2 Mac LR 135

BooK REVIEWS

Poh-Ling Tan (ed), Asian Legal Systems: Law, Society and Pluralism in East Asia, Butterworths, Sydney, 1997. $59.00.

Why a book on Asian legal systems? In the Foreword to this book that is edited by Ms Poh-Ling Tan, the Hon Justice Michael Kirby of the High Court of Australia writes: Countless commentators assert that, if the twentieth century was the century ofAmerica, the next century will be that ofAsia and the Pacific. 1 Australian political leaders have similarly asserted that Australia's future lies in Asia and some even claim that Australia is part of Asia. Australia has significant trading partners in Asia and a large proportion of the markets for Australian commodities are in Asia. Australia's largest neighbour is Indonesia with a population of more than 200 million, several times more than that of Australia's. Further north, there are the huge markets ofJapan, Korea and Taiwan, and on mainland China, there is a potential market of more than one billion. On the Indian sub-continent there is India, another large market, still relatively untapped by Australian businesses. As pointed out by Justice Kirby, the opportunities for Australia (and New Zealand) in the neighborhood: extend beyond trading in goods and services. There will also be a great movement of people and of ideas. The ideas will include the rule of law, universal human rights2 and the protection of the independence of judges and lawyers. But the flow of ideas will be a two way street.3

P-L Tan (ed), Asian Legal Systems: Law, Society and Pluralism in East Asia, Butterworrhs, Sydney, 1997 at v. See F de Varennes, Asia-Pacific Human Rights Documents and Resources, Volume 1, Kluwer Law International, The Hague, 1998. n I at vi. See discussion below on Hong Kong. 136 BOOK REVIEWS (1998)

IfAustralians wish to deal successfully with their counterparts in Asia, they must not only understand but acknowledge and respect the latter in terms of their politics, history, culture and legal system; in other words, Asian society. As stated by the editor, the main purpose of the book "is to provide an introduction for those who wish to gain an overview of the legal systems of East Asia in their social context.... [The book] attempts to link the study of the law to the larger context of politics,4 society,5 culture and history".6 The book also asks a number of questions (admittedly, not new) that are answered in the concluding chapter.7 The substance of this book is therefore reflected not in its title but in its subtitle, "Law, Society and Pluralism in East Asia':" It is a book on ideas that aims to provide an understanding of the underpinnings of the Asian states isolated for comment. By presenting the evolution of their legal systems in a cultural and historical context, and including commentary at various junctures, the book avoid~ the tag of dry, technical reading. On the contrary, this book may be recommended to readers who are curious to learn more about the mysterious East and the psyche of its rule oflaw and legal systems. The book is an ambitious and complex project that utilises multifarious approaches. The reader is provided with a great deal of information that at first glance appears quite daunting. But some help is given along the way. The introductory chapter explains the parameters and methodology9 adopted, and this makes the chapter an important one. There is a section in the chapter on Japan called "Methodological Comments" also. 10 Each chapter ends with a Select Bibliography and the book itself ends with an Index. The editor uses maps and diagrams to great effect. As a result, it would be fair to say that the book attempts to assist the reader by processing the mass of information provided and packaging it in a more readily digestible form.

For a politico-economic perspective, see JW Morley (ed), Driven by Growth, rev. ed., New York, 1998. This successful book, first published in 1993, discusses political change in the Asia Pacific region, including the impact of economic development on changes in politics. Also see note 5. D Kelly, Asian Freedoms, Cambridge University Press, Cambridge, 1998. Ibid. For an expanded discussion on history, see N Tarling, Nations and States in , Cambridge University Press, Cambridge, 1998. nl at Chapter 10. As a result, countries on the Indian sub-continent such as India and Pakistan are excluded. nl at 8-12. 10 n 1 at 83-89. 2 Mac LR BOOK REVIEW5: 137

The book states that its "principal objective is to provide an introduction for those who wish to gain an overview of the legal systems of East Asia in their social context" 11 and the point is made that East Asia has two components, North East Asia and South East Asia. 12 It opens with an introductory chapter under the heading "Overview" 13 where a neat summary of content is found. It explains that "[a]lthough the framework for this study is Asia, East Asia sees itself as being distinct from South Asia". 14 Consequently, the geographical area that is covered consists of the People's Republic of China Cthe PRC"), Japan, Taiwan, Korea, Indonesia, , and Vietnam. 15 These states, each standing alone, provide the territorial boundaries of the substantive chapters. Discussion on the individual states (one state, one chapter) begins with a strong historical backdrop in snapshot format. Besides facilitating a greater comprehension of the comparative legal differences that exist, the snapshots educate the reader in the domestic developments and external relations of the states concerned. As the title suggests, the book focuses on legal pluralism. However, this is not exclusive and the book is pluralistic in a number of ways. Pluralism is extended to the use of nine authors from eight different states, and interested readers are introduced to them in their bibliographic notes. 16 Additionally, there is pluralism in approach 17 as the authors do not appear to have followed a rigid template, resulting in the chapters being presented differently. For example, some chapters have a concluding section18 while others19 end with a section on Contemporary Legal Issues. 20 However, inconsistency does not become an issue because the concluding chap~er (Chapter 1O) provides the requisite cohesion by drawing together the ideas of diversity, unity and universality dealt with in the earlier chapters.21

II nl at 2. 12 n 1 at 1. n 1 at 10-12. 14 n 13. l'i n 1 at Chapter 9. nl at xiii. 17 n 1 at Chapter 1 . lk For example, see chapters on Japan, Indonesia, Malaysia and Vietnam. I') See the chapters on Taiwan and Singapore. Note chat the chapter on Korea does not address both. .'I Sec below. 138 BOOK REVIEWS (1998)

When perusing the table of contents, an initial observation appears to confront the reader. In spite of Thailand's prime location in South East Asia and its reputation as one of the world's oldest kingdom states, it had been excluded from the book. A reference to a map22 suggests that the reason may be linked to Thailand's non-relationship with the South China Sea. Unlike the states that were included (this tract of water laps all their eastern shores), Thailand does not have an eastern seaboard. Instead, it lies sandwiched between Cambodia to the right and Burma to the left, and both had been excluded as well. If this reasoning is correct, then how does one explain the Philippines' exclusion? Upon a closer examination, the editor provides the clue to where she drew the line because it would not have been possible to extend the book to all the economies of East Asia. She states: A recent World Bank report states that the region has a remarkable record of high and sustained economic growth: from 1965-90, the 23 economies of East Asia grew faster than all the other regions of the world. 23 This amazing record of growth is attributed to a number of economies: Japan, China, the four Tigers of Hong Kong, the Republic of Korea, Singapore and Taiwan; and the newly industrialising economies of Indonesia and Malaysia. It is these countries, together with Vietnam, which form the subject of this book. Moreover, she explains in a footnote that despite her best efforts to include Thailand and the Philippines, they had to be left to later study. 24 With the benefit of hindsight after reading this intriguing book, let's hope that this promise is fulfilled, and not in the too distant future. But in relation to Vietnam, its anointment does not appear to have been explained, especially when it fell outside the World Bank report criterion. Another early observation is the separate treatment of Taiwan as a seemingly stand-alone legal entity on par with the other states discussed.25

22 nl at x. 23 n 1 at 1, whereat the editor cites the following in support of her claim: World Bank Report, The East Asian Miracle, Economic Growth and Public Policy, Oxford University Press, Washington, 1993 at 1-2. The other regions subject to comparison were South Asia, the Middle East and the Mediterranean, Sub-Saharan Africa, OECD countries and Latin America and the Caribbean. 24 n2 at 1. 21 n 1 at Chapter 4. 2 Mac LR BOOK REVIEWS 139

Although it was logical to accord Taiwan its own chapter on the basis of its contribution to the global economy, the fact remains that controversy continues to surround Taiwan's sovereign status. On this point, the editor explains the inclusion ofTaiwan on the basis of its economy's position rather than on its (non-existent) de Jure position. The fact remains that Taiwan has an undeniable de facto existence and plays a crucial role in international commercial affairs. The controversy on Taiwan's legal status is addressed in one short paragraph by author Tay-sheng Wang as follows: Composed as it is of [a number of islands], Taiwan has constituted a de facto independent state since 1949. It is referred to as 'the Republic of China' (ROC) in the domestic official law, but it is now referred to as "the Republic of China in Taiwan" within the international community. Due to the objections of the People's Republic of China (PRC), most countries in the United Nations, and in the world generally, do not have official diplomatic relations with Taiwan, but they do maintain close economic ties with this prosperous country.26 It is interesting that Mr Wang had chosen 1949 as the watershed for Taiwan in terms of its sovereignty. Although the Kuomintang government had fled Beijing for Taipeh in 1949, it continued to represent China in the United Nations, and indeed in the Security Council, until 1971 when the United Nations General Assembly adopted Resolution 2758 (XXVI). Under this Resolution, the world body rejected Taiwan in favour of the PRC. Since then, Taiwan had repeatedly called for a review of this Resolution and reiterated its commitment to China's eventual reunification. At the same time, it had referred to the German and Korean precedents on parallel representation. But the reality is that if states were to respond to Taiwan, the PRC's ire would be raised, and this would not be wise in any strategic sense. As seen in Papua New Guinea recently, the proposal by Prime Minister Bill Skate to accord Taiwan diplomatic recognition in exchange for a foreign loan was perceived to be so tainting that it culminated in his resignation from his job. The reader is told that Taiwan is founded on the Three Principles of the People based on "a democratic republic of the people, to be governed

nlatl25. 140 BOOK REVIEWS (1998) by the people and for the people". 27 Chapter II of the Constitution provides for "extensive political economic and social freedoms which ROC citizens theoretically enjoy. "28 But why is it in theory only? This is explained by reference to Article 23 of the Constitution. If necessary, the provision could be used to restrict the freedoms to "prevent infringement upon the freedom of other persons to avert imminent crisis, to maintain social order, and to advance public welfare". Thus, if the provision were to be interpreted broadly, an unintended result would be that these constitutional rights and freedoms could be abrogated easily. That is why, in practice, Article 23 is interpreted narrowly and in the process enhances these rights and freedoms. 29 When the book was published, the return of Hong Kong by the United Kingdom to the mainland on 1 July 1997 had just occurred. The chapter on the PRC discusses the position of Hong Kong post that date. The relevant section that deals with this is written by Conita Leung and entitled, "From Colony to Special Admipistrative Region". 30 Here, discussion extends to the rule of law under the "One Country Two Systems" ,31 which is explained in the following terms: This model, as the Chinese proclaim, will enable the "coexistence of socialist and capitalistic practices under the rule of the central Chinese communist government. 32 Thus, pursuant to the Joint Declaration [by the PRC and the United Kingdom] and the "One Country Two Systems" principle, the HKSAR33 will be established in accordance with the Chinese Constitution. The Joint Declaration also provides for the enactment of the Basic Law of the HKSAR by the Chinese National People's Congress. 34 This discussion brings to mind the speech of Martin Lee QC35 during the Latham Lecture in 1996.36 Full of foreboding on the impending return

27 nl at 135. 28 n27. 29 nl at 136. n 1 at Chapter 2.10.3 at 67-79. 3 I nl at 70-76. 32 nl at78. Namely, the Hong Kong Special Administrative Region. 34 nl at78. 3'i Chairman, Democratic Party, Hong Kong. M Lee, Quadrant, January-February 1997 at 7.

142 BOOK REVIEWS (1998)

Increasingly, Hong Kong people feel the urge to learn about the legal system and economic regulations of China, matters about which they had previously had not much interest. Ten years ago, no Hong Kong law student would enrol in a course in PRC legal systems, but in the 1990s, student demand for courses in PRC legal systems and business law is overwhelming. In preparation for the Chinese takeover of Hong Kong in July 1997, special training courses for Hong Kong public servants and business executives in Chinese economic and legal systems are also in demand. The people of Hong Kong have come to terms with their predicament; in essence, they seem to believe that "if you cannot beat them, join them". It was precisely this type of accepting philosophy that created problems for Asia about two years ago when it found itself embroiled in extensive allegations of bribery and corruption at the highest levels. 42 Stories of this practice have transformeq the economic and political face of Asia forever. The scandals that rocked Asian governments triggered the Asian economic meltdown in turn. So much for Asian economies that were touted as "tigers" and "dragons" just months before. One of the exceptions to such allegations of "greasing the palm" or "payola" was Singapore, the result oflaws that are enforced, heavy penalties for the offence, and the foresight and firm resolve by former Prime Minister Lee Kwan Yew to eradicate the practice and educate his people.43 It has been recognised that such overall ironclad resolve, generally speaking, helped catapult Singapore into what it is today - an Asian economic success story. A state being embarrassed by healthy reserves is a rare occurrence, but Singapore managed to attain this enviable status sometime ago. But such resolve has extracted a price. As identified by author Walter Woon, Singapore has become a state where in practice, its citizens: do not feel entirely free to express views critical of government policy (lest they cross the line and get into trouble with the law) despite the urging of the present government that Singaporeans openly debate public matters. Although there are signs that these inhibitions are slowly

42 Walsh, "A world war on corruption", Time, 13 July 1998, 36. 43 In spite of this, allegations of bribery and corruption were the centrepiece of the "telecommunication" scandal involving a Singapore utilities official, millions of dollars, Siemens and four other companies some years ago. 2 Mac LR BooK REVIEWS 143

being shed, it is still evident that most Singaporeans are extremely circumspect in publicly expressing views at variance with the official one.44 It is ironic that certain states, including France and Germany, consider commercial bribes to be tax deductible. But this does not make it right. Bribery and corruption represent behaviour that is morally reprehensible and at the international level, distort trade and commerce to the detriment of the international community as a whole. As a result, if the practice is not yet prohibited in domestic statute books, then it ought to be. This behaviour has prompted discussion and responses from various quarters including the United Nations, the Council for Europe and the World Trade Organisation. For instance, these organisations have developed codes and conventions to combat the practice. In addition, the International Chamber of Commerce has established Rules of Conduct known as "Extortion and Bribery in International Business Transactions" to deal with this widespread problem. At the Chile Summit of the Americas in April 1997, heads of governments (including US President Bill Clinton) met and reaffirmed a commitment to end corruption.45 In December 1997, a similar convention was signed in under the auspices of the Organisation for Economic Cooperation and Development. The Asian economic meltdown had been caused by the massive withdrawal of confidence and foreign capital from Asian economies and an outpouring of domestic funds. When this occurred, Malaysia reacted by imposing strict and artificial currency controls. Rightly or wrongly, short sighted or otherwise, at the time the move did help to decelerate the slippery downward slide of the Malaysian economy. Other states reacted differently and Thailand and Indonesia, for instance, preferred to swallow the bitter pill dispensed by the International Monetary Fund. Asian leaders who fell victim to such alleged wrongful behaviour included Prime Minister Bhutto of Pakistan. Other leaders who have been accused include President Suharto oflndonesia and Prime Minister Mahathir of Malaysia. Calls for reformasi can be heard in their countries, including Japan where tough economic reform became necessary to deal with corrupt

44 nl ac 322. In face, since 1977, che Uniced Scares has ouclawed bribes. See 18 USCA 0 201. 144 BOOK REVIEWS (1998) decision making processes. If not, the alternative faced by Japan was recession, an event that would have precipitated a global financial disaster. In all of this, South Korea was not spared either. The last state discussed is Vietnam. Owing to its chequered history in modern times and encounters with "Chinese, French and Soviet-Chinese socialist law", 46 author Mark Sidel states that this "eclecticism ... could leave Vietnam without a clearly defined legal structure". 47 Ifso, perhaps the answer for Vietnam should be found in the third way, as suggested by Vietnam watchers like Canadian Professor of Law, William Nielson. 48 The reader is left in no doubt that East Asia has become the product of its past at the end of the book. It is diverse and will remain so. A legacy has been the different legal systems it has inherited. Broadly speaking, two systems can be identified: the civil law and the common law. Of the states discussed, only Singapore and Malaysia reflect the common law system; the rest (PRC, Japan, Taiwan, North and South Korea, Indonesia and Vietnam) are civil law systems. Within this dual structure, some domestic systems Qapan, Indonesia, Malaysia and Singapore) are more developed than others are. The less developed ones, like the PRC, acknowledge that they have some catching up to do. Unless a reliable legal system is in place, and because confidence is dependant on reliability, they realise that international interaction and relationships, particularly in trade and commerce, would be compromised. Today, the Asian economies affected by the meltdown have started to stabilise as indicated by outward signs that are measured by business confidence in their stock exchanges and strength of their currency. But there has been a general tendency by some commentators to withhold final judgment on their report cards as it is early days yet, but the indicators are encouraging. On the other hand, others commentators are more indifferent and have treated the meltdown as a glitch that had to happen, in keeping with the swing of the pendulum as proven by studies in economic history.

nl at385. 47 n46. 48 See E Quah & WAW Nielson (eds), Law and Economic Development: Cases and Materials from South East Asia, Longman, Singapore, 1993; and WAW Nielson with DK Thompson & A Neilson-Welch, Vietnam Investment Manual Asia Law & Practice, Hong Kong, 1995. 2 Mac LR BooK REVIEWS 145

So where does all this leave the reader? How should he or she approach or discern between the differing and pluralistic systems on display? On this point, reference may be had to the following statement of the editor and Professor Alice Ehr-Soon Tay in the concluding chapter: The central point about pluralism [is that no] one holds the lodestone of truth.49

Associate Professor Alexis Goh

49 nl at 405-406.