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Comparative Legal Systems in South East Asia

Introduction to Comparative Legal Systems in South East Asia

Overview

  • This lecture provides a global context to law from a comparative perspective, focusing on South East Asia.
  • Key areas of discussion:
    • Comparison of legal systems in Thailand, Indonesia, Malaysia, and Vietnam.
    • Multi-layered legal systems, historical and colonial legacies, and differing types of law.
    • Wider definitions of law: legal positivism and legal pluralism, with resolution difficulties and SE Asia examples.
    • Legal transplantation and its relevance to comparative law scholarship.

Defining Law: Western vs. Holistic Systems

  • Modern Western thought and human rights discourse have pushed for homogenization of law based on a dominant 'Western' model.
    • This model emphasizes constitutions, statutes, legal codes, and common law.
    • It forms the basis for legal systems in the UK, US, France, Germany, and others.
  • Legal positivists see laws as a neutral system of rules, edicts, and commands from the most powerful groups in society.
  • Holistic systems contrast this view:
    • Ancient Hindu philosophy saw the cosmos as an interlinked whole, encompassing law, politics, environment, and individual salvation.
    • Other holistic worldviews include ancient Chinese, Japanese, and African systems.
    • These were often oral traditions, lacking the routine study and promotion of Western models.
  • Dynamic interaction between local and global elements leads to pluralistic glocalisation rather than uniform globalisation (Menski).
  • Distinctions exist between common law, civil law, Islamic law, Hindu law, Buddhist law, and various forms of customary law.
  • Current law arises from interactions between different legal traditions (Patrick Glenn), including positivistic elements and broader societal and cultural influences.

Definitional and Methodological Problems in Comparative Law

  • When comparing legal systems, it's important to define the subject of comparison:
    • A specific branch of law?
    • A legal code?
    • The entire legal culture, including customary law?
  • Functionality is a basic methodological principle: adequate comparison is only possible when things fulfill the same function.
  • Language and culture can present barriers in the transfer of legal ideas:
    • Human Rights discourse varies in approaches to crime and punishment, gay rights, marriage, and divorce.

Sources of Law in Southeast Asia

  • 'SE Asian law' reflects legal pluralism:
    • Adat law: customary law of Indonesia/Malaysia, Northern Thailand.
    • Chinese customary law: based on a Confucianist belief system.
    • Religion: Islam, Buddhism, Hinduism, Christianity.
    • State law: colonial imports (civil and common law), post-colonial developments (revolutionary, nationalist, developmentalist, globalized).
  • Islamic, Chinese, Hindu, indigenous customary, and European legal norms are inextricably entangled (Harding).

Multi-Layered Contextual Approach

  • Lawyers' law is just one of many normative orders evolved by society (sociological orientation of law).
  • Law in SE Asia can be viewed geologically, with layers overlaying previous layers without replacing them (Harding).
  • This layering reveals cultures, religions, and ideologies that form the current legal framework.
  • Simplification involves breaking down each nation into early history/traditions, colonial period/influence, and contemporary situation.
  • New legal code rules don't simply override previous practices; underlying layers overlap and remain relevant.

Case Study: Siam/Thailand

History and Culture

  • Prior to modern nation: Sukhothai period (1239-1438), Ayutthya period (1350-1767), Chakri Dynasty (Bangkok established 1782).
  • Traditional law: a god-like King was the supreme ruler, mirroring the universe.
  • Angkorean Khmer rule with Tai princes and local chiefs, tributes paid to the King.
  • Reliance on the Thammasat: four principles of justice for a righteous monarch:
    • Assess services rendered to him as right or wrong.
    • Uphold the truth.
    • Acquire riches through just means.
    • Maintain riches by just means.
  • Special status of Thai monarchy due to traditional Buddhist law.
  • Early emphasis on laws protecting the family unit.

'Three Seals Law'

  • King Rama I Phra Putthayotfa (1782-1806) in 1805 systematized legislative functions, appointing judges and scholars to revise Thai/Siamese law.
  • Resulted in the Three Seals Law, including the Ayutthyan Dhammasatthan and Rajasatra as source manuscripts.
  • Varied and often harsh punishments applied differently based on social position.
  • No criminal/civil law distinction.
  • No public declaration of rights.
  • Polygyny (debated in the 1920s under Rama VI).
  • Gradual abolition of traditional slavery (1874-1905).
  • Highly complex court/appeals system.
  • Three Seals Law regulated life in an agrarian community.
  • Examples of punishments under Three Seals Law include:
    • Beheading and seizure of household for speaking impudently of the King.
    • Slitting the mouth and cutting off the ears.
    • Lashes with leather whip.
    • Imprisonment followed by grass cutting for elephants.
    • Fines and servitude.
    • Pardoning on promise of good behavior.

Lèse-Majesté Law

  • Lèse-majesté laws criminalize any negative comment about the monarchy.
  • Thailand: Man jailed for 50 years for defaming monarchy (BBC January 2024).

Influence of European Ideas

  • Kings Rama IV and Rama V were influenced by European ideas and modern science, believing in law and development.
    • Mongkut (1851-68)
    • Chulalongkorn (1868-1910)

Legal Transplants

  • Borrowing, copying, adapting, or refining laws from other jurisdictions is the norm for new laws or institutions.
    • Best practice reform or legal harmonisation.
  • Almost all legal institutions in South-east Asia were originally drawn from common law or civil (including socialist) law systems.
  • Law was transplanted due to 'Western' colonialism or postcolonial influence during the nineteenth and twentieth centuries.

Analyzing the Transmission of Law

  • Many situations involve countries borrowing or submitting to new laws/institutions from another society.
  • Standardisation is desirable for trade, compatible products, and safety regulation in a global community.
  • What qualifies as a legal transplant?
  • To what extent has European/US law been introduced? Parallel legal cultures may remain.
  • Complex cultural elements behind the law: history, tradition, religion, economic interests, consumers, trade unions, party system.
  • SE Asia doesn't fit into simple legal families based on civil or common law.
  • Islamic, Chinese, Hindu, indigenous customary, and European legal norms are almost inextricably entangled.

Legal Reform under Rama V

  • Siam/Thailand was not colonized but was threatened by the British and French in the late 19th century.
  • Siamese Kings were forced into signing unfavorable treaties and reforming the law (slavery, human trafficking, polygyny) to avoid direct interference.
  • Keeping the status quo was not an option due to imperial pressure to modernise.
  • Options considered:
    • Common law (England, India, Malaysia): difficult to adopt because it develops case-by-case and relies on law reporting.
    • Civil law/Roman law (France, Belgium, Germany, Japan): received.
    • Traditional law: Three Seals Law (Siam) merged into continental-style legal codes.
  • The First Thai constitution was adopted in 1932 after a palace coup.

Early Jurists

  • Early jurists advised on legal codes:
    • Prince Rabi (King’s brother)
    • Francis B. Sayre (USA)
    • Gustave Rolin-Jacquemyns (Belgium)
    • Tokichi Masao (Japan)

Civil Law Systems

  • The civil law system in Europe originated with Roman Law and was re-introduced in Europe at the turn of the nineteenth century as the code Napoleon.
  • European legal systems have been based on legal codes ever since.
  • They rely on enacted law-statutes: typically a penal code, civil code, and an administrative code.
  • Legal codes are part of a hierarchy of legal sources, often based on a codified constitution.

Siam/Thai Legal Reform: Timeline

  • The gradual introduction of legal codes.
  • External advisors were introduced, and Thai scholars studied abroad.
  • Siam was involved in international organisations (League of Nations 1920-40).
  • Siam changed its name to Thailand in 1940.
  • Key milestones:
    • 1880s: debates about the shape of reforms
    • 1895: Evidence Law
    • 1896: First Civil Code/Commercial Code
    • 1897: start of Penal Code drafting
    • 1905: Land Law
    • 1908: Penal Code (the critical year)
    • 1908: Judicial/court/procuracy reforms
    • 1913: Nationality Law
    • 1914: Trademark Law
    • 1935: completion of final version of Civil/Commercial Code, including family law; and Civil and Criminal Procedure Codes
    • 1999: Administrative Law

Current Predominant Law in Thailand

  • Reformed law based on codes generally applies in modern Thailand.
  • Courts/lawyers/prosecutors/judges/law schools are in place.
  • Challenges include establishing a democratic system of constitutional government.
  • Active reform process, but abuse of process and power are common.
  • Lack of adherence to the rule of law and a record of corruption exist.
  • Many military coups occurred, e.g., September 2006, May 2014.
  • Why? Multi-layered aspects are still discernible.
  • Predominantly Islamic southern states in rebellion - Syriah law is recognised locally for family matters.
  • Emphasis on cultural elements such as bun khun, debts returned.
  • Deference to superiors from King down undermines strict legal process.
  • Resort to law and rule of law may clash with traditional concepts.

Neutral and Technical Systems of Law

  • Transplantation reduces the linkage with a particular culture.
  • Law becomes the possession of legal elites responsible for drafting and interpreting it.
  • This trend applies particularly in private law.
  • Judicial dialogue suggests that legal solutions in one jurisdiction might be right for another.
  • Many senior Thai judges completed part of their training in France or Italy.
  • The Administrative Court Newsletter (Thai) confirms the extent of contacts with other courts.

Limits of Transplantation

  • Legal scholarship suggests that the modern legal system's appearance, based on legal codes, is deceptive.
    • Examples:
      • The promotion of monogamous heterosexual marriage clashed with Buddhist polygyny; reform of the law did not simply end the practice (Tamara Loos).
      • The approach to personal accident tort claims demonstrates the limits to the acceptance of legal liberalism (David Engel).

Case Study: Vietnam

Reform of Commercial Law

  • Vietnam has a Confucian legal tradition influenced by Chinese imperial codes but was under French colonial rule and the code civile until 1954.
  • Established after the war with the USA as a one-party Communist State but has since acknowledged the global marketplace.
  • Marxist ideology adopted as an anti-colonial political system.
  • The Vietnamese communist party conflated Soviet organizational principles (democratic centralism, state economic management) with neo-Confucian and traditional moral principles.

Vietnamese-Style Party State

  • Doi moi (mid-1980s): softening of policy to open up a more market-based economy.
  • International commerce and trade are essential to the contemporary world order.
  • This involves the need to protect the property rights of private individuals.
  • In 1999, a new commercial law was adopted in Vietnam, which deregulated market access, and this law is based on neo-liberal principles.
  • Enables Vietnam to do business with other nations, including the USA.
  • International standards allow for the conduct of trade and commerce with nations worldwide.

Case Study: Malaysia

Reconciling Multiple Legal Traditions

  • Established in 1963 with a population of 33 million, comprising a series of layers.
  • Islamic influence of Arabic origin from the 9th century.
  • Rulers converted from Hinduism (Iskandar Shah).
  • The Portuguese were involved in the first colonial activity in 1511.
  • The Malaccan empire flourished in the region.
  • British Colonial influence from 1786 with the lease of Penang.
  • Chinese immigration was encouraged for economic reasons under British rule with Kapitan Cina recognised as head of the community.
  • Breakdown of population: 55% Malay, 30% Chinese, 8% Indian origin, 7% indigenous peoples, and other groups.
  • The territory retains customary law with adat influences.

British Colonial Rule

  • Following an earlier Portuguese presence, British interest began in 1786 and consolidated by the Anglo-Dutch treaty of 1824 and the Straits Settlement of 1826.
  • Chinese immigration encouraged to boost the economy.
  • State-wide system with state councils which increasingly had their powers restricted by the colonial office in London.
  • English law was the general law, imposed on all communities, irrespective of their expectations.
  • R v Willans 1858: ‘justice and right’ = reception of English law as at 1826, but it was modified to suit inhabitants, religion, customs.
  • Gradual introduction of English law in Malay States 1874-1936 but qualified with the recognition of Islamic law but also Hindu, Chinese and Malay custom.

6 Widows’ Case 1908

  • General reception of English law in Malaya (now Malaysia) in this instance based on English statute.
  • Case arose because a Chinese merchant with six wives died intestate.
  • English Statute of Distributions 1670: the ‘wife’ inherits one-third on intestacy.
  • The court had to determine if all or any of the wives were entitled to claim.
  • In order to do so, it had to consider the legal status of Chinese ‘polygamous’ marriages.
  • Establishing custom presented practical obstacles for the court to overcome.
  • No distinction in status between primary and secondary wives was recognised.
  • The court held that all 5 confirmed wives were entitled to equal shares under the law as set out according to this English statute.
  • This interpretation was at variance with Chinese custom.
  • English law already recognised polygyny for Muslims, but such a decision is at variance with the Dutch approach followed in Indonesia, which would have dealt with this case as a matter of Chinese custom and divided the estate accordingly.

Parallel Legal Systems

  • In predominantly Islamic states such as Malaysia, the status of Islamic law in dealing with personal conduct related to matters relating to apostasy, marriage, divorce, adoption, etc.
  • By constitutional definition, all Malays are Muslim, but the constitution is also meant to guarantee religious freedom: there are four recognised religions.
  • In regards to personal and family matters, Muslims are obliged to follow the Syariah courts, which means that in some areas, there are two parallel legal systems.
  • What happens when this results in a clash of values?

Case Study: Indonesia

Historical Layers

  • Prior to the arrival of the Dutch, the Indonesian archipelago consisted of many sultanates, kingdoms, clan groups, and city-states.
  • Srivijaya naval kingdom from the 7th Century.
  • Buddhist Sailendra and Hindu Mataram dynasties 8th to 10th Centuries based in inland Java.
  • Hindu Majapahit dynasty in the 13th century.
  • Bahasa Indonesia, now a lingua franca, was derived from Malay communities.
  • The sixteenth century is viewed as a golden age also associated with the increase of Islam.
  • The beginning of large-scale colonialism in the region from the Seventeenth century (Dutch East India Company founded 1602).
  • Formation of Dutch East Indies from the beginning of the 19th Century until the Japanese invasion during WWII.

Demographics

  • Indonesia has 273 million inhabitants spread over thousands of islands, including Java, Sumatra, Kalimantan (Borneo), New Guinea (Papua New Guinea), Sulawesi, East Timor, and Bali.
  • There are 300 regional languages.
  • Individualized traditions persist throughout the archipelago.
  • The population is 86% Islamic, and also 8.7% Christian, 3% Hindu, 1.8% Buddhist, with six religions recognised in all.

Regerings Reglement / Colonial Constitution

  • The effect of Dutch colonization was to create separate legal universes for different racial groups, similar to South Africa under apartheid.
  • Three categories were recognized:
    • Europeans
    • Foreign orientals/Chinese
    • Native Indonesians
  • Three distinct legal systems existed for each group.
    • Dutch law applied to Europeans; it also applied with some modifications for non-Christians in the form of intergroup law, and adat (local custom) applied to natives.
    • Complex transfer provisions between groups were required.
  • Contrast with the approach of British colonization in the 6 Widows Case above.
  • Indonesia has a 20th-century constitution with a Constitutional Court, legal codes based on civil and criminal codes, but Adat customary law and Syariah law are intermixed and still widely practiced.

Conclusion

  • The conception of law from a perspective of legal pluralism provides insights into global legal systems comprised of multiple cultural layers.
  • The designation of SE Asian legal systems as multi-layered reflects indigenous culture, the regional influx of religions, and direct and indirect colonisation.
  • In the adoption of legal codes, a deliberate process of legal transplantation is also apparent, submerging some practices.
  • Positivist law in the form of legal codes has been adopted by SE Asian states for different reasons at different times. Common law is also an integral part of some of the SE Asia legal systems (Malaysia, Singapore etc).
  • Beneath the veneer of legal modernity, traditional laws and customs persist as part of local culture.