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Law, Development and Socio-Economic Changes in Asia

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Law, Development and Socio-Economic Changes in Asia IDE Asian Law Series No. 1 Proceedings of the Roundtable Meeting Law, Development and Socio-Economic Changes in Asia 20-21 November 2000 Manila INSTITUTE OF DEVELOPING ECONOMIES (IDE-JETRO) March 2001 JAPAN PREFACE With the evolution of the market-oriented economy as well as the increase in cross-border transactions, there is an urgent need to conduct research and comparisons of judicial systems and the role of law in development in Asian countries. The Institute of Developing Economies, Japan External Trade Organization (IDE-JETRO) established two research committees in FY 2000: Committee on “Law and Development in Economic and Social Development” and Committee on “Judicial Systems in Asia.” The former has focused on the role of law in social and economic development and sought to establish a legal theoretical framework therefor. Studies conducted by member researchers have focused on the relationship between the law and marketization, development assistance, trade and investment liberalization, the environment, labor, and consumer affairs. The latter committee has conducted research on judicial systems and the ongoing reform process of these systems in Asian countries, with the aim of further analyzing their dispute resolution processes. In order to facilitate the committees’ activities, IDE has organized joint research projects with research institutions in seven Asian countries, namely, China, India, Indonesia, Malaysia, Philippines, Thailand and Vietnam. To encourage the sharing of the findings of respective researches on the role of law in development, legal systems and the reform process in Asian countries, and to promote research cooperation and scholarly exchanges among research counterparts, IDE sponsored a roundtable meeting entitled “Law, Development and Socio-Economic Change in Asia” in Manila on November 20-21, 2000. We would like to express our sincere gratitude to the members of College of Law, University of the Philippines, for their cordial cooperation in organizing the meeting. Committee members from Japan and researchers from the seven Asian countries participated in the meeting. Presentations by the respective researchers were followed by lively discussions. The sessions of the first day of the meeting, titled Judicial Reform in Asia: Current Issues and Challenges, focused on the issue of judicial reform, which has been discussed in recent years both in many Asian countries, and among development assistance donors. The presentations were devoted to the philosophy, social and economic background of judicial reform movements as well as - specific reform plans in each country. The sharing of basic information on judicial systems and the experiences of judicial reforms contributed to a further understanding of different judicial systems and dispute resolution processes in Asia. The sessions of the second day, titled Rethinking “Law and Development”: An Asian Perspective, focused on the role of the law in socioeconomic dimensions in Asian countries in its current development process, while taking into consideration the discussions on “Law and Development” held in the 1970s and 1980s. The participants looked into economic laws and the marketization process in Asia, including contract law and legal technical assistance. Studies were also presented in the areas of social laws such as labor law, social security law and environmental law. Critical discussions on “Law and Development” were carried out in order to promote a rethinking of the conventional research framework on Asian law. This publication is the outcome of the two-day roundtable meeting, and is based on the papers submitted for the meeting and the record of discussions. We believe that this is an unprecedented work in its comprehensiveness, and hope that this publication will contribute as research material and for the further understanding of the legal issues we share. March 2001 Institute of Developing Economies TABLE OF CONTENTS PREFACE TABLE OF CONTENTS OPENING REMARKS Dean Raul C. Pangalangan (College of Law, University of the Philippines) Mr. Naoyuki Sakumoto (Senior Research Fellow, Institute of Developing Economies) DAY 1: JUDICIAL REFORM IN ASIA CURRENT ISSUES AND CHALLENGES SESSION I: COUNTRY REPORTS ON JUDICIAL REFORM (1) The Judicial System in Thailand: An Outlook for a New Century Judge Vichai Ariyanuntaka (Central Intellectual Property and International Trade Court, Thailand) Chinese Judicial System and its Reform Dr. Zheng Qiang (Secretary-General of the Public Law Center, Institute of Law, Chinese Academy of Social Science, China) The Legal and Judicial Reform during the Renovation Period in Vietnam Prof. Dr. Dao Tri Uc (Director, Institute of State and Law, Vietnam) Reform of the Judicial System in Japan: Current State and Theory - Training of Legal Practitioners Mr. Akira Rokusha (Associate Professor, Faculty of Law, Keio University, Japan) SESSION II: COUNTRY REPORTS ON JUDICIAL REFORM (2) The Philippine Judicial System Dean Raul C. Pangalangan (College of Law, University of the Philippines) Alternative Dispute Resolution as an Alternative Means of Accessing Justice in Malaysia Dr. Sharifah Suhana Ahmad (Associate Professor, Faculty of Law, University of Malaya, Malaysia) Ms. Christina Paul (Attorney-at-Law, Legal Executive of Olympia Industries, Malaysia) Judicial Reforms in India Prof. Surinder Kaur Verma (Director, Indian Law Institute, India) 1 SESSION III: PERSPECTIVE FOR JUDICIAL REFORM IN ASIA Alternative Dispute Resolution for Consumer Protection: Consumer Complaints Handling System in Japan Mr. Shinya Imaizumi (Institute of Developing Economies) Perceptions of Judicial Function in Administrative Litigation: A comparative study of the judicial behaviour in Japan and India Mr. Hajime Sato (Institute of Developing Economies) DAY 2: RETHINKING OF “LAW AND DEVELOPMENT”: AN ASIAN PERSPECTIVE SESSION IV: LAW AND MARKETIZATION Southeast Asian Law in Transition: The Law and Political, Economic and Social Systems in the Post Crisis of 1997 Dr. Nobuyuki Yasuda (Professor, Graduate School of International Development, Nagoya University, Japan) Indonesian Contract Law Dr. Sunaryati Hartono SH (Professor, Vice Chairperson, National Ombudsman Commission, Indonesia) Legal Technical Assistance in Japan’s ODA: An Implication for Law and Development Ms. Miwa Yamada (Institute of Developing Economies) Law and Poverty Reduction Mr. Omar Tiwana (Counsel, Asian Development Bank) SESSION V: LAW AND SOCIAL JUSTICE Economic Development and Social Development: Do the Two Goals Meet? Dr. Shin’ichi Ago (Professor, Graduate School of Law, Kyushu University, Japan) Development, Disability and Law Mr. Masayuki Kobayashi (Institute of Developing Economies) Law and Development: Environmental Law in Asia Mr. Naoyuki Sakumoto (Institute of Developing Economies) Law and Social Justice: From a Gender Perspectives Prof. Myrna S. Feliciano (Director, Institute of Judicial Administration, University of the Philippines Law Center) 2 CLOSING REMARKS Dean Raul C. Pangalangan (College of Law, University of the Philippines) CLOSING SPEECH Mr. Masayuki Kobayashi (Institute of Developing Economies) APPENDIX Agenda List of Participants 3 Opening Remarks Raul C. Pangalangan Dean, College of Law University of the Philippines There was a time when this conference would have been most unusual. It is an international discussion but our topic is the erstwhile internal issue of governance and the administration of justice. Indeed I recall a local survey about judicial delay and corruption in the Philippines, funded by an American foundation, and during the public presentation of the survey results, a Filipino judge stood up to ask what a foreign group was doing, intruding into a sovereign matter. He pointed, quite correctly, that the justice system is a preeminently public concern monopolized by government and impervious, so it seemed, to international oversight. Perhaps until the early 90s that argument was still tenable. Today, however, international financial institutions (or IFIs) – the World Bank, the IMF, the ADB, the USAID – have candidly focused on “governance and the rule of law”, transparency and anti-corruption. Whereas before the activists working in NGOs cried “imperialism” against World Bank projects and the IMF conditionalities, today they hitch a ride upon these programs and work hand-in-hand in shared crusades. Our topic therefore is the convergence of two entirely distinct legal developments. One branch is dominated by “law and development”, the other by “human rights.” The first is concerned with economics, the other with justice. The first is concerned with enlarging the social surplus, the pie, so to speak; other, with how the pie is cut up and shared. The first is concerned with needs, the other with rights. The first is concerned with responsiveness by government, the other with accountability to the governed. And thus they converge. Yet for the first forty years of the existence of the IMF and the World Bank, they always insisted that their charters prohibited them from taking into account political considerations, and had been oblivious to the grave human costs of their programs. A hydro-electric dam must be built to generate power, no matter that it will displace tribal communities from their ancestral homes. Electricity is good economics, tribal deaths are a side-story because they deal with human rights. Joseph Gold, then General Counsel of the World Bank, wrote an essay saying “political considerations are prohibited by the charter of the World
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