Historical contexts

To understand the present, one must first understand the past.

-Chinese proverb

In the section reflecting on the historical context underpinning the contempo­rary legal system, it becomes apparent that traditions from distinct centuries have persisted despite the transformative effects of colonisation and adoption of Western form and process.

Brunei, Indonesia and Malaysia have histories that are perhaps among the oldest in the world. Here, the earliest people did develop a normative system for organising relationships with nature (and its spirits and gods), with one another and with outsiders, together with flexible processes for resolving dis­putes. Although based on oral, not written practices, these customary laws, or adat, evolved and devolved down through the centuries to the present and remain a recognised source of law in all three nations.

From a historical perspective, the second pervasive transformative feature common to all these nations of Asia is a legacy of Western imperialism. This occurred in two ways: either directly through colonisation by European nations or by Japan, or indirectly where the presence of Europeans was an impetus for a so-called �modernisation’ which included legal reform through the adoption of Western models. From the early 1500s Europeans arrived in Asia, with Spain, Holland andPortugal^[15] making the firstinroads in the region, followedbyFrance, Britain and later America. Spain conquered the Philippines in the 16th century, bringing with it Roman Catholicism which remains significant in the lives and also in the laws of the nation at present. The Portuguese also brought Roman Catholicism to their colonies and its former colony of East Timor remains a devout Catholic nation today.

The British too left a legacy of formal legal pluralism. Although parts of the Malay peninsula were subject to inroads by the Dutch and Portuguese, it was Britain that imposed her colonial control (protectorates, residencies and full colonies) during the 19th century, which also extended to Singapore and to the island of Borneo, where today’s Malaysian states of Sabah and Sarawak are situated, alongside the Sultanate of Brunei. Arole for adat and Sharia (in Brunei written as �Syariah’) was maintained, albeit in limited form, but dissemination of English law, legal institutions and personnel along with British concepts of justice and processes introduced into these countries the common law foundation that has continued to the present. Also introduced was a secular system in which religion or morality was divided and separated from law. It was in the 19th century as well that France colonised Vietnam, bringing into play its foundation as a secular civil law nation.

Through wars with European nations, China did lose territory, including Hong Kong,^[16] but neither China nor Japan were colonised. They were, how­ever, cognisant of European commercial and military dominance in the region and aware of the colonisation risks. As well, they were sensitive to the extrater­ritoriality provisions that European traders in turn demanded. So at the turn of the century, both took the initiative to reform and �modernise’ their legal systems on their own terms, which to a large extent meant to voluntarily West­ernise the law so as to avoid the threat of colonisation or compete with the more economically advanced West.

China followed Japan's path. The fall of the Qing Dynasty paved the way for a legal reform drawing on both the Japanese model which served as an inspiration to many Asian countries embarking on Westernisation of their legal systems, but also directly drew on civil systems in Europe. The Six Codes that were enacted at that time are an interesting fusion of Western and indigenous Chinese concepts, and these remain today as the touchstone of the Taiwanese legal system. Modernisation of Taiwan's legal system, however, commenced during the era of Japanese colonisation from 1895, which was the outcome of China's loss to Japan in the Sino-Japanese war. Korea too was colonised by Japan after annexation in 1910, which again saw the transplantation into Korea of significant parts of Japan's already Westernised legal system. The legacy of Japanese colonisation remains not only in civil law structure and in certain laws, but also in attitudes towards law.

The third dimension in the analysis of the historical context of Asian legal sys­tems is the aftermath of World War II. For all countries, new Constitutions would be required. Vanquished Japan was subjected to American (and allied) occu­pation in which legal reform was guided by, and in conformity with, American democratic objectives. While Japanese invasion and occupation of Asia did have horrendous cost in human terms, there was no lasting direct impact on local legal systems, except that it was a catalyst for change. Japan broke the colonial con­tinuum and in the aftermath, the crystallisation of national identities occurred. As each of the nations of Asia strived for independence and self-governance, nationalistic fervour soared and in the search for new directions, powerful ide­ological forces competed.

A similar ideological war occurred in Korea which resulted in the nation being divided in 1948 at the 38th parallel into North Korea^[17] where a nationalistic form of Stalinism^[18] was adopted under Russian patronage, and the South^[19] which, with Allied support, assumed a capitalist and democratic system. The proximity of both South Korea and Taiwan to communist states and the invasion of South Korea by the North and resulting civil war (1950-53)^[20] heightened tensions in the region and was used as a justification for autocratic and martial law in both South Korea and Taiwan for several decades.

For Indonesia and Vietnam the road to independence was marred by their former colonial masters' unwillingness to relinquish control of their colonies. Although the leaders of both nations, Sukarno in Indonesia and Ho Chi Minh in Vietnam, proclaimed their nation's independence in 1945, the Dutch fought against this until 1949, while the war waged by the French in Vietnam con­tinued until 1954. The lack of support from Western democracies for a self­determinationprocess to occurinVietnamundoubtedlycontributed to theattrac- tion of communism in Vietnam.

The colonies of Britain - Singapore, Malaysia and Brunei - were allowed to graduallywork towards independence under the oversight ofBritain. While there were some ideological conflicts and tensions, especially along ethnic lines during these decades leading to independence, the British colonies, like the Philippines which was granted independence by America in 1946, were spared the violence that marked other movements for independence. Hong Kong is the exception to the post-World War II independence pattern recurring throughout Asia. The people of Hong Kong were not given an opportunity for self-determination as British sovereignty was transferred to China in 1997 as a result of negotiations between the British and Chinese Governments in the preceding decade.

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