Introduction

Situated at the south-eastern tip of China, Hong Kong has a territory size of only 1104 square kilometres but there are 6.98 million people living in it. The vast majority of the population is of Chinese descent, with foreign nationals comprising 5 per cent of the population. The official languages are Chinese and English. People are now expected to be able to speak English, Cantonese (a local dialect) and Putonghua (the official Chinese language). Hong Kong people enjoy freedom of religion and varieties of religion including Buddhism, Christianity, Islam and Taoism are practised in the territory. Confucianism also has an important influence on the local culture.

Hong Kong is a Special Administrative Region of the People's Republic of China (PRC) following 150 years of British colonial rule, from 1842 to 1997. Free trade, low taxation and minimum government intervention are the main characteristics of Hong Kong's economy. With the mainland of China as its most significant trading partner, Hong Kong is the world's 12th largest trading economy. Hong Kong maintains strong links to mainland China and the rest of the Asia-Pacific region through its service economy.

In studying the law and legal institutions in Hong Kong, a central theme that emerges is how a common law legal system was established, is maintained and will develop in a non-Western or Chinese society.

As Sir Anthony Mason said, the common law may mean many things.

Introduction

The Republic of Korea (hereinafter Korea), commonly called South Korea as opposed to North Korea, is a highly homogeneous, yet intensely dynamic nation. Located in East Asia on the southern half of the Korean peninsula, and neighboured 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 economy in the world in terms of gross domestic product (GDP) in 2008. 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 but also upon other Asian countries, and the global financial crisis of 2007 which originated from the US liquidity crisis, Korea successfully maintained its status as an ‘economic miracle’.

Introduction

Taiwan is also known as the Republic of China (ROC), which was established in 1911 when the Ching Dynasty was overturned by the revolutionary party led by Dr Sun Yat-sen. It was the first democratic republic in Asia.

Before long, after the establishment of the Republic, the Chinese Civil War broke out in the late 1920s between the government represented by the Nationalist Party (Kuomintang or KMT) and the communists. Although the civil war was interrupted by the Sino-Japanese War which was later to become part of World War II, it was resumed after Japan was defeated. In 1949 the Communist Party led by Mao Zedong won the Civil War against the Nationalist Government represented by Chiang Kai Shek and established the People's Republic of China (PRC). The Nationalist Government had to move across the Taiwan Strait to the island of Taiwan. Thus since 1949, the jurisdiction of the ROC extends only to the main island of Taiwan and the smaller islands of Penghu, Kinmen and Matsu, as well as quite a number of other very small islands. The total number of these islands is 76. Because of the ROC's current geographical location and jurisdictional reach, the term Taiwan is more frequently used to refer to it.

Taiwan has a population of 23 million living in a relatively small area of approximately 36,000 square kilometres.

Introduction

Malaysia

Malaysia is geographically divided into two distinct regions: Peninsular Malaysia (also known as West Malaysia), and East Malaysia, which consists of the states of Sabah and Sarawak. The plurality of its society is reflected in the diverse range of laws that make up its legal system.

Malaysia is a constitutional monarchy. The Yang di-Pertuan Agong (or King) is the Supreme Head of the Federation. As the head of state, he is in charge of the three branches of government: the legislature, the executive and the judiciary. However, the King's discretion is very limited. He is obliged to act on the advice of the Cabinet or a Minister authorised by the Cabinet (usually the Prime Minister, who is the head of government) except as otherwise provided by the Federal Constitution.

The Conference of Rulers elects a Ruler as the King for five years. Each Malay State has a Ruler and each of the four states which were formerly British colonies – Malacca, Penang, Sabah and Sarawak – have a Governor (Yang di-Pertua Negeri). Although the head of state of his or her territory, under the Federal Constitution, each Ruler and Governor is nevertheless obliged to act on the advice of the State Executive Council or a member thereof. The Conference of Rulers consists of all the nine Rulers and four Governors. It is a highly influential body that provides an intimate link between the federal and state governments at the highest level.

Introduction

Indonesia's national motto, ‘Bhinneka Tunggal Ika’, is often translated as ‘Unity in Diversity’. 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.

This diversity makes Indonesia one of the most fascinating jurisdictions for anyone interested in comparative law and legal pluralism.

In 2006, in the Great Hall of the People in Beijing, Chinese Premier Wen Jiabao foreshadowed that the 21st century could become the ‘Asian century’. He was voicing a belief that the world's economic centre of gravity is shifting to Asia, away from the United States of America and Europe, and that with this will come greater political, strategic and cultural influence for the nations of the region. Whether one endorses or dismisses such simplifications or generalisations, the notion of the Asian century has, at its core, an acceptance both within and outside the region that what happens in Asia does matter in the world and that collectively, and individually, the countries of this region have become, or are becoming, significant global players. This book shares the view that the nations of Asia can no longer be seen as operating at the periphery of global power, with their significance confined to economic and commercial matters. The importance of Asia means that Asian law and the role of law in Asia have also become important.

We lawyers, especially Western lawyers, tend to overemphasise the role that law plays in development. The early proponents of the ‘law and development’ movement and their predecessors who decades, or even centuries, earlier forced or convinced Asians to ‘modernise’, that is, to Westernise their legal systems, did so with the belief that this would lead to the economic development of Asia.

Introduction

The People's Republic of China (hereinafter China, or PRC) 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. 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 Square event in 1989, the abandonment of the planned economy in favour of capitalism, the market economy and privatisation during the reform era of 1979 to the present, accession to the World Trade Organization (WTO) in 2001, and the Beijing Olympics Games in 2008.

Introduction

The Republic of the Philippines is an archipelago situated between the Philippine Sea and the South China Sea. The Philippines is the 12th most populated country in the world, with about 98 million people. Manila, the country's capital, has a population of 11.5 million in an area of only 636 square kilometres. However, the greater urban area of Manila, which includes Metro Manila, puts the capital's population at around 20 million 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 mestizo (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 141,904 million pesos, an increase from 85,415 million pesos in 2005. The remittances clearly prop up the Philippine economy during times of financial crisis.

The Philippines has a presidential, unitary form of government, where the President functions as both head of state and head of Government and is Commander-in-Chief of the armed forces.

Introduction

Although Brunei Darussalam (also named ‘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 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, the Government of Brunei has categorised the Brunei Malays and six ethnic groups (puak jati, 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 other races 11 per cent.

Introduction

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.

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 and judicial arms. Each is independent, though the Prime Minister and the majority of the Cabinet are drawn from the Diet. 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.

Introduction

The former British colony of Singapore is an island republic occupying an area of 660 square kilometres at the southern tip of the Malayan peninsula. A tropical island just north of the Equator, it has a permanent population of 4.8 million with three main ethnic groups: Chinese (77%), Malay (14%), Indian (7.6%) and others (1.4%). It has a sophisticated and well-developed state capitalist mixed economy in that the state controls and owns firms comprising at least 60 per cent of the country's GDP through various government entities, companies and sovereign wealth funds. Singapore being an island with no natural resources, its economy has traditionally been dependent on entrepot trade and manufacturing of high value-added products, such as computer disk drives and wafers. It is also the busiest port in the world.

Historical context

Pre-colonial Singapore

Singapore's history prior to the 14th century is sketchy. By the 1300s it was a trading centre of considerable importance. At various times, Singapore came under the influence of the Sumatra-based Sri Vijaya Empire (200–c 1400); the Java-based Majapahit Empire (1478–1520s) and the Malacca Sultanate (at Malacca and later at Johore and Riau). After the Portuguese burned down a Malay outpost on the island in 1617, Singapore was most probably abandoned and became a sparsely populated fishing village and pirate outpost. We know little of what law was administered in Singapore during this early period.

Judicial responses to conduct defined in Colombia's internal legislation as terrorism include responses to “related crimes,” for in Colombia, terrorism has been treated together with other criminal activities such as kidnapping, extortion, bearing and trading illegal weapons or explosives, and even narcotics-related offenses. This chapter covers approximately two decades – from 1984, when a major law establishing a “specialized” jurisdiction to prosecute terrorism was enacted, until 2004, when a major Constitutional Court decision declared invalid an amendment to the Constitution that, to counter “terrorism,” had provided for the possibility that a law could regulate the interception of private communications, detention, and searches and seizures without the need for a judicial order. In 2004, the new criminal accusatory system (Law 95, 2004) was passed, which suggests that the narrative should conclude at that juncture. In addition to describing the legal context of the judicial decisions, this chapter summarizes each of the various responses and examines the extent to which the formally democratic regime could ultimately apply sufficient restraints, checks, and balances to protect constitutional rights and due process. The chapter also evaluates the general meaning, durability, and overall impact of judicial measures in the fight against terrorism.

The judicial responses identified and discussed are of two types. One is a series of judicial review rulings by the Supreme Court (before 1991) and the Constitutional Court (after 1991) that addressed the legality of terrorism-related legislation issued during times of emergency.

The U.S. “War on Terror” has produced a little discussed but very important casualty: the international reputation of U.S. Supreme Court jurisprudence. Today, many scholars both within the United States and abroad note the dwindling influence of the U.S. Supreme Court. For example, on September 17, 2008, the front page of the New York Times declared, “U.S. Court Is Now Guiding Fewer Nations.” The article observed that in recent years, citations to the Canadian Supreme Court and European Court of Justice have been on an upswing, especially in cases involving human rights, whereas the number of citations to the U.S. Supreme Court has declined (Liptak, 2008). The bottom line is that much of the world views U.S. Supreme Court jurisprudence as antiquated and out of step with modern constructions of global rights and obligations. Although several aspects of American legal practice had garnered international disfavor even before September 11, notably the nation's continued legal support for the death penalty, the “War on Terror” and its concurrent destruction of civil liberties, embrace of torture and indefinite detention, and contempt for procedural justice have led many to view the American government as the prototypical abuser of rights rather than a guarantor. This chapter examines why Supreme Court opinions in the recent terrorism cases have not served to repair the international reputation of American civil rights jurisprudence, despite the widespread belief among U.S. legal academics that the cases represent civil libertarian victories.

The September 11, 2001, attacks on the United States prompted efforts by nations around the world to circumscribe some civil liberties to combat terrorism, and as Jeremy Waldron observed, courts were unlikely to oppose those reductions in freedom (2003: 191). Indeed, when faced with groups who are willing to employ unlawful violence strategically to advance political goals (Gross, 2006: 11), political panic becomes acute. Often, in that state of panic, to which judges are not immune, the first victims can be rights – rights of the criminally accused, of privacy, of speech, of press, of assembly, and even of life. Boundaries “between war and peace, emergencies and normality, the foreign and the domestic, the internal and the external” become blurred as terrorist acts transcend a single nation-state (Brooks, 2004: 676). Terrorism purposely and systematically induces “fear and anxiety to control and direct a civilian population” (Crenshaw, 1981: 380), and governments react as their constituents seek protection from elusive terrorists, often ones willing to lose their own lives to carry their message to a larger audience (Crenshaw, 1981: 379).

Many nations have confronted terrorism over the years and have fashioned various responses to this deadly phenomenon. This chapter considers the reactions of the highest courts of the United Kingdom to two different terrorist threats: first, the “Troubles” in Northern Ireland from 1969 until the end of the twentieth century, and then those more currently posed by the radical Islamist group, Al Qaeda.

Beginning with the Supreme Court's decision in United States v. Reynolds (1953), individuals seeking relief in court have been met by executive branch claims that litigation would threaten the disclosure of information damaging to national security. If federal judges defer to those assertions, the plaintiff's case cannot move forward, either to receive documents (discovery) or to put questions to executive officials (interrogatories). As this chapter explains, the Court in 1953 was misled by the executive branch regarding the contents of the disputed document: The accident report on a B-29 crash contained no state secrets. By successfully invoking the state secrets privilege, the executive branch is able to stop litigation in its tracks, even when plaintiffs allege serious illegal and unconstitutional actions by the government. Invocation of state secrets can also be a tool to camouflage government tactics in the “War on Terror.”

Similarly, when individuals seek documents under the Freedom of Information Act (FOIA), the executive branch is entitled under law to claim a number of exemptions, including the domain of national security. Because some federal judges concluded that they could not look at documents that the government had designated as protected for reasons of national security, Congress specifically amended FOIA in 1974 to authorize judges to examine classified and confidential documents within their chambers. Nonetheless, many judges continue to trust agency affidavits and declarations that describe the documents instead of looking at the documents themselves.