Legal Traditions of Southeast Asia

[This piece is a short encyclopedia-entry introduction to legal traditions of SE Asia. The difficulty involved in writing it was in inverse proportion to its length. My students seem to appreciate it as an orientation exercise.]

INTERNATIONAL ENCYCLOPEDIA OF THE SOCIAL AND BEHAVIORAL SCIENCES

2^nd edition, 2015

Legal Traditions of Southeast Asia (86141)

By Andrew James Harding

Keywords: Law – tradition – indigenous – customary law - pluralism – reception – development – South East Asia – colonialism – nationalism – Asian values

Abstract: Just as pluralism is the mark of South East Asia societies, legal pluralism defines much of South East Asia’s laws and legal traditions. Indigenous legal traditions were based on customs and religion, and government conformed to ideas of monarchy. Colonialism brought in European law which still forms the framework of law in the region, but it conflicted with local legal cultures and traditions. Nationalism brought in authoritarian laws rather than a reversion to indigenous legal traditions. Development has however led to some convergence of public and private laws.

This entry endeavors to describe the legal traditions of Southeast Asia. There are obvious difficulties in identifying the meaning of ‘legal tradition’ and even of ‘South East Asia’, as well as in justifying their conjunction in this article.  Generalisations of any kind about law in such a diverse region as South East Asia, which is one of most diverse regions of the world, are in fact hard to come by, unless legal pluralism itself (evident in many parts of the world and even arguably in all legal systems) may count as a defining set of norms. MB Hooker’s ground-breaking work on legal pluralism significantly takes South East Asia as its field of inquiry (Hooker 1975). The same author’s monumental two-volume Laws of South East Asia (Hooker 1986, 1988; also Hooker 1978) is similarly imbued with legal pluralism and provides the scholarly bedrock for this subject. The concept of legal pluralism in the sense of formal or official legal pluralism (see below) defines South East Asian legal systems, not in the sense of being a theory consistently adopted across the region as a matter of public policy or legal theory, but in the sense of being the medium in which law necessarily operates at all levels given the diversity of the societies in question.

i)                    South East Asia.

The term ‘South East Asia’ itself was invented by the British navy as a means of dividing command during World War II. There was, and still is, little to define the region in terms of law, and even in terms of non-legal factors such as ethnicity, religion, political system, or trajectory of economic development (Cambridge History of Southeast Asia 1992). Nowadays one can at least point to a binding fact of geo-politics, namely the existence since 1967 of the Association of South East Asian Nations (ASEAN), which from the late 1990s has included the ten southern Asian continental states that do not fall under ‘South Asia’ or ‘Greater China’. This list includes Cambodia, Laos, Myanmar, Vietnam, Indonesia, Malaysia, Philippines, Singapore, Thailand, and Brunei. [Some might also include Timor Leste, which obtained independence from Indonesia in 2002, and which is likely to join ASEAN.] These countries perceive that they share economic and strategic interests, and together they represent nearly one twelfth of the world’s population. The existence of ASEAN has not thus far created any discernible tendency for the region’s legal systems to converge (ASEAN Law Association 1995), although the increase in intra-regional trade resulting from ASEAN cooperation creates the possibility of some harmonization, at least in the field of economic law; and the creation of a human rights mechanism following the adoption of the ASEAN Charter in 2008 (Durbach et al 2009, Tan Hsien-li 2011) may ultimately produce some commonality in approaches in that area too.

Given that ASEAN is a creation of the last half-century we struggle to find commonalities in remoter history. Empires and kingdoms came and went – the Sri Vijaya Empire in the 8^th to 12^th centuries; the Khmer Empire in the 9^th to 15^th centuries; the Majapahit empire in the 13^th to 14^th centuries; the Malacca Empire in the 15^th century. Individual kingdoms waxed and waned in power - Vietnam, Siam, and Burma, for example – but no single power has ever held sway over all or even most of South East Asia or left a distinctive cultural or legal mark on the region (Hall 1981). Even during the years of colonial rule the region was divided between Britain, France, the Netherlands, Spain and Portugal, with Siam (called Thailand from 1939) remaining independent. The experience of colonialism was common to the region but its effects tended to divide rather than unite it. This is especially true in the field of legal traditions (Hooker 1988).

ii)                  Legal pluralism and legal traditions.

South East Asia is not therefore a region that associates itself naturally with any particular legal tradition or traditions, unlike, say, the Islamic world or continental Europe. Indeed, apart from the customary laws of the region’s many indigenous peoples, all of South East Asia’s legal traditions are imported ones, having their origins outside the region; there are in fact very few of the world’s legal traditions that are not represented in some way in South East Asia. It is a region in which there will be found a bewildering plurality of legal traditions in confusing relationships with each other and with state law. Thus within the geographical area described by each of these states lie complex webs of plural ordering around ethnicity and religion (Harding 2001).

We are forced to confront squarely here the term ‘legal tradition’. In South East Asia legal traditions in practice exist within or outside the formal legal system. To a large extent the region’s states practice formal legal pluralism in that the state recognizes forms of law other than the law created by the state itself or continued in effect by the state, for example when the colonial period came to an end (Hooker 1975). This might seem to be a contradiction in terms, but for the fact that these other forms of legal ordering pre-date modern formal state law and have been incorporated or corralled within it – not always, but surprisingly often. Beyond this it is a problem for both ‘legal tradition’ and ‘legal pluralism’ that there are many forms of legal ordering that exist independently of formal state law, and there is no obvious criterion whereby one would include or exclude them from consideration as ‘South East Asian legal traditions’. This in turns raises the perennial problem of how to define law itself. A state-centred definition would draw a line at formal legal pluralism; it is often argued, however, that in South East Asia, despite its extensive formal legal pluralism, this is arbitrary and misleading (von Benda-Beckmann 2000). A community-centred definition of law would include customs and practices even where these are not endorsed by formal state law (Griffiths 1986); here it may be argued that ‘law’ loses any clear meaning, shading into potentially any form of social ordering or social practice (Tamanaha 1993). The term ‘legal tradition’ itself suggests a body of knowledge handed down between generations rather than simply found in a library or some authoritative governmental source; this does not imply a notion of simply how people behave, but a notion of behavior according to some received normative framework.  While an expansive view of ‘legal tradition’ will be attractive to South East Asia experts, it creates the enormous empirical difficulty of verifying which legal traditions may be included. For present and purely pragmatic purposes we will take state law to represent ‘law’, even though the official recognition or non-recognition of some legal traditions in South East Asia is in many respects quite arbitrary or controversial (see ‘Legal Pluralism’ for further discussion of the ambiguity of this term). In adopting this pragmatic definition we have to recognise nevertheless that there is an important other side to law that it would be foolhardy to ignore if one wished either to understand, to apply or to reform state law in South East Asian countries; or indeed to take the variety of unofficial customary law seriously.

iii)                Pre-colonial law.

Before the intervention of colonial powers from the fall of Malacca to the Portuguese in 1514, law in South East Asia was based either on customs, on religion, or on codes, and often on all three. Buddhist legal traditions prevailed in continental South East Asia (Huxley 1996), and were used along with royal decrees and village customary dispute settlement systems. Hinduism had influence across much of archipelagic South East Asia, replacing Buddhism to some extent in Indonesia, and even to this day in Bali. Islam began to be influential from the early 15^th century, especially in the Malay world of peninsular Malaya, Indonesia and Mindanao in the southern Philippines. Muslim communities are, however, spread across all of South East Asia, and Islamic legal traditions are formally recognized not just in Malaysia and Indonesia, but also in Myanmar, Philippines, Singapore, and Thailand (Hooker 1984).

Malay customary law or adat is by far the most typical, distinctive, and widespread form of customary law in South East Asia. It mingled with Islamic law in what Hooker calls the Malay legal world of Indonesia and Malaysia, and has survived both colonial rule and post-colonial nationalist modernization. Adat varied somewhat from place to place, but conforms to conventional notions of customary law: it was handed down as an oral tradition; often took the form of easily-recalled proverbs, homilies or brief lines of poetry, often containing analogies to the natural world; and applied generally at the village level. It dealt not just with social and moral issues (family and criminal law in modern parlance) but also with property, agriculture, the environment and even constitutional issues. Its typical mode of enforcement was via criminal or social sanctions (Hooker 1970). The famous Dutch legal scholar Cornelis Van Vollenhoven argued strongly and successfully in favour of allowing the Indonesians to be governed by their own adat instead of Dutch law (Fasseur 1992). He founded the adatrecht school at Leiden University, in which Dutch and Indonesian scholars mapped out 19 regional varieties of adat in the Dutch East Indies (Holleman 1981, Burns 2004). A fundamental distinction within these varieties was that between adat temenggong and adat perpatih; the latter, applicable mainly in the Minangkabau areas of West Sumatra (Indonesia) and Negri Sembilan (Malaya) excited much interest with its matrilineal system of succession to property and its female-centred laws. Nowadays adat still prevails as an aspect of law applicable in the religious courts of Malaysia, Indonesia, and the Philippines, and as the main form of law applicable to the ‘native’ or indigenous peoples of Borneo. The Malaysian state of Sarawak, for example, applies an almost complete system of formal legal pluralism by applying adat in the Native Courts, shari’a in the Syariah Courts, and common law in the civil courts, which also apply the customary law of non-native groups such as the Chinese (Hooker 1992).

It would, however, be erroneous to think that codes and statutes played no part in pre-colonial law. There are many examples in South East Asia of attempts to codify the law. These should be distinguished from codes in the European sense of attempts to reform as well as to consolidate the law in a given area. Traditional law in South East Asia did not distinguish fields of law in same way that European law consistently did: notably they did not distinguish criminal, public, family and property law. Attempts at codification were designed to consolidate the entire law or at least large portions of it. Preeminent examples are the Undang-Undang Melaka and the Undang-Undang Laut Melaka (Laws of Malacca, 15^th century) (Liaw 1976), Siam’s 1805 Law of the Three Seals (Harding 2008); and the codes of the Le dynasty in Vietnam (15^th to 18^th centuries). The Law of the Three Seals is of particular interest in terms of codification. A response to the perceived decline in legal veracity resulting from the destruction of Siam’s legal records in the sack of Ayutthaya by the Burmese in 1767, it attempted to restate the entire law of Siam in terms of the Buddhist Dhammasat along with royal decrees of general application. It was not initially published, indicating its function as a reliable guide for officials and judges rather than a statement of the rights of Siamese subjects (Hooker 1986, Vickery 1996).

iv)                Colonial law.

The advent of European colonialism from the early 16^th century onwards, and especially in the 19^th century, resulted in the gradual imposition of European laws as the general law in all of South East Asia. In some cases such as Burma, Tonkin (Vietnam), Philippines and Cambodia, the colonial power actually overthrew or displaced the traditional monarchies and the legal traditions that were attached to them. Even so, these legal traditions were retained to the extent that they represented exceptions to the general law, especially for personal law purposes. The case of Burma was particularly unfortunate, as Burma had in many ways the most advanced legal system in South East Asia prior to 1885 (Huxley 2001) when the monarchy was overthrown by the British in the Third Anglo-Burmese War. Elsewhere, such as in British Malaya, parts of the Dutch East Indies, and the French Vietnamese protectorate of Annam where the Nguyen dynasty reigned until 1945, traditional rulers were retained in a system of indirect rule, and European laws were only introduced piecemeal (Ta Van Tai 2004-5). As the European powers moved from establishing trading posts to exerting political control over hinterlands during the mid-to-late 19^th century, they increasingly imposed their own laws. There were, however, variations in terms of the geographical spread of these laws, the people to whom they applied, and the legal subjects they covered. In general personal laws, being based on the fundamental social values or religions of the Asian peoples under colonial subjection, remained untouched, although legal structures under colonial control (courts, judges, legislation) were put in place to administer them. This of course tended to alter the effect and the dynamism of the local legal traditions. Property and commercial law, being essential to the economic purposes of colonial governments, and criminal laws, designed to maintain social order and the power of the colonial government, generally and increasingly conformed to the law of the colonial power. Migrant peoples, such as the Chinese and those of South Asian heritage, were generally allowed to have their own law, at least initially; eventually even these were gradually absorbed under the aegis of the colonial law (Lev 2001).

An interestingly contrasted approach is revealed as between British and Dutch legal policy regarding legal pluralism. The British introduced English law as the general law in the Straits Settlements of Penang, Malacca and Singapore (Phang 1990), but they did not enforce it in a monolithic way. Instead, they modified it in its application to the subject peoples, sometimes even recognizing full exceptions (such as Islamic personal law for Muslims), on the ground that to do otherwise would be oppressive, as well as courting rebellion. The Dutch in the Dutch East Indies, on the other hand, adopted a policy of recognizing ‘law populations’; under this theory each people having its own law would be dealt with according to that law (Lukito 2013). Over time, the tendency of the English common law and pragmatic legislative measures to make exceptions, and the tendency of the Dutch system to reduce the exceptions by common legislation, narrowed the difference, in practical application at least, between these starkly different theories. Only in relation to the Dutch East Indies was there an intense debate as to the correct ethical position for a colonial power (Fasseur 1992). In the British-held territories the Indian precedent was followed; in other words, in due course the codified common law of British India was adopted (the Penal Code, the Criminal and Civil Procedure Codes, the Contracts Act, the Evidence Act, and so forth) (Tan Poh-ling 1997).

Thus by the late 19^th or early 20^th century European laws became the rule rather than the exception, governing most areas of law, or at least framing their administration.  The Dutch maintained a system of religious courts (Lev 1972), while the British had, by treaties, reserved to the Rulers of the Malay states jurisdiction over matters affecting Islam and adat. As a result of these colonial legal developments, without exception the South East Asian states even now base their legal system on a European framework (Harding 2001) conforming to a variety of the civil law or else of the English common law: French law in Vietnam, Cambodia and Laos; Dutch law in Indonesia; Spanish law in the Philippines; Portuguese law in Timor Leste; the English common law in Singapore, Malaysia, Brunei and Myanmar. The Philippines, having been under American rule for the first half of the 20^th century, has a hybrid system, with some areas (such as commercial and constitutional law) resembling the law of the United States. Malaysia, Indonesia and Brunei maintain a bifurcated legal system as between the ordinary courts applying the common law, and the religious courts applying the shari’a law to Muslims in personal law matters. In Singapore the Syariah Court remains a subordinate court within the main legal architecture. In Malaysia a constitutional amendment in 1988 separated the Syariah Courts from the ‘civil’ or ordinary courts by providing that the latter could not exercise the jurisdiction of the former (Federal Constitution, Article 121(1A): Harding 2012, Moustafa 2013).

An exception here in several respects is Siam, which, although never colonized, came under colonial influence if only by virtue of being under the whip of extraterritoriality treaties concluded with Western powers and Japan in the latter half of the 19^th century (Hooker 1986), and the witnessing of neighbouring Burma’s fate. These treaties provided for citizens of the country in question to be treated under their own law while on Siamese territory, and expressly linked the rescinding of this arrangement to the enactment of ‘modern codes of law’ in Siam. King Chulalongkorn the Great (1868-1910) and his immediate successors achieved a transformation of Siamese law as complete as that imposed by any colonial power elsewhere in Asia. Over a half century from about 1885 to 1935, Siam adopted codes based eclectically on civilian systems with some influence from the previous law based on the Buddhist dhammasat and the common law. By the time the Civil and Commercial Code was completed in 1935, the extraterritoriality treaties had as a result been entirely revoked. Siam’s model here was to follow Japan’s voluntary espousal of the civil law rather than India or Vietnam’s enslavement to a single foreign legal system. Unlike Japan, Siam was mainly influenced by French and Belgian, rather than German, jurists, having earlier flirted with the adoption of the common law, which proved too problematic in its practical application to be an appropriate model. Following this complete transformation of Siam’s legal codes, the Law of the Three Seals was consigned to legal history (Harding 2008).

v)                  Post-colonial law in the period of nationalism

The struggle against colonialism took different forms and affected the vectors of national legal systems across South East Asia. In the common law countries (Burma, Malaya, Singapore, Brunei), as well as in the Philippines, following India’s independence in 1947, independence was gained without much difficulty, and the common law was assumed to represent an inevitable form of legal continuity. In Indonesia and Indo-China, however, independence from the Netherlands and France, respectively, was attained only after fierce, and in Vietnam’s case, prolonged, warfare. The continuation of colonial laws in these latter countries represented a temporary expedient rather than a solution. Vietnam, initially divided (1954-76) between the capitalist South and the communist North, was torn apart by a devastating proxy war, the North becoming ultimately victorious by 1975 and bringing all of Vietnam, and Laos too, under socialist law based on that of the Soviet Union (Gillespie and Nicholson 2005). Cambodia under the Khmer Rouge (1975-9) saw its laws and legal professions, indeed even legality as such, tragically and completely obliterated by genocide, and the road back from the ground zero of 1979 (legally and in general) has been extremely difficult.

Under the influence of the legal scholar Supomo, Indonesia adopted a constitution in 1945 (that is still in force) that embodied an integralist view of the state that was hostile to individual rights and the rule of law; it also rejected as highly divisive the notion that the state should be based on Islam (Lev 2001a). Nationalism did not, however, succeed in bringing Indonesians under anything resembling the revolutionary law (hukum revolusi) desired by President Sukarno (1945-1966). Rather it secured the temporary eclipse (1963-6) of the Dutch civil code, which during the New Order (Orde Baru) period of President Suharto (1966-1998) ultimately survived only to be hollowed out by successive new laws on, for example, land and marriage (Agrarian Law 1960, Marriage Law 1974) (Lev 2001b). Personal laws are divided as between those for Muslims, based on Islamic law and adat, and those for non-Muslims. The 1998 economic crisis, which affected all of South East Asia, brought an end to the authoritarianism of Suharto’s New Order and the commencement of a new period of reform (reformasi), marked by extensive legal reforms and constitutional development led by four major amendments (1999-2002) to the 1945 Constitution that altered its character profoundly (Butt and Lindsey 2012). The reformasi period has transformed Indonesian law once again as democracy replaced authoritarian government, and the rule of law (negara hukum) replaced nationalist laws such as the Judiciary Law 1970, which brought the judiciary under government control (Lev 2001a).

A slightly similar pattern may be seen in the Philippines, where post-war independence ultimately led to the dictatorship of President Ferdinand Marcos and rule by emergency decree under an increasingly manipulated constitution during 1972-1986. The ousting of Marcos by ‘people power’ in 1986 led to a new constitution in 1987, securing a vibrant if sometimes violent and unstable democracy. Some elements of Philippines law, such as the absence of divorce law and anti-abortion law, can be traced to its largely Catholic population. The old Spanish Civil Code is still in force, but the American common law is influential in some areas, notably constitutional and commercial law (Santos 2000).

An extreme case of this now-familiar legal trajectory is Burma, which became independent in 1947. As was the case with other South East Asian states, Burma did not attempt to reintroduce the traditional legal system, just as it did not reintroduce the monarchy. Indeed its laws were simply in effect the codified laws of British India, of which it had been a major province between 1886 and 1937. In 1962 the coup of General Ne Win resulted in a gradual demolition of the system left by the British and the 1948 Constitution. Judicial independence and the doctrine of precedent were done away with in favour of government policy as a prevailing norm under the ‘Burmese path to socialism’ (Myint Zan 2000). Legislation was introduced as Revolutionary Council decrees. The Anglo-Indian codes remained but were not always used in practice. In 2011, after half a century of military rule, Myanmar (as it has been called since 1989) began to open to the outside and reform its legal system, posing anew the issue of how to re-establish legality and constitutionalism in a country plagued by inter-ethnic wars and inter-communal strife. The persistence and progress of these reforms remain in doubt, as does the nature of Burmese legal traditions (Crouch and Lindsey 2014)

vi)                Asian laws, Asian values

Underlying many of these developments lies the issue of the fundamental nature of law in South East Asia. To what extent is it or can it be indigenous, or conform to patterns markedly different from those of its former colonial powers? To what extent also does it or can it embrace international norms of the rule of law, constitutionalism, human rights, and property? Is it in fact resistant to the foreign legal transplants to which it has been repeatedly subjected?

The diversity of the region makes it difficult even to explore general answers to these questions. As we have seen, the region has not used the independence of the post-war era to return to its legal roots in pre-colonial law. Rather it has attempted to build national legal traditions on a base of colonial law – we have seen in Indonesia’s case how contradictory this can be. Whatever the merits or otherwise of traditional law, no sustained argument has succeeded in restoring even some limited elements of pre-colonial law. Indeed in many areas, even in personal law, the law has moved further away from pre-colonial law and from legal pluralism, for example with the establishment of monogamy, consent, female equality, and divorce grounds in marriage law. Adat, it is true, has staged something of a comeback in Indonesia, and Islamic revival has prompted a demand across parts of the region for the correction of the displacement of Islamic law by the colonial powers. In neither Malaysia nor Indonesia, however, has Islamic law been embraced as the general law, nor has the state taken on a genuinely and expressly Islamic character.  In Vietnam socialist law has been somewhat eclipsed by the recognition of private property and liberalization in many areas of law (Sidel 2010, Gillespie and Nicholson 2005).

During the 1990s attention was given to the notion of ‘Asian values’ with specific reference to the autonomy of Asian states to develop their own laws without necessarily conforming to Western laws or international norms (Bell 2000). Part of the argument about Asian values was that Asian societies embraced a form of communalism or family values that was seen as hostile to what was perceived as extreme Western liberalism and individualism that tended to dissolve social bonds. This argument was mainly advanced by political leaders in Singapore, Malaysia and Indonesia, but had resonances in other South East Asian countries. This development was a direct response to advances in international human rights, and as expressed in the Bangkok Declaration on Human Rights 1993 (Thio 1999). The Asian values argument did not reject human rights as such (indeed all South East constitutions acknowledge human rights in some form), and several South East Asian states (Indonesia, Malaysia, Myanmar, Philippines, and Thailand) even have a national human rights institution (e.g, Whiting 2003). However, proponents of the Asian values argument refused to accept that all human rights as defined by Western powers in the evolving international system were totally applicable in Asian societies; or that human rights were indivisible or to be interpreted according to Western normative values. The main problem with this thesis is that, given the diversity of Asian value systems, it has proved in practice difficult to find common ground between these various traditions or between different types of legal consciousness. It also appeared that the argument was advanced in a self-serving manner by Asian leaders anxious to buttress their power by appeal to a common authoritarian ideology which sits uncomfortably with advancing democratisation. Nonetheless, one can observe that, while in practice South East Asian states do on the whole assert their autonomy with regard to human rights (for example with regard to laws on national security), it is also true that human rights are being increasingly recognized either in constitutional law and in actual practice (for example with regard to religious freedom, ethnic minorities, gender and gay rights,).

vii)              The future of law in the region

From this brief account of South East Asia’s legal traditions we can see that ‘it is appropriate to think of law in South East Asia geologically, as a series of layers each of which overlays the previous layers without actually replacing them, so that in places, due to tectonic shifts, the lower layers are still visible, although not perfectly distinguishable from each other’ (Harding 2001). The issue for South East Asians is whether this accommodation of legal pluralism is a fundamental problem for the unification of legal traditions under one system based on the rule of law and legal equality, or whether it is a pragmatic or even principled balancing of legal traditions under a system that recognizes the differences between them. The surprising fact is that the legal systems of the region have in practice achieved the degree of syncretism that they have. Legal pluralism continues to present difficulties (for example citizenship and customary law in Thailand, mixed marriages in Indonesia, and single-parent conversion of children in Malaysia). However the larger issue is rather the credibility and performance of legal institutions per se: the independence of the judiciary; the rule of law in one-party or dominant-party states; the observance of human rights and civil liberties; corruption in the judiciary, the police, the bureaucracy and the electoral system. Across South East Asia in the early 21^st century it is therefore increasingly through constitutional debates that the nature of law and the relevance of legal traditions are being addressed. While it appeared, in the midst of the Asian values debate, that South East Asian states were perhaps largely settling into semi-authoritarian systems accommodating legal pluralism, events since then have suggested otherwise. The rapid growth of civil society; people-power in the Philippines from 1986; reformasi in Indonesia from 1998; the emergence of a two-party system and legal reforms in Malaysia from 2008; the establishment of constitutional government in Cambodia in 1993; constitutional reforms in Thailand from 1992; the progressive espousal of the rule of law as official doctrine in Vietnam since 1987; the opening of Myanmar since 2010; the creation of an ASEAN human rights mechanism in 2011 – all of these are taking the region towards a different but uncertain future. What does seem clear is that debates as to the relevance of legal traditions are now concerned not so much with the accommodation of legal pluralism and the applicability of colonial law in an era of nationalism, but rather with the nature of citizenship and diffusion of justice in rapidly but unevenly developing economies and urbanizing societies.

BIBLIOGRAPHY AND FURTHER READING

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