HISTORY

of
JUSTICE SYSTEMS

Mr. John Reggie L. Mapagdalita

Fourth Year

Ms. Leslie Ann Banaag

Professor

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 Table of Contents

Canada……………………………………………….3
Germany……………………………………………..5
Malaysia……………………………………………...7
Colombia…………………………………………….10
Cambodia……………………………………………11
New York…………………………………………….12
Spain………………………………………………….13
United States………………………………………..14
Macau…………………………………………………16
Thailand………………………………………………20
Singapore…………………………………………….22
Philippines……………………………………………23
Hong Kong……………………………………………30
Japan……………………………………………………31
China……………………………………………………33

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CANADA

The Canadian legal system emerges from two traditions: Roman law and English
common law. The New France was established in 1664 in accordance with the laws of
the English mother country. The English common law came to Canada via the English
settlers and was even partially introduced into Quebec through the Conquest (1763).
Today, civil law in Quebec is based on the Code Civil du Quebec which is derived from
the French code Napoleon; whereas in the other Canadian provinces, civil law is based
on the English common law.

The criminal law is based on the Canadian Criminal Code, submitted to Parliament and
enacted in 1892. Over the years numerous amendments and revisions have been made
and in 1955, a totally new revised Criminal Code came into force. The Criminal Code is
derived almost exclusively from the principles of English criminal jurisprudence and is
uniform across the country. Under the terms of the 1867 Constitution Act, the federal
government has exclusive jurisdiction to legislate criminal law. The Act also empowers
the provinces to pass laws but only in those areas where they have been assigned
responsibility, such as the provincially regulated Highway Traffic Act and Liquor Control
Act.

The Constitution is a set of rules that govern the ways Canadian laws are made and
administered. It is the supreme law of Canada; even Parliament and the Legislatures
are bound by its provisions. Laws inconsistent with the Constitution are legally invalid.
The courts are responsible for deciding whether certain laws are inconsistent. The
courts interpret the Constitution and decide how its provisions apply to particular
circumstances, which they have done since the time of Confederation in 1887. The
Constitution, at that time called the British North American (BNA) Act, set limits on the
powers of Parliament and the Legislatures, and established other governing
requirements.

In April, 1982, a new dimension was added to the Constitution. The Canadian Charter of
Rights and Freedoms became Part I of the Constitution Act. For the first time in
Canada, the supreme law included guarantees of certain rights and freedoms which,

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subject to certain limitations, had to be observed by all who made or administered the
law. The courts now had to decide whether legislation or actions by officials offended
any of the rights and freedoms guaranteed in the Charter and in the old BNA Act.

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GERMANY

The Federal Republic of Germany was founded on May 23, 1949 with the declaration of
the Constitution. Germany remained divided into eastern and western sectors under
allied control until it regained total sovereignty with unification on October 3, 1990.

The basis for Germany's modern day statutory law is the "Penal Code for the German
Empire" codified in 1871. 3 Prior to the establishment of the German Empire in 1871,
each German state had its own penal code. The 1871 penal code was influenced by the
French Penal Code of 1810, the Bavarian Penal Code of 1813 as well as the Prussian
Penal Code of 1851. Retribution was the dominant philosophy and heavy emphasis was
placed upon prevention through punishment. Satisfaction with the penal code was
short-lived and as early as 1882 F. v. Liszt in his "Marburg Programme" called for
reform of criminal sanctions with an emphasis on prevention through special deterrence
which emphasizes deterring the offender, not the offense.

While the Penal Code of 1871 remained relatively intact for over I00 years, it did
undergo substantial modifications and reforms such as the registering of served
sentences (1920), the creation of a special juvenile criminal law (1923), and the
introduction of fines to suppress short-term prison sentences (1921-1924).

The Nazi era introduced sweeping and harsh reforms with an emphasis upon general
deterrence through extreme severity (the death penalty). These reforms left the basic
penal code intact but introduced punishment on order of the FDhrer.

After the war and during the time that Germany remained divided into allied sectors, the
new Federal Republic of Germany, created in 1949, began the task of overhauling the
legal system. A serious attempt was made by the "Grand Criminal Law Commission"
whose membership consisted of legal scholars, practitioners and politicians. They
created a reform draft, "Draft of a Penal Code," in 1962 which failed to secure adoption
by the Federal Assembly because of its weakness in formulating a criminal policy with
regard to the sanctioning system. The major failure lay in its emphasis on punishment
and retribution and its conservative view and rigidity on sexual mores.

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This failed attempt to pass a penal code by the Federal Assembly led to the creation of
a second reform group, the Special Committee on Criminal Law Reform, comprised of
German and Swiss legal scholars and criminologists. This more successful attempt,
presented as the "Alternative Draft of a Penal Code", recommended restricting the
application of criminal law to socially harmful conduct and emphasized restructuring the
sanction system to fit the philosophy of rehabilitation. Legal reforms introduced the
notion that general deterrence could never be used as a philosophical basis for
individual punishment.

Significant legislation introduced reform in partial steps, the main elements contained in
five Criminal Law Reform Acts beginning in 1969. The Criminal Law Reform Acts
emphasized restructuring the sanctions to make them more conducive to the rationale
of rehabilitation. Certain acts were decriminalized and others replaced with a more
practical working definition. A second major reform was the permanent restriction on
short-term prison sentences and the introduction of the fine. Additionally, changes were
introduced in the general law as well as in the alternative sanctions which could be
applied. Due to societal change and emphasis upon certain acts, the German
government also passed legislation concerning environmental and economic crimes,
hostage-taking and aircraft hijacking.

One last significant piece of legislation was the Act on the Treaty of 31 August 1990
between the Federal Republic of Germany and the German Democratic Republic on the
Establishment of German Unity. The Unification Treaty Act of August 31, 1990
(Einigungsvertragsgesetz) replaced, in large part, the laws of the former German
Democratic Republic with those of the Federal Republic of Germany. Limited
exceptions, however, allowed laws from the former East German penal code to exist in
the former eastern states.

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MALAYSIA

The legal history of Malaysia begins with the acquisition of Penang in 1786 and with the
introduction of the Charters of Justice in 1807, 1826 and 1855.

The Federation of Malaya received her independence from the British in 1957. On
September 16, 1963, the eleven states of the Federation of Malaya, the former colonies
of Sarawak and Sabah on the western coast of Borneo and the State of Singapore
united to form the Federation of Malaysia. In August 1965, however, Singapore seceded
from this newly-formed federation to become an independent republic. Malaysia, as it is
known today, consists of the eleven peninsular states that constituted of Malaya (this is
referred to as peninsular Malaysia), Sabah and Sarawak.

The reception of English law slowly evolved and developed during the British
colonization. However, the reception of English law only became statutory after the
promulgation of the Civil Law Enactment of 1937. There are three segments of periods
of which modern Malaysian laws were made. Pre-war law was made during the
decentralization of Malay states (1866 to 1942). The Malay states at that time were
divided into three groups of states. There were the Straits Settlement (SS) group of
states comprising of Penang, Malacca and Singapore, the Federated Malay States
(FMS) group of states comprising of Perak, Selangor, Negeri Sembilan and Pahang and
the Unfederated Malay States (UMS) group of states comprising of Johor, Kedah,
Perlis, Terengganu and Kelantan.

Post-war law was made after the unification of all the Malay states except Singapore
under a federal administration (1946 to 1957) and Post-independence law was made
after the formation of the Federation of Malaya and Malaysia (1957and 1963). Prior to
the independence in 1957, most of the laws of United Kingdom were adopted and either

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made into local legislations or simply applied as case laws. The application of English
law or common law is specified in the Civil Law Act 1956 as stated in Sections 3 and 5
of the said Act which allows for the application of English common law, equity rules, and
statutes in Malaysian civil cases where no specific laws have been made. Similarly, in
the context of civil law, Section 5 of the Criminal Procedure Code also states that
English law shall be applied in cases where no specific legislation has been enacted.

Malaysian law is also modeled on other jurisdictions’ laws such as Australia and India.
The Malaysian Criminal Procedure Code was based on the Indian criminal code.
Similarly, the labour law and the Contracts Act are also based on the Indian model.
Malaysian land law is based on the Australian Torrens system. There are a number of
laws made during the colonization still in existence and applicable with certain
modifications in line with domestic and current circumstances.

An understanding of the basic arrangement of the current Malaysian legal system and
the concept of separation of (law-making) powers will assist you in understanding how
Malaysian legal resources are organized and found. Although the Malaysian legal
system is predominantly based on English common law, there are also other secondary
legal systems concurrently affecting certain sections of the law, such as Islamic law and
customary law. Therefore, it is also important for researchers to note to which
jurisdiction and group of people that the law was designated for and whether the laws
are still in force.

The legal system of Malaysia was modeled after the English legal system which
practices parliamentary democracy and is ruled by a Constitutional Monarchy, with His
Majesty the Yang di-Pertuan Agong (the King) ceremonially as the Head of the country.
The Yang di-Pertuan Agong is elected by the Conference of Rulers for a five-year term
from amongst the hereditary Rulers of the nine states in the Federation which are ruled

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by Sultans. The states are Perlis, Kedah, Perak, Selangor, Negeri Sembilan, Johor,
Pahang, Terengganu and Kelantan. In the other states, namely Melaka, Pulau Pinang,
Sabah and Sarawak, the Head of State is the Yang di-Pertua Negeri or Governor of the
State. The Yang di-Pertua Negeri is appointed by the Yang di-Pertuan Agong for a four-
year term.

The Federal Constitution of Malaysia clearly divides the law-making authority of the
Federation into its legislative authority, judicial authority and executive authority. The
separation of power also occurs both at federal and state levels. The federal laws
enacted by the federal assembly or better known as the Parliament of Malaysia applies
throughout the country. There are also state laws governing local governments and
Islamic law enacted by the state legislative assembly which applies in the particular
state.

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COLOMBIA

The U.S. Constitution has influenced the organization of the Colombian government,
and the U.S. court system has been regarded as an inspirational model for organizing
the courts, especially that of the Supreme Court. The irony, however, lies in the fact that
while the institution was literally copied, it was accomplished with neither genuine
understanding nor practical insight of the Supreme Court's function in U.S. government.
Rather, the manner in which the model was adapted to fit the Colombian socio-political
values resulted in implementation of a very different interpretation of the function of the
Supreme Court and the lower courts.

The 1991 constitution extensively revised the judicial system. It established an

independent prosecution system and a national people's defender office to investigate
human rights cases. Traditional courts on Indian reservations were validated. A
Constitutional Court reviews the constitutionality of proposed legislation.

The judiciary is independent both in theory and in practice from the executive and
legislative branches. In 1991, the government set up five regional jurisdictions to handle
narcotics, terrorism, and police corruption cases in which anonymous judges and
prosecutors handle the major trials of narcotics terrorists. The government implemented
significant reforms to the system of regional jurisdiction in 1999.

The procedures in the new regional courts have raised concerns over defendants'
rights. In 1993, the constitutional court invalidated provisions of the regional court law
under which detainees could be held without right to bail.

Criminal defendants have a right to an attorney, although indigents have difficulties in

obtaining effective counsel. In some cases, inability to post bail and backlogs in
processing result in the accused serving the applicable sentence for the crime charged
before the case goes to trial.

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CAMBODIA

The Cambodian legal system is based largely on the French civil system, and is statute
based. The Constitution is the Supreme Law. The legal system has evolved from
unwritten customary law, prevalent during Angkorian times, to statutory law, under the
French colonization from 1863 to 1953 and up until 1975. Under the Khmer Rouge, from
1975 to 1979, the entire Cambodian legal system was destroyed. After the invasion of
Cambodia by Vietnam in 1979, the Cambodian legal framework was influenced by the
Vietnamese system - in particular, contract law. During the presence of the United
Nations Transitional Authority in Cambodia (UNTAC) from 1991 to 1993, a number of
laws were enacted - including criminal law, judicial law, and press law. As a result of
foreign legal assistance to legal and judicial reform in the country, the Cambodian
system also absorbed some common law features. The current legal system is thus a
hybrid system of all these influences.

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NEW YORK

The Court of Special Sessions was created in 1744, from a court created in 1732. (The
New York County Court of General Sessions tried felonies as a county court, whereas
Bronx, Kings, Queens, and Richmond counties had a regular County Court. On 17
October 1683 the Court of General Sessions was established as a county court. On 1
January 1896, all courts of sessions outside New York County were abolished and their
jurisdiction transferred to the County Court.) The New York City Court of Special
Sessions tried misdemeanors like other cities' police courts, and the New York City
Magistrates' Courts tried petty criminal cases.

In the early 1950s it was reported that the New York State Crime Commission was
investigating bribery (kickbacks) in the courts and implicated the political parties' judicial
nominating conventions, and in 1953 Governor Tom Dewey publicly called for reform.[90]
[91][92]
 The Criminal Court was established effective 1 September 1962 by the New York
City Criminal Court Act of the 173rd New York State Legislature and Governor Nelson
Rockefeller, replacing the City Magistrates' Courts and the Court of Special Sessions.
(The work and personnel of the New York County Court of General Sessions, and the
County Court in Bronx, Kings, Queens, and Richmond counties, were transferred to
the Supreme Court.)

In 1969–1970, extrajudicial administrative courts were created to offload a large volume

of cases from the Criminal Court: the state DMV Traffic Violations Bureau (TVB), which
adjudicates non-parking traffic violations, and the city DOF Parking Violations Bureau,
which adjudicates parking violations

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SPAIN

The Spanish penal system was developed during the Middle Ages from local
adaptations of its original Germanic heritage. In the 18th century, it was subjected to the
influence of the rationalist thinkers who asked for the adoption of systematic rules which
resulted, during the era of the French Revolution, in requests for the adoption of Penal a

The famous book, Dei delitti e delle pene by Beccaria, first appeared in 1764 and was
translated into Spanish some ten years later. Although the book was opposed by some
conservative authors at the time, it led to an enthusiastic movement culminating in the
proposal to adopt a Penal Code. nd Criminal Procedural Codes.

In 1812, the Spanish patriots who, during the Napoleonic invasion (1808-1813) had
taken shelter in Cadiz in the south of Spain, adopted Spain's first political Constitution.
This liberal Constitution also included a proposal for the creation of a Penal Code, but
the reestablishment of the absolutist King Ferdinand VII on the Spanish throne (1814)
prevented the adoption of the Code. In fact, even the progressive 1812 Constitution was
repealed. A liberal upheaval in 1820 led to the adoption of the first Spanish Penal Code
in 1822. The Code was in force for only one year, after which the monarch resumed
absolute rule.

In 1848, in a more moderate political situation, a new Penal Code was adopted, and
since then, a Penal Code has always existed and been applied, with some interruptions
during times of military rule. A Penal Procedural Code was adopted in 1881 and is still
in force as of 1993. A draft of a new Penal Code, whose structure differed greatly from
the existing Penal Code, was being studied by the Legislature in 1993.

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UNITED STATES

The Criminal Justice system in the United States date back to colonial days when the
citizens were subject to the laws and rules of the British. Many times the laws and
subsequent punishment were not always fair and just.

However, at the end of the 17th Century, William Penn began to promote reform in the
Criminal Justice system and helped to see these changes implemented. After the
American Revolution, the U.S. Constitution was created which guaranteed freedoms
and rights that were never in place in colonial days. This was the starting point to setting
guidelines for crimes, punishment and procedures that need to be followed to protect
the rights of the innocent.

When early colonists first came to America, they did not include trained lawyers or other
law-knowledgeable persons. Many parts of the criminal justice system in colonial
America were similar to those in England, France, and the Dutch Republic. Gradually
French and Dutch influences disappeared in the islands. What remained was the basic
idea many had of the English common law system.

This system was the best-known to seventeenth-century colonists. The common

law system included a set of rules that were used to solve problems in society. It was
based on the history of decisions previous judges had made instead of lawmaking
codes or laws. This system made a distinction between two basic types of
crimes: felonies and misdemeanors. The legal process, mostly for more serious crimes,
involved a grand jury, composed of members of the community, which decided whether
there was enough evidence for prosecution. However, in these proceedings no district
attorneys or public prosecutors were available. The victim of the crime was responsible
for instigating the prosecution and financing it. It was these fundamental principles that
stuck with the colonists and were used selectively to create a new and unique criminal
justice system.

Many factors influenced the colonists’ selection process by which they constructed their
approach to criminal justice. As previously mentioned, there were no professional legal

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experts and few law resources available. This left a lot of room for creativity and
mistakes. The colonists were largely left to their own devices concerning the details of
their developing criminal justice system. The new environment the colonists
encountered in the New World, especially the western frontier, also affected the way the
law was shaped. The system was molded to fit the colonists’ needs as they settled
further and further west. Vigilantism was an inevitable byproduct of the faults of the
development of justice in America. Religion, especially early on in the colonial period,
exerted a strong influence on law making. Legal codes, such as the 1648 Book of the
General Laws and Liberties of the Massachusetts Bay Colony, contained very strong
biblical references, more so than did the ones in England. Although this religious impact
was felt most strongly in Puritan colonies, similar ideas were evident among other
colonists as well. Many colonial makeshift criminal codes considered lying, idleness,
drunkenness, certain sexual offenses, and even bad behavior to be crimes. These
moralistic crimes stemmed from the relation of crime to sin and sin to crime. Adding to
the religious factor, the colonists held individual liberty in high regard. This later
influenced more contemporary criminal codes.

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MACAU

The legal system of the Macao Special Administrative Region (MSAR) is founded on the
rule of law and judicial independence. Under the principle of “One country, two
systems”, the legal system of the MSAR remains unchanged, belonging to the Romano
Germanic family of law. The Basic Law of the MSAR of the People's Republic of China
(PRC) is the constitutional document for the MSAR, adopted by the National People’s
Congress (NPC) in accordance with the Constitution of PRC. The Basic Law sets a
foundation for all systems and policies implemented in the MSAR including its social
system and economic system, the safeguard of the rights and freedoms of the
residents, its executive, legislative and judicial power, and the relevant policies.

Laws of the MSAR The laws presently in force in the MSAR include: the Basic Law;
national laws listed in Annex III to the Basic Law; laws that were in effect before 20
December 1999 and which have been retained as laws of the MSAR by the Standing
Committee of the NPC; and laws enacted by the legislature of the MSAR.The Criminal
Code, Criminal Procedural Code, Civil Code, Civil Procedural Code and Commercial
Code, collectively known as the “Five Codes”, form the authoritative framework of the
MSAR’s legal system. National laws shall not be applied in the MSAR, except those
listed in Annex III to the Basic Law. Laws listed in Annex III shall be applied locally by
way of promulgation or legislation by the MSAR. Currently, 12 national laws apply in the
MSAR.

The Standing Committee of the NPC may add to or delete from the list of laws in Annex
III after consulting its Committee for the Basic Law and the Government of the MSAR.
Only those laws relating to defence, foreign affairs and other matters outside the limits
of the Region’s autonomy as specified in the Basic Law are to be listed in Annex III to
the Basic Law.

The Basic Law safeguards the fundamental rights of the people of Macao. These
include the freedoms of speech, of the press and of publication, of association, of
religion, of assembly and demonstration, the right to organize and join trade unions and
to strike, freedom to travel, and freedom to enter and leave the Region. Provisions

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applicable to Macao in the International Covenant on Civil and Political Rights (ICCPR),
the International Covenant on Economic, Social and Cultural Rights (ICESCR) and a
number of international labor conventions also remain in force.

The MSAR continues to comply with the main international conventions on human
rights, including the ICCPR, the ICESCR, the International Convention on the
Elimination of All Forms of Racial Discrimination, the Convention Against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment, the Convention on the
Rights of the Child, the Convention on the Elimination of All Forms of Discrimination
Against Women and the Convention on the Rights of Persons with Disabilities.

The Basic Law gives the MSAR independent judicial power, including the power of final
adjudication. The courts of MSAR exercise judicial power independently and are
subordinated to nothing but the law. The structure, powers and functions of the courts
are established by law. The Lower Court can form specialized tribunals, as required.
The Examining Magistracy has been retained by the MSAR Government. As to the
current judiciary structure, it comprises three layers: the Court of First Instance (Primary
Court), the Court of Second Instance (Intermediate Court) and the Court of Final
Appeal. There are two courts in the Court of First Instance: the Lower Court, with
general jurisdiction, and the Administrative Court, with jurisdiction over administrative,
tax and customs cases. The Lower Court comprises the following sections with subject
matter jurisdiction: Civil Sections (3), Criminal Sections (5), Criminal Investigation
Sections (2), Small Claims Section (1), Labor Section (1), and Family and Minors
Section (1). The Court of Second Instance has general appellate jurisdiction and the
Court of Final Appeal is vested with the power of final adjudication. The MSAR courts
have no jurisdiction over acts of State, namely national defense and foreign affairs. The
judges of the courts of the MSAR at all levels are appointed by the Chief Executive, on
the recommendation of an independent commission composed of local judges, lawyers
and eminent persons. Judges are chosen on the basis of their professional
qualifications. Qualified judges of foreign nationality may also be employed. Hence,
some Portuguese judges have continued to serve the MSAR. The Presidents of the

17
courts of MSAR at all levels are appointed by the Chief Executive from amongst the
judges of the courts. The President of the Court of Final Appeal must be a Chinese
citizen who is a permanent resident of the MSAR. The Public Prosecutions Office of
MSAR exercises its functions as vested by law independently and free from any
interference. The Public Prosecutor-General is nominated by the Chief Executive and
appointed by the Central People’s Government and must be a Chinese citizen who is a
permanent resident of MSAR. Public Prosecutors are nominated by the Public
Prosecutor-General and appointed by the Chief Executive. The structure, powers and
operation of the Public Prosecutions Office are prescribed by law.

The Judicial System

The Basic Law gives the MSAR independent judicial power, including the power of final
adjudication. The courts of MSAR exercise judicial power independently and are
subordinated to nothing but the law. The structure, powers and functions of the courts
are established by law. The Lower Court can form specialised tribunals, as required.
The Examining Magistracy has been retained by the MSAR Government. As to the
current judiciary structure, it comprises three layers: the Court of First Instance (Primary
Court), the Court of Second Instance (Intermediate Court) and the Court of Final
Appeal. There are two courts in the Court of First Instance: the Lower Court, with
general jurisdiction, and the Administrative Court, with jurisdiction over administrative,
tax and customs cases. The Lower Court comprises the following sections with
subjectmatter jurisdiction: Civil Sections (3), Criminal Sections (5), Criminal
Investigation Sections (2), Small Claims Section (1), Labour Section (1), and Family and
Minors Section (1). The Court of Second Instance has general appellate jurisdiction and
the Court of Final Appeal is vested with the power of final adjudication. The MSAR
courts have no jurisdiction over acts of State, namely national defence and foreign
affairs. The judges of the courts of the MSAR at all levels are appointed by the Chief
Executive, on the recommendation of an independent commission composed of local
judges, lawyers and eminent persons. Judges are chosen on the basis of their
professional qualifications. Qualified judges of foreign nationality may also be employed.
Hence, some Portuguese judges have continued to serve the MSAR. The Presidents of

18
the courts of MSAR at all levels are appointed by the Chief Executive from amongst the
judges of the courts. The President of the Court of Final Appeal must be a Chinese
citizen who is a permanent resident of the MSAR. The Public Prosecutions Office of
MSAR exercises its functions as vested by law independently and free from any
interference. The Public Prosecutor-General is nominated by the Chief Executive and
appointed by the Central People’s Government and must be a Chinese citizen who is a
permanent resident of MSAR. Public Prosecutors are nominated by the Public
Prosecutor-General and appointed by the Chief Executive. The structure, powers and
operation of the Public Prosecutions Office are prescribed by law.

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THAILAND

The history of the Thai legal system and the judiciary can be dated back as far as the
Sukhothai period (A.D. 1238 - 1350) where the King was the “Fountain of Justice”
whohimself adjudicated the disputes between his citizens. During the Ayutthaya period
(A.D. 1350 - 1767), the Thai legal system developed and was crystalized in a form
which was to last until the close of the nineteenth century. The Dhammasattham derived
from the ancient Hindu jurisprudence was established as the law code of the realm and
formed part of the Thai national heritage. It was a fundamental law of individual liberty
and private rights dealing with both civil and criminal matters. The concept of royal
justice administered during the Sukhothai was also carried through the Ayutthaya. The
reign of King Taksin the Great during A.D. 1767 - 1782 had little development in the
legal field since the country was beset with series of battles. Later at the beginning of
the Chakri Dynasty in 1782, the laws derived from the Ayutthaya period were revised
and completed in 1805 resulting in the written form of law called “THE LAW OF THREE
SEALS.”

It had been the authority of the land until the reign of King Rama V, when a reform of
the legal and court system was introduced together with an open door policy of trading
with foreign nations.

Later in 1892, the Ministry of Justice was established and brought about the
centralization of all Courts of Justice. Meanwhile, the first law code was promulgated in
1908 on criminal law. The foundering father of modern Thai law was Prince Rabi of
Ratchaburi who played a leading role in introducing a modern system of judicial
administration. The drafting of the Civil and Commercial Code was started in the reign
of King Rama V and was completed during the reign of King Rama VII.

The Revolution of 1932 had an important effect on the Thai legal and judiciary system
since it changed the form of government from an absolute monarchy to a constitutional
monarchy. The Constitution vested the judiciary power with the Courts. Judges perform
their duties in the name of the King and are assured of independence in adjudicating
cases according to the law. The Constitution is the supreme law of the land that

20
establishes the powers, functions and duties as well as the structure of the Executive,
the Legislative and the Judiciary. The Constitution of the Kingdom of Thailand,B.E. 2540
has had a substantial impact on the reorganization of the political system as well as the
judicial system in Thailand. The types of courts recognized under the 1997 Constitution
and also the present 2007 Consititution are the Constitutional Court, the Courts of
Justice, the Administrative Courts and the Military Court. The Constitutional Court and
the Administrative Court were established as a result of the provisions of such
constitution. Although this change decreases the scope of the jurisdiction of the Courts
of Justice, most cases fall under the jurisdiction of the Courts of Justice

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SINGAPORE

The country was founded in 1819 by Sir Thomas Stampford Raffles for the British East
India Company. At that time, it was a 263 square mile island with 150 residents. Raffles
set up a police force to maintain English Law with a sergeant and 12 constables. By
1961, the force had grown to 440 men.

For the first 25 years after the English East India Company acquired Singapore, legal
chaos prevailed. The company's officers administered justice according to the dictates
of their consciences, administering Malay and Chinese law to the locals but exerting no
control over European and British subjects.

In 1826 the English East India Company granted a Second Charter to serve Singapore,
Penang, and Malacca. During this period, the Singapore courts modeled the English
legal system. As Singapore developed into an international port, piracy problems
developed. Consequently, marine patrols were introduced which are still a part of the
Singapore Police Force today. The introduction of motor cars brought about additional
changes in the police force. Specialized units were introduced as new problems
emerged. The establishment of an internal security branch in 1919, a marine branch in
1919, and a traffic branch in 1936 attest to the flexibility of the police department in
adjusting to new situations.

The Singapore police force was destroyed after World War II. After the war, in 1945, the
British helped to rebuild the force. For the first time, Asians became officers and a
women's unit was established. In 1963, Singapore joined with the Federation of Malay
to form Malaysia. Singapore then gained independence in 1965. In 1969, the police
force of the Republic of Singapore replaced its Khaki uniforms with blue uniforms, thus
shedding its last vestiges of colonialism.

Although Singapore's legal system borrowed heavily from the English law, it has, to a
lesser extent, also retained legal influences from other sources. For instance, the
Singapore Penal Code and Criminal Procedure Code were borrowed primarily from
India in the 19th century.

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PHILIPPINES

Pre-Colonial Justice

Human settlements had existed in the archipelago well before the arrival of the first
Spanish conquistador. Early settlers came from the south via Borneo and Indonesia and
from the north from southern China and Taiwan. Most of them lived by or close to water
and traded with the Chinese, the Cambodians, and the Champans (Francia, 2010).
These pre-colonial societies were based on kinship and were stratified into three
groups: the ruling elite, their peers and followers, and the slaves (Francia, 2010).
A datu, whose authority rested primarily on his physical prowess, wisdom, inheritance,
or wealth, ruled the smallest political-social unit known as barangay. Each barangay
existed autonomously and a centralized government did not exist (Francia, 2010).

Assisted by the elders of the barangay, the datu legislated laws and acted as judge. All
trials were held in public and litigants pleaded their own case. At times, the datu would
hold trial by ordeal to resolve doubts. People believed that the gods would protect the
innocent and punish the guilty and that the result of the ordeals was a revelation of the
divine truth (Agoncillo, 1994). Murder, adultery, theft, and insulting a woman were
considered great offenses and were punished by enslaving the offender (Blair &
Robertson, 1904). If the value stolen was great, the offender and his relatives were all
fined. Failure to pay the fine resulted in the enslavement of all member of the family
(Blair & Robertson, 1904).

Toward the end of the 14th century, Muslim missionaries reached the southern islands
of Mindanao and converted the natives. This resulted in the creation of alliances that
helped in thwarting the subsequent efforts to colonize southern Philippines (Abuza,
2003). Islam would have spread northward were it not for the arrival of
European conquistadores beginning in the 16th century (Francia, 2010)

Justice under God

On March 16, 1521, Ferdinand Magellan reached the central Visayan region of the
archipelago. His discovery of the islands led to a series of Spanish expeditions that

23
culminated in Miguel Lopez de Legazpi’s conquest of Manila in 1565. Thus began the
333 years of Spanish colonial rule that drastically changed in the islanders’ way of life.
Under the guise of spreading Christianity and saving the natives from eternal
damnation, the colonial government dissolved the barangays and forced everyone to
live in pueblos. Newly Christianized Indios – the derogatory term used by the Spanish to
refer to the natives – were placed under the watchful eyes of the clerics and were
required to pay tributes to the new sovereign.

As in all Spanish colonies, the new order extended Spanish laws to Philippines. These
included the Codigo Penal (Penal Code), Ley de Enjuiciamiento Criminal (Code of
Criminal Procedure), Codigo Civil (Civil Code), Ley de Enjuiciamiento Civil (Code of
Civil Procedure), and Codigo de Comercio (Code of Commerce). A court system that
consisted of superior and inferior courts was likewise established. The Guardia
Civil (Civil Guards) performed law enforcement functions. Individuals who were
convicted of serious offenses such as murder and treason are executed either by firing
squad or garrotte.

The oppression and injustices suffered by Filipinos at the hands of the friars and civil
administrators caused massive unrest and sparked the quest for independence.
Sporadic uprisings broke out and crescendoed to the 1896 Philippine Revolution. By
mid-1898, the revolutionary forces had gained control of most of the provinces. On June
12 of that year, the leader of the revolutionary forces, General Emilio Aguinaldo,
declared independence from Spain. Their jubilation would be cut short, however, by the
eruption of the Spanish-American War.

The explosion of the USS Maine in Havana, Cuba, precipitated the hostilities between
Spain and the United States. Spain would lose the short-lived war and, under the Treaty
of Paris, cede control of the Philippines to the United States. The newly established
Philippine republic under General Aguinaldo, who had been led to believe that the
United States would not claim the colony for itself, refused to recognize the treaty. A
fierce and bloody war soon broke out between the Philippines and the United States.

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The war officially ended on July 4, 1902 with the United States as the victor. This
ushered in the American colonial rule that was trumpeted as a noble endeavor to
educate, uplift, and civilize the Filipinos (Rusling, 1987). Like the Spanish, the
Americans indoctrinated Filipinos on the superiority of their values and practices. Unlike
the Spanish, they encouraged Filipinos to learn their language through a system of
mass education. This approach changed the cultural landscape of the Philippines and
impacted every aspect of life on the islands.

The American colonial government enacted several laws to eradicate the vestiges of
Spanish rule, including new codes of criminal and civil procedure. It established a new
judicial system modeled after the judicial system of the United States. The United States
president was given the power to appoint the justices of the Philippine Supreme Court.
The United States Supreme Court was also given the power to review the decision of
the Philippine Supreme Court in certain cases.In 1901, the colonial government formed
a national police force. A year later, it extended the Bill of Rights of the United States
Constitution to the archipelago. The use of firing squad or garrotte as method of
execution for capital offenses was replaced by the use of electric chair in 1926.

In 1934, the Tydings-McDuffie Act of the United States authorized the creation of the
Commonwealth of the Philippines, a transitional administration that would prepare the
islands for eventual independence. Pursuant to this law, the 1935 Philippine
Constitution was drafted and ratified. The Japanese occupation of the Philippine during
World War II would force the Commonwealth government to go into exile.

On July 4, 1946, about 10 months after Japan’s formal surrender, the Commonwealth
government was dissolved and the Philippines became an independent republic. This
officially ended the American colonial period.

Public Policy of Crime and Criminal Justice

Despite its dalliance with martial rule from 1972 to 1986, the Philippines remains a
democratic and republican state with a unitary and presidential form of government. The
current Philippine Constitution, which took effect on February 2, 1987, distributes
government powers among the executive, legislative, and judicial branches. The

25
president, who is elected by a direct popular vote and serves for six years, heads the
executive branch. He acts as the head of state and the head of government and
exercises control over all executive departments, bureaus, and offices. The legislative
branch consists of the Senate, which has 24 senators elected at large, and the House of
Representatives, which has 289 representatives elected from legislative districts and
through a party-list system. The two chambers exercise legislative power except to the
extent reserved to the people by the provision on initiative and referendum. Judicial
power is vested in the Supreme Court, which is made up of a chief justice and 14
associate justices, and in such lower courts as may be established by law. This power
includes the duty to settle actual controversies involving rights that are legally
demandable and enforceable, and to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch
or instrumentality of the government.

The country consists of 17 administrative regions. Each region is subdivided into

provinces, cities and municipalities, and barangays. These political subdivisions
exercise local autonomy within their respective territorial jurisdictions.

Philippine criminal law is largely based on the Spanish Penal Code. The classification of
crimes and imposable penalties in the Revised Penal Code of the Philippines (Act No.
3815) mirrors the strong influence of civil law tradition. The code combines classical and
positivist criminological philosophy, which results in the mixed goals of retribution,
deterrence, rehabilitation, and reintegration.

Under Philippine law, there are three classifications of crimes: felony, offense, and
misdemeanor. Felony refers to a violation of the Revised Penal Code. Offense is a
crime punishable under a special law. Misdemeanor pertains to minor infraction, such
as violation of an ordinance. 

At present, steps have been taken to update the criminal law of the Philippines. A new
criminal code has been drafted and proposed in Congress. Among others, the proposed
code simplifies the classification of crimes and imposable penalties, and eliminates
Spanish terms that are still used in the Revised Penal Code. It also incorporates

26
contemporary criminological thinking and addresses issues brought about by advances
in technology.

Law Enforcement

From the Guardia Civil and the Insular Constabulary of the Spanish and American
colonial governments, the Philippine police system has gone through several
transformations. The Insular Constabulary became the Philippine Constabulary in 1901.
It 1950, it joined the Armed Forces of the Philippines (AFP) but maintained its function
as a national police force. It dealt primarily with insurrections, mass disturbances, and
large-scale banditries. While its constables were not trained in crime detection, traffic
control, and other aspects of police work, it exercised supervision of local police forces
throughout the country. The local government units (provinces, cities, and
municipalities) maintained their respective local police departments.

In 1936, the Commonwealth government created the Division of Investigation (DI) under
the Department of Justice (DOJ). Commonwealth President Manuel Quezon and
Justice Secretary Jose Yulo wanted a law enforcement agency modeled after the
Federal Bureau of Investigation (FBI) of the United States so American consultants
were hired to organize the unit. The DI focused on investigation of national crimes and
serious local crimes that local police could not solve. After the Japanese occupation, it
was reorganized and renamed the Bureau of Investigation (BI). In 1947, Executive
Order No. 94 changed its name to the National Bureau of Investigation (NBI).

When President Ferdinand Marcos declared martial law on September 21, 1972, he
placed the entire country under an authoritarian military rule. He reorganized the
national police by merging the PC and the local police forces into one Philippine
Constabulary/Integrated National Police (PC/INP). The organization gained notoriety for
its widespread corruption and human rights violations.

When a popular revolution toppled the Marcos regime in 1986, a new Philippine
Constitution was promulgated providing for a police force that is national in scope and
civilian in character. Thus, Congress abolished the PC/INP in 1991 and formed the
Philippine National Police (PNP) under the Department of Interior and Local

27
Government (DILG). Members of the PC/INP were retained by the PNP and select
members of the major service units of the Armed Forces of the Philippines (AFP) were
likewise absorbed. Because of this, the leadership of what was intended to be a civilian
police organization has retained its militaristic orientation. The last graduates of the
Philippine Military Academy (PMA) who are currently serving in the PNP are expected
to retire in 2026. 

In 2002, Republic Act No. 9165 created the Philippine Drug Enforcement Agency
(PDEA) to serve as the lead anti-drugs law enforcement agency. The agency was
patterned after the United States Drug Enforcement Administration (DEA).

Upon conclusion of police investigation, public prosecutors from the National

Prosecution Service (NPS) conduct additional investigation of criminal complaints.
When probable cause is found, formal charges are filed before the appropriate court.
The NPS is under the Department of Justice (DOJ). It consists of the Prosecution Staff
in the Office of the Secretary of Justice, the Regional State Prosecution Offices, the
Provincial Prosecution Offices, and the City Prosecution Offices.

All criminal actions are prosecuted under the direction and control of public prosecutors.
However, it is not unusual to see lawyers for the victims participating in the proceeding
as private prosecutors. 

 Punishment and Corrections

At present, there is no capital punishment in the Philippines. The death penalty was
abolished in 2006 in response to the strong lobbying by the local Roman Catholic
Church leaders. This is the second time that capital punishment was abolished in the
country. It was first abolished in 1986 by the Aquino administration. The succeeding
Ramos administration reinstated it in 1993. With the re-abolition, individuals who are
convicted of the most serious offenses, such as treason, murder, and rape with
homicide, are sentenced to life imprisonment or reclusion perpetua (i.e. imprisonment
for 20 years and one day to 40 years).

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Three departments of the national government under the executive branch manage the
Philippine corrections system. The Department of Justice (DOJ), through its Bureau of
Corrections (BuCor), supervises seven national prison facilities. Its Parole and
Probation Administration (PPA) administers the parole and probation system, while its
Board of Pardons and Parole (BPP) assists the president in the grant of executive
clemency. The Department of Interior and Local Government (DILG) supervises
provincial, city, and municipal jails through its Bureau of Jail and Management Penology
(BJMP). The Department of Social Welfare and Development (DSWD) supervises the
regional rehabilitation centers for juvenile offenders through its Bureau of Child and
Youth Welfare (BCYW).

Offenders who receive sentences exceeding three years of imprisonment are committed
to national prisons. Those who received shorter sentences are committed to provincial,
city, and municipal jails.

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HONG KONG

Hong Kong is best described as a city/state comprising only 275 square miles in area. It
was first founded in 1842, when as part of the settlement imposed on China after Great
Britain's victory in the First Opium War (the Treaty of Nanjing), Hong Kong Island was
ceded to Britain in perpetuity. A similar fate befell China in 1860 when it was forced to
cede the Kowloon Peninsula after its defeat in the Second Opium War. Finally, in 1898
after China's defeat by Japan, Britain was granted a 99 year lease on the New
Territories. This lease will expire in 1997 and in accordance with the Sino/British Joint
Declaration of 1984, all of Hong Kong will be returned to the People's Republic of China
(PRC), thereafter becoming a Chinese Special Administrative Region (SAR).

The Joint Declaration and Basic Law, which comprise the constitutional framework for
Hong Kong post-1997, provides for a one country/two systems approach. The terms of
the arrangement allow for the maintenance of the current systems of government and
justice for a period of at least 50 years following the end of the lease.

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JAPAN

Until the Meiji Restoration in 1868, the Japanese criminal justice system was controlled mainly
by daimyōs. Public officials, not laws, guided and constrained people to conform to moral
norms. In accordance with the Confucian ideal, officials were to serve as models of behavior;
the people, who lacked rights and had only obligations, were expected to obey. Such laws as
did exist were transmitted through local military officials in the form of local domain laws.
Specific enforcement varied from domain to domain, and no formal penal codes existed. Justice
was generally harsh, and severity depended upon one's status. Kin and neighbors could share
blame for an offender's guilt: whole families and villages could be flogged or put to death for one
member's transgression. (see Criminal punishment in Edo-period Japan for details)

After 1868 the justice system underwent rapid transformation. The first publicly
promulgated legal codes, the Penal Code of 1880 and the Code of Criminal Instruction
of 1880, were based on French models, i.e. the Napoleonic code. Offenses were
specified, and set punishments were established for particular crimes. Both codes were
innovative in that they treated all citizens as equals, provided for centralized
administration of criminal justice, and prohibited punishment by ex post facto law. Guilt
was held to be personal; collective guilt and guilt by association were abolished.
Offenses against the emperor were spelled out for the first time.

Innovative aspects of the codes notwithstanding, certain provisions reflected traditional

attitudes toward authority. The prosecutor represented the state and sat with the judge
on a raised platform—his position above the defendant and the defense counsel
suggesting their relative status. Under a semi-inquisitorial system, primary responsibility
for questioning witnesses lay with the judge, and defense counsel could question
witnesses only through the judge. Cases were referred to trial only after a judge
presided over a preliminary fact-finding investigation in which the suspect was not
permitted counsel. Because in all trials available evidence had already convinced the
court in a preliminary procedure, the defendant's legal presumption of innocence at trial
was undermined, and the legal recourse open to his counsel was further weakened.

The Penal Code was substantially revised in 1907 to reflect the growing influence of

German law in Japan, and the French practice of classifying offenses into three types
was eliminated. More important, where the old code had allowed very limited judicial
discretion, the new one permitted the judge to apply a wide range of subjective factors
in sentencing.

After World War II, occupation authorities initiated reform of the constitution and laws in
general. Except for omitting offenses relating to war, the imperial family, and adultery,

31
the 1947 Penal Code remained virtually identical to the 1907 version. The criminal
procedure code, however, was substantially revised to incorporate rules guaranteeing
the rights of the accused. The system became almost completely accusatorial, and the
judge, although still able to question witnesses, decided a case on evidence presented
by both sides. The preliminary investigative procedure was suppressed. The prosecutor
and defense counsel sat on equal levels, below the judge. Laws on indemnification of
the wrongly accused and laws concerning juveniles, prisons, probation, and minor
offenses were also passed in the postwar years to supplement criminal justice
administration.

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CHINA
Historically, each dynasty in China had their own written statutes and customary laws
comprising their criminal law. Famous ancient criminal statutes include the Yuxing
criminal laws of the Xia Dynasty, the Tandxing criminal laws of the Shang Dynasty, the
Jiuxing criminal laws of the Zhou Dynasty, the Qinlu laws of the Qing Dynasty, the
Hanlu laws of the Han Dynasty, the Tanglu laws of the Tang Dynasty, the Daminglu
criminal code of the Ming Dynasty, and the Daqing luli criminal code of the Qing
Dynasty. The common characteristic among these dynasties was that their criminal
justice systems were operated by administrative officials.

With the establishment of the People's Republic of China in 1949, a new political era
was born in China's 5,000 year history. When the Communist Party came into power for
the first time in China, one of its first priorities was to abolish the laws enacted by the old
government and replace them with new ones. Upon invalidating the 6 laws of the
Kuomintang regime in February, 1949 (e.g. Constitution, Civil Law, Commercial Law,
Criminal Law, Civil Procedure Law, and Criminal Procedure Law), the new government
began to construct a socialist legal system.

In 1954, the Constitution of the People's Republic of China was adopted at the National
People's Congress, the highest legislative body of the country. That same year,
legislation on Reform Through Labor of the People's Republic of China was adopted
and in 1957, legislation on Police of the People's Republic of China was adopted.
Meanwhile, drafts of new laws such as Criminal Law, Civil Law, Criminal Procedure
Law, and Civil Procedure Law were prepared and continually revised.

The "Cultural Revolution" initiated in 1966 broke off the course of legal construction in
China. Twelve years later, the Third Plenary Session of the llth Central Committee of
the Chinese Communist Party held in December, 1978, decided to end the "Cultural
Revolution" campaign and put great emphasis on the institutionalization and legislation
of the socialist democracy and on the stability, continuity and authority of law.
Thereafter, legal reconstruction began in China. After the draft was revised more than
30 times, the Criminal Law of the People's Republic of China was finally adopted at the

33
2nd session of the 5th National People's Congress in July, 1979. The Criminal
Procedure Law of the People's Republic of China was also adopted at the same session
in 1979.

It took 30 years for the People's Republic of China to enact its first laws. Until 1979
there were no legal standards to guide judges to try criminals. As a supplement to the
Criminal Law, a special law called The Interim Regulations of the People's Republic of
China Concerning the Punishment of Servicemen in Violation of their Duty, and 12 other
amendments to the Criminal Law have been adopted by National People's Congress. In
1982, amendments to the Constitution of the People's Republic of China were adopted
and in 1990, the Decision of the Standing Committee of the National People's Congress
Regarding the Prohibition of Drugs was established.

34