Anirudh Bhati
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Japanese Law and Cambodian Justice: Beyond Legal Transplants in Contemporary Legal Reform

legal reformCivil CodeCambodiaJapan

A note on this piece. This was written in July 2017, on the Greater Mekong Research Center blog. It is republished here unchanged, as an archival record of earlier scholarly work.

“As we are going to transplant Japanese laws to a country in which the societal base and social postulates are totally different, it has become necessary to examine meticulously things that we had never questioned before.” — Professor Kazuhiko Yamamoto

Over the past two decades, the Cambodian growth story has astonished domestic and international observers alike. One of the fastest growing economies in the world, Cambodia provides a narrow but fascinating field of study in public choice theory and the economic analysis of the law. We believe that the role played by public institutions in securing the rights and liberties of the people is indispensable.1 Nations that develop strong public institutions that are principle-centered, rather than individual-focused, are more likely to transform into peaceful, stable and prosperous societies. In the context of foreign aid and development, the transplantation of Western liberal legal norms, concepts and codes into the recipient country’s legal system is seen as a promising tool for promoting economic growth, and at the same time, for leaving an abiding influence on the psyche and composition of the recipient nation. It is with this aim of making an “investment for the future” — that is, by aiding the establishment of effective, reliable and just public institutions in Cambodia — that the government of Japan and its various arms (including the Ministry of Justice, the Ministry of Foreign Affairs, the Supreme Court of Japan, the Japan Federation of Bar Associations, and especially the Japan International Cooperation Agency, JICA) have extended considerable financial aid and technical assistance to the Royal Government.2 The involvement of Japanese experts in the preparation of the new Civil Code, the Code of Civil Procedure and other requisite legal instruments is reflective of a benign foreign policy adopted by Japan that is aimed at building symbiotic and synergistic relationships with her partners. It is also the view of Japanese policy-makers that the prospects for Japan’s own growth, prosperity and the maintenance of global security are intertwined with the future of the former East bloc transition economies.3

“Above all else, esteem concord; make it your first duty to avoid discord.” — Prince Shōtoku (聖徳太子) in the ‘Constitution in Seventeen Articles’ (604 A.D.)

The lack of strong human capital in the legal sector and the overwhelming necessity for redefining value-systems for the implementation of good governance practices have imposed significant challenges for the Royal Government’s efforts towards the reconstruction of the Cambodian legal system. The traditional cultural norms prevalent in Cambodian society emphasize non-adversarial means of dispute resolution, especially through appeal to religious and communal authority figures. Cambodian society, for the most part, still prefers to utilize these informal mechanisms to resolve disagreements and controversies as opposed to placing reliance upon more formalistic legal processes embodied in the court system, which are deemed to be too confrontational for local sensibilities.4 In other words, we observe a situation with extensive “supply of law” (in the form of courts, the bar, etc.) but a serious lack of demand — a core problem in legal development programming pointed out in the work of Katharina Pistor and others.5 Resembling these conditions, Japanese society is also generally considered to be litigation-averse, remaining rooted in traditional values where conciliation, rather than adjudication, is the preferred method of dispute resolution.6 Therefore, whenever problems arise, Japanese parties exhibit a predisposition in favor of conciliation (調停, chōtei), so as to arrive at a harmonious settlement (emman na kaiketsu), and to let the dispute “wash away” (争いを水に流す, arasoi o mizu ni nagasu).7 These concepts are central to Japanese legal consciousness, and as a result, reflected in national policy. Japan maintains one of the lowest numbers of lawyers per capita in the world.8

The first Cambodian civil code was brought into force in 1920 during the French Protectorate period.9 It was inspired by the 1804 Napoleonic code. At that time, the code was available only in the French language and thus only accessible to a small group of foreign-educated elites. It was only after 1967 that a Khmer language version of the first revision of the code was made available and its provisions publicly enforced for a period of less than eight years, until the events of 1975. The Democratic Kampuchea regime led by the Khmer Rouge destroyed all legal institutions, eroded the traditional conciliation mechanisms and plunged the country into darkness. After the Khmer Rouge were ousted by the invading Vietnamese forces, the People’s Republic of Kampuchea (PRK) regime was installed in Phnom Penh. The new administration had scant regard for the law. Not only were legislative enactments few and far between, they also bore a distinct Soviet imprint, with a preference for command and control over all political, social and economic aspects of life in the country. The legal instrument governing private relationships among individuals and institutions — contracts and other liabilities — was a decree issued by the PRK Council of State.10 In accordance with the transitional provisions ensconced in the 1993 Constitution of the Kingdom of Cambodia, this decree continued to remain in force until the implementation of the new Civil Code in 2011.11 Thus, the enactment, promulgation and implementation of the new Civil Code and the Code of Civil Procedure marked a turning point in the history of Cambodia.

和魂洋才 (Japanese Spirit, Western Ingenuity)

Modernity arrived in Japan in 1868, the first year of the Meiji Restoration (明治維新, meiji-ishin). The old was to be replaced by the new, thereby marking 1868 as the year of cultural renewal. While the Japanese understood that this massive undertaking of modernization, legal culture being no exception, was a necessity of the times to bring Japan at par with Western powers (i.e. to ensure regime maintenance and to avoid the threat of colonialism that had already engulfed the bulk of the region), the Meiji era reformers were also very conscious and proud of their ancient origins. This is reflected in the motto of the period: “Japanese Spirit, Western Ingenuity” (和魂洋才, wakon yōsai).

The Meiji ideologists were keenly aware of the potentiality for caustic social friction, as newly imposed cultural norms emphasizing (to an extent) individualism, personal freedoms and private property would come into conflict with collectivistic traditional ideals, and thereby saw the desirability of preserving some ancient practices, lore and myths of Japanese history that could serve to evoke patriotism and foster a national vision towards the establishment of a nation-state with the Emperor at the center of it.12 By reconciling these conflicts, the Japanese government was able to create a civil code that had social acceptability, and also allowed them to void treaties that mandated extraterritorial application of foreign laws.13 The new legal system drew inspiration from the French and German models (heavy on the latter, with a number of German advisers working in Japan), and after Japan’s defeat in the Second World War, that of the United States.

Japanese scholars also introduced a number of western treatises to aid officials and other functionaries with the interpretation and application of the law. The Japanese judiciary, in turn, developed and made publicly available large volumes of judgments (case law) to ensure the continued relevance of the code in a society experiencing rapid economic growth and social changes. In this manner, legal scholars and the judiciary contributed to the development of civil law, and the promotion of individualism and capitalism within Japanese society. Conducting comparative studies and modifying models — both Continental and Common law systems — has become a Japanese legal custom. This makes Japanese experts uniquely qualified when it comes to advising individual Asian nations (particularly post-war, ex-communist countries remodelling their political institutions and liberalising their economies) as to the advantages and drawbacks of particular models, as well as in facilitating the implementation of the preferred models.14 Furthermore, the Official Development Assistance Charter of Japan includes the “promoti[on] [of] democratization and the introduction of a market-oriented economy, and […] the protection of basic human rights and freedoms” as one of the objectives of providing aid and technical assistance, and makes specific reference to the “development of [recipient countries’] legal systems” as a foundational policy objective.15

“Japan’s history featured the introduction, during the Meiji period, of a Western European legal system and the use of that system as if it were its own. As a result, Japan is currently providing assistance for legal and judicial system development based on its own experience in this regard. Japan is, so to speak, exporting the legal system that it once imported.” — Professor Tsuneo Matsumoto

Professor Yoshiharu Matsuura (2005) of Nagoya University Graduate School of Law has written a paper on the process of collaboration in the construction of the two legal codes, between Japanese experts and their Cambodian counterparts.16 Professor Akio Morishima led the initiative of providing technical assistance, and emphasized the need for active and close collaboration between Japanese and Cambodian professionals to ensure that the end product would strike a balance between modern principles of law suited for a market-oriented economy, democracy and the rule of law on one hand, and Cambodia’s socio-economic context, and its culture and traditions on the other hand. Accordingly, the Japanese task force for the Civil Code was created in 1997, and for the Code of Civil Procedure in 1998, headed by Professor Morishima and Professor Morio Takeshita, respectively. On 5 March 1999, a Record of Discussions on Japanese Technical Co-operation in the Legal and Judicial Field was signed between JICA and the Royal Government to initiate the Legal and Judicial Cooperation Project.17 The first phase was scheduled to run until 4 March 2002 but was subsequently extended to 4 March 2003. The second phase of the project began on 9 April 200418 and the third phase on 8 April 2008.19 The fourth phase of the project, which began on 1 April 2012, came to its conclusion on 31 March 2017.20

Matsuura (2005) also relates that the Japanese lawyers and experts involved in the project soon realized that Cambodian elites had very high expectations from their Japanese counterparts, especially since they viewed Japan as a successful model. The academic challenge of clarifying the causal and experiential link between having an efficient and just set of rules (in the form of a legislative and regulatory framework — clear, predictable and stable institutions) and high economic growth and democratization fell squarely upon the shoulders of the foreign experts. The Cambodian task force had immersed itself in “the Selection of Legal Terminology”. They expended considerable energy identifying Khmer legal terminology in use in the old law texts found in governmental archives, and vigorously debated the creation and use of neologisms to represent modern legal concepts. The formerly used Khmer legal terms could be preserved to the extent they were consistent in juxtaposition to the modern Western legal concepts loaned from the Japanese code.

The role played by the Japanese expert translator is also worth mentioning. Monichariya and Kazuko (2002) praise the efficacy and expertise of the translator who “displayed a deep understanding of both Japanese and Cambodian cultures.” He was able to draw on French legal terms in use during the colonial period, traditional Buddhist terms (in the Pali language), and terms currently in common use. Their aim was to make the text intelligible and easily understandable for untrained individuals, with the object of allowing them to interpret the texts. Discussions at workshops and seminars were held in Khmer and Japanese, thereby facilitating the direct conveyance of concepts in the drafts, and avoiding the transposition of common law concepts from English-speaking nations into the discussion. The stand-alone, codified texts contained many legal concepts that had been transplanted into the Cambodian system, and therefore required the two task forces to produce commentaries in Khmer (with Japanese versions) explicating these new concepts21 and their applications with the help of illustrations.22

石の上にも三年！(perseverance prevails!)

The legislature passed the Code of Civil Procedure and the Civil Code in 2006 and 2007 respectively. While the Code of Civil Procedure (2006) went into effect immediately, it was not until 2011 that the Civil Code was finally brought into force through the passage of another piece of legislation (the Law on the Implementation of the Civil Code), which contains provisions specifying details of the implementation of the Civil Code.23 The Civil Code provides for “general principles governing legal relations in civil matters”24 and abrogates or supersedes all subsidiary regulations and decrees that contradict it. While the Code provides that it would apply to all property-related matters and family issues, in the event of a conflict of its provisions with that of a special legislation, the special legislation would prevail. Similarly, in accordance with the principle of legality, the implementing statute requires non-retroactivity25 so as to allow for a well-ordered consecution, and to mitigate the effects of potential conflicts.

The technical assistance extended to Cambodia by the government of Japan towards legal development is one of the most important and unprecedented projects in the legal history of Japan as well. It is also equally ascertainable that the new Codes and closely related legislation, if properly implemented with the higher courts leading by example, will play a pivotal role in building greater confidence in the public institutions of this country as well as facilitating economic growth. The need at present is for Cambodian and Japanese legal experts to continue their collaboration at a government-to-government level, through cooperation among educational institutions in both countries, and through private initiatives to build capacity and greater understanding among students and young professionals in Cambodia, while at the same time recognizing the importance of the demand side of the equation. That being said, we are confident in saying that the future is bright.

I would like to convey my gratitude to Professor Kota Fukui of Osaka University for inspiring me to study the history of Japanese law.

Footnotes

  1. Daron Acemoglu, Simon Johnson, James A. Robinson, “The Colonial Origins of Comparative Development: An Empirical Investigation”, The American Economic Review, Vol. 91, No. 5 (Dec. 2001), pp. 1369–1401. ↩

  2. Additionally, Cambodia has also received support from other countries such as France (drafting the Criminal Code and the Code of Criminal Procedure) and Australia (criminal justice programs with police, courts and prisons). ↩

  3. “Objectives and Priorities of Japan’s foreign policy”, Ministry of Foreign Affairs (Japan). ↩

  4. Dolores A. Donovan, “Cambodia: Building a Legal System from Scratch”, International Lawyer, Vol. 27, Issue 2 (1993), pp. 445–454. ↩

  5. Katharina Pistor, “Supply and Demand for Law in Russia”, 8 E. Eur. Const. Rev. 105 (1999). ↩

  6. Lynn Berat, “The Role of Conciliation in the Japanese Legal System”, American University International Law Review, Vol. 8, Issue 1 (1992), pp. 125–154. ↩

  7. Takeyoshi Kawashima, “The Legal Consciousness of Contract in Japan”, 7 Law in Japan 1 (1974). ↩

  8. In 2015, there were 36,415 lawyers in Japan — more than double the number in 2001. However, there are only 287 attorneys per one million people in Japan, compared with 3,769 in the US (“The Legal Industry in Japan”, Wall Street Journal, 3 April 2016). ↩

  9. Kiyohara Hiroshi, “Civil Code”, in Introduction to Cambodian Law, Konrad Adenauer Stiftung, April 2012, p. 99. ↩

  10. Decree No. 83 issued by the Council of State of the People’s Republic of Kampuchea referring to “Contract and Other Liabilities” on 28 October 1988. ↩

  11. Article 160 (new) (two) [former Article 158 new] of the Constitution of the Kingdom of Cambodia (1993). ↩

  12. Luis Maria Pedriza, Lectures on Japanese Law from a Comparative Perspective, Osaka University, Faculty of Law, p. 5. ↩

  13. Tsung-Fu Chen, “Transplant of Civil Code in Japan, Taiwan and China: With a Focus on Legal Evolution”, National Taiwan University Law Review, Vol. 6, No. 1 (March 2011). ↩

  14. Mong Monichariya, Tanaka Kazuko, “Drafting a New Civil Code and Code of Civil Procedure in Cambodia with Japanese Technical Assistance”, 7 Unif. L. Rev. n.s. 1047 (2002). ↩

  15. Japan’s Official Development Assistance Charter, Government of Japan, 29 August 2003. ↩

  16. Yoshiharu Matsuura, “Toward a New Generation of Comparative Law: A Framework for Bilateral Collaboration in Law & Development Projects in Asia”, 23 Wis. Int’l L.J. 233 (2005). ↩

  17. Record of Discussions Between the Japanese Implementation Survey Team and the Ministry of Justice of the Kingdom of Cambodia in the Legal and Judicial Field, 5 March 1999. ↩

  18. Record of Discussions on Japanese Technical Co-operation for the Legal and Judicial Development Project (Phase 2), JICA. ↩

  19. Record of Discussions on Japanese Technical Cooperation for the Legal and Judicial Development Project (Phase 3), JICA. ↩

  20. Legal and Judicial Development Project (Phase IV), JICA. ↩

  21. “Assisting Legal and Judicial Development in Cambodia: A Decade Spent Creating Autonomous Cambodian Codes of Civil Law and Procedure”, Hitotsubashi University. ↩

  22. JICA, Technical Co-operation Projects — laws, commentaries and textbooks. ↩

  23. Kram NS/RK/0511/007 on the Law on the Implementation of the Civil Code, passed on 6 April 2011. ↩

  24. Article 1 (‘General Principles of Private Law’) of the Civil Code (2007). ↩

  25. Articles 4 and 5 of the Law on the Implementation of the Civil Code, passed on 6 April 2011. ↩