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How Global is the Common Law? A Comparative Study of Asian Common Law Systems – Hong Kong, Malaysia, and Singapore

  • Kwai Hang NG (a1) and Brynna JACOBSON (a2)
Abstract

This article compares three common law jurisdictions in Asia – Hong Kong, Malaysia, and Singapore. By studying the use of foreign citations in the reported opinions of these jurisdictions, we show that they have acquired a judicial character that is distinctively outward-looking and global. The variety and range of foreign citations suggest that the phenomenon cannot be fully explained as a matter of colonial legacy. The article further discusses the ways in which the use of foreign case citations serve as a means for legal and professional enrichment.

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Associate Professor, Department of Sociology. This study was supported by a UCSD Academic Senate Grant. An earlier version of this article was presented at UCSD Comparative and Historical Sociology Workshop. The authors would like to thank participants for their invaluable comments.

**

Ph.D. candidate in the Department of Sociology at the University of California, San Diego.

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1. See JuriGlobe Research Group, ‘Common Law Systems and Mixed Systems with a Common Law Tradition’ (University of Ottawa) <www.juriglobe.ca/eng/sys-juri/class-poli/common-law.php> accessed 13 May 2017.

2. See e.g. Selim Atiyah, Patrick and Summers, Robert S, Form and Substance in Anglo-American Law: A Comparative Study of Legal Reasoning, Legal Theory, and Legal Institutions (Clarendon Press 1987); Zweigert, Konrad and Kötz, Hein, An Introduction to Comparative Law (3rd edn, Clarendon Press 1998).

3. See Zaring, David, ‘The Use of Foreign Decisions by Federal Courts: An Empirical Analysis’ (2006) 3(2) Journal of Empirical Legal Studies 297 .

4. See, e.g. the debates surrounding Atkins v Virginia [2002] 536 US 304; Lawrence v Texas [2003] 539 US 558; Roper v Simmons [2005] 543 US 551. For a discussion of the controversy surrounding foreign citations and an empirical analysis of the role and form of foreign citations in US Supreme Court constitutional rights cases, including these three high-profile cases, see Simon, Stephen A, ‘The Supreme Court’s Use of Foreign Law in Constitutional Rights Cases: An Empirical Study’ (2013) 1(2) Journal of Law and Courts 279 .

5. Posner, Richard A, How Judges Think (Harvard University Press 2010) 350 .

6. Federal News Service, ‘Transcript of Discussion between U.S. Supreme Court Justices Antonin Scalia and Stephen Breyer – AU Washington College of Law’ (American University, 13 January 2005) <www.freerepublic.com/focus/news/1352357/posts> accessed 28 April 2017.

7. Waghorn v Waghorn [1942] 65 CLR 289, 297-98. In the decision, Dixon J stated: ‘The common law is administered in many jurisdictions, and unless each of them guards against needless divergences of decision its uniform development is imperilled’ (at 297).

8. See Resnik, Judith, ‘Law as Affiliation: “Foreign” Law, Democratic Federalism, and the Sovereigntism of the Nation-State’ (2008) 6(1) International Journal of Constitutional Law 33 .

9. See Barker v Herbert [1911] 2 KB 633, 644-45, per Farwell LJ. See also Baker, John H, An Introduction to English Legal History (4th edn, Butterworths LexisNexis 2002) 196 .

10. Glenn, H Patrick, ‘Persuasive Authority’ (1987) 32(2) McGill Law Journal 297 .

11. ibid 295-98.

12. Dezalay, Yves and Garth, Bryant G, Asian Legal Revivals: Lawyers in the Shadow of Empire (University of Chicago Press 2010).

13. See Atiyah and Summers (n 2) 9.

14. The term commonly refers to the United Kingdom, Ireland, the United States, Canada, Australia, and New Zealand. Among English-speaking societies and post-British colonies, it specifically points to nations in which there was a sizeable British settlement resulting in ongoing cultural, political, and demographic trends.

15. The role of the English language seems to be in decline. The use of English in politics and government has quickly retreated since 1997, creating a linguistic environment that makes the use of the common law more difficult. See Evans, Stephen and Green, Christopher, ‘Language in Post-Colonial Hong Kong: The Roles of English and Chinese in the Public and Private Sectors’ (2001) 22(2) English World-Wide 247 ; Hang Ng, Kwai, The Common Law in Two Voices: Language, Law, and the Postcolonial Dilemma in Hong Kong (Stanford University Press 2009).

16. The National Language Act was introduced in 1963 to make the Malay language the official language of Malaysia; the courts were exempted from making the transition from English to Malay. In 1990, the National Language (Amendment) Act 1990 came into force which removed the exemption enjoyed by the courts. So, the official language of the law is Malay, though English remains the dominant language in the High Court and the Court of Appeal. See Powell, Richard, ‘The Role of English in Malaysian Law’ in K Bolton and A Hashim (eds), Malaysian English (Hong Kong University Press 2010).

17. See Hooker, M B, A Concise Legal History of South-East Asia (Clarendon Press 1978).

18. See Chan, Gary K Y, ‘The Right of Access to Justice: Judicial Discourse in Singapore and Malaysia’ (2007) 2 Asian Journal of Comparative Law 1 .

19. See e.g. Posner (n 5) 350.

20. Beck, Ulrich and Sznaider, Natan, ‘Unpacking Cosmopolitanism for the Social Sciences: A Research Agenda’ (2006) 57(1) The British Journal of Sociology 1 .

21. Beyond case citation, the international-looking legal culture is further underlined by frequent reference to foreign texts and specific references to influential foreign jurists, particularly English judges.

22. See e.g. Merryman, John Henry, The Civil Law Tradition (2nd edn, Stanford University Press 1985); Damaska, Mirjan R, Evidence Law Adrift (Yale University Press 1997); Zweigert and Kötz (n 2).

23. Hussain, Nasser, The Jurisprudence of Emergency: Colonialism and the Rule of Law (University of Michigan Press 2003); Ng (n 15).

24. At the time of commencing this project, the three years of 2006, 2007, and 2008 represented the latest years in which complete reported cases were available in the selected databases. We understand that the three jurisdictions are at different stages of development. As one reviewer pointed out, the historical significance of the research period (2006-2008) to Hong Kong, Malaysia, and Singapore might differ, as marked by their different years of separation from the Privy Council. We agree. That said, the three-year period identified allows us to compare the current states of the three jurisdictions over a multi-year period, thus minimizing the risk of potential anomalous results that may arise in response to particular historical circumstances, within the limitations of available data.

25. The list of search terms was customized for each country and for the search parameters of each database. For instance, the Singapore database restricted the number of characters in a search, which necessitated cutting a number of search terms; each term that was cut was tested to make sure its absence did not affect the results (i.e., a search term was cut only if its individual results were redundant with another term in the list). The longest list of search terms, from which the other lists were customized as appropriate, was for Malaysia. It was as follows: KB or QB or All ER or WLR or AC or Ch. or Cr App or Halsbury’s or CLR or Commonwealth Law Reports or NZLR or SCR or FCR or DLR or Dominion Law Reports or SLR or HKC or HKLR or HKLRD or (AIR w/3 19! or 20!) or ALR or House of Lords or Privy Council or Human Rights Act 1998 or United States or The Constitution Act 1982 or Australia! or Aust. or SALR or Canad! or England or UK or U.K. or Bom. or ILR or Mad. LJ or India! or New Zealand! or NZ or N.Z. or Singapore or USA or U.S.A. or U.S. or Hong Kong or HK or H.K.

26. 10 per cent of cases were surveyed for Malaysia by including every tenth case in the sample. Since Hong Kong and Singapore each had a significantly lower universe of cases, we sampled approximately 15% of cases for these jurisdictions. Tables 25 include the 15% sampling for Hong Kong and Singapore, whereas Tables 67 include data based on a 10% sampling for all three jurisdictions.

27. Random sampling for the 15% sampling was maintained by including every tenth case and alternating every other fifth case (e.g. for Singapore with the random number of 5, would include cases 5, 10, 15, 25, etc).

28. The order was chronologically ascending for Malaysia and Singapore and chronologically descending for Hong Kong due to differences in database structuring and functionality. If a case within the sampling sequence was deemed ineligible, due to (i) being a false positive for foreign citation or (ii) being written in a language other than English, the following case would be coded in its place (for e.g. if 19 was written in the Malay language, we would instead survey 20; if 20 was also ineligible it would also be skipped and so on). Cases had to be skipped for reason of language or false positive results in thirteen instances for Hong Kong, sixteen instances for Malaysia and four instances for Singapore.

29. For the purpose of this analysis, each case is considered as the entirety of the published judgment. There were a few instances of dissenting or concurring opinions. While we coded any substantial individual opinion within our coding records, in this article, ‘opinion’, ‘judgment’, and ‘sampled case’ will refer to the entirety of the majority opinion plus any concurring or dissenting opinions encapsulated within the particular published case.

30. These figures have been corrected to account for false positive results from the search lists. We estimate the false positives for foreign citation at a rate of 6.3% for Hong Kong, 6.5% for Malaysia and 4.9% for Singapore. The figures in Table 2 are also adjusted to correct for the rate of false positives for each jurisdiction.

31. Foreign judgments are cited in two ways, directly and indirectly (or ‘embedded’). Direct citations are those referenced in the words of the authoring judge, while indirect citations are those embedded within other quotations in the judgment. Both were considered and recorded as part of our data. Here, we refer only to direct citations; elsewhere as indicated we also refer to total citations, including both direct and embedded. Embedded citations are an important way through which particular foreign cases become institutionalized and perpetuated within judicial practices.

32. The result about the persistent presence of English decisions in the case of Singapore is consistent with the findings in Goh, Yihan and Tan, Paul, ‘An Empirical Study on the Development of Singapore Law’ (2011) 23 Singapore Academy of Law Journal 176 . See also Goh, Yihan, ‘A Conscious Effort to Develop a Different Common Law of Obligations: A Possible Endeavour?’ in Andrew Robertson and Michael Tilbury (eds), The Common Law of Obligations: Divergence and Unity (Hart Publishing 2016).

33. Historically though, the Privy Council seemed to maintain tighter reins on Hong Kong. See Clarke, William Stewart, ‘The Privy Council, Politics and Precedent in the Asia-Pacific Region’ (1990) 39(4) ICLQ 741, 747-749 .

34. Privy Council cases were coded as ‘English jurisdiction with foreign subject matter’, and the country whose appeal was being considered were noted and recorded. For our purposes of studying foreign citation as an institutional practice, we consistently coded Privy Council case citations in this manner even in instances of local appeal. Privy Council cases on appeal from various countries were cited in each of our samples studied.

35. See Solicitor (24/07) v Law Society of Hong Kong [2008] 2 HKLRD 576.

36. These figures are based upon total citations of the category, including direct and embedded.

37. Since Canada publishes cases in English and French, we broke out just the English language cases for the following reasons: (1) to be consistent with our focus on English language cases elsewhere, (2) on the assumption that the search terms may not work as well for French language cases, and (3) to minimize redundancy within search results, since a number of individual cases are published both in French and English. When we look at the universe of English-language reported Canadian cases, 15.6% of these match our search terms for foreign citation. If we include all Canadian reported cases (both in English and French), 7.3% of Canada’s reported cases match our search list for foreign citations (in which search terms are based on English words and acronyms).

38. Our findings support the view of Flanagan, Brian and Ahern, Sinéad, ‘Judicial Decision-Making and Transnational Law: A Survey of Common Law Supreme Court Judges’ (2011) 60(1) ICLQ 1 , 18-21. Their study suggested that guidance in judicial interpretation was seen by common law judges as the most plausible reason to refer to foreign court decisions.

39. Mason, Anthony, ‘The Common Law’ in Simon NM Young and Yash Ghai (eds), Hong Kong’s Court of Final Appeal: The Development of the Law in China’s Hong Kong (CUP 2014) 329 .

40. Fletcher, George P and Sheppard, Steve, American Law in a Global Context: The Basics (OUP 2005) 20 .

41. Lau Wing Hong & Others v Wong Wor Hung & Another [2006] 4 HKLRD 671, 709.

42. ibid 708.

43. The average numbers of total direct case citations in our sample, irrespective of source, are 7.59 for Hong Kong, 15.58 for Malaysia and 14.39 for Singapore. See Table 3 for averages by category (domestic, English, non-English foreign).

44. MCAT Gen Sdn Bhd v Celcom (Malaysia) Berhad [2007] 8 MLJ 277, 290.

45. In addition to the Penal Code, Malaysia’s Contracts Act and Singapore’s Evidence Act are both modeled after Indian statutes.

46. See e.g. Ho Wing On Christopher and others v ECRC Land Pte Ltd (in liquidation) [2006] 2 SLR(R) 103. In the case, a High Court judge in Singapore referred to an Australian case that recognized that a liquidator could be made personally liable for costs but only to point out that the case was not good law in Singapore. Goh and Tan (n 32), based on their survey of reported cases of Singapore, arrived at similar conclusions.

47. Samanda Holdings Bhd v Sakullah Holdings Sdn Bhd & Ors [2006] 4 MLJ 381.

48. Cherie Booth QC v Attorney General, Malaysia & Ors [2006] 6 MLJ 501.

49. Pontian United Theatre Sdn Bhd v Southern Finance Bhd (formerly known as United Merchant Finance Bhd) [2006] 2 MLJ 602.

50. Public Prosecutor v Wan Khairil bin Wan Isa [2007] 6 MLJ 601.

51. Public Prosecutor v Nagathevan a/l Manoharan & Ors [2009] 7 MLJ 464.

52. ibid.

53. Public Prosecutor v Azwan Irewan bin Rosni [2009] 8 MLJ 201.

54. Public Prosecutor v Peter Kong [2007] 5 MLJ 567.

55. Dato’ Haji Azman bin Mahalan v Public Prosecutor [2007] 4 MLJ 142.

56. ibid.

57. Levi, Edward H, An Introduction to Legal Reasoning (University of Chicago Press 1962).

58. Suchman, Mark C and Edelman, Lauren B, ‘Legal Rational Myths: The New Institutionalism and the Law and Society Tradition’ (1996) 21 Law and Social Inquiry 903 ; Suchman, Mark C, ‘On Beyond Interest: Rational, Normative and Cognitive Perspectives in the Social Scientific Study of Law’ (1997) Wisconsin Law Review 475 ; Albiston, Catherine R, Institutional Inequality and the Mobilization of the Family and Medical Leave Act (CUP 2010).

59. Powell, Walter W and Dimaggio, Paul J (eds), The New Institutionalism in Organizational Analysis (University of Chicago Press 1991).

60. PP v Goh Lee Yin [2008] 1 SLR(R) 824, 830.

61. According to the judge, there have only been three known kleptomaniacs apprehended and charged in Singapore recently; ibid 871.

62. ibid 880.

63. ONG v Malaysian Airline System Bhd [2007] 3 HKLRD 255, 259-60.

* Associate Professor, Department of Sociology. This study was supported by a UCSD Academic Senate Grant. An earlier version of this article was presented at UCSD Comparative and Historical Sociology Workshop. The authors would like to thank participants for their invaluable comments.

** Ph.D. candidate in the Department of Sociology at the University of California, San Diego.

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Asian Journal of Comparative Law
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  • EISSN: 1932-0205
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