs. Viet Nam’s List of Preferential Tariff is updated
every year to comply with the FTA commitments. For example, after signing a
new-generation FTA with EU and joining CPTPP, the Vietnamese Commercial
Law of 2005 is proposed to be revised to be compatible with FTAs commitments.
In line with these trade policy changes, the government also amended the fiscal
policy by increasing spending, especially infrastructure.55
However, as mentioned above, participation in various trade agreements,
especially new-generation FTAs, also imposes many challenges to Viet Nam.
When joining the FTAs, the significant challenge for Viet Nam is institutional
reforms, which influence the investment environment. Unlike other economies,
Viet Nam has been practicing a socialist-oriented market economy. However,this economic model’s definition is vague and incomplete, and it is unclear how
the “socialist element” can manipulate the current market economy and how
to implement this strategy. Besides that, Viet Nam’s current economic modelis far from the model of a full market economy because of the clash between
characteristics of the “socialist factor” and basic principles of a market economy
such as supply and demand, competition, and price mechanisms.56 Likewise,54

National Institute for Finance, Facilitate the Policy Space to Support Vietnam’s Domestic

Enterprises after Signing FTAs. NIF Portal (July 27, 2015).
55

T.D Tuyen et al., Impacts of Market Liberalization Requirements under WTO and FTAs on

Production, Trade and Measures to Perfect the Import–export Management Mechanisms of
Ministry of Industry and Trade 2011–2015, Ha Noi, MUTRAP III Report (September 2011).
56

See Phan Quan Viet, “Opportunities and Challenges When Vietnam Joins TPP,” Issues in

Economics and Business 2, no. 1 (2016): 28–46.
- 126 -GLOBALIZATION IMPACT ON THE RULE OF LAW

in recent years, state-owned enterprises have received many favors over otherbusiness types. Thus, FTAs commitments have led to immense pressure to foster and complete state-owned enterprises’ reform process. Mainly, CPTPP has
introduced the regulations on the duration for state-owned enterprises reform
to ensure transparency (in the valuation of assets as well as transparency in thebusiness operation), transformation (focus on quality, corporate structure rather
than quantity, the number of equitized enterprises) and comprehensiveness (notto ignore or bias any enterprises).57
Another significant issue is the pressure for reforming economic legislation.
The Competition Law has been put into force since 2004 and amended in 2014
but still has many flaws and legal loopholes. For example, this law’s scope limits the competitive behaviors of entities operating within Viet Nam’s territory
without mentioning the competitive behaviors of entities operating outside but
have effects on Viet Nam’s market. Moreover, the government published Competition Law under international economic integration pressure rather than underthe market’s pressure. In terms of the specific commitments to the Trade andSustainable Development Chapter in EVFTA, although the Agreement has been
approved and gradually comes into force, Viet Nam will have to continue its efforts to adopt many international standards. Later, it will need to ensure enforcement and support affected people in society to meet commitments and make thebest use of this Agreement’s trade growth opportunities. Specifically for labor
commitments, the National Assembly has recently passed a revised Labor Codewith changes consistent with both CPTPP and EVFTA. The revised Labor Codecurrently included the contents of the ILO’s Conventions, but the government
will also have to draft detailed guidelines in its implementing regulations. Besides, the Trade Union Law will also have to be amended to comply with ILO
regulations. Simultaneously, the government needs to have effective mechanismsthat closely monitor the implementation of regulations to bridge the gap between

57

T.H.P Dao, “The Implementation of TPP: Needs Government Support to Take Advantage

of New Markets. Research Forum on Ministry of Finance Website,” March 16, 2016.
- 127 -

policy regulations and policy implementation, especially those on labor safety
enforcements.
According to the Global Competitiveness Report 2015–2016 of the WEF,
Viet Nam is ranked 56th out of 140 countries on competitiveness and businessenvironment. Although this ranking has marked a significant improvement, from
68th in 2014, Viet Nam is still lagging behind its ASEAN counterparts. Viet
Nam also has the lowest position among the essential element index, listed at
the 85th position out of 140 countries and eighth over ten in ASEAN countries.
The figure demonstrates the most critical indicators of an institution that play adecisive role in Viet Nam’s competitiveness.58 Viet Nam is still standing poorly
on the score list. Among these indicators, “Irregular payments and bribe” has
the lowest position with the rank of 106th/140, followed by the “Strength of investors’ protection” and “Burdens from government procurement,” ranked 100thand 90th, respectively. This result suggests that Viet Nam’s administrative procedures are still complicated, time-consuming, and costly for enterprises. Inevitably, this contributes to limited public service quality, an increase in irregular
payments, corruption, and harassment toward businesses and investors, making
the business environment and economy less transparent, less attractive, and lesscompetitive.

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- 131 -

PART IIDISCUSSION

THE RULE OF LAW PROMOTION AND
THE ROLE OF UNIVERSITY IN ASIA*

Participants
Thailand

Nepal

Hattapong Hirunt (Thammasat Univ.)

Aman Maharjan (Private Attorney)

Laos

Japan

Latdavanh Donkeodavong (National Univ. of

Rikako Watai (Keio Law School)

Laos)

Toshitaka Kudo (Keio Law School)
Shohei Sugita (Lawyer)

Cambodia

Yosuke Kobayashi (JICA)

Mao Kimpav (Paññāsāstra Univ.)

Hitomi Fukasawa (KEIGLAD; Keio Law School)

Tharin Vong (Paññāsāstra Univ.)
VietnamModerator

Phan Thi Lan Huong (Hanoi Law Univ.)

Hiroshi Matsuo (KEIGLAD; Keio Law School)

Tran Khanh Van (Lawyer, Keio Law School
Alumini)* The following is the record of discussion at the Programs for Asian Global Legal Professions (PAGLEP) Symposium 2020: University’s Contribution toward “the Rule of Law Ubiquitous World” held on November 21, 2020, by way of the Internet.
- 135 -

Hiroshi Matsuo:

or is it international pressures? Is it

In the morning’s presentation session,a reflection of the people’s economic

we have confirmed the meaning ofinterests or of the internal interests of

the rule of law through concrete is-stakeholder populations such as stu-sues such as how to improve accessdents, workers, business persons, orto government information and legal

other society members? Universities

sources, how to strengthen legal

can promote the rule of law throughprotections for children and workers

studying the concept including how toby prescribing them in substantive

implement it and how to facilitate it.

and procedural laws, and providing
dispute resolution systems for them.

One particular contribution of uni-

We have also learned how to fill theversities is fostering students to be

gap between international rules andintermediaries between the legal

domestic laws by raising citizens’

system and civil society from a global

interest in what their laws should be.

perspective. In the future students canThen, there are people’s increasing

be stewards of the law, by interpreting

concerns with what is meant by thelegal terms, translating the meanings

rule of law. The most crucial commonof our legal rules and theories, andrecognition is that the rule of law

explaining the aims of the law so thatcannot be understood abstractly, in aordinary people can comprehend its

static form, and by mere observation.

purpose. In the afternoon sessions,Instead, we should capture it under

I’d like to discuss how to foster stu-

a country’s unique conditions, in its

dents who have a global perspective

dynamic development process, andand global approaches to the difficult

by our participation to a part of thatissues that globalizing societies faceprocess.

today.

From these presentations, what do you

Since the Keio Law School’s Program

think is the primary driver of promot-

for Fostering Asian Global Legaling the rule of law in our countries? Is

Professions (PAGLEP: [http://keiglad.

it new legislation by the government,

keio.ac.jp/en/paglep/]) started five

- 136 -DISCUSSION: THE RULE OF LAW PROMOTION AND THE ROLE OF UNIVERSITY IN ASIA

years ago, more than 220 students

Watai to give us an introduction to thehave participated in the program, andKeio Law School LL.M. course?

I think they are the most important
outcome of our joint project. But to

Rikako Watai:

contribute to the promotion of the ruleProfessor Matsuo, thank you for giv-of law, we need to improve the pro-ing me the opportunity to speak about

gram, and we would like to ask you

the education at Keio University Law

how we can do that. Before we start

School. My name is Rikako Watai,

taking any comments or questions, I’d

and I’m a professor of administrative

like to ask Professor Watai to give us

law; and I currently serve as the di-a brief introduction to the Keio Law

rector of the LL.M. program in global

School, which established the English

legal practice. In the age of globaliza-

LL.M. programs for students whotion, I think the rule of law has value

come from all over the world. Someand that it is especially important tolaw schools in our partner universities

share this value, and universities canhave already established English lan-do a lot in this area.

guage law programs. But what are theadvantages and aims of legal instruc-Let’s go back in time a little. Keio’s

tion in English? May I ask Professor

legal education goes as far back as- 137 -

1890; the first head of the law depart-international organizations. We wel-ment was John Henry Wigmore, acome exchange students with interest

famous evidence law professor fromin Japanese or Asian law. Here at

the United States who was recruited

Keio, students from all these different

as a foreign advisor to the Japanesebackgrounds can come together to ex-

government. Professor Wigmorechange their perspectives on how westayed with us for two years, and his

apply the rule of law.

students succeeded him. In this classroom picture from the early 1920s,

The Keio LL.M. degree program re-you can recognize legal terms written

quires that students complete at leaston the blackboard like “equity.” Japan

30 credits. The standard duration for

introduced the U.S.-style law school

completiing the course is one year,

system in 2004, and our LL.M pro-and students may begin their studies

gram started in 2017. Keio has always

in either April or September. All stu-

been a home for comparative legal

dents must earn at least four credits

studies, and this is one way we sharein either global business law or global

our views on the rule of law. Now wesecurity law and at least four credits

have the honor of collaborating withof practical training. Global business

you all, which means now Keio is as

law courses cover international trans-

global as ever.

actions and international dispute resolution, and global security law deals

The students who enter the Keiowith human rights, environmental

LL.M. course include qualified

law, and security issues. The practicallawyers as well as those who havetraining involves applied learning, in-completed law school and want tocluding mock trials and internships at

improve their English competencies

law offices and corporate legal depart-and practical skills in English. We

ments. These flexible requirements

also aim to train students who willallow students to create programs

be globally active legal professionals.

that meet their individual needs. ThenOur program will open its doors tothere are the elective courses covering

newly graduates who wish to work in

the legal systems in Asian countries- 138 -DISCUSSION: THE RULE OF LAW PROMOTION AND THE ROLE OF UNIVERSITY IN ASIA

and the latest issues happening in the

LL.M program is globalization. Ourlaw. The program here offers value forgoal is to train Japanese and foreign

both theory and practice.

lawyers to be global players, and I
think this is what universities can do

The program offers certificates into promote the rule of law. Globaliza-

business law, intellectual property

tion is deeply connected to education,

law, international dispute resolution,

and we have high expectations forJapanese law, and most importantworking with you all in promotingof all, law and development in Asia.

rule of law. I hope we can get together

Each certificate requires satisfactory

sometime in the near future and nextcompletion of at least 10 credits in thetime in person. Thank you very much.

relevant field, as well as a two-credit
research paper. Of course, you canHiroshi Matsuo:

choose not to seek a certificate andThank you, Professor Watai for giv-

instead just take the courses that in-ing us a really good guide to the Keioterest you. You can study broadly or

LL.M course in just five minutes, one

in-depth, and this is very new for us.

example of our challenges in providing law instruction including AsianOn February 21st, 2019, Keio Univer-law in English. Other universities

sity Law School qualified as a recog-

have had similar intentions and faced

nized course provider for the Char-similar challenges, and we need totered Institute of Arbitrators (CIArb).

improve our joint programs for the

The CIArb is based in London and isfuture.

a leading institution for dispute management. From April 2019, students

Today, I’m very glad to see the names

who completed classes Introductionof students who have participated in

to Arbitration, International Commer-

the PAGLEP or who graduated LL.M.

cial Arbitration and Mediation could

course. If you have any comments,

qualify as CIArb members.

requests, or questions for how we can
improve our programs, please feel

Finally, the background of our new

free to give us based on your experi-- 139 -

ence. Professor Huong, do you haveprofessors from partner universities

any comments?

to give lectures on topics related
to countries such as Vietnam andPhan Thi Lan Huong:

Cambodia. Using the advantages ofYes, thank you Professor Matsuo. I

online technologies, it’s easy for you

would like to share some of my ideas

to organize courses on ASEAN law

about developing the English pro-by inviting professors from partner

gram. It’s very important in the glo-

universities to give lectures like that.

balization context and very different
from the way of Vietnam like Hanoi

One more similar topic you men-

Law University. We also hope that wetioned today is about the role of uni-

can have some English programs forversities in promoting the rule of law.

most undergraduate and LL.M. stu-

I share the viewpoint that we create

dents, but so far it’s quite challenging

in law school graduates intermediate

because we face many difficulties.

human resources who play important

The first is we lack the human re-roles in law enforcement not only assources, professors who can give thelawyers but also as judges and public

lectures in English. The second is we

prosecutors. They will become key

also lack training documents in Eng-

persons in the enforcement system.

lish; for example, there are very few

Also for law school today, I think thatbooks written in English.

for the rule of law in society, we needto protect human rights and provide

We are now considering developing

legal support for the people.

an LL.M. program. Without that,
we cannot promote exchange pro-

Also in Vietnam for example, uni-

grams with partner universities likeversities play an important role in

Keio University. I think that you justthe legislative enactment, because

mentioned about teaching the law inthrough conferences and workshops,

English. From my own experience,scholars and professors give a lot ofat Nagoya University, they have ancomments and input in drafting laws.

ASEAN law course, and they invite

I think that the role of the university- 140 -DISCUSSION: THE RULE OF LAW PROMOTION AND THE ROLE OF UNIVERSITY IN ASIA

in promoting the rule of law state islimited to foster human resourcesvery important not only for Vietnam

who will be engaged in drafting laws.

but I think for other countries throughStill, it will also contribute to thedeveloping human resources and also

legislative process by deliberating agiving input through research. One

draft and commenting on it or provid-

more point is that in terms of com-

ing comparative law information in

mon use of the term “rule of law” inthe development process. As for the

Asian countries, every country has

possible extension of the English pro-different legal contexts and cultures.

grams network, I think we have a lot

So laws and law enforcement areof potential in the Asian region. To-

influenced by many factors like poli-day, we have a guest from Nepal. Mr.

tics, cultures, and beliefs and also by

Aman Maharjan, can you hear me?

globalization, like Professor Dao Gia
Namaste! Mr. Aman graduated from

Phuc also shared from Vietnam.

the University of Tribhuvan and theNow our domestic laws have to be

Kathmandu Law School if my mem-reformed to conform to international

ory is correct. The Kathmandu Law

standards, and we had to narrow the

School also provides legal subjects in

gap between our legal system and theEnglish. May I ask some questions?

international standard. So coming

What do you think are the advantages

back to law school, the law professors

or the strengths of your law school inplayed important roles in the research

providing legal subjects in English?

to identify legal issue and the gaps

And do you have some ideas for im-

between domestic and international

proving the programs?

laws. I think it’s been a very informative workshop today, and thank you

Aman Maharjan:

for inviting us to join this workshop.

Thank you, Professor Matsuo. I graduated from the Tribhuvan University.

Hiroshi Matsuo:

The course we studied was, in bach-Thank you very much, Professor

elors, it was five years BA.LL.B. andHuong. The university’s role is not

in LL.M. We could choose various- 141 -

different subjects, such as our consti-

Hiroshi Matsuo:

tutional law, commercial law, inter-Thank you very much, Mr. Aman.

national law, and environment law

That is a very informative comment.

as well. I would say that the course

Can I ask further? What kind ofbeing in English language was very

subjects are taught in English? Like

beneficial to us because it made us

business law or human rights or con-capable of being competitive in thistracts?

global legal arena. But certain things,
what I felt was that a few things

Aman Maharjan:

needed to be studied in Nepal itself

Actually, we had one Nepali subject

because the court language in Nepal

that was legal Nepali; everything else

is in Nepali, and it was very essential

is taught in English. We have humanfor us to study procedural law at least

rights subjects. In our bachelor’s, wein Nepali that would prepare us to go

had to study economics, sociology,

into the practice.

anthropology, history even, and almost everything was taught in Eng-

So all in all, it was English medium

lish. In the master’s, there is no Ne-

for us, and it was very beneficial

pali subject. Everything is taught inbecause there were a lot of resource

English. We have to take our exams

books and reference materials availa-

in English. I would say Nepal pretty

ble in English. I really found that themuch has English medium legal edu-

syllabus we had needed improvement.

cation.

They made some reforms in changing
to the semester system. Nonetheless,

Hiroshi Matsuo:

I would still say we need a lot of re-Thank you very much. This is also

forms in the syllabus itself, so that thevery interesting information. In thestudents can learn more, learn morelast comment, Professor Huong fromthat can help them to understand theHanoi Law University also talked

law in the global perspective.

about some difficulties in sharing materials which are not written in English. We could share the materials,- 142 -DISCUSSION: THE RULE OF LAW PROMOTION AND THE ROLE OF UNIVERSITY IN ASIA

and we could then also share human

Hiroshi Matsuo:

resources, if we can improve the joint

Professor Watai, do you have some

programs. They will also provide

comments?

legal information about different cultures, different political backgrounds,

Rikako Watai:and different reactions to globali-

I wanted to make a comment to Pro-

zation. We can learn a lot from thefessor Huong’s remarks, and I also

various patterns of our legal reform inshare the same issue: It’s very hard toaccordance with the changing social

find professors who would teach Jap-

conditions. Thank you very much,anese law in English. I’d like to have

Mr. Aman.

more Japanese law courses offeredin our LL.M program. There are notAman Maharjan:

many Japanese laws translated into

Thank you so much.

English, and Japanese administrative
law relies heavily on case law even

Hitomi Fukasawa:though Japan is a civil law country.

Today, I found many students and for-And not many cases are translated

mer students who participated in Keio

into English either. I think it would

University Law School programs. We

help to have the Japanese government

talk about how universities contributepromote the translation of Japanese

to promoting the rule of law. In my

law into English. That would help us

opinion, to think about the role ofvery much, and I think there’s much

university, it is necessary to get feed-

we can do as scholars contribute toback from students. Because in otherthat work.

words, students are the outcomesfrom a university’s legal education.

Hiroshi Matsuo:

I would like to ask former students

Thank you, Professor Watai. I agree

about what they learned about the rulewith your comment. We have roomof law in university and how they

to improve the further provision offeel about the rule of law in a real so-

English materials on national laws tociety?

share the information.
- 143 -

Latdavanh Donkeodavong:the field of administrative law, it’s

Hello Professor.

really helpful for us, for me too. I’minterested in Japanese law and try to

Hiroshi Matsuo:

introduce the Japanese to the Minis-

Yes, please, Dr. Latdavanh.

try of Justice and Laws. Right now,
many agencies like JICA and the

Latdavanh Donkeodavong:

Luxembourg University support us to

Can I ask more information related

draft the law to help the Ministry of

to Professor Watai? She mentioned

Justice, but the problem is some laws

resources in English. I graduatedare not translated yet. So it would befrom Nagoya University, and I did thegood to translate and it would be help-

comparative study by learning fromful for us.

the administrative law of Japan, thestate compensation, administrative

Rikako Watai:case litigation. The problem is that

I agree with you. Those basic lawssome legal sources are not translated

such as local or autonomy law don’t

in English. The national diet has somehave official translations, and also thesources and the Supreme Court, theycase laws as you mentioned… There’s

have some website to download judg-

a supreme court website that has

ments, such as the Minamata disease

English translations of famous recent

case and the Itai-Itai disease case,

cases but not old cases, and so many

whatever.

important cases are still under interpretation and have not been translated

There are many cases, but the prob-

yet. And even those cases that do havelem is there are some laws like local

translation, I think, are very hard toautonomy laws that have no official

understand. I don’t think the transla-

translation. It would be good if thetion is easy to follow. Of course, it’s

government of Japan or the Minis-

difficult to translate specific adminis-try of Justice of Japan translated thetrative law terms into English.

local autonomy laws and many lawsthat have not yet been translated. In- 144 -DISCUSSION: THE RULE OF LAW PROMOTION AND THE ROLE OF UNIVERSITY IN ASIA

Hiroshi Matsuo:

develop the common terms to use in

Thank you, Dr. Latdavanh and Pro-

Asian countries under the rule of law

fessor Watai. Professor Huong may

standard. Thank you.

have some further comments.
Hiroshi Matsuo:
Phan Thi Lan Huong:Thank you very much, Professor

I’d like to share a little bit about the

Huong, Professor Watai, and Dr. Lat-translated documents. I would like todavanh. Translating legal documents

share that it is the most challenging

and legal text is very hard, but also it

for us when we study law in Japan,

is a very interesting process because

because assets are legal documents in

we can compare the similar terms

English, we can find some in Japan.

but different meanings. So this itself

They have one translation, the English

is a very good example of the study

translation, the website; it’s not offi-

of law. We can understand how thecial but you can refer. But it is quite

law is deeply rooted in the social

challenging for foreign students in thecontext, social history, so that if weEnglish training program because of

have similar terms, it does not neces-legal terms, and how we understandsarily mean it has the same meaning.

the legal terms in the law context is

We need to understand the little butvery important. As in the Vietnam-

important differences between simi-

ese case, in translating our laws into

lar legal terms to deepen our mutualEnglish, we sometimes cannot findunderstanding and avoid misunder-

similar terms in legal English because

standing of the mutual laws. Anyway,

they are heavily influenced by politics

thank you very much for providing us

and by our system.

a problem of translation of the legal

It’s like the common issue for the

texts written in national languages.

Asian countries because we use ourI think all the comments concerned

own languages, so it’s quite chal-with the translation of the legal terms,

lenging, but like Professor Matsuo

legal thoughts and legal theories inmentioned, we can have some kind ofnational languages are very impor-common understanding, and we cantant.

- 145 -

Hitomi Fukasawa:case law, which usually includes theProfessor Matsuo, while we aresummary fact of the case, applied

talking about the English translation

provisions of the law, reasons for theissues, I got some questions and com-

decision, and the final decision madements from Mr. Tharin Vong and Ms.

by judges, is unique studying material

Tran Khanh Van. Can I ask them? Mr.

to provide realities of both the fact

Tharin, can you go first?

and the applied law. Otherwise, as a
student with experience I spent mostTharin Vong:of my time only studying the law

Yes, I can go first.

with few examples of actual facts of

Okay. I think Professor Watai has

the cases mentioned by the lecturers.

mentioned an interesting point about

During class, I felt that I was lacking

case law. But let me introduce myself

comprehension of the facts related

first. My name is Tharin. I’m a freshto law that I studied in class, which

graduate student from Paññāsāstra

made it difficult for me to analyze,

University of Cambodia, and I start-

address, and differentiate the impor-

ed working as a legal assistant in atant facts from the non–relevant facts

law office in 2018. Through my ex-that occurred in the real cases when I

periences as a legal assistant and astarted working. Related to this prob-

student, I started to realize that whatlem, I come up with a particular form

is necessary to understand is not onlyof education that can be effectively

the law but also the facts of the case,applied that students in classes should

particularly the fact that constitutes

have chances to read the case law as

the right and liability under the scope,much possible so that they can under-

meaning, and purposes of the law.

stand both the fact of the case and thelaw. By doing so, the students will be

In practice, we have to utilize andable to learn how to address and dif-

comprehend both the law and the fact

ferentiate what facts should be taken

together; if we cannot understand theinto account under the scope, mean-

fact clearly, we also cannot apply theing, and purpose of law when encoun-law correctly. By this reasoning, thetering long facts being described by- 146 -DISCUSSION: THE RULE OF LAW PROMOTION AND THE ROLE OF UNIVERSITY IN ASIA

the disputed parties and mountains

Departing from difficulties facingof documentary evidence to readwith accessing case law and judg-

and analyze. I think doing this will

ments issued by the court, there is abenefit them as students when they

good sign that today the Arbitration

start working in legal careers. So thisCouncil of Cambodia is making ef-

is a form of educational reform that I

fort to compile the case law so thatthink the university can apply, and in

students and the public can access all

fact, it’s very beneficial to Cambodian

those previous decisions or awards

students if universities in Cambodia

in order to read and understand both

can apply this form of education.

the fact of the case and applied provisions of the law in the context of labor

Understanding case law helps stu-

dispute resolution. Moreover, thedents to understand the connections

decision or award is issued publicly

between the fact and law and also

and can be found in both Khmer andpromote the effectiveness and efficien-

English on the website of the Arbi-

cy of law practice when students start

tration Council for free. Otherwise,

working in the legal world. In theit is not enough because as the law

context of Cambodia, some difficul-

students, we would like to know notties faced when compiling case law

only the particular field of labor but

for university students to study areother fields including commercial,

the limited sources and non-publicity

civil, and criminal fields. So in gen-of issuance of case law; students areeral, there are still limited sources

not allowed or provided case law toand availability of case law for theread during class except in very limit-

students to study during their class-ed cases because the judgment or casees in the universities, and it’s a big

law is issued, used, and placed only

challenge for them to sit down again

in the court. Furthermore, only thosein the workplace trying to learn and

who are working in the court and theunderstand the fact of the case before

law firm can read these cases due todeciding which law is appropriate to

privacy and confidentiality.

apply. Thank you, professor.

- 147 -

Hiroshi Matsuo:

Tran Khanh Van:

Thank you, Mr. Tharin. This is also a

I graduated from the Keio Lawvery crucial topic. To publish the case

School LL.M program in 2018, andlaw, it is very important and indispen-

I’m now working for a Japanese banksable information to know correctlythat has branches in Hanoi. I think thethe content of law in each country. In

bank has branches in many countries

the morning session, Professor Huong

all over the world. The course is re-introduced us to the publication of theally helpful for me because I learned

case law in Vietnam, which started

to view concepts from different legal

in 2016, and this concerns the rule

perspectives, and international trans-of law topic, especially the accessaction is very, very popular in myto information or access to the legal

daily work. I just have one comment

sources, which Dr. Latdavanh also

and question to Professor Huong. In

indicated. How we can improve this?

Vietnam, the court aside from the

How we can request the government

case has not been published, and weto publish the case law information

think that the judges are not very wellwhile avoiding infringing on the

trained in specific fields, especiallyprivacy and the confidentiality of thefor fields such as banking and financeparties? We can ask the governmentthat require very deep professional

to provide the case law information

knowledge. Occasionally, a practi-

by anonymity. I think we cannot

tioner even needs to be consulted. For

avoid this crucial topic to improve theexample, the State Bank of Vietnam

rule of law. Thank you very much forand the state bank officials themselvesindicating this important topic, Mr.

need trainings and study with other

Tharin.

professionals in other countries.

Hitomi Fukasawa:

It is not very practical to require that

Professor Matsuo, I would like tojudges in Vietnam have the knowl-

invite Ms. Van, the Alumni of Keioedge to comprehend different con-

LL.M student.

cepts in fields such as banking andfinance. This would mean that when a- 148 -DISCUSSION: THE RULE OF LAW PROMOTION AND THE ROLE OF UNIVERSITY IN ASIA

case in banking and finance is brought

gaged, especially in such kind of field.

before the court, we struggle to rely

The special court can be establishedon them, on their judgment of what

as well. But except for such field, theterms mean in a contract regarding

judges can cover or are required toconcepts they are not professional in.

cover any cases. Some judges coverIn such cases, it’s very difficult. We

the general and the special civil cases,

would go to the state bank, and weand the other judges cover criminal

would collect opinions, but Vietnam-

cases. It depends on the legal educa-

ese law does not require that the court

tion system for legal professions but

rely on the comments and opinions ofI think it would be improved in theprofessional officials such as the State

long run by continuing and improving

Bank or even state authorities. How

the legal education system for profes-

about the case in Japan? Because I

sions.

think that not all judges are expert inevery field, and some very specific

But at the same time, lawyers needfields require deep knowledge suchto provide some information withas banking and finance. When a caseevidences. They are presented in theis fought before the court, how dotrial by the parties or the lawyers who

you deal with such issue that judges

support the parties. The continuous

should be expert but they are not andcommunication between the judges

their opinion has decisive meaning toand the lawyers for the parties may

the party?

gradually break through the situation. It maybe the collaboration or the

Hiroshi Matsuo:

cooperation between the judges andThank you, Ms. Van. I understandthe lawyers for the parties. Any com-very well about the problem and thements to answer Ms. Van’s questions?

situation; it is very difficult to answer.
Sometimes, in a specific law field, for

Rikako Watai:

which expertized knowledge is re-

I just wanted to make one comment.

quired, like intellectual property law,

There are thousands of laws in Japan

there are some judges who are en-

and judges are not experts in every- 149 -

field. I agree with her on this point.

and advantages and problems in col-I think that complaint system, estab-laborative study? Professor Kudo has

lished by the Administrative Com-

conducted these kinds of activities byplaint Review Act, would mean a lot

visiting Hanoi Law University and ar-from now on.

ranging and organizing joint seminars
with teachers in partner universities.

Hiroshi Matsuo:

Professor Kudo, could I ask you someThank you, Professor Watai. It is in-comments from your experience?

teresting to confirm that the cases canbe treated not only by judges but also

Toshitaka Kudo:

by other experts in the dispute resolu-

Hi. Good afternoon, Professor Matsuo

tion system as a whole. There may beand everybody. I’m Toshitaka Kudo,

a possibility to make various ingenu-

Associate Professor at Keio Univer-

ity concerning this topic. Thank you,sity Law School. My major is civil

Ms. Van and Professor Watai.

procedure. Last year, I had some opportunities to attend the international

Today, we are talking about univer-workshop and international programsity’s contributions to promoting theat Hanoi Law University. First of all,rule of law. One of the views of thejust in my opinion, the comparative

university’s contribution is deepening

law study is a good opportunity forthe study of the meaning of the rule

everybody to think about their ownof law and how to implement it andlegal system in the global perspec-

proposing legal reforms in the field

tive, not only for students but also forwhere necessary rules are missing. I

scholars.

want to also talk about the possibilityof collaboration between the teachers

Last year, I listened to the students’to improve the study of law from thepresentations at Hanoi Law Universi-

viewpoint of comparative law.

ty summer program, and I was really
impressed because all students did

From this viewpoint, can I ask Pro-

really good jobs. Their presentations

fessor Kudo about the possibilities

were very clear, not to mention that- 150 -DISCUSSION: THE RULE OF LAW PROMOTION AND THE ROLE OF UNIVERSITY IN ASIA

their English were pretty good, may-

like to beat them. So how should webe better than me. So in my opinion,

do? Well, we must wear a mask. But

we professors should provide more

there are a lot of ways to enforce it.

opportunities not only for attendees

Many countries impose fine for notin special programs but also for or-

wearing a mask. In some countries,

dinary students. Still there are somethe violators would be jailed. But inconcerns. Because of the COVID-19,

Japan, we won’t be fined or impris-

we can’t give in-person opportunities;

oned. We wear a mask just as volun-

we have to do the programs online. Ittary cooperation. This is an example

might look easier, but we have chal-of a common issue but a different

lenges, like time zone differences orapproach. That would make interest-

semester differerences in each coun-ing comparative study for us. Why

try. For example, if it’s an end of the

do such differences happen? Because

semester; it’s not a good timing for us

we have different legal backgrounds

to do special programs.

and people’s behaviors. Another pointis that we have to choose interesting

So, why don’t we make use of cloud

topics which are discussed globally.

computing or online stuff? Instead

That will be a very good opportunityof real time presentations, they can

to exchange comparative views notjust post on YouTube. After receiv-

only for students, but also for schol-ing comments from viewers in otherars. That’s just my simple idea, but it

countries, we can give some feed-

would be any help hopefully.

backs. We can overcome the timedifferences by such technologies. An-

Hiroshi Matsuo:

other thing; we have to choose a hot

Thank you very much, Professor

topic. I mean, there is a common is-

Kudo. Please continue to extend yoursue, but we have a different approach.

international network to do yourSuch topics would invoke a lot of

research on civil procedure and re-interest from students.

lated topics. I very much appreciate

Now, we are under the challenge ofProfessor Kudo’s contribution to thethe COVID-19, and definitely would

program. We welcome any comments- 151 -

about the collaboration programs orinformation about Professor Huong

proposals to improve the programs.

from Hanoi Law University? She is
my senior at Nagoya University, andPhan Thi Lan Huong:

I read the doctoral thesis of Professor

I think that I would like to add someHuong about the local reform in Viet-

more from the Hanoi Law University.

nam and platform from Japan. I agree

We have a lot of young lecturers. I

with you that we should have researchthink not only student but also teach-fellowships or research stays in Laoser exchange is a very good chancein Keio University. Like right now,

for them. If they can come to Keioin many countries around the world,

University by exchange or job ex-

they have research stays in law school

change program for three months orin many countries like Harvard Law

six months or maybe some visiting

School or whatever. Even in Nagoya

professor from Keio can come to Ha-

University, they have their research-noi Law University for short terms,

ers stay for two months, three months.

we can do some co-research. We’ll

If Keio University had this program,do something for publication togeth-

it would be good. We can share someer. It’s the way we can promote our

opinions. We can do joint researchcollaboration activity not only for stu-

between two universities, and we

dents but also for professors.

can do a comparative study like theVietnamese law, Japanese law, Laos

Hiroshi Matsuo:

law, and Myanmar Law, Cambodian

Thank you. We need to improve ourLaw. And we can share some ideas

collaboration to do some exchanging

on what are the problems, what thevisiting scholar programs, and we canissues are, and after that, we can pub-provide the lectures on web like thoselish the law journal probably by the

conducted owing to the COVID-19

Keio Law School. It would be good.

epidemic.

We can publish a book, a law paper, alaw journal. It would be good, and in

Latdavanh Donkeodavong:the future, some time should be spent

Professor Matsuo, can I add moreon this. I just want to add more infor-- 152 -DISCUSSION: THE RULE OF LAW PROMOTION AND THE ROLE OF UNIVERSITY IN ASIA

mation about this. Yeah, that’s a good

is how to utilize your knowledge after

idea. Thank you.

experiencing the programs. Lawyers
must not just study the law but also

Hiroshi Matsuo:

be involved in practices to bridge theThank you, Dr. Latdavanh. Proposals

legal system and civil societies. They

are very constructive and productive.

must disseminate the concept of law

As a result of these kinds of collabo-

and explain to the ordinary people its

ration programs, we can also provide

meaning, the aims, the understanding

the English materials that are used inof the legal concepts, and the legal

the lectures to students; this also im-

theory. So I want to ask Mr. Hatta-

proves the knowledge sharing amongpong, who have positively participat-

students and teachers in different

ed in the programs, and he also en-

countries. As I have mentioned, if wegages in some practices and practicaluse the similar legal terms, for exam-

activities in Thailand. Mr. Hattapong,ple, some requirements of law such as

you have some comments to improve

responsibility in the field of non-per-our joint programs to deepen ourformance of contract, but the meaning

knowledge of law.

can be different. So in detail, carefulanalysis is necessary to deepen un-

Hattapong Hirunt:

derstanding of the meaning of the law

First, I am really happy to come to see

and legal concepts in each country.

you again. First, I want to give a comment on the morning session. I think

Hitomi Fukasawa:

Power Points materials, which were

I got a comment from Mr. Hattapong

used in the morning session, should

Hirunrut. Could you introduce him?

be distributed before the program
to students for reading in advance.

Hiroshi Matsuo:

We students could ask questions andMr. Hattapong is one of the partici-

answer each other and participate topants in the programs, and his con-find solution or some aspects we don’t

cerns relate to this symposium. What

see. I thought that would have madeI want to discuss in today’s meeting

this seminar more proper than this.

- 153 -

Secondly, I want to recommend thatparticipants appropriate credit points.

we hold this kind of event every one

I have thought that we would be ableor two months because now we don’t

to use our trial programs for that pur-have to go to foreign countries but

pose. Thank you again for the useful

we can put it in online seminars. We

comments.

don’t need to wait for irregular international conferences.

Hitomi Fukasawa:
Due to unstable internet connection,

Universities can hold not only in-some participants may have lost

tensive programs such as for sevendiscussion points. I wrote three dis-days or five days, but they can do acussion points in the chat box. First is

program month to month. Like this,translation of materials. Second is a

we can change pessimistic to opti-

research collaboration. Third is how

mistic opportunities. We can ask each

we can connect university education

student in the country to do researchwith law practice. We have alreadyon, like, COVID policy in Thailand,

started discussion on these points,

Japan, Laos, and we can do compara-

but please feel free to give some com-

tive study. This can be a really, reallyments.

good solution for the next academy.
I have only two recommendations,

Hiroshi Matsuo:

sorry, because I was working and lis-Thank you. Professor Watai alsotening together, so I don’t prepare it

mentioned the connection between

properly.

university education and law practice.
She introduced the LL.M. program

Hiroshi Matsuo:

in global legal practice. As she men-Thank you very much, Mr. Hattapong.

tioned, the globally practiced standard

We should implement the request bycourse includes not just the theoret-the first comment immediately for theical program but also some practicalconvenience of participants. The sec-

programs including the externshipond one will create a new frameworkprograms, which we can design infor regular joint programs, giving thecollaboration with law offices, NGOs,- 154 -DISCUSSION: THE RULE OF LAW PROMOTION AND THE ROLE OF UNIVERSITY IN ASIA

students to go and to come for theand government ministries.

study purpose. Mr. Sugita is one of
the famous lawyers in this field.

Hitomi Fukasawa:
Also Mr. Hattapong raised somecomments about a study collabora-

Shohei Sugita:

tion. In the chat box, Lawyer Taka-

I’m Shohei Sugita, a practice attorneyhashi, alumni of Keio LL.M. course,

in Japan and also academic research-commented that Keio Law School has

er at Keio University Law School.

an intensive study course in every

My practice area is immigration law

summer vacation or every spring va-

and labor the migration. Last year,

cation. Yes, but it holds very limited

the Japanese government decided toopportunities. Thanks to the internet

make a big policy change to open theenvironment, we can cross over class-labor market to the world. The Japa-

rooms by using a web meeting systemnese government created a new status

such as Zoom or WebEx. This canof residents called the specific skilled

help as collaboration study or collab-

worker visa, SSW. International

oration learning toward our next step

workers with SSW visas can workfor our program and the promotion of

14 industrial fields like agriculture,

the rule of law.

fishery, manufacturing, and so on in
Japan. Japan has welcomed highly

Hiroshi Matsuo:

skilled workers. Japan is having prob-

Thank you very much. I’d like to ask

lems with declining birth rate, aging

Mr. Sugita, an active Japanese lawyer,

population, and labor shortage; now,

for some comments about the rule of

1,660,000 international workers arelaw promotion through the mutual

working in Japan. The number is ex-

exchange of foreign human resourc-

pected to increase after COVID-19.

es. In order to improve cooperative
activities, it is necessary for us to

What is the role of universities inhave more relaxed rules to exchangeinternational labor migration? Whatforeign human resources. But as weis an important role of university ed-

know, they have been strict even for

ucation? Usually, educational records- 155 -

are needed to get visa, and the univer-siastic participant, and he is a goodsity can provide education in various

advisor for students who take part inlevels. Universities can also provide

the PAGLEP in Cambodia.

research on migration systems. Unfortunately, transparency of labor mi-

Mao Kimpav:

gration process is very low. There are

Yes, Professor Matsuo. Hello. Thankmany problems, such as human rights

you for bringing all together here.

violations, too much fees, and many

From my experience during the ex-

brokers. Universities can conductchange program, I think that it was

research to increase transparency ofa great opportunity. We can learn

procedures. I think labor migration

together from different backgrounds.

is a big issue and also a practical andSome students have already prac-

theoretical issue. In Japan and among

ticed as lawyers, and they are more

Asian countries, also we can do wellfamiliar with practice. However, in

if we cooperate together in this field.

different countries, the legal systemI think this is a very good topic formay be different. Therefore, it would

comparative research. Thank you.

be better if we can have opportunities
for students to observe different legal

Hiroshi Matsuo:

system such as hearing a court case or

Thank you very much, Mr. Sugita.

arbitration. Students can observe what

In order to facilitate the exchange ofthe procedure looks like and how eachhuman resources, the persons who

person participates in it. After stu-

are engaged in law should work to

dents graduate from the program andimprove the working environment for

return their home country, they may

labor migrants as much as they can. It

have more ideas and compare what

is a very crucial topic, and Mr. Sugita

are different procedures and what therecommended labor migration issues

practices looks like in the court pro-as a research topic for students. He

ceeding or in administration.

can be a very good advisor for this research. Mr. Kimpav do you have any

Hiroshi Matsuo:

comments? He is also a very enthu-

Thank you very much, Mr. Kimpav.

- 156 -DISCUSSION: THE RULE OF LAW PROMOTION AND THE ROLE OF UNIVERSITY IN ASIA

Some Japanese students are very

Today, we have talked about the uni-

grateful to you for your kind supportversity’s role in improving the rule offor their research in Cambodia about

law and its possible cooperation with

the Cambodian law and practice.

law offices, NGOs, and government

Thank you very much again.

ministries. In this context, we cannot
overlook the collaboration with the

Hitomi Fukasawa:

expertized organization for interna-

Mr. Hattapong clarified his comments

tional cooperation. Today, we have ain chat box.

participant from Japan International
Cooperation Agency (JICA). Can I

Hiroshi Matsuo:

ask Mr. Kobayashi from JICA for

Okay. He indicates that we can learnsome comments on the possible col-from the COVID epidemic that there

laboration with universities and JICA

are some possibilities to create a newin the field of legal education?

style of collaboration programs. I’dlike to continue to improve our coop-

Yosuke Kobayashi:

erative activities to deepen our knowl-

Thank you very much for this op-edge of law and understanding of the

portunity. First of all, I was veryrule of law promotion. As I indicatedimpressed with all the presentationsin the morning session, it is a longthat were given today, and I learned a

way to go, but we need to be engaged

lot from all the presentations. In thein this kind of activity to improve the

JICA, with the help of distinguishedsituation step by step.

professors, we have been carrying out
legal and judicial development pro-In the presentation session, various

jects in many of the countries the pre-perspectives were provided by thesenters and the participants today rep-presenters. They confirmed different

resent. At the same time, we throughpatterns of improvements in the rule

our scholarship program have invitedof law and what are crucial topics ofmany foreign students to Japan for

their concern. But we can learn fromlegal education. It is our observation

our unique experiences.

that our legal and judicial technical- 157 -

assistance and legal scholarships fordisclosure of court judgments might

legal education are similar but inhave on the legal education system insome ways they are separate. We were

Cambodia. Through a specific exam-

conducting them separately, but weple, I learned and think that I was able

are now trying to link our technicalto understand more deeply about theassistance in the field of legal and ju-role of a legal education in promoting

dicial development and a scholarshipthe rule of law. Thank you for this op-

for legal education. So that we canportunity to give my comment.

generate more synergy between what
we are doing, what we are helping on

Hioshi Matsuo:

the ground in developing countries

Thank you very much, Mr. Kobayas-

and legal education of these countries.

hi, for your comments on the prospects for our project. The synergy

One example is with the help of Keiobetween technical assistance in the

University Law School, we are trying

judicial and legal field and legal ed-

to invite people who are closely re-ucation in the university will open

lated to our legal technical assistanceup a new dimension of our challenge

to Japan for legal education in Japan,

for the rule of law promotion. We

and we would like to create more

can foster human resources who

examples where our legal assistancewill contribute to the legal reformon the ground and legal education arethrough the collaborated legal edu-

more closely linked with each other.

cation. It will include jurisprudence,In that sense, I was very impressedcomparative law, legal history, lawwith the comment from Mr. Tharin

and development, and subjects of thefrom Cambodia, who mentioned thespecialized field of law such as civil

need for more disclosure of court

and civil procedure law, criminal andjudgments in Cambodia. Actually, we

criminal procedure law, international

are working on that issue through ourtrade law, international human rights

technical cooperation project in Cam-law, environmental law, intellectual

bodia, but I did not understand theproperty law, international arbitra-link or the impact that promoting thetion law, etc. The partner universities- 158 -DISCUSSION: THE RULE OF LAW PROMOTION AND THE ROLE OF UNIVERSITY IN ASIA

can provide them based on their own

contribution to the world in which theexperiences and valuable teachingrule of law is ubiquitous: it means thatmaterials. As for the legal assistanceanyone, anytime, and anywhere canfor the publication of court judgment,

enjoy the protection of their rights,

which Mr. Kobayashi mentioned, thewhich we call the rule-of-law-ubiqui-

precedents will become the standard

tous world.

education material. The study of court
decisions with making comments onthem will improve court judgment
and case law formation. I believe it
will be an indispensable part of therule of law promotion.
Before closing the discussion session,
let me express my sincere thanks
to all participants for sharing many
useful insights to promote the rule oflaw based on our own experiences.
I have reconfirmed that we cannot
discuss the rule of law as an abstract,uniform, and static ideal from an
observer’s standpoint. Instead, weshould understand it under each country’s unique conditions, in its dynamic development process, and throughthe participation to any part of thatprocess. Starting from our homelandsin the Asian region, we can collaborate with other countries to expand
the space in which the good laws rule
as possible as we can. It will be our- 159 -

ON-SITE REPORTFROM LAW CLASSROOMS IN ASIAN UNIVERSITIESFROM LAW CLASSROOMSIN ASIAN UNIVERSITIES:A Short Report on the Collaboration Programwith Myanmar and the Future Developmentof the Common Topic Method

Hitomi Fukasawa*(Keio University Law School)

1. Introduction
From February 5-13, 2020, Keio University Law School (KLS), located inTokyo, Japan, in collaboration with the University of Yangon, held the joint program, “Special Study Program on Comparative Customary Law in Japan and
Myanmar.” Fifteen students participated in the program: five from Japan, eightfrom Myanmar, and two from Bangladesh.
The program consisted of: (a) lectures on customary laws and their application in Japan and Myanmar; (b)interviews at practical law institutions, such as
local courts and law firms; (c) field studies for researching customary rules at
local places, such as temples; and (d) presentations and discussions on the Common Topic.
This report introduces the program’s activity based on the author’s observation. It aims to develop legal education and comparative law discussions in Asianuniversities by reviewing student presentations and discussions on the Common
Topic.

* Ph.D. candidate of Keio University Graduate School of Law and Researcher of Law at Keio
Institute for Global Law and Development (KEIGLAD).
- 163 -

2. Common Topic Method
2.1 Definition
The Common Topic Method is an original education technique for the studyof comparative law in a multinational classroom setting. KLS has used thismethod in its intensive law program since 20161.
The method aims to stimulate comparative law discussions with students
from countries with different legal systems. In a multinational law classroom,
students come from a civil law system, from the common law tradition, and fromcountries where the legal system reform is just beginning to develop, such as
in Myanmar and Bangladesh. In such a situation, to stimulate comparative law
discussions from diverse perspectives, it is necessary to have a core concept tostructure talks on the law. The Common Topic can be the core concept for the
discussion. The method uses the same fact or case and asks the same set of questions, called the “Common Topic”, regardless of students, nationalities.
The same legal topic is expected to clarify differences in law in the approachand the conclusions to problem-solving and in thinking about the application of
the law.
Students prepare how the case is solved by applying their home country laws
before the class starts. In class, they present their solutions and discuss similarities and differences in problem-solving.
Throughout the preparation, presentation, and discussion cycle, the Common
Topic Method enables students to recognize their home country’s legal system’s
characteristics in a relevant, comparative manner.

2.2 Common Topic and Questions
The following law case was presented as a common topic for the assigned
students who joined the Myanmar special study program 2.
1

For past program reports, refer Hitomi Fukasawa “From the Law Class Room in Asian Uni-

versities Short Report on the Collaboration Program in Vietnam”, in: KEIGLAD (ed.), How
Constitutional Law Is Taught in Asian Universities, Keio University Press, 2020, pp.151-163.
2

Keio Institute for Global Law and Development (KEIGLAD) opens the common topic to- 164 -

FROM LAW CLASSROOMS IN ASIAN UNIVERSITIES

Mr. A owned certain properties, including pieces of land. A had lived with his wife B andher son C, whose father was Mr. D, who had died before Ms. B married Mr. A. Mr. A
had two children, daughter E and son F, whose mother was G. Mr. A, and Ms. G weredivorced.
Mr. A had made a last will and testament that stipulated that all inheritance shall begiven to Ms. E. after Mr. A dies. However, before Ms. E registered the acquisition of A’s
heritage, Mr. F applied for the registration of the acquisition of a share of one-fourth ofthe piece of land, which was included in A’s inheritance, following the provision of legal
inheritance. He then sold the share to Mr. H, who registered it. Mr. H knew that Mr. A
had stipulated in his testamentary that all his inheritance shall be given to Ms. E.
Question 1
Who are the heirs of Mr. A in your legal system, and how is the share of each heir
determined?
Can Mr. C be the heir of Mr. A and receive A’s inheritance? If so, how much of Mr. C’s
inheritance can Mr. C receive?
Question 2
Can the heirs sell their shares of each property, such as a piece of land included in theinheritance, to a third party, even before the division of the inheritance?
Question 3
Can Ms. E claim the invalidity of the transaction of the share of the piece of land
between F and H to annul the registration?
This Common Topic is a simple inheritance law case. It tries to clarify differences between the inheritance systems of Myanmar, Bangladesh, and Japanthe public. As for details, please access KEIGLAD, http://keiglad.keio.ac.jp/wp/wp-content/
uploads/2020/06/Myanmar_externship_presentation_Myanmar_2020.pdf (Last accessed on
30 November 2020).
- 165 -

Figure: The Common Topic Case
Separation by

Mr. D

the death

Married

Ms. B

Divorced

Mr. A
Land

Mr. C

A’ s last will andtestament
All the inheritanceshall be given to E.

Daughter

Ms. E

Ms. G
Son

Registered ¼

Mr. F ofof ownershipthe land byinheritance.

Sold the ShareMr. H

through three questions.
Question 1 is about who can be an heir in law in each country’s inheritancelaw. Mainly, it asks whether a stepchild, Mr. C, can inherit from a stepfather, Mr.
A, or not.
Question 2 asks about whether an heir can transfer inherited assets before theestate is split. The purpose of the question is to analyze whether assets belong toheirs before the division of the inheritance.
Questions 3 asks about the validity of a will. Students must analyze a statutory inheritance and the effect of a will in each country. If a will is valid, an heir,
Ms. E, could inherit the entire piece of land. However, a share of the land wastransacted from an heir, Mr. F, to a third party, Mr. H. It is necessary to consider the security of the transaction for a third party. Furthermore, if a third party
knows about the will, which legal discussion point should be prioritized, the willor the transaction?
How did the participants analyze the case and answer each question? Section
3 provides the students’ presentations.

- 166 -

FROM LAW CLASSROOMS IN ASIAN UNIVERSITIES

3. Student Presentations
3.1 Myanmar
Myanmar has no legislation for inheritance. Instead of statute law legislatedby the parliament, customary laws apply to inheritance cases. The customary
law that applies to inheritance cases depends on the religion to which the parties
adhere. For example, Buddhist customary law applies to adherents of Buddhism,
Islamic law applies to Muslim parties, and Hindu law applies to Hindu parties.
Myanmar students answered the case questions based on Buddhist customarylaw, which is the majority religion for Myanmarese.
Upon a person’s death, Buddhist customary law decides the order of the deceased’s heirs in the following order: (1) spouse; (2) descendants; (3) brothers andsisters; (4) parents; and (5) uncles and aunts.
According to this law, as to Question 1, Mr. A’s wife B, daughter E, and son
F can succeed Mr. A. C can also succeed his stepfather because Buddhist customary law does not distinguish between biological children and stepchildren.
Students also explained how the portion of the estate that each heir receives
is decided under Buddhist law. According to two Myanmarese Supreme Court
precedents (Maung Ba Wai Vs. Mi Sar U, 2L.B.R, 174FB, and Ma E Nyunt
Vs. Daw Ma Get, AIR, 1938 Ran 293), the court judged that children inherit
three-quarters of the inheritance and a spouse inherits one-quarter. Therefore, wife B inherits a quarter of A’s property, and children C, E, and F inherit
three-quarters of his estate.
Regarding Question 2, students analyzed that the validity of the transaction
may be an issue. Unlike inheritance, the Transfer of Property Act 1882 provides general rules for a share in Myanmar3. Section 6 of the Act stipulates that“property of any kind may be transferred, except as otherwise provided by thisAct or by any other law for the time being in force.” Paragraph (a) provides that“the chance of an heir-apparent succeeding to an estate, the chance of a relation
obtaining a legacy on the death of a kinsman, or any other mere possibility of a3

The Transfer of Property Act (1882), https://www.mlis.gov.mm/lsScPop.do?lawordSn=8490(last accessed on January 5th 2020).
- 167 -

like nature, cannot be transferred.” The Myanmarese Supreme Court also judgedthat the person who has the potential to inherit could not sell or transfer by other means their shares of the inheritance before the division of inheritance took
place, under Section 6 (a) of the Transfer of Property Act (W. Dhar Vs. Htoon
May and others, 12, BLT,106). Students concluded that the transfer of shares
before the inheritance division is invalid under the Myanmarese legal system. In
this sense, as to Question 3, E can claim the invalidity of the transaction between
F and H because it is illegal according to the Transfer of Property Act 1882 Section 6 (a).
However, students concluded that E could not inherit the entire piece of landsince Buddhist law does not recognize wills. Therefore, heirs inherit the land according to the general provisions of succession rule under Buddhist law.

3.2 Bangladesh
Like Myanmar, Bangladesh also applies customary law to inheritance cases,
and applicable customary law is also decided by which religion the parties follow. Bangladeshi students presented their answers based on Islamic law, as the
majority of Bangladeshi are Muslim.
The Quran and the Hadith are the sources of inheritance rule for Muslims.
The Quran Chapter 4 Section 11 (4:11) describes inheritance rules for children4,
and Section 12 (4:12) is about inheritance rules for wives5. As to heirs, the stu4

“An-Nisa [The Women]”, Quran, 4:11, Allah commands you regarding your children: theshare of the male will be twice that of the female. If you leave only two or more females,
their share is two-thirds of the estate. But if there is only one female, her share will be onehalf. Each parent is entitled to one-sixth if you leave offspring. But if you are childless andyour parents are the only heirs, then your mother will receive one-third. But if you leavesiblings, then your mother will receive one-sixth—after the fulfilment of bequests and debts.
Be fair to your parents and children, as you do not ˹fully know who is more beneficial to you.
This is an obligation from Allah. Surely Allah is All-Knowing, All-Wise.
5

Ibid. 4:12, You will inherit half of what your wives leave if they are childless. But if they

have children, then your share is one-fourth of the estate—after the fulfilment of bequests
and debts. And your wives will inherit one-fourth of what you leave if you are childless. But
if you have children, then your wives will receive one-eighth of your estate—after the ful- 168 -FROM LAW CLASSROOMS IN ASIAN UNIVERSITIES

dents explained that A’s wife Ms. B, his daughter Ms. E and his son Mr. F, areheirs of Mr. A. However, Mr. C, the stepchild, cannot succeed Mr. A because theword “children,” which appeared in 4:11, is interpreted as “biological children”
in Bangladesh. In contrast with Myanmar, a stepchild is not considered an heir of
stepparents.
A wife can succeed a one-eighth portion of the assets (4:12), and children receive the remaining share. However, the portion for children varies based on sex.
Chapter 4 Section 11 describes that “the share of the male will be twice that of
the female.” Therefore, in answer to Question 1, the students concluded that the
portion of Mr. F’s son is seven-twelfths, while Ms. E, a daughter, receives as her
portion the equivalent of 7/24 of Mr. A’s assets.
As to Question 2, the students explained that heirs could sell their shares
before the inheritance division without mentioning any specific Islamic law.
Although if they sell more than their legal portion, they must return the excess
property. Therefore, Mr. F must return the part which exceeds his legal portion.
Regarding the validity of a will, which is the main point of discussion in
Question 3, Islamic law allows wills. However, the Hadith provides that a willcannot exceed one-third of the deceased’s property6. The students concluded that
Ms. E could not claim the invalidity of the transaction between Mr. F and Mr.
H. Ms. E cannot succeed the entire piece of land as long as Islamic law does notallow any wills that may exceed one-third of the deceased’s property.

3.3 Japan
In contrast with Myanmar and Bangladesh, the Japanese Civil Code (JCC)
applies to Japan’s inheritance cases. It is a law enacted by the Diet but is influfilment of bequests and debts. And if a man or a woman leaves neither parents nor children
but only a brother or a sister from their mother’s side˺, they will each inherit one-sixth, but ifthey are more than one, they all will share one-third of the estate—after the fulfilment of bequests and debts without harm to the heirs. This is a commandment from Allah. And Allah is
All-Knowing, Most Forbearing.
6

Muhammad al-Bukhari “80 Law of Inheritance”, 725, Sahih al-Bukhari, Volume 8, https://muflihun.com/bukhari/80/725 (last accessed on 3rd January 2021).
- 169 -

enced by the modern legal system in Western countries rather than Japanese traditions and customs.
As to Question 1, JCC article 887 to 890 stipulates legal heirs. A spouse is alegal heir of the dead spouse (JCC 890), and a child is also a legal heir of his or
her parents (JCC 887).
Regarding the stepchild’s legal status, Japanese students concluded that a
stepchild could not be a legal heir to his stepparents unless he or she is legally
adopted. Therefore, wife B, daughter E, and son F are legal heirs in Japan. Thisconclusion was the same in Bangladesh.
However, each heir’s statutory share was different. In Japan, JCC article 900
establishes a portion of statutory share, and its article paragraph (i) is about thecase in which a child and a spouse are heirs. In such a situation, a child and a
spouse shall each inherit one half. Thus, wife B inherits one-half, and his children, Ms. E and Mr. F, inherit one-fourth each from Mr. A’s assets. There is nodifference in treatment between a son and a daughter. A wife receives a greater
portion in Japan than in Bangladesh.
As to Question 2, the JCC posits that if there are two or more heirs, the inherited property shall be co-owned by the heirs until the division of inheritedproperty takes place (898). The general rule for the co-owned property shall beapplied for co-owned inheritance cases (JCC 249). It is necessary to get approval from the other co-owners if one co-owner wants to sell the entire co-owned
property (JCC 251). However, the JCC allows each co-owner to sell their sharewithout the other co-owners’ approval because it is considered private property.
Based on the analysis of Question 1, Mr. F has a one-fourth share of the inheritedproperty. Therefore, he can sell his share to Mr. H by himself.
Regarding Question 3, the JCC allows writing a will. The will that stipulates
Ms. E shall inherit the entirety of A’s land after his death is valid. Upon A’s
death, only E can be the owner of the land. In this sense, the transaction between
Mr. H and Mr. F may be invalid because Mr. F bought a share from Mr. H, whodoes not have any shares of the land.
However, the law should consider protections for a third party who reason- 170 -FROM LAW CLASSROOMS IN ASIAN UNIVERSITIES

ably believes that an heir would have the right to dispose of their share. It may
sometimes be the case that heirs do not recognize the existence of the will itself.
Moreover, as explained above, the JCC allows an heir to freely dispose of
their share of the inherited property before the inheritance division. At the sametime, there is the problem that a third party has no way of knowing the contentsof the will. Solving this issue, JCC article 899-2, which was promogulated in
2020, provides that if an heir’s inheritance exceeds the statutory portion, theycannot claim their property right to a third party without registration. According
to this new provision, E cannot claim her right to the land, exceeding the onefourth sold to Mr. H, without land registration.
Though, in this case, H knew that E would inherit the entire piece of land according to the terms of the will. There is a question that an heir could claim ownership without land registration to a third party who knows that an heir inherited
more than the statutory portion. There has not been a concrete answer to thisquestion yet, as it is a new article. Japanese students tried to answer this question
by referring to a similar law discussion on JCC article 177, which is a case about
the double sale of land and land registration.
JCC article 177 provides that acquisitions of, losses of, and real rights changes to immovable properties may not be asserted against third parties unless registration takes place. This article’s interpretation is an issue in the case of a double land transaction. In such a case, the owners cannot assert their ownership toothers. The law tries to decide the order by the timing of land registration. Thus,
they cannot claim their land ownership to others without land registration, anda person who registers first can assert their ownership. However, sometimes it
causes a legal conflict, especially if a second buyer knows that the first buyer has
not yet registered the land. The second buyer registered it before the first buyer.
Some Japanese legal scholars claim that the first buyer can assert their landownership to the second buyer without a land registration because the second
buyer knows that the first buyer has not yet registered. However, the JapaneseSupreme Court judged that a first buyer might assert his land ownership withouta land registration if a second buyer knows the first buyer has not registered, plus
- 171 -

he has an intention to damage the first buyer’s property right.
Referring to this judgment, Japanese students answered that Ms. E could notassert her ownership of the land that exceeds the statutory portion without theland registration. Mr. H knew about the will’s content, but he did not have theintention to harm Ms. E’s property right. They, therefore, concluded that Ms. E
could not claim that the contract between Mr. F and Mr. H was invalid.
The chart describes a summary of students’ presentations. What students
discussed at the class? The next Section provides the students’ discussion.

Chart: Summary of Students’ Presentations
MyanmarBangladesh

Question 1Japan

Mr A'Heirs (Portion)

Wife B○(1/4)○ (3/24)

Stepchild C

○

(1/4)

×

Daughter E

○

(1/4)

○ (7/24)

○

(1/4)

Son F

○

(1/4)

○ (14/24)

○

(1/4)

Question 2
Answer

(1/2)
×

Share Transfer before the Division of the Inheritance×
Shall not be allowed
by Buddhism Law○
Shall not be allowedtransaction exceeds
the portion

Question 3
Answer○○Writing a Will
×
Shall not be allowed
by Buddhism Law○
Shall not be allowed
a will exceeds 1/3 ofassets

○

4. Discussion Session
A Japanese civil law professor moderated the discussion. The another professor of private international law was also joined.
The moderator picked the stepchild's right of inheritance as a first discussion
point. To stimulate the discussion, he introduced a historical fact that the former- 172 -

FROM LAW CLASSROOMS IN ASIAN UNIVERSITIESJCC recognized a stepchild’s right to inheritance. In the past, a household was a
traditional Japanese family structure, under which a stepchild is also a memberof the household. This traditional family system prioritized household harmony
over the individual rights of each member. A head of household managed allproperties and took care of all household members. However, household members could not oppose his decisions. As time passed, this system was considered
outdated, which was viewed as sacrificing family members' rights for the goodof keeping harmony in the family. The JCC eliminated the traditional conceptof the household in the process of the Japanese legal reform that took place afterWorld War II, which respected the dignity of individual rights. Inheritance rights
for stepchildren disappeared because the household on which the right was based
also disappeared.
On this point, a Myanmarese student questioned if any Japanese opposed thechange to the law or not that stepchildren could not inherit from stepparents after
the amendment. Japanese students supposed that most Japanese supported thelegal amendment because they also thought the household system was an antiquated tradition.
The moderator asked if, in the case that a stepchild does not have statutory
inheritance rights, if a will is an option to inherit stepparents’ assets. In Bangladesh, a stepchild may inherit one-third from the stepparents if there is a will.
On this point, a Japanese student asked why a person cannot leave a will that exceeds one-third of the estate in Bangladesh. Bangladeshi students answered thatthey also did not know why, but that there is no room for changing Islamic law.
In contrast to Bangladesh and Japan, Myanmar's Buddhist law does not recognize a will. Some students asked what a person in Myanmar can do if he wants
to leave his property to a specific person. Myanmarese students commented that
gifts or family arrangements could be an option in such a case. Both systems
allow leaving specific property to a specific person and carrying out the transfer
before death. The gift is an agreement between two parties, grantor and grantee,
while the family arrangement only requires participation from family members,a lawyer, and two witnesses.
- 173 -

Students’ Discussion at the Class (Yangon, Myanmar, 12 February 2020)

A Myanmarese student considered that a family arrangement is better than awill. While a will is a unilateral legal act, all family members can join the familyarrangement and discuss inheritance, which they will face in the future. Participation in family arrangements reduces legal conflicts regarding inheritance cases.
The discussion started from small differences that appeared among the answers to each question, and gradually developed into the essential and primary
questions on the legal substance in each country.
Some students commented about the possibility of amending Islamic law.
They seemed to feel that the Islamic law inheritance rule is unfair to women.
Bangladeshi students were of the strong opinion that religious law should apply to family and inheritance matters in Bangladesh. Muslims must follow the
Quran, and this cannot be changed. For a while, they tried to find a solution
through discussion, but none was found. The professor of private internationallaw suggested that changing customary law is very challenging. However, citizens can decide which law should be applied for inheritance by political decision-making. The parliament could change the legislation such that statutory law
applied to matters of inheritance instead of customary law.
- 174 -

FROM LAW CLASSROOMS IN ASIAN UNIVERSITIESMyanmarese students asked Japanese students how the Japanese felt about
the current inheritance law system. To clarify their point, they explained the history of inheritance law in Myanmar. When Burma was colonized by the British,
the British Council did not allow Buddhists to leave wills because writing a will
was a legal act reserved for Christians. Based on their experience, Japanese inheritance rules seemed similar to Christian rules, in that they wondered if the legal rules conformed to Japanese society or not. However, Japanese students wereat a loss as to how to reply.
Legal pluralism was also a topic of discussion. The Japanese students commented that multiple customary laws might sometimes cause inconveniences.
For example, which customary law should be applied if each family member believes in a different religion?
At the end of the discussion, the private international law professor commented that the choice of law is the primary issue in private international law.
In this sense, it is necessary to know about the legal contexts in other countries.
In Myanmar, Bangladesh, and Japan, heirs automatically receive an inheritance.
However, a settlement is necessary to inherit property in the UK or the U.S.
This, it is necessary to consider not only religion but also national contexts forinternational inheritance cases.

5. Summary and Findings
Throughout the presentation and discussion, participants were able to understand how the Common Topic legal case was solved in a different country. They
learned that customary law is a primary legal basis of inheritance in Myanmar
and Bangladesh, while JCC legislation is the essential law for inheritance in Japan. Even in a country where customary law is applied, Buddhist law and Islamic law reached different outcomes.
The students were also able to analyze the case from the standpoint of practical law because private international law became one of the discussion points.
It is possible that practical lawyers must interpret a specific customary law for- 175 -

an international inheritance case as a result of the choice of law, even though hisor her country does not recognize the customary law. In this sense, the presentations went beyond the mere introduction of foreign laws.
In the discussion, many questions were asked about why a country has aparticular legal system, for example in the case of why a will cannot exceed onethird of assets under Islamic law. To answer such kinds of questions, looking
back on history is essential. Perhaps there are historical reasons, as in the case of
the British Council not allowing Myanmar Buddhists to write wills.
From a historical and legal perspective, participants also asked essential
points about the Japanese system of inheritance law. There was the incident
where Japanese students couldn’t reply to Myanmarese students when they
were asked about Japanese awareness of the current inheritance law. It was nota language issue that made it difficult to explain in English, but rather perhaps
because the JCC eliminated the customs and traditions that existed in Japanesesociety in the past. Law school students, who focus on the interpretation of legal
study, do not have the opportunity to think about legal development in Japan.
Such fundamental questions about a legal system give law students opportunities
to be aware of the importance of the relationship between law, society, culture,and history.
At the end of the discussion, a difficult but essential question was raised: howcustomary law can change when its contents represent a gap with society. One
solution pointed out was to adopt legislation through the parliament. However,to enact a law through parliament in a democratic manner requires the full participation of the nation. Because customary law is rooted in society, some people
support it. The discussion showed the path of changing a customary law throughlegislation, but the difficulty of this path was also made clear.
Overall, the program can have fruitful presentations and discussions. Some
discussion topics, such as those related to history, should be continuously researched and the results shared with participants. The program was an intensive
law program, for which ongoing communication is necessary. Holding a wrap-up
class is one solution to share new findings.
- 176 -

FROM LAW CLASSROOMS IN ASIAN UNIVERSITIES

6. Conclusion and Further Development for
the Common Topic Method
KLS has conducted an intensive law program twice a year since 2016 using
the Common Topic Method. The method is a useful law education tool to stimulate comparative legal discussions in a multinational classroom with students
from various countries as analyzed in Section 5.
However, KLS faced a new crisis in 2020. The coronavirus pandemic of 2019
(COVID-19) forced universities to postpone all in-person international programs.
For better or worse, the pandemic has accelerated online education programs atuniversities globally. KLS also held an intensive law program online in September 2020 with partner universities in Southeast Asia.
The September program’s main topic was the promotion of the rule of law.
It consisted of: (a) contemporary lectures about legal issues related to the ruleof law in Vietnam, Thailand, Laos, Myanmar, Cambodia, and Japan7; (b)interviews at practical law institutions, including international law firms, the legal
assistance project office, and NGOs; (c) cultural exchanges; and (d) presentations
about the promotion of the rule of law in the students’ countries and discussion.
In the presentation and discussion, the participants evaluated the situation of
the rule of law in their home countries and discussed various legal issues related
to the rule of law, including legal aid services for children, women, and other underrepresented people; the multi-party system; control of political power; transparency of the government; and the differences in the rule of law.
The online version of the program was comparable to the past five years’
intensive law programs in a real classroom. Since the travel expenses could besaved, the online program is accessible for students who were unable to participate for financial reasons. On the other hand, studying abroad offers uniqueintercultural opportunities, such as communicating with participants after classand having an immersion experience in a different country’s culture and environment. This, unfortunately, was lost.
7

Part 1, Chapter 1 to 7 are based on lectures in the September program.
- 177 -

The momentum in the development of international online programs may not
stop, even after the pandemic of COVID-19. The Internet can help following-up
on the program and with ongoing discussions, for example, on the possibility ofcustomary law changes by legislation discussed in the Myanmar program.
The next subject is the development of law programs and promotion of theCommon Topic Method through online programming8.

8

On the basic idea of the Common Topic Method and its application samples, see Hiroshi

Matsuo, “Use of Common Topics to Improve Comparative Law and Legal Education in
Asia,” in: KEIGLAD (ed.), How Civil Law Is Taught in Asian Universities (PAGLEP Series
III), Keio University Press, 2019, pp. 243-263; id., “Use of Common Topic Method to Promote Inclusive Legal Education,” in: KEIGLAD (ed.), How Public Law Is Taught in Asian
Universities (PAGLEP Series IV), Keio University Press, 2020, pp. 135-149.
- 178 -

INDEX

INDEX

A

Buddhist customary law

access to decisions by executive organs
access to government information
42, 44, 148access to judgments

48

case law51, 5443, 45, 52, 54,charityaccess to the legal sources148

child’s rights
71, 79administrative complaint
administrative court
Ainu

91, 93, 95, 96, 98, 103

80

children’s best interests
citizenship

21

civil law
113

105

94, 95164

common law

8, 164anti-human trafficking

67

common sense

19, 27, 28

anti-money laundering

67

Common Topic

164, 175

anti-trade rhetoricaristocracy
ASEAN

113

Common Topic Method

14

comparative law

40, 97, 117, 123

Asian financial crisis

20, 91-93, 95, 96, 99, 102, 110
Corporate Social Responsibility

18

corruption

8

awareness of legal rights

19
80

Convention on the Rights of the Child (CRC)
3, 6, 7, 12, 15

12

autocratic government
autonomous law

constitutionalism

36

authoritarian government
authoritarianism

123

164, 178

163

constitutional court

ASEAN Free Trade Area (AFTA)

92

104

Child’s Rights Law of Myanmar (2019)

150

99

anti-globalization

18, 2837

Child Law of Myanmar (1993)43

administrative case litigation49

centralization of political powers

85

adoption49, 146, 147case precedents

access to legal informationaccountability

3

C42, 65, 67, 114

access to legal aid

167

173

bureaucrats

136

access to information
access to justice

Buddhist law

49

2115, 77, 128

covenant of peace (foedus pacificum)
68

COVID-19 pandemic

23

5, 15, 33, 37, 42,

177

B

customary law

Best interests of the childbirth registration
Buddhism

99

94, 110168

customary law (Myanmar)

92, 99, 101,

167

167

- 179 -

8, 174-176

customary law (Bangladesh)D

foreign languages

decentralization

FTA

64

47, 48124

full market economy

Declaration on the Rights of Indigenous

126

fundamental principles

People21

democracy

43

democratic government
democratic liberty

18, 19

G

18

16

gift

173

despotic government

12, 18global governance

23, 30developing country

114

global web of norms

21

development policies

3

globalization

developmental state

3, 6

globalizing community

Dhammathats
dilemma

101

6, 16

dilemma of the rule of law
districts

11

20, 4120

globalizing norms

21

globalizing world

20

good governance

12, 53, 80

62

Doha Round

H

119

Doi Mo (Economic Renovation)

123

dynamic conception of the rule of law

Hadith11E168, 169

hard laws

21

hardship35

health15

economic development

76

heir in law

economic globalization

111, 112

High Performing Asian Economies (HPAEs)
7

economic policies

7

education of law

24, 26, 29

e-Government Development Index (EGDI)
e-Government platform
enforcement23

173
40, 42

human trafficking

68, 106

13, 17, 69, 72

GovernanceI

21

illegitimate child46, 48ILO

61

ILO Convention No. 182, Worst Forms of

ethnic languages
executive branch16family arrangement

20

127

Child Labor Convention

F

34-36

individualism

26

inheritance30

99, 165

inheritance law

36foreign direct investment (FDI)

impossibility

informal justice systems

173, 174

federation of peace (foedus pacificum)
force majeure38

home-countryfirst policy
human rights

49, 53

86

Environmental, Social, and Corporate

existing norms

home of leading lawyers
household45
e-Library system

166

176

inheritance rights

112-114,

institutional reform124- 180 -

101
115

66

107

INDEX

instrumental usage of the law

7integration of national economy
intermediary

112

20

international economic integration pressure
127
international human rights

43

International Labor Standards
international law
international rules

125

45, 86

legal pluralism

175

legal reforms

150

legal research

87

legal sources

144

legal terms

145
8, 39

legislation
136

international standards

7, 8, 175, 176

legislative documents

47

lockdown measures

33, 34

107, 127, 141international trade34, 112International treaties

116

M
market-based socialist economy

4, 26

matters of detailinter-university cooperation
Islamic law

24, 66, 84, 115, 137, 158

legality

107, 109

116

international pressuresinterpretation46

legal education
legal information

23

International Covenant on Civil and Political
Rightslegal documents

73, 88matters to be deliberated

167, 168, 173, 174, 176

monarchymoral politician

Japanese Civil Code (JCC)
Japanese Supreme Court
judicial branch
judicial data

Muslim

169

13

13

money laundering

J

69
29

167, 168

Myanmarese Supreme Court

171

125

13

167, 168

62

N

86

judicial power

79

National Assembly

judicial review

18, 72, 77, 80

National Assembly Standing Committee

65

National Electorate Committee

justice gap

51

justice system
justness

62, 63, 78, 82

10, 18, 20, 24

natural law

Lland disputes

59, 60, 64

64

8

new regionalism

118

non-performance

35

68, 76land used right certificate

O52

Lao Front for National Construction

81

OECD

Lao Front for National Construction

60

online investment certificate

lawfulness of administrative actions

80

online service component index (OSI)

legal aid

51, 68113, 114
49
45

Optional Protocol to the Convention on

legal aid center37

the Rights of the Child on the Sale oflegal aid offices

65, 66

Children, Child Prostitution and Childlegal assistance158

legal authoritarianism

Pornography
8102

original sense of law- 181 -

6

P

right to access to official documents

parliamentright to information

176

people’s awareness26

right to self-determination

people’s concern

23

rightness

people’s confidence
political moralist

rights conception of the rule of law

18

rule by law

2929

rule of good law

113

rule of law

poverty113

formal definition of the ――

60

Disease Law

rights conception of the ――

95

price of crude oil

36

prime minister61

Principles for Responsive Investment

21

15

private international law
property rights

9

substantive definition of the ――

10, 18thick definition of the ――

10thin definition of the ――

9rule of man or woman

5

public opinion

27, 28public prosecutors

63

17

61
separation of powers

41, 74, 80

sequential conception of the rule of law

26

settlement

Pyidaungsu Hluttaw (the Union Parliament)

175

social contract

91, 97Q

7socialist economy

125

socialist element

126

socialist rule of law state40, 41socialist-oriented market economy

168, 174

soft lawsR

21

source of legal knowledge

Rechtsstaat

state compensation

39

Regional economic integration

117

regional trade agreements (RTAs)

118, 121

167

religious law

30, 160

12S

public interest

public welfare

rules of change

60, 64

provincial representatives

remedies141

rule of law ubiquitous world

62

10
10

rule-book conception of the ――

rule of law state

175

101

provincial assemblies

9, 18

functional definition of the ――

Prevention and Control of Communicablereligion

108, 37, 39, 65, 67, 71, 80, 114,

120, 122, 136, 140, 177

President of the State

Quran

10

8, 18, 28, 29, 75

populist

provinces59

10, 18, 20, 24

politics

privacy

42

43

41

state redress71

stepchild72

93, 174

166

strong government

44

right to access to legal informationright to access to legislation

71

state power
statutory law

174

right of access to information

state liability

structured corruption

46, 53surveillance48- 182 -

6, 15

38

71, 79

12
4

126

11

INDEX

survival rightsV93

sustainable development

116, 120

Viet Nam Provincial Governance and Public

Sustainable Development Goals (SDGs)

Administration Performance Index (PAPI)

30

49
villageT62, 75village chief

tariff reduction

technical assistance

Village Mediation Units

158

technological innovation

112

temporary impossibility

35

will

35
101

transparency

112, 113, 119, 120

world republic

43, 46

underlying principles of laws

116, 119, 123

25

98

United Nations Convention on the Rights of91

universal monarchy

22

23, 73, 87

university’s core values
Uruguay Round33, 7722

World Trade Organization (WTO)
37

U

university

23

World Health Organization

TU Pandemic Legal Aid Center

the Child33, 111

world government

34

trade liberalization

union

166, 168, 170, 173, 175

World Bank

the best interests of the child

65

75

W

Thai Civil and Commercial Code (Thailand)

tourism

75

village mediation committees

124, 125, 126

37

118

- 183 -

112,

ABOUT KEIGLAD

KEIGLAD - Keio Institute for Global Law and Development
Keio Institute for Global Law and Development (KEIGLAD) was established
for the purpose of assisting the promotion of international exchange and international
cooperation among researchers, students, and staffs for legal study and legal education.
KEIGLAD will promote the concerned projects as follow:･ Promotion of the Program for Asian Global Legal Professions (PAGLEP)･ Collection of information on the concerned comparative law･ Collection of information on the method of legal education･ Provision of materials for legal education･ Provision of information and support for foreign students who will study at Keio
Law School and Keio Law School students who will study abroad･ Promotion of the concerned symposiums and research meetings･ Publication of working papers･ Other matters concerned with objectives of KEIGLAD
Through these activities, KEIGLAD aims to contribute to the promotion of “Ruleof-Law-Ubiquitous Society”, in which Anyone can access to justice Anywhere andAnytime.

- 185 -

ABOUT THE AUTHORS*

Isao Kitai
Professor, Dean, Keio University Law School, Japan

Hiroshi Matsuo
Professor, Keio University Law School; Director, Keio Institute for Glabal Law andDevelopment (KEIGLAD), Japan

Ronnakorn Bunmee
Assistant Professor, Faculty of Law, Thammasat University, Thailand

Phan Thi Lan Huong
Deputy Head, International Cooperation Department, Hanoi Law University,
Vietnam; Head, Representative Office of Nagoya University in Vietnam

Reginald M. Pastrana
Chief Technical Advisor, Luxembourg Agency for Development Cooperation(LuxDev), Laos

Latdavanh Donkeodavong
Deputy Head of Research and Academic Service Division, Faculty of Law and
Political Science, National University of Laos

Khin Phone Myint Kyu
Professor, Department of Law, University of Yangon, Myanmar

Khin Khin Su
Lecturer, Department of Law, University of Yangon, Myanmar- 186 -

Dao Gia Phuc
Vice-Director of the American Law Center, University of Economics and Law,
Vietnam National University in Ho Chi Minh city, Vietnam

Hitomi Fukasawa
Researcher, KEIGLAD, Japan* For the contributors to Discussion in Part II, see Participants list on page 135.

- 187 -MEXT/JSPS Re-Inventing Japan Project (Type B: ASEAN) FY 2016
文部科学省

平成 28 年度大学の世界展開力事業（ASEAN 地域における大学間交流の推進）タイプ B 採択プログラム

Promoting the Rule of Law in Asian Dynamics
Programs for Asian Global Legal Professions Series V
2021 年 2 月 20 日

初版第 1 刷発行

編 者―KEIGLAD
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