ASIAN COURTS IN CONTEXT

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3 ASIAN COURTS IN CONTEXT The rise of Asia in global political and economic developments has been facilitated in part by a profound transformation of Asian courts. This book provides the most up-to-date and comprehensive analysis of these courts, explaining how their structures differ from courts in the West and how they have been shaped by the current challenges facing Asia. Contributors from across the continent analyze fourteen selected Asian jurisdictions representing varying degrees of development: Japan, Korea, Taiwan, India, Indonesia, Mongolia, the Philippines, Hong Kong, Singapore, Bangladesh, Malaysia, Thailand, China and Vietnam. Setting the courts of each region in the context of their country s economic, political and social dynamics, this book shows how and why Asian courts have undergone such profound transformations in recent years and predicts the future trajectories of tradition, transition and globalization to suggest the challenges and developments that lie ahead. jiunn-rong yeh is University Chair Professor in the College of Law at the National Taiwan University. wen-chen chang is Professor in the College of Law at the National Taiwan University.

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5 ASIAN COURTS IN CONTEXT Edited by JIUNN-RONG YEH and WEN-CHEN CHANG

6 University Printing House, Cambridge CB2 8BS, United Kingdom Cambridge University Press is part of the University of Cambridge. It furthers the University s mission by disseminating knowledge in the pursuit of education, learning and research at the highest international levels of excellence. Information on this title: Cambridge University Press 2014 This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2014 Printed in the United Kingdom by Clays, St Ives plc A catalogue record for this publication is available from the British Library Library of Congress Cataloguing in Publication data Asian courts in context / edited by Jiunn-rong Yeh and Wen-Chen Chang. pages. cm Includes bibliographical references and index. ISBN Courts East Asia. 2. Courts South Asia. 3. Courts Southeast Asia. I. Yeh, Jiunn-rong, editor. II. Chang, Wen-Chen, editor. KNC459.A dc ISBN Hardback Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.

7 CONTENTS List of figures vii List of tables viii List of contributors Acknowledgments ix xii 1 Introduction: Asian courts in context: tradition, transition and globalization 1 jiunn-rong yeh and wen-chen chang part i: Courts in advanced economies 75 2 Towards a more responsive judiciary: courts and judicial power in Japan 77 norikazu kawagishi 3 Courts in the Republic of Korea: featuring a built-in authoritarian legacy of centralization and bureaucratization 112 jongcheol kim 4 Courts and judicial reform in Taiwan: gradual transformations towards the guardian of constitutionalism and rule of law 143 wen-chen chang 5 Hong Kong: common law Courts in China 183 pui yin lo 6 As efficient as the best businesses: Singapore s judicial system 228 kevin y. l. tan v

8 vi contents part ii: Courts in fast developing economies Legitimacy of courts and the dilemma of their proliferation: the significance of judicial power in India 269 jayanth k. krishnan 8 Courts in Indonesia: a mix of Western and local character 303 hikmahanto juwana 9 The fledgling courts and adjudication system in Mongolia 340 batbold amarsanaa 10 The Philippines post-marcos judiciary: the institutional turn and the populist backlash 356 raul c. pangalangan 11 Courts in Malaysia and judiciary initiated reforms 375 yeow choy choong 12 Courts in Thailand: progressive development as the country s pillar of justice 407 pawat satayanurug and nattaporn nakornin 13 Courts and the adjudication system in Bangladesh: in quest of viable reforms 447 ridwanul hoque 14 Courts in China: judiciary in the economic and societal transitions 487 weixia gu 15 Renovating courts: the role of courts in contemporary Vietnam 528 pip nicholson 16 Conclusion: Challenges and prospects for Asian courts 566 jiunn-rong yeh and wen-chen chang Index 582

9 FIGURES 3.1 The hierarchy and jurisdictions of the courts in Korea Composition of cases Structure of judicial system in Taiwan Structure of courts of the HKSAR Structure of the courts in Singapore Court system in India Judicial system in Indonesia Structure of courts in Mongolia Expanded or total court system in the Philippines Vacancy rate for judicial positions Structure of courts in Malaysia since Structure of courts Structure of courts and tribunals Structure of courts and instances of trial (civil and criminal procedure) Vietnamese institutional map Vietnamese court institutions 534 vii

10 TABLES 2.1 Selected data on the caseload of the Supreme Court Selected data on the caseload of high courts Selected data on the caseload of district courts Maximum and actual number of judges (as of 31 December 2011) The number of courts and judges in different jurisdictions in Taiwan The performance of courts in different jurisdictions in Taiwan Disposal of cases by the Supreme Court Departmental targets and achievements by the Supreme Court Vacancies of judges in High Courts Statement of total number of advocates enrolled with the State Bar Councils Breakdown of cases by categories in first instance courts Breakdown of cases by categories in courts of appeal Number of courts and judges in Mongolia The performance of courts in different jurisdictions in Mongolia The number of courts in the Philippines Number of judicial positions in superior courts (2011) Number of judicial positions in subordinate courts (2011) The number of civil cases, consumer cases and criminal cases in courts of first instance nationwide B.E ( ) Statistics of civil and criminal cases pending and disposed of by the Supreme Court Comparison of caseloads of different courts and a glimpse of backlog of cases in civil courts until early The number of courts and judges in different jurisdictions in China Breakdown of cases by categories in Case numbers from all jurisdictions 538 viii

11 CONTRIBUTORS batbold amarsanaa is Vice Director of the National Legal Institute of Mongolia and a member of the Judicial Qualifications Committee of Mongolia. His primary areas of research include company and business law, comparative law, private international law and insurance law. wen-chen chang is Professor at National Taiwan University College of Law. She focuses her teaching and research on comparative constitutions, international human rights, international environmental law, administrative law, and law and society. yeow choy choong is Professor and former Dean at the Faculty of Law, University of Malaya, Malaysia. His primary areas of research include transnational civil litigation, international commercial arbitration and the administration of the civil justice system. weixia gu is Assistant Professor at the Faculty of Law, University of Hong Kong. She specializes in commercial arbitration, business dispute resolution, conflict of laws, and civil justice, particularly with respect to China and Greater China. ridwanul hoque is Associate Professor of Law, University of Dhaka, Bangladesh. His research interests include comparative constitutional theory, judicial politics, law and society, migration law, and Islamic family law. hikmahanto juwana is Professor of Law and former Dean at the Faculty of Law, University of Indonesia, Jakarta, Indonesia. He specializes in international law, Indonesian business law, competition law, and contract law. ix

12 x list of contributors norikazu kawagishi is Professor of Constitutional Law at the Faculty of Political Science and Economics Law School, Waseda University, Japan. He is a constitutional law expert whose research interests are mainly in freedom of expression and constitutionalism. jongcheol kim is Professor of Law at Yonsei University School of Law in Seoul, South Korea. He is a leading scholar of Korean constitutional law who writes extensively in both Korean and English. jayanth krishnan is the Charles L. Whistler Faculty Fellow and Professor of Law at the Indiana University Maurer School of Law, United States. His academic research focuses are mainly on the legal profession, law and globalization, and legal education, with a special emphasis on how these areas intersect in India. pui yin lo is a barrister who has been in private practice in Hong Kong for twenty years. He has appeared before courts of various levels, including the Privy Council and the Hong Kong Court of Final Appeal. His specializations include constitutional and administrative law, and protection of human rights. He is the author of two books on the Hong Kong Basic Law. nattaporn nakornin is former Lecturer in Law at Faculty of Law, Chulalongkorn University, with specialization in criminal law and criminal procedure. She is admitted to the Thai Bar and is presently a Judge at the Judicial Training Institute. pip nicholson is Professor of Law and Director of the Asian Law Centre, Melbourne Law School, Australia. Her current research and teaching focuses are primarily on law and legal change in transitional countries and cross-cultural legal research. raul c. pangalangan is Professor of Law and former Dean at the University of the Philippines. He is a leading authority on constitutional law in the Philippines and specializes in public international law and constitutional law. pawat satayanurug is Lecturer in Law at Faculty of Law, Chulalongkorn University, with specialization in public international law,

13 list of contributors xi international criminal law, and international human rights law. He is presently pursuing a doctoral degree at University of Zurich, Switzerland. kevin y. l. tan is concurrently Adjunct Professor of Law at the National University of Singapore and Adjunct Professor of International Law at the S. Rajaratnam School of International Studies, Nanyang Technological University. He is a leading scholar of Singapore constitutional law, human rights, legal history and comparative law in Southeast Asia. jiunn-rong yeh is University Chair Professor at National Taiwan University College of Law. He previously has served as a Minister in the Taiwanese Government and Vice-Dean of his College, and also taught in many overseas universities. His teaching and research focuses are primarily on comparative constitutional law, environmental law and administrative law. He has published widely in both Chinese and English and is the author and editor of nineteen books.

14 ACKNOWLEDGMENTS In the process of putting this book together, we have accumulated many intellectual and other debts. We would like to first acknowledge the Institute for Advanced Studies in Humanities and Social Sciences of National Taiwan University, whose Top University Research Project enabled us to invite all contributors of this book to hold a conference in March 2012 for the discussion of draft chapters, to acquire research materials, and to employ research and editing assistants. We are especially grateful to the generous support of the Dean of the Institute, Distinguished Professor Chun-Chieh Huang. Together with three other colleagues at the College of Law, National Taiwan University Professor Andrew Jen-Guang Lin, Professor Kuan- Ling Shen and Professor Chung-Jau Wu we have, since August 2011, formed a collaborative research team on Courts in East Asia and Legal Transplant under the auspices of the Institute for Advanced Studies in Humanities and Social Sciences of National Taiwan University. The publication of this book has been one of the many items on the research agenda set in this collaboration. We especially acknowledge the intellectual contributions of these three colleagues to this book as well as to the chapter on Taiwan. We hope our other intellectual collaborations will also soon come to fruition. We are enormously indebted to all of the contributors to this book. Without their most generous intellectual contributions, the publication of this book would not be possible. Special gratitude must be extended to Sabrina Su, our English language editor, for her meticulous editing efforts and willingness to work with us on a very pressing schedule. We are also greatly indebted to Dr Chun-Yuan Lin, Szu-Chen Kuo and Shao-Man Lee for their relentless efforts in assisting in the preparation of the manuscript. Thanks too to our students and research assistants, Ju-Ching Huang, Jo-Tzu Ma, Yi-Li Lee, Chia-ching Chen, Yan-Lin Li, Pei-Jung Li, Wei Chen, Wen-Wei Chen and Po-Cheng Lin, for their assistance in editing and checking the styles throughout this book. xii

15 acknowledgments xiii In this endeavor, we must also thank Cambridge University Press for agreeing to publish this book, and for all of their efforts in guiding us through getting the manuscript to press. January 2014 Jiunn-rong Yeh and Wen-Chen Chang

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17 1 Introduction Asian courts in context: tradition, transition and globalization jiunn-rong yeh and wen-chen chang The recent rise of Asia in both economic and political power has attracted wide attention. 1 Since World War II, economic development in Asia has surpassed that of many countries in other regions. First was the rapid economic recovery of Japan in the 1960s, followed by the miraculous economic growth of the four Asian tigers or dragons South Korea, Taiwan, Hong Kong and Singapore in the 1980s. 2 This economic miracle has continued into the first decade of the twenty-first century despite the global economic recession. China, India, Indonesia and Thailand, as well as many other Asian states, have become some of the fastest growing economies of the world. 3 With the economic decline of the West, the rise of the Asian market has shifted the world s economic center of gravity towards Asia. Politically, Asia has also undergone profound transformations. An unprecedented number of Asian states have transitioned into constitutional democracies. Japan adopted a postwar democratic constitution in 1946, followed by India in Following a similar trajectory to that of the West centuries earlier, a strong wave of democratization swept 1 For scholarly discussions on the rise of Asia, see e.g. F. B. Tipton, The Rise of Asia: Economics, Society, and Politics in the Contemporary Asia (University of Hawaii Press, 1998). 2 See e.g. P. Krugman, The myth of Asia s miracle, Foreign Affairs, 73(6) (1994), 62 78; R. Wade, Governing the Market: Economic Theory and the Role of Government in East Asian Industrialization (Princeton University Press, 1990); H. L. Root, Small Countries, Big Lessons: Governance and the Rise of East Asia (Oxford University Press, 1996). 3 See e.g. S. Radelet, J. Sachs and J.-W. Lee, The determinants and prospects of economic growth in Asia, International Economic Journal, 15(3) (2001), 1; M. Younis, X. X. Lin, Y. Sharahili and S. Selvarathinam, Political stability and economic growth in Asia, American Journal of Applied Sciences, 5 (2008), 203,

18 2 jiunn-rong yeh and wen-chen chang over Asia in the late 1980s and early 1990s. 4 In 1987, both South Korea and the Philippines adopted new constitutions. Mongolia adopted a new constitution in Taiwan undertook seven rounds of constitutional revisions in the 1990s and 2000s, while Indonesia proceeded with four stages of constitutional reform between 1999 and Thailand created a new constitution in 1997 and again in Among these, some, such as India, Japan, Taiwan and South Korea, have successfully embraced vibrant democracies, while others have continued to face varying degrees of difficulties and challenges. 6 Political and constitutional reforms also took place in socialist systems. Vietnam adopted a new constitution in The 1982 Constitution of the People s Republic of China (PRC) was amended in 1988, 1993, 1999 and As the renowned political scientist Larry Diamond declared in 2008, More than any other region, Asia will determine the global fate of democracy in the next two to three decades. 7 The rapid economic development and profound political transitions that have taken place in Asia have inevitably brought about the transformation of the region s legal institutions, and of its courts in particular. In many jurisdictions, courts have been created or reformed in order to cope with fast-growing economies as well as to facilitate the rule of law and protection of individual rights. Over the past few decades, for example, constitutional courts have been created in Taiwan, South Korea, Mongolia, Cambodia, Thailand, Indonesia and Myanmar. 8 Specialized courts particularly those with jurisdiction over economic matters concerning tax, bankruptcy, and intellectual property law, among others have been mushrooming in 4 For general discussions on the waves of democratization around the globe, see e.g. S. P. Huntington, The Third Wave: Democratization in the Late 20th Century (University of Oklahoma Press, 1993). For democratization in Asia, see e.g. A. Croissant, From transition to defective democracy: mapping Asian democratization, Democratization, 11(5) (2004), 156, 157; J.-r. Yeh and W.-C. Chang, The emergence of East Asian constitutionalism: features in comparison, American Journal of Comparative Law, 56 (2011), 805, D. C. Shin, The third wave in East Asia: comparative and dynamic perspective, Taiwan Journal of Democracy, 4(2) (2008), 91, For discussion of the causes and difficulties of democratization in Asia, please see J. Lee, Primary causes of Asian democratization: dispelling conventional myths, Asian Survey, 42 (2002), L. Diamond, The Spirit of Democracy (New York: Times Books, 2008), p See the subsequent chapters of South Korea, Taiwan, Mongolia and Thailand. For general discussions of constitutional courts in Asia, see also T. Ginsburg, Judicial Review in New Democracies: Constitutional Courts in Asian Cases (Cambridge University Press, 2003); W.-C. Chang, K. Y. L. Tan, L.-a. Thio and J.-r. Yeh, Constitutionalism in Asia: Cases and Materials (Oxford: Hart Publishing, 2014), pp

19 introduction 3 Asia. 9 More importantly, the emphasis on courts and their functions in economic and political developments have led to the undertaking of largescale judicial reforms aimed at facilitating judicial independence or even democratization of the judiciary. It is not a coincidence that varying degrees of lay participation in courts have been introduced in some Asian jurisdictions, even those with civil law traditions such as Japan, South Korea and Taiwan. 10 Despite this ongoing transformation of courts in Asia, few academic works have provided systematic and contextual analyses of Asian courts and their changing functions. 11 How have courts been structured or restructured in response to recent economic and political changes in Asia? Are there distinctive features in the ways that Asian courts are organized and operate? What are the economic, political, social and cultural functions that Asian courts are expected to deliver? In what ways and to what extent are Asian courts different from courts in the West? The main purpose of this book is to provide answers to these key questions that are not yet fully researched and systematically studied in the existing scholarship on Asian courts and their functional dynamics. Fourteen jurisdictions those of Bangladesh, China, Hong Kong, India, Indonesia, Japan, Malaysia, Mongolia, the Philippines, Singapore, South Korea, Taiwan, Thailand, and Vietnam are included in this book. This introduction is divided into five parts. First, we elaborate on the methodology of this book and explain why we adopt an institutional approach to the study of courts and their functional dynamics. Second, we articulate three conceptual dimensions of analysis tradition and transplantation, transition and construction, and globalization and competition in order to place the discussion of courts and their functional dynamics into their corresponding contexts. Third, we provide the rationale for the outline and structure of this book. The fourth and fifth parts of this introduction represent key comparative results of the 9 See the following discussion of See the subsequent chapters: N. Kawagishi, Towards a more responsive judiciary: courts and judicial power in Japan, this volume, section 2.2; J. Kim, Courts in the Republic of Korea: featuring a built-in authoritarian legacy of centralization and bureaucratization, this volume, section 1.4; W.-C. Chang, Courts and judicial reform in Taiwan: gradual transformations towards the guardian of constitutionalism and rule of law, this volume, section Recent exceptional efforts include: A. Harding and P. Nicholson (eds.), New Courts in Asia (New York: Routledge, 2010); B. Dressel (ed.), The Judicialization of Politics in Asia (New York: Routledge, 2012).

20 4 jiunn-rong yeh and wen-chen chang fourteen selected jurisdictions in this book. The fourth part addresses comparisons of the structures of courts, judges and their qualifications and appointments, citizens relationships with the judiciary and their access to justice, and the styles of judicial decisions. The fifth part includes comparisons of the functional dynamics in the fourteen selected jurisdictions along the three analytical dimensions described in the second part: tradition and transplantation, transition and construction, and globalization and competition. 1 Methodology: starting with Martin Shapiro and an institutional approach to courts While most legal studies focus on legal doctrines and judicial interpretations, a few approaches emphasize courts as an institution and observe their functional dynamics. A pioneer in this approach was Martin Shapiro, whose analysis of courts was published in Shapiro focused on courts as an institution for legal research, attempting to explore the meaning and function of courts in response to legal systems and social contexts. He initially depicted a prototype of courts prevailing in American society, which consisted of four elements: independence, adversarialism, decision making according to pre-existing rules, and winner-take-all results. 13 However, through a comparative study of courts in Britain, Imperial China, Western Europe and traditional Islamic societies, Shapiro believed that such an American prototype is just a myth. Most courts have not always reflected such a prototype, and courts in most societies were often used as mechanisms of social control. Shapiro s study of courts and their functional dynamics has made at least two important contributions to contemporary legal scholarship on courts. First, Shapiro opened up a new institutional approach to courts. Courts and judicial processes have since been viewed as important subjects in legal scholarship. Second, Shapiro departed from a relatively narrow and Western-centered view on courts, pointing out that what matters is the function of courts in different social contexts and political systems. As a result of Shapiro s work, an increasing number of legal scholars especially socio-legal scholars have begun to adopt just such an 12 M. Shapiro, Courts: A Comparative and Political Analysis (University of Chicago Press, 1981), pp Ibid.