Index

Amnesty International 160, 310

Aquino, Corazon C 375

Asia 2-4

new Constitutions after World War II 8

transplantation of Western laws to 2

Asia Pacific 3

Asian Law Executive 240

Association of the Bar of the City of New York

245,251

Bartholomew, Prof.

GW 221

BednermAdriaan 278

Beeson, M 3

binding precedent 9

in Brunei Darussalam 305

in China 10

in Indonesia 284

in Japan 10, 130, 131, 132

in Korea 162

in Malaysia 219

in Singapore 338

in Taiwan 99-100

Brierley, JEC 38-9

Britain, legacy of formal legal pluralism

Brunei Darussalam 299-329

adat law 326

animistic traditions 300, 326

Brunei National Solidarity Party 322 civil law tradition 303

concept of state and kingdom 300 Constitution

councils to assist the Sultan 304

role of the Sultan 304

separation of powers 303 courts 327

Appeal Court 310

arbitration 317

corporeal punishment 310

Court of Appeal 311

HighCourt 311-12,313

Intermediate Court 312

Islamic arbitration 317

Judicial Committee of the Privy Council

310

MagistratesвЂ™ Courts 312-13

public confidence in the judicial system

20, 323, 327

Supreme Court 310-12

Syariah Courts 13,314-16 criminal justice 16,309 ethnic diversity 299, 323 historical context 6, 300-3

British influence 301

English law 302

Indic influences 300 introduction of Islam 301

Japanese occupation 302 mediation 301

independence 9, 302 Islamic university 327 Islamisation 300,325 legal culture 320-5

the Beraja factor 321-3 censorship 321, 322 freedom of expression

321

Internal Security Act 322

the Islam factor 324-5

litigation rate 323

the Malay factor 323-4

Malay traditions 323

SeditionAct 321

shura, consultation to achieve consensus 324

and the traditional social hierarchy

323

legal institutions 307-17

civil courts 309-13

election laws 308

Legislative Council 307-8

Religious Council 308-9

State Mufti 308

the Sultan as law-maker 307

legal pluralism 303 legal professions 317-20

appointment and tenure of judges

317

foreign lawyers 15

judicial independence 317, 318 judiciary 317-19

law society 320

lawyers in the civil system 319-20 lawyers in the Syariah system 320 legaleducation 320,325 mechanism for removal of judges

317-18

qualifications for practice 319-20 qualifications of judges 317 legislation

Emergency Orders 305

subsidiary legislation 306

Legislative Council, composition of 308 MelayaIslamBeraja 302,320,325,

326, 327

National Development Party 322 new directions and trends in the legal system 325

public confidence in the judicial system

20, 323, 327

Religious Council

Judicial Committee 309

Legal Committee 309

and the Syariah Courts 314-15 sources of law and legal traditions

303-7

adat law 303, 306

Chinese customary marriage 307 common law 303, 304-5

Constitution 303-4

customary law 306-7 Islamic-based legal system 303 legislation 305-6

Malay cultural traditions 300, 306, 323

Syariah 303,306

stare decisis 305

stratified social system 301

Sultan 301,314-15

accountability 311

powers of 302, 303, 313, 314

Supreme Court 12

removal of judicial review 310, 327 supervisory jurisdiction 310

Syariah 7, 306, 325

Syariah Courts

appointment of judges 315, 318 civil jurisdiction 315

criminal jurisdiction 315 hierarchical structure 314 jurisdiction of 314 professionalisation 314, 320 and the Sultan and the Religious Council 314

Syariah Appeal Court 316, 318 use of Malay language 314 Byoungro, Kim 171-3

CEDAW Committee 380

Chan, N H JCA 246 Chen, J 32, 55

Chia, Joseph 221 Chiang Kai Shek 91

China 24-61

ambiguity and uncertainty of law 9 Anti-Rightist Movement 31 binding precedent 10 civil and political rights 56 Communist Party 13, 24, 25, 43, 53 courts

choice of law 40-1

lack of case reporting system 38 procuracy 14 role of 37

disparities among regions in 24, 40 economic growth 24 historical context 27-33

Chinese legal traditions 27-9 communist and socialist ideology and practice 30-1

legal reform 32 Qing Dynasty's legal reform 32 RepublicofChina 29,32 socialist market economy 32 Westernisation of Chinese law 31 -3 and Hong Kong 65 human rights 49 judiciary

accountability to the NPC 46 adjudication supervision 50-1 adjudicative committee 42-4 adversarial system 48 competence of judges 50 corruption in 50, 51 courts and judges 45-7 exclusions from open trial 48 independence of 56 people's assessors 47 procuracy 51 -2

Supreme People's Court 45 tenure of judges 47 trial system 47-9

law codes 8, 27, 30, 32, 70

law enforcement 39-40

China (cont.)

legal institutions 41-53

Constitution 41-2

courts 42

CPC Political-Legal Committees 52-3 dispersed character of 43 executive branch 45 judiciary 45-51 legislatures 42-4

local people's congresses 44

National People's Congress 42-4 procuratorates 42

State Council 45

legal interpretation in 10

legal profession 53-5

All-China Lawyers' Association 55 definition of a lawyer 54 evolution of 53 law firms 54 privatisation 55, 57 requirements for practicing 54 rights and responsibilities of lawyers

legal reform 8, 20-1, 56

legal system 6

institutions and thought from the Soviet

Union 30

procedural justice 29, 49 socialist legality 53 substantive justice 29, 49, 51, 57 legal theories

Confucian school 27-8

legalism 29

Soviet 30

legal traditions 27-9

National People's Congress composition of 43 electoral system 44 role in constitutional development

new directions and trends in the legal system 56-7 judicial reform 56, 58 legal reform 56 mediation 57

One Country, Two Systems 65

вЂ?open door'policy 53 rights protection in 25, 49 rule by law 26,31

rule of law 25-6,31,51,56,58 separation of powers 42 sources of law and legal traditions 27-9,

33-41

academic commentary 10

administrative regulations 35-6 case law 33 civil law tradition 33

Constitution 34-5

custom 38 departmental rules 36 hierarchical structure of the legal system

33, 39-41

judicial interpretations 37-8 laws enacted by the NPC and its

Standing Committee 35 legal writing 38-9 legislative bodies 33-4 local enactments 36-7

Standing Committee of the National

People's Congress 12, 43 interpretation of law 12 a political institution 78 power to interpret legislation 37, 42 Supreme People's Court divisions of 46 power to interpret legislation 37, 46 publication of judgments 48

вЂ?Three Supremes' 57 values and traditions 3 civil law tradition 10,165

appointment of judges 15

in Brunei Darussalam 302

in China 33

in Indonesia 262, 270, 285

in Japan 126

in the Philippines 388 role of legal writing 38-9 in Vietnam 187

Claridge, SirJohn 335, 336

Clarke, DC 41

Cohen, JA 40 common law tradition 62-3 appointment of judges 15 approach to interpretation of laws

77-8

comparative law 144

Confucianism 6

CorruptionPerceptionIndex 256, 393 courts 12, 13, 16

see also under names of countries

Tai, BennyYT 62-90

Taiwan 8,91-119

chi-ssu-kung-yeh association 100-1 and China 92

civil law 101

CouncilofGrandJustices 12, 103, 104, 110

functions of judges 108-9 interpretation of the Constitution 110 roles of 104-5

and the Supreme Court 116 courts

administrative courts 106-7 and administrative interpretations 97 administrative review system 106 and the Constitution 95

Constitutional Court 110 declaration of unconstitutionality of law 109-11

DistrictCourt 105

HighCourt 105 improvements in the system 107-8 Intellectual Property Court 107 ordinary courts 105-6, 107 special courts 12

Supreme Court 106 criminal law 101

Dutch occupation, establishment of courts 93

government, branches (Yuans) 101 historical context 93

Confucianism 94

Dutch occupation 93

European occupation 93

Japanese colonisation 94

martial law 95

part of the Qing Dynasty 93

Judicial Reform Foundation 116 judicial review 110

Judicial Yuan

programs to improve the judicial process 108

reform of 116

judiciary

caseload of judges 108 constitutional arrangements for 116 continuing education of judges 108 evaluation of the performance of judges

108

judges with special expertise 107 judicial independence 108-9, 111

legal culture 18, 114-16

arbitration system 115

civil litigation matters 115 confidence in the courts 115-16 criminal litigation matters 115 litigiousness 114-15 rights 115

surveys conducted by the Judicial Yuan 116

traditional Chinese ideas 114

legal institutions 101-11

adjudication bodies 105 bodies interpreting the law 103-5 Council of Grand Justices 103-5 courts 103

JudicialYuan 103

law-making authority 101-2

Legislative Yuan 102

National Assembly 102

legal profession 111-14

appointment of judges and prosecutors 111-12

the Bar 112

bar associations 112

Bar Examination 112

in the Japanese colonial rule 113 judges 15

Judicial Examination 112

judicial independence 108-9, 111 judicial training program 111, 113 legal education 113-14 method of legal education 114 public trust and respect for the judiciary

111

qualification for appointment as judges and prosecutors 111

registration 112

role of legal education in society 114 tenure of judges 111

legal recognition as a state 92

legal system

codification of Chinese law 94

factors contributing 93

place in the hierarchy of international treaties 98

legal traditions 95-101 Legislative Yuan 11,96, 98-9, 103 modernisation of the legal system 8 multi-party system of government 92 new directions and trends in the legal system 116

population 91 religious make-up 92 sources of law and legal traditions

95-101

Civil Code 96

the Constitution 95-6

criteria for qualifying as a custom 100

customary practices 100-1 executive agencies 97 general principles of law 101 international treaties and customary international law 98-9

interpretations of the Grand Justices 100

judicial decisions and precedents 99-100

legislation and administrative regulations 96-7

legislative process 96

legitimate delegation of power 97 вЂ?matters involving rights or obligations of the people' 96

Supreme Court

binding effect of decisions 99 panels 99

selection of decisions as precedents 99

universities 113

and the USA 95

Tan, P-L 17

Tay, A 17

Thio, Li-ann 26

Transparency International, Corruption Perception Index 256, 393 Trindade, FA 244

TsunHangTey 212-61

Tun Abdul Hamid 244, 245 Tun Abdul Razak 241

TunEusoffChin 247 TunMohamedSuffian 252 Tun Salleh Abas 243

UN Committee on the Rights of the Child 380

Upham, Prof. Frank 142

Van Vollenhoven, Cornelis 266

Vietnam 185-211

accession to the WTO 188

alternative dispute resolution processes

187

ambiguity and uncertainty of law 9 civil law tradition 187 Communist Party 13 Confucian values 207

DoiMoi policy 185, 186, 188,

204

E-Government initiative 200 foreign investment 186, 188 Government

accountability 198

changes in decision-making 199 changes in operations 199 composition of 198-9 decrees and circulars 199 executive powers 199 вЂ?official letters' 199 responsibility 198 historical context 187-8

Constitution 187

French influence 187 independence 9 international treaties 186 judicial reform 209 judiciary

appointment of judges 201,202

Commercial Courts 13 corruption in 202 enforcement of judgments 202 and interpretation of legal instruments 196

jurors 201 need for reform 201,202, 209 procuracy 14

remuneration of judges 202

Supreme People's Court 200-1 workload of judges 201 legal consciousness 188, 210 legal culture 18, 207-9

alternative dispute resolution processes 208

reluctance of the people to use the law

207

trust in the legal system 208

legal institutions 196-204

Communist Party 203-4

District People's Courts 201

the Government 198-200 local government 203 National Assembly 197-8

Vietnam (cont.)

people's courts 200-2

the President 202-3

the procuracy 203

Provincial People's Courts 201

legal profession 204-7, 209 contribution of foreign lawyers 204,

206

foreign lawyers 204-5 legal education 206, 209 legal training 205 local lawyers 205-7 qualifications of lawyers 205 scarcity of lawyers 205

legal professions 188

legal system 10,195

legal traditions 189-96

legislation

containing broad principles 192

implementation of laws 192 legislative process 193 transparency in the law-making process

190, 206,210

market economy 186, 188

National Assembly 12

annual law-making program

192

composition of 197 specialised committees 197 Standing Committee 198 workload 197

new directions and trends in the legal system 20,209-10

powers of the Prime Minister 199

rule of law 188, 207, 209

separation of powers 191

sources of law and legal traditions

189-96

circulars 194

Constitution 189, 190-1 court judgments 189 decrees 193-4 international treaties 195 and the Law on Promulgation of Legal

Instruments 189 legislation 191-3 method of citation 189-90 вЂ?official letters' 195-6 ordinances 193 publication of laws 190 resolutions and decisions 195 role of the Ministry of Justice 195 state control of the economy 186 Supreme People's Court

Judges' Council 200 resolutions 195 specialised divisions 200

Wang Shengjun 57

Western colonisation 7 WongYanLung 86 Woods, Robert Carr 339

Woon, W 338, 339, 344 Wu Min Aun 242, 247, 250

XiaoYang 56

Yatim, Dr Rais 239, 247 Yu, X 30

Zheng Chen-gong 93

Zhou Enlai 31 Zhu Suli 50

The 11 countries and territories selected for this edited volume are on the eastern side of Asia, with borders that meet the Pacific Ocean, in an arc extending from Japan in the north to Indonesia in the south.

There is indeed another arc of Asian nations whose shores are on and rivers flow into the Indian Ocean which, together with the nations of the Indochina peninsula (which as the name indicates relate to both Asian spheres), awaits coverage in a later volume.⁵ While there is considerable licence in using the term вЂ?AsiaвЂ™ to cover just 11 countries on the Asian continent, the authors contend that these nations are representative of the diversity, pluralism and reforming spirit that pervades much of Asia and as such are good case studies through which insight into the functioning of law and legal institutions in much of the region could be attained. After all, Asia is both a geographical term and also a construed entity; as McCormack has written, Asia is an вЂ?imposed identity: a fantastic ideological

5 Vietnam is covered in this volume but Myanmar (Burma), Thailand, Cambodia, and Laos are not.

There is a range of different entities, other than legislatures and courts, involved with making, interpreting and applying laws. All jurisdictions have legislatures, whether designated an Assembly or a Congress, Council or Parliament, or in Taiwan's unique system, a Yuan. These legislative bodies can be bicameral as in Brunei, Indonesia, Japan, Malaysia and the Philippines, or unicameral as in China, Hong Kong, Korea, Singapore, Taiwan and Vietnam. Most are repreВsentative democracies which allow for universal suffrage and for multi-party elections, with Indonesia among the world's largest democracies.²⁴ However, there are some exceptions. While Brunei has a unicameral Legislative CounВcil, there have not been elections since 1962, so each of its 21 members is appointedby the Sultan. This small entity can be contrastedwith China's National People's Congress which has 3000 deputies (members), all of whom, however, are indirectly elected through a complex multi-stage process of nominations which effectively ensures Communist Party control over who becomes a deputy. The legislative agenda is similarly controlled by the Communist Party of China. A similar pattern occurs with Vietnam's National Assembly.

Although each of the other countries has democratic elections, there is quite an array of electoral processes. Singapore's Parliament has 84 of its 94 seats occupied by elected members and nine nominated members, plus one nonВconstituency member who, although defeated in the election, did obtain the highest number of votes from among the defeated candidates. Hong Kong, too, currently has a mix of elected and nominated members. Here the demand for universal suffrage has had vocal advocates. In response, China has promised Hong Kong that by 2020 it will have universal suffrage for the election of all members to its Legislative Council and by 2017 will be able to elect its Chief Executive. Taiwan has a complex electoral system for its Legislative Yuan, with legislators elected directly from districts, plus a voting system by which political parties can acquire seats proportionally for the Legislative Yuan, half of which must be held by women. There are also designated seats for Taiwan's indigenous population. The Philippines has a locally elected House of Representatives, with national elections for its Senate. Korea has a plural system of votes from electoral districts and a proportional representation system based on the percentage of votes garnered by political parties. Japan and Malaysia follow a Westminster model. Japan's Diet has elections for both Houses with a complex voting system of constituencies and proportional representation. Malaysia, the only federation,

24 India is the largest democracy in the world.

Japan has been described as a вЂ?laboratory of operative comparative law'³² but this description can also be applied to all the Asian jurisdictions covered in this book. Each has had a strong traditional foundation stretching back through centuries, even millenniums, upon which otherbelief systems, values, laws, institutions and legal processes have been adopted, transplanted or imposed, layer upon layer, intermingling so that something new, but also old - a hybrid - emerges. The strength of long traditions prevents legal cloning occurring - Singapore's system was never an English clone, nor Java's a clone of Saudi Arabia, nor Korea's that of Japan. Instead there was a blending of local traditional ways with the imported tradition and acquired ideas and processes. In this ongoing syncretism, the import was typically adapted to meet the needs of the local legal culture. In such a dynamic legal and comparative laboratory, innovations became possible and distinctly new solutions were created.

Asia is truly a comparative law paradise. The blend and diversity of legal traditions found in Asia is fascinating and often astonishing to Westerners raised in more monolithic legal systems. To think that comparative lawyers in Europe only have the civil law and the common law to consider, two legal traditions which are in fact pretty similar to one another in values and even in basic rules. InAsia,andofteneveninthevery sameAsiancountry,wehavetodealwithmuch more diverse legal traditions - adat, Hindu, Islamic and Confucian traditions as well as the civil and common law from the West.

The focus of Western comparative lawyers when studying Asia has often been on how Western laws were adopted and adapted in Asia, but the study of law in Asia is much more complex - after all, the arrival of Western law is only the last in a long series of adaptation by Asian countries of many diverse legal traditions over many centuries. In fact many lessons may be learnt by the study of this long

32 M Dean, Japanese Legal System, 2nd ed, Cavendish, London, 2002, p. 2, quoting H Itoh and L W Beer, The Constitutional CaseLaw in Japan: Selected Supreme CourtDecisions1961-1970, UniversityofWashington Press, Washington, 1978, p. 9.

The People's Republic of China (hereinafter China, or PRC)¹ is the current name of the Chinese nation which has lasted for several thousand years as a country and civilisation. China is also the world's most populous country, with a population estimated at 1.34 billion in 2009. Although officially there are 56 ethnic groups in China, Han Chinese forms about 92 per cent of the population. It is also one of the largest countries in land size, in which there are tremendous disparities among regions in economic development, culture, dialects and traditions. Although the numbers of believers of the religions Buddhism, Christianity, Islam and Taoism in China are among the world's largest, they constitute nevertheless a very small portion of the Chinese population. In fact, there has never been a dominant religion that was able to convert the majority of the Chinese people.

After several decades of rapid economic growth, China is now the world's second largest economy, simultaneously the largest exporter and second largest importer in world trade. It is also a self-proclaimed socialist state governed by one political party, the Communist Party of China (CPC or Party), which took over power in 1949 after defeating the Nationalist Party in a civil war.² Chinese society has undergone tremendous change since 1949, including the socialist transformation of the economy in the 1950s, the Cultural Revolution in the 1960s and 1970s, the Tiananmen Squareeventin 1989, the abandonment of the

1 At various points in this chapter вЂ?China' is also a reference to the Chinese nation in the pre-PRC period.

2 The Nationalist Party (or Kuomintang) was the ruling party for the Republic of China (ROC). It then carried the ROC Government to Taiwan, of which Republic of China or ROC remains the official name. See Chapter 3, section 3.1.

139 Information accessed from on 15 April 2009.

140 J Chen (2008), op. cit., p. 162.

Drawing from reliable records, Taiwan's history began 400 years ago. This was in the 16th century, when the Portuguese called Taiwan³ вЂ?Formosa', meaning a beautiful island. The island was subsequently ruled by the Spanish (from 1626 to 1641, in the northern part of Taiwan) and by the Dutch (from 1624 to 1662 in southern Taiwan). During these periods of European occupation, all cultivated land was owned by the East India Company. During their rule, the Dutch introduced a number of Western systems of land management and cultivation. They also required the Han Chinese to pay to acquire a monopoly right to trade with the indigenous Taiwanese and to fish. In addition, Western customs tariffs and poll taxes were introduced.

In Tainan, a southern town of Taiwan, the Dutch set up three courts: a Dutch court, a Chinese court and a Japanese court. The Chinese and Japanese courts dealt with minor offences, whereas the Dutch court handled more serious cases, including conflicts between ethnic groups.⁴ If a dispute concerned Dutch people, Dutch law would apply. Otherwise, local custom or indigenous law would be the law applied by the courts.

Later, in 1661, the Dutch were expelled by Zheng Chen-gong, a general from the Chinese mainland who had been defeated by the Ching Dynasty. Zheng established his regime in Taiwan (1662-84). The Zheng regime took over all that had been owned by the East India Company and introduced additional rules governing the exploitation of the land, under which government officials and people with greater influence could apply to government to bring wasteland under cultivation.

From the 1680s to 1895, when Taiwan was part of the territory of the Ching Dynasty, traditional Chinese values underpinned the society. Most people belonged to a big family, the so-called clan. There could be a few generations in a clan, with the most senior male the most authoritative member. Clans were a very important part of the social structure. In a clan, the most senior male member, usually the father or grandfather, had absolute power in disciplinary

3 There are different theories about the origin of the term Taiwan. The most cited theory is that it came from the aboriginal language ofTaian or Tayan to refer to outsiders.

4 The Dutch brought Christianity to Taiwan and contributed in terms of education and health, but their governance was not without conflict: see M Chen, ⁴Revisiting the Past', Taipei Times, 6 February 2003, p. 3.

25 For further information on the proposed reform, see Judicial Yuan.

Japan is an archipelago of almost 4000 islands, formed by intersecting fault lines off the Asian continent. The largest are Honshu, Kyushu, Shikoku and Hokkaido. Japan's 3500-kilometre length creates great disparities in climate - from snowy Hokkaido in the north to tropical Okinawa in the south. Generally, however, Japan is a mountainous country. This fact is driven home by strong regionality and by the densely populated plains of the Kanto, Kansai and Chukyo regions of Honshu, each a centre of intense industrial and economic activity surrounding a major city - Tokyo, Osaka and Nagoya respectively. The population of Japan is about 126 million, though its size and age composition are projected to change dramatically in the coming decades through ageing and a declining birth rate.¹

Japan is a constitutional monarchy. Its Parliament is named the Diet and is made up of the House of Representatives and the House of Councillors, both elected directly by the people. Japan's government is composed of legislative, administrative andjudicial arms. Each is independent, though the Prime Minister and the majority of the Cabinet are drawn from the Diet.² Japan's political parties have seen significant realignment at the turn of the century. The centrist Democratic Party of Japan, which took power in 2009, has been the first party to substantially challenge the post-1955 status quo of a Conservative ruling party (the Liberal Democratic Party) and a socialist opposition.

In geopolitical terms, Japan is positioned at times uncomfortably between its established ally, the United States of America, and the emerging superpower

1 National Institute ofPopulation and Social SecurityResearch, PopulationProjectionsforJapan: 2001-2050 (January2002).

2 D McCargo, ContemporaryJapan, Palgrave, New York, 2000, p. 82.

160 K Anderson and T Ryan, op. cit., pp. 53-4.

161 D Foote, вЂ?Justice System Reform in JapanвЂ™, p. 17.

162 ibid., 16.

163 P Lawley, вЂ?The Post-Law SchoolвЂ™ Future of Japanese Undergraduate Legal Education: A Personal PerВspective Comparison withAustraliaвЂ™, Journal ofJapaneseLaw, vol. 20, 2006, p. 81.

182 SeeL Nottage, вЂ?Civil Procedure Reforms in Japan: The Latest RoundвЂ™, Journal ofJapaneseLaw/ZJapanR, vol. 9, no. 18, 2004, p. 204.

183 FinancialSystemReformAct [KinyuuShisutemuKaikakuno TamenoKankeiHouritsu no SeibiTou niKan SuruHouritsu], Act No. 107 of 1998.

184 See Ministryof Justice.

185 See L Nottage, вЂ?Civil Procedure Reforms in Japan: The Latest RoundвЂ™ (2004), op. cit.

186 See K Anderson and Y Okuda, вЂ?Translation of JapanвЂ™s Private International Law: Act on the General Rules ofApplication ofLawsвЂ™, Asian-PacificLaw andPolicyJournal, vol. 8, p. 138.

187 K Anderson and T Ryan, вЂ?Reorganization and BankruptcyвЂ™, in G McAlinn (ed) Japanese Business Law, op. cit., p. 595.

188 See K Anderson and M Nolan, вЂ?Lay Participation in the Japanese Justice System: A Few PreВliminary Thoughts Regarding the Lay Assessor System (Saiban-in Seido^) from Domestic Historical and International Psychological PerspectivesвЂ™, Vanderbilt Journal of Transnational Law, vol. 37, no. 4, 2004, p. 935.

189 See K Anderson and T Ryan (2009), loc. cit.

190 Justice System Reform Council, Recommendations ofthe Justice System Reform Council: For a Justice SysВtem to SupportJapan in the21st Century (2001).

The Republic of Korea (hereinafter Korea), commonly called South Korea as opposed to North Korea,^{* 1} is a highly homogeneous, yet intensely dynamic nation. Located in East Asia on the southern half of the Korean peninsula, and neighВboured by China to the west and Japan to the east, Korea has a population of over 48 million people in a territory of just 100 032 square kilometres, which is similar to the size of Portugal. As two-thirds of the land is mountainous terrain, Korea is one of the most densely populated countries in the world. Along with this high population density, Korea's ethnic and lingual make-up renders it a highly homogeneous nation. At the same time, Korea has experienced continuous ups and downs throughout its modern history, and has made considerable efforts to respond to each and every challenge in a timely manner. This has resulted in Korea's high level of dynamism. It can be seen in the dramatic changes that have occurred in the Korean economy and politics. Korea was once one of the poorest nations in the world. This was so following the devastating Korean War (1950-53), yet the nation miraculously grew to become the 15th strongest econВomy in the world in terms of gross domestic product (GDP) in 2008.² Although the Korean economy had to face numerous crises, including the so-called IMF (International Monetary Fund) crisis of 1997 that impacted not only upon Korea

1 The Democratic People's Republic ofKorea occupies the northern half of the Korean Peninsula. Since 1948 North Korea has been a socialist single-party state, run by the Korean Workers' Party.

2 This is according to the statistics released by World Bank in July 2009. In 2002 and 2003 Korea ranked 11th in the global GDP rankings but with the rise of Brazil, Russia, India and Australia, the Korean economy fell four notches to 15th in place in 2008. The data for 2008 is available at The World Bank, Data and Statistics.

It is believed that the earliest Malaysians lived in Borneo some 35 000 years ago. The earliest inhabitants arrived in Peninsular Malaysia around 8000-2000 BCE, aperiod classified as theMiddle StoneAge. These aborigines are collectively called orang asli (original inhabitants). Theywere later displaced by the arrival of the proto-Malays (orang Melayu asli) from southern China between 2500 and 1500 BCE. Later, around 300 BCE, the proto-Malays were themselves displaced by the deutero-Malays, from Yunnan in southwest China, who brought with them their customary practices (adat). Some of these old customs still survive, albeit in a modified form. In Sabah and Sarawak, Native Courts have been constituted under the respective Native Courts legislation to administer the remnants of these customs.⁹

7 Tun Mohamed Suffian, op. cit., p. 28.

8 Wu Min Aun, The Malaysian Legal System, 2nd ed, Longman, Singapore, 1999, p. 2.

9 ibid.,p.3.

Indonesia's national motto, Bhinneka Tunggal IkaвЂ™, is often translated as вЂ?Unity in Diversity'.^{* 1} When it comes to law, Indonesia truly abides by this motto - it is one of the most legally diverse, and consequentially legally complex, countries in the world. Indonesia is the largest majority-Muslim country in the world, yet it is not an Islamic state, even though it does implement important parts of Islamic law. It is a civil law country even though much of its Civil Code and Commercial Code are no longer in force, having been replaced by statutes, some allegedly inspired from adat law, the indigenous laws of the different ethnic groups that make up Indonesia. These adats or adat laws reflect a great diversity in law, the adat of each ethnic group being different. Religious diversity is recognised through freedom of religion provisions in the Constitution and through the recognition of the legal consequences of religion - for example, Muslims will have Islamic family and inheritance law applied to them (sometimes as modified by adat and by state law) but Christians will have their religious marriage given the legal effect of a civil marriage by the state which corresponds in large part to their religious beliefs (a monogamous marriage, for example). Indonesia takes legal pluralism seriously as a mean of respecting the diversity of its citizens.

1 Literally in old Javanese: вЂ?in pieces, yet one'. The motto is uncharacteristically in old Javanese rather than in the Indonesian national language as it is taken from a poem written in the 14th century during the glorious Majapahit era. Interestingly that poem was advocating religious tolerance between Buddhists and Hindus (this was before the Islamisation of Java). It states that although the truth of the Buddha and the truth of Shiva are indeed different they are one. This tolerance and multivalence explains in part the success of the Majapahit Empire. For a translation, see M C Ricklefs, вЂ?Unity and Disunity in Javanese Political and Religious Thought of the EighteenthCentury', ModernAsian Studies, vol. 26, no. 4,1992, p. 663, quoting the translation by Soewito Santoso (ed), Sutasoma, A Study in Old Javanese Wajrayana, International Academy of Indian Culture, New Delhi, 1975, p. 578.

Indonesia has a long and rich legal history. One could say that its history has brought to Indonesia layer upon layer of different laws, the new law never fully replacing the previous one but adding a new layer of diversity and complexity to the law: first adat, then Hinduism and Buddhism, then Islam, then Western law. A form of pluralism (but maybe more importantly of syncretism) prevailed which often allowed people to use the most appropriate law from the multiplicity of sources.⁶

The laws, or rather ways and customs, of the indigenous peoples of Indonesia go back a long, long way. The вЂ?Java Man' lived in Java perhaps as early as one and a half million years ago, though most anthropologists now believe that the Austronesian people are the ancestors of most Indonesians and came originally from Taiwan around 2000 BCE. There is not a lot of documentation of the ways and manners of the early inhabitants, especially as adat laws were orally transmitted.

Hinduism and Buddhism were the first two вЂ?foreignвЂ™ influences to come to the shores of what is known as Indonesia today. From the seventh century, there is evidence of kingdoms influenced by Hinduism, Buddhism or both: for example, the Buddhist Srivijaya Kingdom in Sumatra from the seventh century; the Buddhist Sailendra Kingdom in Central Java from the eighth century which built the temple of Borobudur; the Mataram Hindu Kingdom in Java from the eighth century which gave us the Prambanan temple; and the famous Majapahit Empire from the 13th century, the largest in Indonesian history, which tolerated both Hinduism and Buddhism. These kingdoms were influenced by Hindu law and Buddhist law which made their way into the adat of the people.

Then came Islam, gently, not militarily, but through or along with trade. Islam did not come to all parts of what is today Indonesia. It did not reach all of the islands from Bali eastwards and often did not reach the interior of islands (these correspond to many now Christian regions of Indonesia with the exception of Bali which remains Hindu). Islam came but this did not necessarily lead to the wholesale adoption of Islamic law. Often Islam was accepted but the older adat law continued to apply instead of, or alongside, Islamic law. This limited influence of Islamic law may be explained in part by the Sufi influence which was more concerned with the spiritual aspects of Islam. When Islamic law was

6 The Minangkabau are Muslims but have matrilineal inheritance from their indigenous adat. Most Javanese are Muslim but follow some adat which date back to the Hindu period. See section 3.1 below.

19 LawNo. 1 of1967onForeignInvestment.

20 Aceh has a special law on regional autonomy which allows the implementation of some forms of Islamic criminal penalties.

Indonesia is a multicultural nation which practises legal pluralism. It is therefore understandable that there be a multiplicity of legal cultures in Indonesia. With adat law, Islamic law, civil law and national law come different cultures and attitudes towards what law is and how it should be implemented. There is also a variety of attitudes towards law across the different parts of Indonesia - the legal culture of Aceh would be quite different from the legal culture of Bali. It is impossible to give a full account here of the diverse legal cultures of Indonesia and how legal transplants are affected by local culture. The questions are enorВmous in scope: how does suing under a European-inspired Civil Code work in a country where adat traditions often favour compromise, harmony and the avoidВance of open conflicts? What cultural changes had to occur for the vast majority of Indonesians to overwhelmingly support the introduction of extensive constiВtutional protections for human rights when adat and Islamic law formulated law more in terms of obligations than of rights?

Some would argue that there are in fact some common cultural traits with respect to law shared across Indonesia. Indonesia has been described as notbeing a law-minding society.¹⁵¹ One is often at a loss when it comes to explaining the omnipresence of corruption, and cultural explanations have been advanced. It has sometimes been attributed to the cultural traits of the Javanese who, it is said, are more used to hierarchical relationships in which tributes are offered to powerful men. It could, however, be explained differently: after experiencВing decades of dictatorship where law did not matter much, Indonesians will only slowly become accustomed to the law playing a greater role in their sociВety. Cultures do not change overnight; or do they? Today, there is a demoВcratic culture which seems to put pressure on government to implement the law and fight corruption which is a cultural argument this author very much likes.

151 Hikmahanto Juwana, вЂ?Dispute Resolution Process in IndonesiaвЂ™, Institute OfDevelopingEconomiesAsian Law Series, no. 21,2002, p. 24: вЂ?Indonesian society, like most Asian societies, is not familiar and accustomed to the concept of law, legal procedure and court system. It can be argued that the Indonesian society belongs to a non law-minded society as opposed to most Western societies who are a law-minded society. Law as conceived by the Western societies is not the same as Asian societies. In addition, the modern legal system does not have its root in the Asian societies.вЂ™

Although Brunei Darussalam (also named вЂ?Brunei, the Abode of Peace') is one of the longest continuous monarchies in the world, it was only in 1984 that Brunei shed its colonial links with Great Britain to become a fully independent nation. It is only one of two nations^{* 1} which function as sultanates and is the smallest nation in Asia, with a population of around 400 000. It has a boundary length of less than 400 kilometres, with its total area 5769 square kilometres. Brunei is situated on the island of Borneo on the South China Sea side and is comprised of two small enclaves surrounded by the Malaysian states of Sabah and Sarawak. Sarawak owns the narrow portion of land, the Limbang, which separates the two parts of Brunei. The large Indonesian province of Kalimantan makes up the remaining portion of Borneo. As has been the pattern throughout the island, Brunei is an ethnically pluralistic society. Although social scientists and census takers have found the identification and classification of the varied Bornean ethnic groups difficult,² the Government of Brunei has categorised the Brunei Malays and six ethnic groups (puakjati, or original tribes) - the Kedayan, Tutong, Belait, Dusun, Bisaya and Murut - as Malay for the purposes of nationality. The result is that census data shows that Brunei Malays comprise 68 per cent of the population, Chinese 15 per cent, other indigenous groups 6 per cent and

1 The other is the Sultanate of Oman.

2 Brown gives several factors forthis, including the вЂ?role oflocality', which meant people ofidentical language, social organisation and culture could have different descriptors because of variation in the specific location of their dwellings; the factor of intermingling of groups within a location due to intermarriage, warfare, conversion and mobility; and because вЂ?what a people called themselves could differ from what others called them'. See D E Brown, вЂ?Brunei: The Structure and History of a Bornean Malay Sultanate', Brunei Museum Monograph, vol. 2, no. 2, 1970,p.3.

All of the island of Borneo was once animistic.³ The numerous and diverse ethВnic groups had their own system of beliefs to explain the natural world and how humans should interact withit and with eachother. The natural and supernatural merged. In this social ecology, the concepts and procedures for the settlement of disputes were intimately linked with the spiritual, so that ritual redress compleВmented most outcomes. Disputes were resolved either consensually or violently, the latter evidenced by the phenomenon of headhunting. During the last 1000 years there have been four distinct historical influences which impacted upon the part which became known as Brunei and with each, animism was incrementally relegated to a minority practice.

The first of these was the Indic influence from the Sumatran empire of Srivi- jaya (ninth and 10th centuries) and the later Majapahit empire (13th and early 14th centuries).⁴ The Indic legacy can be seen in social customs,⁵ literature and mythology,⁶ ceremonies, regalia⁷ and titles,⁸ including that of Yang di-Pertuan (вЂ?The One Who is Made Lord') still retained by the Sultan of Brunei. The negara concept of state and kerajaan (kingdom) were introduced, along with the notion of a devaraja (divine kingship) which concentrated political and religious power

3 GC Gunn, Language, Power, and Ideology in Brunei Darussalam, Ohio University Center for International Studies, Athens, 1997, pp. 43 and 48.

4 Sanskrit scripts from 400 BCE have been found in Borneo. See H R Hughes-Hallet, вЂ?A Sketch of the History ofBrunei', Journal oftheMalayan Branch RoyalAsiatic Societty, vol. 18, no. 2, 1940, p. 23.

5 Such as the Bruneian marriage ceremony.

6 DE Brown, вЂ?Hiranyagarbha - The Hindu Cosmic Egg and Brunei's Royal Line', Brunei Museum Journal, vol. 4, no. 4, 1980, p. 30.

7 Such as the use of the yellow umbrella to symbolise royalty and royal protocol, and the recitation of chiri in investitures.

8 Titles such as Paduka and Baginda are derived from Sanskrit.

In addition to any strengthening of the Islamic system, there is a trend towards harmonisation of the common law and the Syariah law systems. The newly introduced legal education model reflects this through the integration of common law and Syariah within the one-degree program which will provide admission to both systems of law. The Islamic Legal Unit within the Ministry of Religious Affairs is also reviewing the Laws ofBrunei to see whether there is conflict between the Laws and provisions of Hukum SyaraвЂ™ and proposing revisions to the Laws where needed.

152 Appointed by the four District Officers. They are required to have a set level of education, be resident in the Mukim for three years, be Muslim, and not be a member of a political party.

153 Kampong Consultative Council (MajlisPerundingan Kampongj and Mukim Consultative Council (Majlis Perundingan Mukimj.

154 L Mahathir and Zaini, вЂ?Sultan Calls to meet Globalization Challenges Through Bruneian Identity', Borneo Bulletin, 24 September 2004.

155 Titah delivered from the Throne Room at the Royal Palace on 16 July 1996, reported inBorneoBulletin, 16 July 1996.

107 See KYL Tan, вЂ?State and Institution Building Through the Singapore Constitution 1965-2005', in Li-Ann Thio andKYLTan (eds), Evolution ofaRevolution:FortyYearsoftheSingapore Constitution, RoutledgeCurzon, London, 2009, pp. 50-78.

120 Under r 2 of the Legal Profession (Qualified Persons) Rules, вЂ?relevant legal training' means: вЂ?(a) any supervised training in relation to the practice of Singapore law received, prior to becoming a qualified person, under a formal training arrangement with a Singapore law practice; (b) any supervised training received, prior to becoming a qualified person, as a pupil, or through reading in the chambers, of a practising barrister of the United Kingdom or of a member of the Faculty of Advocates in Scotland of more than 7 years' standing; or (c) any supervised training in relation to the practice of foreign law received, prior to becoming a qualified person, under a formal training arrangement with a foreign law practice.'

121 Under r 2 of the LegalProfession (Qualified Persons) Rules, вЂ?relevant legal practice or work' means: вЂ?(a) active practice as either (i) a legal practitioner, by whatever name called, in any jurisdiction other than Singapore; or (ii) a foreign lawyer in Singapore; or (b) work of a legal nature which is performed as a legal counsel in any corporation or other entity the equity securities of which are listed on the official list of a securities exchange in Singapore or elsewhere'.

122 At the time of writing, Schedule 1 of the Legal Profession (Qualified Persons) Rules lists the following UK universities as being approved: Birmingham; Bristol; Cambridge; Durham; Exeter; Leeds; Leicester; Liverpool; London (Queen's Mary and Westfield College, the School of Oriental and African Studies, and University College, London); Manchester; Nottingham; Oxford; Sheffield; Southampton; and Warwick.

123 LegalProfession (Qualified Persons) Amendment Rules 2009, S331 of2009.

The Republic of the Philippines is an archipelago situated between the Philippine Sea and the South China Sea.^{* 1} The Philippines is the 12th most populated country in the world, with about 98 million people. Manila, the countryвЂ™s capital, has a population of 11.5 million² in an area of only 636 square kilometres. However, the greater urban area of Manila, which includes Metro Manila, puts the capitalвЂ™s population at around 20 million³ people.

The majority of Filipinos are descendants of various Malay/Malayo- Polynesian ethnic groups that migrated to the islands in the course of centuries and displaced the indigenous inhabitants. Due to intermarriage, many are mesВtizo (mixed blood), a term referring to Filipinos whose ancestry is part Malay and part Spanish, American, Chinese, Indian or Arab. As a result of this mixing, there are about 87 languages spoken, including the four principal languages: Cebuano, spoken in the Visayas; Ilocano, spoken in northern Luzon; Maranao and related dialects spoken in Mindanao and Tagalog, upon which the national language, Pilipino, is based.

There are an estimated 4.5 million Filipinos working overseas. In 2008 their total remittance was 141904 million pesos, an increase from 85 415 million

1 Amapofthearchipelagocanbefound atPHP Classes (2010),AboutPhilippines.

2 ⁴PopulationandAnnualGrowthRates byRegion,ProvinceandCity/Municipality: 1995,2000,2007вЂ™ (2007) Philippines National Statistics Office.

3 Demographia World UrbanAreas and Population Projections (2010) Demographia.

Although Islam was first introduced in the Philippines with the arrival of merВchants and missionaries from the Arabian Peninsula and from India during the 14th to 15th centuries, its expansion was confined only to the southwest islands of the country.¹⁴ In 1521 Ferdinand MagellanвЂ™s expedition started the Spanish campaign to conquer the Philippines. A voyage led by Miguel Lopez de Legazpi in 1565 paved the way for the formation of the first Spanish settlements.¹⁵ Their main goals were to govern the islands, obtain a foothold in the spice trade, and convert indigenous populations to the Catholic faith, which was achieved by controlling education through Spanish priests who taught religion to the natives. However, a minority of the population, comprising of Muslims concentrated in Mindanao¹⁶ and indigenous people of northern Luzon, were not Hispanised.

It was the opposition to the excesses of the Spanish clergy and officials that brought about the rising sentiment for independence. Their abuses and bigotry fuelled the Revolution, which was greatly inspired by the writings of European- educated Jose Rizal, who was executed in December 1896 and later named the PhilippinesвЂ™ national hero. The final revolt against Spain was led by General Emilio Aguinaldo and continued until US Admiral George DeweyвЂ™s defeat of the SpanishfleetinManilaBayon 1 May 1898. On 12 June 1898 Aguinaldo declared independence from Spain. However, Spain ceded the Philippines to the United States under the terms of the Treaty of Paris in 10 December 1898 that ended the Spanish-American War.

14 RGoh, Christianity in SoutheastAsia, Institute of SoutheastAsian Studies, Singapore, 2005, p. 20.

15 ibid.

16 Muslim Filipinos are now under the authority of the Autonomous Region in Muslim Mindanao (ARMM) created on 1 August 1989 through Republic Act 6734. The ARMM is composed of five provinces: Basilan, Lanao del Sur, Maguindanao, Sulu and Tawi-Tawi and one city-Marawi City in Lanao del Sur.

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Source: Black Ann, Bell Gary. Law and Legal Institutions of Asia: Traditions, Adaptations and Innovations. Cambridge University Press,2011. вЂ” 428 p.. 2011

and the state	277-8
Sunnah 269
Jakarta Charter	277
judicial reform	294
judiciary
corruption in	279

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