Legal Pluralism

The traditional view of law rested on the Western hegemonic assumption that “positive state law is the solution to all differences”1 and that there is only one neutral universal law. However, extensive legal anthropology would suggest that diversity and pluralism in the law has existed since the medieval period2. In the era where multiculturalism, colonisation and migration has made an impact on our social sphere and the respective official governing laws, it only becomes more pertinent that the study of legal pluralism be conducted with regards to different competing normative spheres.

Interestingly, the effect of Globalisation, the greater emergence of international and transnational law have postulated the issue which this paper would seek to address – to what extent does globalisation mean harmonization, or even global uniformisation of laws, rather than localization or global pluralism3? II. Legal Pluralism In the broadest definition of legal pluralism, Hooker refers ‘to the situation in which two or more laws interact’4. This neither requires the recognition by the state nor reference to the state but acknowledges the fundamental definition of pluralism – the diversity within the system.

However, the practical realities of today under the “sensitizing concept”5 emphasises the importance of recognizing that non-state systems may co-exist with the state system. This therefore constitutes the basis of the adoption for this narrower definition in our paper. In assessing the interactions between the official state systems and non-state systems, this paper will make reference to the different normative spheres consisting of the following6: This section examines the interaction of state laws with international laws, as a demonstration of globalization-induced legal pluralism at play.

To this effect, international law does not merge seamlessly with national laws. Transnational law that emerges under the process of globalization adds to “the already existing constellations of legal pluralism”7 by creating and changing complex legal configuration that are typically contested, hierarchical, unequal, and ambivalent. For this purpose, we will examine how Singapore’s state laws interact with customary international law to reflect the interaction of competing normative spheres. Right to Consular Access

Singapore is not a party to the Vienna Convention on Consular Relations8, but the Court of Appeal9 in Nguyen10 held that Singapore is bound by Article 36(1) by the operation of customary international law. The VCCR instructs the authorities of a state to inform, without delay, the consular post of the national who has been arrested. This was not done in Nguyen, and the defence argued that this ought to render his confession inadmissible. The court however, followed the case of Avena11, which was a favourable precedent, while simultaneously rejected LaGrand12, an adverse case.

Resultantly, one can conclude that while Singapore binds itself to customary international laws in this area, it has rather intelligently reserved for itself the right to distinguish internationally decided cases which would not support their holdings. Mandatory Death Penalty The SGCA had to decide in Nguyen, whether death by hanging constitutes cruel or inhumane treatment under Article 5 of the Universal Declaration of Human Rights (UDHR), where it is prohibited for anyone to be subjected to cruel, inhuman, or degrading treatment.

The defence argued that capital punishment may constitute cruel and inhumane punishment if it was grossly disproportionate to the crime. However, the court rejected that argument and held that even in a case of conflict; the local statute will prevail over customary international law. In a related matter, the International Covenant on Civil and Political Rights (ICCPR) mandates that the death penalty is reserved only for the ‘most serious crimes’. However in Singapore, the death penalty is handed out for crimes which may not necessarily require mens rea.

As such, there is a possible breach of the ICCPR, but since our courts have held that local statutes take precedence, it seems any breaches of customary international law is immaterial at present. Freedom of Expression The ICCPR and the UDHR guarantees the right to freedom of expression. Singapore, having not ratified the former, is nonetheless bound by the UN charter to respect fundamental human rights. Moreover, as a member of the Commonwealth, Singapore is also committed to, inter alia, the freedom of expression.

However, Singapore’s executive has frequently used defamation laws to stifle political opposition, under the guide that in Singapore, if one is defamed and does not sue to clear his name, it must be taken that the defamatory remarks are true. It is also no secret that Singapore actively limits press freedom through the use of defamation laws as well because the ex-Prime Minister believes the role of the press is to partake in nation-building, not assume the role of adversary and inquisitor.

It is here that we see the use of ‘Asian Values’ to justify Singapore’s ‘different’ approach to these international customary laws, if not norms. Rights of Assembly Singapore has very strict laws with regards to public protests, contrary to Article 20 of the UDHR which provides that everyone has the right to freedom of peaceful assembly and association. Furthermore, Article 21 provides without restrictions that the right of peaceful assembly shall be recognised. To stage an outdoor protest and marches, permits were required under the Public Entertainments Meeting Act13.

The application to speak at the Speakers’ Corner requires prior police approval. However, recent relaxations of the rules have seen outdoor protests being allowed at Hong Lim Park. In this exercise, we see how state law attempts to reconcile itself with customary international law without losing its ability impute social justifications for certain decisions it chooses to undergo. In summary, this Singapore example shows how local state laws as a normative sphere sometimes conflict with international customary laws as another.

Although there may be a question of whether Singapore is even bound by such laws, by virtue of our global citizenship, we generally are. Accordingly, Singapore has opted not to follow customary international laws that it feels uncomfortable with and this is within its full right to do so. IV. Legal Pluralism between co-existing normative systems: Official State system vs. Non-State system Legal pluralism between co-existing normative systems, namely between the state and customary or religious law was best understood as being catalyzed during the period of colonization.

Though some non-state law has been recognised to a certain extent by the state14, the clashes between the two arising their power struggle remains inevitable. Our present analysis can take the form of either (i) contrasting the two systems or (ii) viewing it based on an ‘actor-oriented’ scenario. In both Australia and Canada, who became the subjects of European colonization, have virtually no legal pluralism within the society. Indigenous law was absolutely rejected based on the discrimination of such unwritten laws that failed to conform to the sophisticated standards of White law15.

This reinforced the Western hegemonic assumption that monist secular positive state law is the solution to differences within the system. Although land rights in the above two nations have been recognised as part of Native Title, not only are the other aspects of customary laws ignored, the extent of pluralism creates a ‘legal fiction’ where customary laws became a ‘product of colonisation’ subjected to the overview and application in the White man’s courts and interpreted in the way that ‘showed lack of understanding or competence of or outright contempt for these laws’16.

A more explicit recognition of the non-state system using the system analysis can be illustrated in Indonesia, Malaysia and Singapore. With colonisation, these nation states faced legal imports from their respective colonizers with limited recognition of customary or religious law in relation to personal laws. These ‘personal laws’ were recognised so long as it was not in conflict with the Western laws and to the extent which the colonisers permitted17. The context in Indonesia’s adat laws, especially in the realm on inheritance law, has been decided based on numerous normative systems alongside the Dutch Civil code.

In Singapore’s context, the effect of colonialisation has transplanted the English Common law into our legal system. This co-existed with other customary law and religious law that were present at that time. Presently, despite the abolition of Chinese customary law18, some aspects of Muslim laws continue to apply in Singapore through the Administration of Muslim Law Act19 and under the express protection in Art 152(2) and 153 of the Constitution20. The power struggle between the 2 systems could give rise to ‘forum shopping’ for individuals, resulting in inconsistencies within the legal framework.

Nonetheless, the example of competition between the secular courts and adat laws in Indonesia law illustrate that the more inclined acceptance and presence of legal pluralism has resulted in more justice done to women who were entirely denied a claim under their adat laws21. Conversely, the situation in Malaysia expressly eradicates such power struggles with the amendment of its Federal Constitution in 1988 under Art 121 (1A), denying the secular court’s right from intervening with the Religious Court’s jurisdiction22.

This sought to eliminate the ‘forum shopping’ that would be available to individuals making the actor-oriented analysis in Malaysia not so comprehensive. One has to also acknowledge that pluralism, in its highly complex analysis, is not merely confined to two contrasting normative spheres. This limits the applicability of our method of analysis since both methods fail to recognise an extra realm that may exist within one normative sphere (‘intra-sphere’ pluralism)23. For instance, the complexity in Islamic law signals ‘different manifestations of the same divine will’24 and is considered as ‘diversity within unity’25.

The primary source of law under the Qu’ran, the Sunnah that remain immutable over time whereas the Fiqh, also known as the “understanding” of the law derived from the primary sources, changes according to time and circumstances26. Therefore, we have to acknowledge that the landscape of religious law has been pluralistic in some way consisting of official, authoritative versions and local variations that may exist together and ‘may be a subject of change in its interaction with the law of national states or law of custom’27.

The above examples namely prove that nations such as Indonesia and Singapore and Malaysia recognise that in their state law, non-state laws govern a significant aspect of the life of some of their citizens. However, the proposed method of analysis fails to identify the limits of what legal pluralism is – by failing to address how the involvement of colonization has altered the other non-state systems which would have an impact of the content of customary laws.

This is consistent with the examples elaborated above where nation states have caused the codification of customary laws by legislating on it. The significance of custom, like Hindu laws, were often oral, diverse and not legislated. Although non-European centric nations being more towards legal pluralism contrary to Western nations like Australia or Canada, the fact that national legislation was employed, goes against the true nature of legal pluralism that acknowledges the diversity between the processes and norms of the system.

For in India, what is officially Hindu law is a code made by the British Colonial government28. By accepting the basic definition of legal pluralism, which does not require recognition from the state for such laws to exist29, the proposed method of analysis has gone against this fundamental principle. Despite its limitations, this mode of analysis still enables one to formulate a macro opinion of legal pluralism by functioning as a condusive framework in a general analysis of the interaction between the 2 normative spheres.