Blast from the Past: Hong Kong’s legal system

Tuesday 11 October 2011, 4.44am HKT


HERE IS a Blast From The Past I fished out from my files tonight:

From: “bakyimsing”
Subject: Hong Kong legal system the best in Asia
Date: Tuesday, September 16, 2008 11:30 AM

An Asian-wide survey of foreign companies found that Hong Kong legal system is considered the best among Asian countries.

Here is the legal system lineup (best is zero points, worst is 10 points):

1. Hong Kong (1.45)
2. Singapore (1.92)
3. Japan (3.50)
4. South Korea (4.62)
5. Taiwan (4.93)

6. The Philippines (6.10)
7. Malaysia (6.47)
8. India (6.50)
9. Thailand (7.00)
10. China (7.25)

11. Vietnam (8.10)
12 Indonesia (8.26)

The survey interviewed 1,537 senior management people of foreign (i.e. non-Asian) enterprises.

The plus factors for Hong Kong’s legal system were transparency, the [high] degree of enforcement of laws, free from political influence, and the [high] experience [and/or training] of lawyers and judges.

Vietnam and China ranked towards the bottom mainly because of political interference in their legal systems. As both countries are communist, the communist parties in those two countries often operate above the law.

Although the Philippines and India are both democratic countries, there is however too much corruption in their societies, and that affects the operation of their legal systems.

Note that this lineup was in 2008.

* * *

In my book at least, an ‘Asian-wide’ survey that fails to include some of the more prominent countries geographically in the region is just a little bit brain-damaged. Try adding in:

  • Australia (where did you think it was in?)
  • Bangladesh
  • Indonesia
  • Myanmar (Burma)
  • Mongolia (never mind it’s a totally fictitious country, but it’s Asian…)
  • New Zealand (it’s far away, but it’s Asian…)
  • North Korea
  • Pakistan
  • Sri Lanka

You know, these are all significant Asian economies. North Korea and Myamar might not be, but include them just for kicks.

* * *

Three years on now…

Today, The Naked Listener would probably rank them like this:

1. Australia, Hong Kong, New Zealand (tied)
2. Singapore

The eagle-eyed will have noticed that the top countries in the quality of legal systems are all direct descendants of the UK legal system (specifically, the legal system of England and Wales).

Not only that, but they are late descendants of that UK legal system, having taken direct cues from the English legal system around the late Victorian era when the moralistic or religious nonsense of the English system were becoming less prominent.

Having said that, I would probably now reconsider putting Hong Kong in the No. 1½ position. I attribute this mainly to the Hong Kong government’s increasingly clueless public policies and increasingly pro-Beijing ‘panic’ attitudes in carrying out executive affairs. It would probably have gone lower than Singapore but for the fact that Hong Kong’s government-run legal system still manages to operate 99% independently of the executive branch.

Singapore will always remain a catchup — certainly to Hong Kong at least — because of its sometimes inane/insane social-engineering policies and its bloodyminded refusal to abolish capital punishment (key being admissibility of circumstantial and recantable evidence).

3. Japan
4. South Korea
5. Taiwan

Japan and South Korea would have tied in third place, but the truth is, Japan is more like a European country than an Asian one. Japan has long experience in running a legal system based on the German-Swiss model, and being that the Japanese is the most cohesive society in Asia (if not the world) and also a First World economy, it is much more able to operate a legal system along First World lines than most First World countries — except that its politics (rather than the government) gets in the way of its legal system.

Taiwan, too, operates a legal system based on the German-Swiss model, with heavy doses of Anglo-American common law influence. The Taiwanese legal system has the good sense to use precedent cases and have statutorised most of its pre-1949 caselaw. The problem with Taiwan is that, while its society is no more and no less corrupt than any other around the world, it is the influence-peddling antics of its politicians and civil servants that causes trouble for its legal system.

6. The Philippines
7. India

The Philippines is not a common law jurisdiction but operates almost like one, with a heavy American flavour. Its legal personnel (such as its Solicitor-General a.k.a. attorney-general) are totally soaked in the American legal tradition — and that helps.

India‘s legal system is a direct descendant of the UK legal system — but basically buggered it up by marrying the Best of British (in terms of operational discipline) with the Worst of India (high levels of corruption in general society, racism/caste, moralism, leftover Victorian-era obligationism). The good thing about India (so far) is that its lawyers and judges are largely UK-trained and UK-practised well before returning to work in India — that helps.

8. Indonesia, Malaysia, Thailand

Malaysia is a common law jurisdiction, whereas Indonesia and Thailand are civil law jurisdictions. The problem with these three is their rocky politics. Most Malaysian, Indonesian and Thai lawyers and judges are trained in the UK or the USA — that also helps.

Basically, Indonesia has just started cleaning up its act. Back in the bad old days of the 1960s and 70s, you probably wouldn’t say it had a legal system. The old joke in those days was that Indonesia had a police system — if you’re shot dead in the street, then there’s no need for lowly educated people (like policemen) to deal with the court paperwork. Clearly, economic pressures in recent times have made Indonesia grow up quickly.

9. China, Vietnam, Mongolia, Pakistan

These four countries are at a standstill. And they are going to remain at a standstill because, truth is, none of their central governments are in ‘central control’ of their local or provincial authorities. Indeed, some parts of these places often have little semblance of control and behave like two feuding Mafia families trying to bump off each other’s mafiosos in the dead of night with flick knives and sawn-off shotguns.

It’s just too convenient to blame their shambles of a legal system on government interference or party political factionalism — although that excuse is highly popular among non-legal academics.

In China and Vietnam, their central governments are losing ground to local governments in the more purely executive aspects of governance. The order of the day in both countries is to do all that can be done to remain ‘politically stable.’

If you believe that a legal system exists to resolve disputes, penalise wrongdoing and restore justice, then executive acts of keeping the gravy train rolling (for the cadres) and not making political waves (for the populace) take a hell of a lot out of the legal system’s effectiveness and efficiency.

In purely legal matters, the Chinese and Vietnamese court systems are heavily influenced (destabilised?) by local governments. The only thing that local governments don’t override the central government are in political matters. Problem is, 99% of human affairs are not political in nature — and neither are affairs that reach courtrooms.

Mongolia (a civil-code jurisdiction) and Pakistan (a semi-common law jurisdiction) are totally fictitious countries by now. Enough said.

10. North Korea, Myanmar (Burma)

Nobody knows what’s happening in North Korea (and, frankly, nobody cares anymore). But everybody knows everything that IS happening in Burma ain’t working out well.

© The Naked Listener’s Weblog, 2011. Image via Wooden Toys UK.

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