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This relates to the idea of harmonizing law amongst asea countries ...

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Erika Sachdev 6001641478 TU101 Is it too ambitious to create a common legal system among the ASEAN countries (the harmonization of the laws of the ASEAN countries)?

Southeast Asia is a region rich with a wide range of cultures, ethnicities, traditions, and lifestyles where each country has its own legal system, regulating the life of its citizens. Legal systems are the key element to govern the people and it is continuously being developed as the world around us evolves. The Association of Southeast Asian Nations, also known as ‘ASEAN’ consists of ten member states. As ASEAN is recognized as one of the most diverse regions in the world, it is a melting pot of various cultures, ethnicity, and religions. The question of having a common legal system among ASEAN member states can spark lengthy debates. Countries like Brunei Darussalam, Malaysia, Myanmar, and Singapore use the Common law system while, Laos, Thailand, Vietnam, Philippines, Cambodia, and Indonesia use the Civil law system. The diverse element of the legal system of these ten countries are, most of them are based on customary law, which was one of the main sources of law used in the past for countries like Cambodia or Thailand. In addition, Socialist law was used in Vietnam, and Religious law was used in Myanmar. In the enactment of law, some law is based on morals and cultures; some laws are purely technical. People have different worldviews, different needs and want. It is natural that every member state would want to do what is best for their country. The ASEAN motto is “One Vision, One Identity, One Community ” which illustrates that member states are willing to hold hands and work together to develop the region. This unified vision can be seen through their creation of agreements and policies such as the ‘Asean Economic Community,’ ‘Asean Free Trade Area’ or the ASEAN Framework Agreement for Liberalisation on Trade in

Services (AFAS). This paper will be exploring the benefits of harmonizing laws and the drawbacks of such aim, taking into consideration factors such as the populations of the citizens in each country, the cultural difference and the difference in the legal system itself. This paper will be focusing mainly on Common Law and Civil Law. Additionally, research from “towards Harmonisation of the Asean Contract Law: The Legal Treatment of Unfair Consumer Contract Terms Among Selected ASEAN Member States” in which the research will be the guideline supporting my view towards harmonizing law in ASEAN. In my opinion, I believe that harmonizing law would surely lead to a positive impact towards ASEAN nations, however, it is indeed too ambitious to do so but with that being said, it is not impossible.

Singapore has the population of approximately 5.607 million people which is quite small compared to the number of people in the neighboring countries like Indonesia which consists of roughly 261.1 million people or Thailand which has approximately 68.86 million people. Singapore came up with strict technical law such as the law prohibiting people from littering in public areas. People violating this law will be charged with fines ranging from $300 to $1000 as first-time offenders. In Singapore, it can be interpreted that the conservation of the environment plays an important role in the Singapore’s legal system. The chewing gum ban would be another example. As a lot of people tend to dispose gum in public areas rather than in garbage bins, Singaporeans are banned from doing so. This might be why Singapore is known as a ‘Green city’ as they are conserving the environment. They created the ‘Green Mark Scheme’ which is a rating system introduced in 2005 to evaluate all buildings based on their environmental impact and performance.

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It helps them measure the effectiveness of their

plans. They have introduced environmental conservation law as mentioned above to help and

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https://edition.cnn.com/travel/article/singapore-greenest-city/index.html

make their country ‘Green’. A legal system is a tool that helps Singapore develop, as Singaporeans are enforced with laws prohibiting them from destroying the environment. In Thailand, littering is not known to be a punishable offense in the Thai law. In Thailand, jobs opportunities are being created for people picking up garbage and cans; they can sell it and earn money from doing so. The legal system in Thailand focuses more on other issues such as traffic law, age of consent law and different kinds of law . Singapore does not have separate provinces, while, in Thailand, there are around 76 provinces. I believe that in Thailand, there are a lot of other factors that have to be considered before enacting any laws. Laws being adopted would have to solve the existing problems in Thailand. As Thailand has a larger population of people compared to Singapore, there will be more people looking for education, for jobs and for money to support their family. I believe that the population of people also has an effect on the crime rates in each country. Large cities are said to be characterized by anonymity and the anonymity of the city permits the criminal to commit an offense with little fear of being recognized. 2 In large cities, there are greater opportunities for crimes. Thailand is larger than Singapore. The crime rate for violent crimes in Thailand is three times more than Singapore, in which in Thailand it is around 69.82 million people, while in Singapore it is 5.607 million people. Other crimes such as violent murder rate, gun crimes or even drug related crimes occur more than in Singapore. Thai law would have to be applicable for these type of problems. In my opinion, the unequal number of the people is one of the reasons why it is difficult to harmonize law of the ASEAN countries, as harmonizing law might result in ineffectiveness to all field of problems in the ten member states, there might be unequal treatment as the type of crime and crime rates in each country are

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https://www.anu.edu.au/fellows/jbraithwaite/_documents/Articles/1975_Population%20Growth%20and% 20Crime.pdf

different. An example of this would be Section 276 of the Thai Criminal code which states that “whoever has sexual intercourse with a woman, who is not wife, against her will, by threatening by any means whatever, by doing any act of violence, by taking advantage of the woman being in the condition of inability to resist, or by causing the woman to mistake him for the other person, shall be punished with imprisonment of four to twenty years and fined eight thousand to forty thousand Baht. If the offense as mentioned in the first paragraph is committed by carrying or using any gun or explosive, or participation of persons in the nature of destroying the woman, the offender shall be punished with imprisonment of fifteen to twenty years and fined of thirty thousand to forty thousand Baht, or imprisonment for life.” 3 In Thailand the rape rates are much higher than in Singapore, imprisonment for life in severe cases is reasonable and is acceptable throughout the country. In Singapore, the use of violence is included in its rape law, in which section 375 of the penal code states that “Any man who penetrates the vagina or a woman with his penis (a) without her consent; or (b) with or without her consent, when she is under 14 years of age, shall be guilty of an offence.” Furthermore, if the man rapes or tries to rape the woman by “(i) voluntarily caus[ing] hurt to [her]; or (ii) puts her in fear of death or hurt to herself,” he will face up to 20 years in prison and 12 strokes at the very least.” 4Strokes are not used in Thailand, unlike Singapore. In Thailand, there is a high number of the rapist; using violence against every one of them might not be an effective solution to this problem. There is a diversity of the application of law within the two countries being mentioned above. The cultural difference makes creating a common legal system in the ASEAN countries an obstacle. Culture and morals play an important role in the legal systems of many of the ASEAN member states. Thailand and Indonesia will be used as a case point in this paper to

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http://library.siam-legal.com/thai-law/criminal-code-rape-sections-276-281/ https://irblaw.com.sg/2017/11/01/rape-in-singapore/

illustrate the reason why cultural differences would have an impact on the harmonization of laws. In the past, Thai laws were mainly based on customs and morals. In another word, customary law. In the present, we have laws that developed from cultures and morals and laws that are only enacted for the purpose of solving the current issue in Thailand, that does not involve morality and cultures. Customary law is the second sources of Thai law. Law, moral and customs share a common feature where they set a standard of human behavior in a society. Even though moral is not directly a source of Thai law, it has an essential role in the Thai legal system. Criminal law is, therefore, the case point. Criminal offenses such as killing or stealing appear correspondent on what is known as morally wrong according to the five precepts, and it is also legally wrong according to the Thai Penal code. An example of the customary law used in the present would be Section 1562 in the Thai Civil and Commercial Code, which prohibits Thai citizens from filing a lawsuit against their ascendants. The reason behind this law is purely based on morality as in Thailand; parents are considered to be known as god. Thai people are bound to show respect and take care of their parents. People who abandoned their parents or, in this case, file a lawsuit against their parents are known to be ‘ungrateful.’ Another example of customary law in the Thai legal system is Thai dowry law or ‘khong mun sin sord’ law, in which the groom will have to pay a certain amount of money to the bride’s family. The idea of dowry for the bride is deeply embedded in Thai culture and is known to be a tradition. In Indonesia, the law states that a marriage is legitimate if it is performed according to the regulations of the religious beliefs of the husband and wife. The requirement varies depending on the religious law that was applied. 5 There is no such thing as dowry in the legal system of Indonesia. This has proven to the fact that law varies differently depending on the cultures. Harmonizing laws might affect people’s religious beliefs, especially for conservative countries. Eliminating the traditional

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https://www.angloinfo.com/how-to/indonesia/family/marriage/requirements

practice that is rooted in the legal system of a certain country would offend their belief and would result in a conflict. In Indonesia, the law does not protect same-sex couple against discriminations. Sexual intercourse between men in Indonesia would result in punishment such as lashes given by the Sharia court of Indonesia due to the Muslim law. In Thailand, sexual intercourse between same-sex couple does not result in any penalty under Thai laws. Having a common legal system might not satisfy the people’s religious view towards a particular action, this will create a negative impact on the ASEAN countries. As people from different countries and different religions would have a different opinion towards certain actions. Cultural difference is one of the reasons why harmonizing the legal system in ASEAN would lead to a negative impact. As mentioned above, some ASEAN countries uses the common law system and some uses the civil law system. As this paper will be focussing only on these two main legal system, the difference between the two system will be explained here. In my opinion, harmonizing the legal system is a challenge as each countries would have to overcome the barrier of differences between the legal system being used in the past. Civil law system are codified law, its main source of law are written elements. In civil law cases, judges will look for applicable law in order to solve the case. Past decision does not effect the case. Common law system are the legal system where judicial precedent is the main sources of law. When a court makes a decision, the decision becomes a part of law of country. Judges look at past precedent to solve disputes. In civil law, the decision of judges does not affect the law of the country. These difference between the legal system may be a problem once we harmonize ASEAN legal system, because some country would be used to their traditional legal practice. Harmonizing it might mean choosing one of the legal system. These system of law that was used in the ASEAN has proven to be successful in the country itself.

On the other hand, creating a common legal system amongst ASEAN countries can help increasing the economic growth, it can accelerate social progress and it can contribute to the 6 to the cultural development for the regional cooperation of ASEAN countries. According

research which focuses on harmonizing contract law mentioned above, harmonizing contract law throughout the ASEAN countries is essential as it will reflect on the economic prosperity, as the law of contract serves as a tool for consumer protection. It enhances the economical and cultural values of a nation. 7 One might argue that harmonizing law can result in disagreement throughout the ASEAN nations due to different cultural, religious or jurisprudence views. Doing it so, can result in economic evolution. As mentioned in the research paper, “The development of contract laws throughout the Southeast Asian region is impacted by the tremendous historical and social diversity among the various countries, as demonstrated by the Malaysian, Singaporean and Bruneian contract laws, which reflect English common law due to historical development. However, countries such as Indonesia have been profoundly affected by long periods of civil law influence. The experience of the common law countries of the ASEAN member states in controlling the use of unfair terms in consumer contracts demonstrate a different regime of protection as opposed to the civil law countries.” 8 Harmonizing the contract law throughout ASEAN will help in reducing the gap between the consumer contract law of each member states that uses different legal system. As mentioned above, creating a common legal system will help to generate more contractual agreement throughout ASEAN and it will help to expand the economy. ASIAN ECONOMIC COMMUNITY (AEC) is an agreement made in the ASEAN. With AEC, trading between Southeast Asia will increase. Harmonizing law will make trading between

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http://ejournal.ukm.my/ajac/article/view/6542 http://ejournal.ukm.my/ajac/article/view/6542 8 http://ejournal.ukm.my/ajac/article/view/6542 7

all nations smoother. As the law applies throughout the ASEAN countries. In which there will be fairness in terms of the legal rules. In conclusion, creating a common legal system amongst ASEAN countries in my opinion, would help each of the member states expand their economy and have better understanding with each other as a community, in terms of trades, social integration and the protection of the people. However, it is too ambitious to do so as harmonizing the law could offend cherish beliefs in different countries of what is right and wrong. The law might be to vague to focus on the problem arising in a specific country and lastly, the diversity of each countries might not be suitable for such aim. In order to create a common legal system, there should be mutual understanding between all nations and solutions to these problems mentioned above.

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