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Global Norms and National Institutions – Comparative Law in Southeast Asia

Chair: 
Dr Marina Kurkchiyan
University of Oxford
Marina.Kurkchiyan@csls.ox.ac.uk

Organisers:
Dr Petra Mahy
University of Oxford
petra.mahy@csls.ox.ac.uk

Dr Kerstin Steiner
Monash University and The University of Melbourne
Kerstin.Steiner@Monash.edu

 

Panel Abstract
This panel focuses on research on comparative law and national institutions in Southeast Asia. The theme asks for empirical research investigating how international regulatory norms are contextualised in a particular country context in Southeast Asia by national institutions. The underscoring theme is the concern to further understanding of the dynamics of legal transplants in contemporary contexts, and to expand our knowledge of the influence of regulatory regimes in Southeast Asia. Given the increasing importance of global, regional networks and institutions as well as international norms, understanding how these institutions are shaping the understanding of an international norm is essential.
While we are inviting other papers, there are currently three accepted papers that are all concerned with interrogating the spread of international regulatory norms and the complexities of their adoption and interpretation in particular country contexts in Southeast Asia. The papers are framed in different theoretical approaches ranging from legal origin to legal transplant and discourse theory. The papers span four countries in Southeast Asia; Indonesia, Malaysia, the Philippines, and Myanmar, and cover the diverse topics of company law, freedom of religion in national courts and human rights institutions.

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Paper 1: The Comparative Evolution of Company Law in Indonesia, Malaysia and the Philippines

Dr Petra Mahy
University of Oxford
petra.mahy@csls.ox.ac.uk

This paper will compare the long historical evolution of company law in three Southeast Asian countries from the time of the first transplant of company law during their respective colonial periods through to the present. All three countries were colonised by different world powers; Indonesia by the Dutch, Malaysia by the British, and the Philippines by Spain and the United States. The primary question that this paper will ask is to what extent has this difference in colonial powers and the types of legal systems that they bequeathed to their colonies determined the way that company law subsequently developed in each country. The paper will engage with the ‘Legal Origins’ theory, which argues that the legal family that a country belongs to, that is civil law or common law, will have path dependent effects on the style of business regulation in a country. It will also engage critiques of this theory which emphasise the importance of the ‘transplant effect’ in determining how laws fare in their new environment. Specifically, it will interrogate the very long periods of legal stagnation apparently experienced in Indonesia and the Philippines, but not in Malaysia.

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Paper 2: Local Courts and International Norms: Issues of Islam and Freedom Religion in the Jurisdictional Jungle of Malaysia

Dr Kerstin Steiner
Monash University and The University of Melbourne
Kerstin.Steiner@monash.edu

The paper will discuss the current hotly contested issue of freedom of religion in the Malaysian context. The analysis will be theoretically framed in discourse theory thereby allowing for a challenge to the notion that global norms have an intrinsic predetermined meaning that can be conveyed across geopolitical, cultural and temporal boundaries. At the heart of the Malaysian discourse is the assumption that both, international human rights law and Islamic law only allow for one interpretation of their respective norms. I will examine how these different understandings of norms are perceived to collide in a national setting with an ‘all or nothing approach’ advocated by different sides. This is illustrated in particular when the different epistemic communities are arguing over delineating the jurisdiction between the civil and the Syariah courts and which court is to adjudicate over matters concerning freedom of religion and apostasy. However, neither norm is self-explanatory but has been challenged from various epistemic communities numerous times. The question is therefore is whether there is not enough flexibility in the understanding of both norms to co-exist.

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Paper 3: Human Rights, Religion, and Democracy: Prospects and Challenges in Malaysia and Indonesia

Dian Shah
Duke University
dda4@duke.edu

In plural societies divided across religious and/or ethnic lines, states are confronted with significant challenges in intergroup accommodation and maintaining peace. Some states fare better than others in managing such divisions, but those that fail face serious repercussions in the enforcement of human rights, and risk inducing conflict.
This paper examines the interaction among human rights, religion, and electoral democracy in plural societies. Central to this endeavour is the attempt to solve the theoretical and empirical puzzles surrounding the gap between rights on paper and in practice. By examining contemporary cases in Malaysia and Indonesia, this paper assesses the trends, prospects, and challenges for religious freedom and interreligious relations in these countries. It focuses on three key arguments. First, while the existence of constitutional guarantees provides the normative basis for the protection and enforcement of rights, they are not always adequate. This is especially true in a context where religion and/or ethnicity are socially and politically salient. Second, the configuration of political institutions and the ability of politicians to weaken those institutions might pose substantial challenge to the protection and enforcement of rights, notwithstanding express guarantees on paper. Third, ethnic politics and electoral incentives may determine the parameters of rights and how they are enforced.
In short, this paper seeks to explain the significance of history and identity politics in rights enforcement, and to recognize the pitfalls of legally-based solutions in interreligious disputes. Therefore, despite the focus on Malaysia and Indonesia, the arguments herein may potentially apply to other similarly-situated countries in Southeast Asia.

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Paper 4: Understanding Harmonization of Competition Law & Policy and Its Role in ASEAN Economic Integration

Cenuk Widiyastrisna Sayekti
Macquarie University
cenuk.sayekti@students.mq.edu.au

The target of creating the ASEAN Economic Community and market integration in 2015 is driving legal harmonization efforts across a number of different areas of law. This is especially the case for competition law and policy because this area of law is critical to the success of an integrated market. Harmonization of laws for economic integration is commonly considered to be an effective tool and its success is reflected in the European Union (EU). The ASEAN harmonization process is occurring through the promotion of the ASEAN Competition Policy Guidelines. The Guidelines take the form of a framework aimed at assisting ASEAN member states to develop their own competition policy. This is different from EU competition policy which is based on the compulsory adoption of legislation in each member state (Article 101 to Article 105 of Treaty on the Functioning of the European Union).

This study takes an historical and cultural approach to studying competition law in the ASEAN member states and uses a methodology that looks for the essential components underlying the rules being analyzed to understand likely effects of harmonization efforts on the substance of the competition policy and law. It finds that ASEAN harmonization efforts are being based on the idea of passing similar legal rules in each state but they do not address the underlying differences in legal cultures. I argue that, in order to be effective, harmonization must take into account the fact that different cultures in the ASEAN states perceive law in very inconsistent ways. It is likely to much more difficult to successfully harmonize competition law and policy among the ASEAN nations than it has been in the EU due to the substantial legal and economic development gaps between ASEAN member states.