The role of the Judiciary in developing societies

The Asean Community of Legal Scholarship: The Role of the Judiciary in Developing Societies. Lecture delivered at the University of Singapore on October 21, 1977. The author acknowledges the invaluable aid of Jose L. Africa, Esq., an eminent member of the Philippine Bar, who in the course of his extensive corporate practice has had occasion to visit Asiatic cities a number of times, and Miss Mila Santos, Assistant Librarian of the U.P. College of Law, both of whom furnished him with books and material on the legal systems of Malaysia and Singapore.

It is an honor highly appreciated to be given this opportunity to address this gathering of men and women who are devotees, to quote from Justice Holmes, “of our mistress, the law.”[1] As a member of the Philippine Judiciary, it likewise gives me great pleasure to greet our brethren from Singapore, especially Mr. Chief Justice Wee Chong Jin, who can count on a number of friends from the Philippines, included among whom are the present Chief Justice Fred Ruiz Castro, a visitor a few weeks back, as well as former Chief Justices Cesar Bengzon, Roberto Concepcion, and Querube Makalintal. This is by no means to indicate that your Chief Justice is quite selective. The reference to such persons of rank was prompted by the remark he told us last January, when he was one of our most distinguished participants in the Manila Conference of Appellate Magistrates, that he has been at the helm of your judicial system all these years, whereas in the Philippines, during the same period, there were four occupants of such distinguished office.

It is also a privilege to be a guest of this famous University, which enjoys an enviable reputation for scholarship. It is no surprise that the Dean of the Faculty of Law of the University of Singapore is Professor S. Jayakumar, whom I first met at a Conference on Legal Education in 1962 and who, even then, gave evidence of his marked intellectual abilities as well as his serious dedication to legal scholarship. I would like to acknowledge that my task in preparing for the first Tun Razak Memorial Lecture at Kuala Lumpur on Emergency Powers and Human Rights was lightened considerably by a perusal of his learned articles.

Speaking as I do before a select group bound by fraternal ties arising from common membership in the legal profession, strengthened further by the formation of the Association of Southeast Asian Nations, I feel that the subject of a community of legal scholarship to complement the rapid strides in the cooperative efforts in the political, economic, and cultural spheres would be of some interest. Nor can it be denied that the peoples of this region are engaged in the vital task of development. Let it not be said that the men of the law are behind the times. There is much that can be accomplished along these lines. Hopefully then, a start in the direction of such a community of kindred minds may be made. There is no time to lose. Moreover, to minimize the characterization of this lecture as being too academic, let me give voice to some random reflections on the response of the judiciary to governmental measures aimed at furthering economic growth and progress.

Of such a community, the then Dean Erwin Griswold of the Harvard Law School delivered an address on the occasion of the opening in 1964 of the Law Library and Law Faculty Building at Oxford. His reference understandably was to the Common Law and the “extensive interchange between American and English legal scholars.”[2] He developed his theme further: “What will happen here is, of course, for you to decide. But Oxford is not merely an ancient seat of learning; in the law as well as in other fields, it is a place to which the whole world looks for leadership in intellectual activity of every sort. Perhaps here there can be worked out that rapprochement between the academic lawyer and the practitioners, that synthesis of theory and of learning for learning’s sake, on the one hand, and of professional activity and responsibility, on the other, * * *. If these two can be brought closer together, and if this library is to some extent a vehicle for accomplishing this result, it will be, I think, not only a matter of importance for English legal education and English law, but also for the community of legal scholarship.”[3]

Those of us lawmen in the ASEAN countries may set our sights higher. A loftier aim is unavoidable. The attribute of respect accorded to membership in the craft is in no small part due to the belief that it is not inspired solely by private advantage but by public service. It is my submission that we shall not be true to our calling, considering the urgency of the problems of the times, if we do not live up to that expectation. It is my further submission that if there is such a community in our region, we can through mutual interchange of ideas and concepts aid in the realization of our common objectives. It is a fact worth noting that the national leadership in the region, except for President Suharto of Indonesia who, I would assume, would be equally sympathetic, in view of his country’s legal tradition, are lawyers of note and of distinction: your Prime Minister Lee Kuan Yew, Premier Hussein Onn of Malaysia and President Ferdinand E. Marcos of the Philippines. That was true of Thailand until yesterday.

In speaking of an ASEAN community of legal scholarship, let me not be misunderstood. I do recognize that there is an element of the universal in juridical learning. It transcends national boundaries. A principle may have validity independently of time and place. The advance of knowledge has a radiation that reaches farther that its original setting. Whatever progress may be achieved in legal science has a lesson that possesses significance for all students of law, of whatever nationality and of whatever legal system.

This is so especially where concepts of the highest generality are involved. The identification of law with reason goes back to Aristotle[4] Cicero, the Roman jurist,[5] and St. Thomas Aquinas,[6] the philosopher-theologian, were of similar persuasion. For those adherents of the natural law school of jurisprudence, especially in its classical form, it would appear that the belief of the universality of the basic theory of law viewed as a manifestation of reason is still widespread. That is not surprising. The eminent commentator of the Common Law, Blackstone, spoke of the “immutable laws of good and evil, to which the Creator himself, in all his dispensations, conforms, and which he has enabled human reason to discover, so far as they are necessary for the conduct of human actions.”[7]

There are, of course, skeptics for whom reason is a frail reed, its hold on man being tenuous, the countervailing forces of passion and emotion being more powerful as guides to action. Nonetheless, the ideal that goes back to Aristotle still possesses relevance, especially so if, following Dean Pound’s classification, law is identified with the legal order, which for him connotes “the regime of ordering human activities and adjusting human relations through the systematic application of the force of a politically organized society.”[8]

There must be then the element of coercion whenever necessary. Equally so, law in that sense has been identified with the effort since the dawn of civilization to attain rational coherence in the management of the affairs of men. That is to accord recognition to the fundamental postulate that the difficult task achieving the necessary degree of harmony in maintaining societal relationship is not left to chance or caprice. To reduce the friction to a minimum in the balancing of conflicting desires, the ideal of justice must, as much as is humanly possible, be approximated. Otherwise the order imposed would represent merely the unbridled will of the dominant group. Blackstone had such a thought in mind: “That we should live honestly, should hurt nobody, and should render to every one his due; to which three general precepts Justinian has reduced the whole doctrine of law.”[9] Certainly, in that respect, reason should continue to hold sway. Peace is desirable. It connotes order, but without justice, it would fail to satisfy the deepest aspirations and yearnings of man for the good life. Law thus conceived as a discipline may indeed possess universal elements. Our premise should be one, in the language of Dean Rostow, “of unabashed faith in the potentialities of reason and in the goodness of man.”[10]

Dean Pound had two other categories: jural norms and the juristic process. The former refers to “the whole body of legal precepts which obtain in a given politically organized society.”[11] Such norms constitute “the body of authoritative grounds of, or guides to, judicial and administrative action, and so of prediction of such action, established or recognized in such a society including precepts, technique, and received ideals.”[12] Lastly, again to follow Dean Pound, the law may be viewed as the judicial process. He had in mind the mode and manner in which decisions of cases and controversies are arrived at, whether as an operative fact or as an ideal to which it should conform.[13] For a more inclusive definition, he would include the administrative process, which relates to “administrative determination, whether as it actually takes place or as it is conceived it ought to take place.”[14] In the more traditional sense of law as judicial process, Holmes put the matter neatly: “The prophecies of what the courts will do in fact, and noting more pretentious, are what I mean by the law.”[15] Justice Douglas did restate the matter thus: “Even for the experts law is only a prediction of what judges will do under a given set of facts – a prediction that makes rules of law and decisions not logical deductions but functions of human behavior.”[16]

The phrase, the legal system, may be descriptive of all three senses in which the term, law, lends itself. So it was suggested by Hughes, who stated that “for many purposes it will be useful to reserve the description ‘legal system’ for those types of social order characterized by a high degree of institutionalization in the creation of general prescriptions, in the apparatus for adjudicating disputes, and in ordering the disposition of force.”[17] Where legal precepts and adjudication of disputes are involved, the jural norms and the judicial process in Dean Pound’s formulation, certainly the utility of relying on reason as an absolute concept, is not too apparent.

This is a case where circumstances of time and place must unavoidably be taken into account. The environmental facts cannot be ignored. The social milieu must be considered. Otherwise, there may be a marked cleavage between jural norms and the judicial process on the one hand and, on the other, patterns of living. The former categories must be appraised in terms of their integral relation with the rest of society. Considerations of social policy must perforce intrude into the domain of law.

Problems that a particular region faces may defy solution if reliance be placed on principles deemed eternal. It could suffer from being enmeshed in the suffocating orthodoxies of the law traditionally conceived. The result could be profound and far-reaching discontent. Justice Holmes, in the opinion of Jerome Frank, the completely adult jurist,[18] in his seminal work, The Common Law, published in 1881, was quite emphatic in this regard. For him: “The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do that the syllogism in determining the rules by which men should be governed.”[19] Even where Anglo-American law is concerned, Justice Cardozo, in an address before the New York Country Lawyers Association in 1931, observed: “I have said that a spirit of unrest is manifest in these days among our brethren across the seas, among brethren more habituated than ourselves to acquiescence in the established order. I would not have you think, however, that our function in the new ferment, our part in the new movement, has been one of slavish imitation. On the contrary, I have been interested, and perhaps my hearers will be too, in observing the mounting evidences of the truth that we are developing a juristic method and philosophy and method of the country where the common law was born”[20]

The significance of the particular society in which a legal system operates is thus underscored. For Ehrlich, the Austrian jurist, its study and observation furnish the key to the nature and growth of law.[21] Only thus may there be a full awareness of what is “the living law.” It would not suffice to concentrate on juristic norms and the accepted canons of the judicial process for an understanding of law as an instrument of social control. Such an approach which goes under the name of sociological jurisprudence was foreshadowed by Justices Holmes[22] and Cardozo.[23] The more systematic treatment of this school of legal theory came from Dean Pound.[24] At present, it is the Australian Professor, Julius Stone, who is the acknowledged leader in the field.[25]

Sociological jurists and scholars had this common approach. For them, law is not merely a closed, self-contained system of abstract rules independence of human needs and values but a social phenomenon intimately related to all the other aspects of human life. It cannot be divorced from the cultural life of the community whose conduct it seeks to regulate. The social facts upon which it must be grounded and to which it is applied cannot be ignored. The test of a jural norm or a method of decision is its result. Their utility as instruments of social control is the significant question. Unless the fitness for the solution of the problems that press for attention be shown, then there is no title-deed to recognition.

This is by no means to ignore the need for logical development in the law. There is, as should be well-known to the lawmen of this region, considerable benefit to be derived from the analytical approach with its criterion of systematic internal consistency. Justice Cardozo did note of the powerful sentiment and intellectual passion “for elegantia juris, for symmetry of form and substance.”[26] Where scholarship is concerned, that ideal understandably has always possessed an attraction. That is to betray kinship with the rational.[27] What is merely sought to be emphasized is that it may not be enough. It is in that sense that for some time the movement known as American Legal Realism has flourished.[28]

Welcome as such ferment stirred by the Realist movement was, there were those in juristic circles who felt that it did not go far enough. Its approach was essentially negative. It discredited traditional dogmas in the law. It was as if a new cult had arisen disavowing ancient faiths. The policy science school then of Professor McDougal of the Yale Law School was both timely and welcome.[29] It offers a clear-cut alternative. It postulates the goal value of human dignity to be attained through the legal process.

It goes much farther than the traditional jurisprudential concept of the law as a body of standards, principles and rules, logically interrelated and expressive of an ideal element. It has much in common with the sociological approach, except that its emphasis is on the process of decision, in which rules are both created and applied, by authoritative decision-makers guided by the perspectives of their communities. Nor is its field of study centered on adjudication alone as is true of the legal realists, even if the performance of other government agencies is not ignored. It attempts an analysis not only of the technical theories offered by judges and other decision-makers in explanation of precisely why they are moved thus to act but also the values that call for realization and the means by which success may be attained through the utilization of all relevant data and concepts that may be furnished by the ever-increasing knowledge within the reach of the various social and physical sciences. It is my belief that for our region, there is much to be gained by a fruitful study of this legal method.[30]

The problem of an ASEAN legal community still remains. Let it not be said that where law is concerned, the only unity in this part of the world arises solely from territorial contiguity and that in the present state of affairs, such an expression may possess only a geographical connotation. There is much of the element of exaggeration in that observation, but there may be a kernel of truth. If so, there is, to repeat, no time to lose. Efforts, both earnest and sincere, there must be for cooperative endeavors to forge a legal bond. There must be in this sphere connecting links. The cohesive factor must be strengthened. The centripetal forces must prevail against the centrifugal. The region must be responsive to the dominant temper that fortunately stresses mutuality of interests and of aspirations. Therein lies the hope for a truly ASEAN legal community.

There are, to be sure, factors conducive to its growth. Men of the law certainly cannot be less responsive to the urgencies of the times. They cannot be insensible to the undoubted benefits that accrue from a closer relationship of the peoples of this region. As a matter of fact, with the ties that have been established and strengthened in the political, economic and cultural spheres, it is unavoidable that interchange of ideas and concepts in law would inevitably follow. The factors to which I make reference are the common heritage based on the acceptance of basic concepts and principles of the Western legal system and their common destiny as developing countries.

It is no doubt true that the prevalence of legal norms of that character in ASEAN countries was not the result of reflection and choice but was due to alien rule, with the case of Thailand as an exception. The assumption is not far-fetched that upon their introduction, they were, at the most, tolerated, and, for most of the citizens of native birth, hardly a living force in their daily lives. It was more than likely that there were contradictions and inconsistencies, even absurdities, at war with ingrained beliefs and customary ways. Moreover, where the population itself is multi-racial, the problem of communal adjustment and harmony could cause further difficulties. Nonetheless, the alien legal concepts had perforce to be accepted. That was to heed the command of the then sovereign.

It can truly be said then that the echoes of history in our part of the world mingle with the pressures of the present. It could be that rapid social changes have turned some of the doctrines and principles of Western law into anachronisms. The complexity of the times, by raising new questions, has made the old answers obsolete. Nonetheless, the adherence in this region to the jural precepts and, to a major degree, the mode of adjudication is still a fact of life. There is this redeeming feature. Norms that would not be fitting, even if introduced, were modified to conform to local conditions. If it were otherwise, there would be an air of fragility about them. There would be a marked contrast between the law in books and the law in action.

The Western legal system is of European origin. The legal science of the Occident, according to Professor Berman, was “much more, as was said earlier, than a method of reasoning or a method of organizing thought. Its criteria were moral as well as intellectual.”[31] The Western legal system may be classified into Civil or Continental Law and the Common Law. The former is traceable to the Roman law while the latter is of English origin. While differing in many particulars, it would not be entirely accurate to stress the element of dissonance.

As was so well put by Buckland and McNair: “It seems to follow from what has been said that the English lawyer, proud of his almost unique success in Western Europe in averting a reception of Roman law, has been inclined to exaggerate the differences between himself and his Roman brother. While the fundamental conceptions upon which the Roman law was built show but little similarity to the corresponding notions of the common law, which is not surprising, since one is of a Germanic stock and the other of a Mediterranean, the practical rules of the two systems show an astonishing amount of similarity.”[32]

Now for the particulars. Here in Singapore, there was a reception of the common law, according to Dean Sheridan. As he pointed out: “It is now beyond dispute that English law was introduced into the Straits Settlements, but it is not settled, and may never fall to be decided in view of modern legislation, what was the operative date of its introduction.”[33] He continued further: “Sir Montague E. Smith spoke of modification of English law which could not be imported in its entirety. First, some rules were not brought over at all: these consisted of such rules, primarily statutory, as would make sense only if applied in England, being of purely local significance. A strong example of an English statute held not to extend to Singapore will be found in Terrel v. Secretary of State for the Colonies. Some rules of English law are intelligently applicable only to Europeans. Customs of Chinese, Muslims and others must be accepted where not of such a nature as to impair the fabric of society. In Khoo Hooi Leong v. Khoo Cheong Yeok, Lord Russell of Kilowen, giving the opinion of the Judicial committee of the Privy Council, said: ‘The modifications of the law of various alien races established there, arise from the necessity of preventing the injustice or oppression which would ensue if that law were applied to alien races unmodified.’ The Board approved Choa Choon Neoh v. Spottiswoode and Yeap Cheah Neo v. Ong Cheng Neo. Modifications imposed by racial or religious customs usually affect family law – marriage, divorce, adoption, succession – but enter into other branches as well.”[34]

As for Malaysia, Lecturer Wu Min Aun is quite categorical: “English common law and the rules of equity form part of the laws of Malaysia.”[35] Further in his work, he stated: “To sum up, we can say that there is no single uniform principle which governs the applicability of English law to Malaysia. In peninsular Malaysia, it is English common law and the rules of equity as they stood on 7th April 1956; it is English common law and the rules of equity together with statutes of general application on 1st December, 1951 in Sabah and on 12th December, 1949 in Sarawak. In the application of English law to commercial matters, a further difference exists between the former Malay States on the one hand and Penang, Malacca, Sabah and Sarawak on the other.”[36] It is readily admitted that so much more could be said about the law in Singapore and Malaysia. If I refrain from discussing the matter further, it is only because candor compels the admission – a matter of regret, I assure you – that my knowledge is far from adequate and, speaking as I do before this assemblage, it would be like carrying coals to Newcastle if there be a further discussion of the subject.

Indonesia and Thailand, on the other hand, were much more influenced by the civil law branch of the Western legal system. Professor Gautama of Indonesia, writing in 1970 of legal developments in his country, observed: ‘All existing official institutions and regulations shall remain in force until new ones have been instituted in accordance with the present Constitution.”[37] According to him, “the old system remains valid until it is replaced.”[38] Reference was made by him to three of those basic laws of European origin: The Civil Code of 1848, the Commercial Code, and the Bankruptcy Ordinance. He did emphasize that the Family Law as well as the Inheritance Law found in such Civil Code never were considered as living law for the native Indonesians, such juridical relationship being governed by Adat Law.[39] It was not so with the norms concerning business and commercial actions: “In the field of property and contract law, especially the rules concerning trade, the situation was quite different. As regards commercial and contract law, the autochthonous population became more and more involved in international trade and commerce. The Commercial Code, which was adapted to Indonesia in 1938, included international transactions such as, in the field of negotiable instruments, promissory notes and cheque law.”[40]

He summarized his article thus: “(1) The Codes left by the Dutch East Indies administration have not the same legal value as the laws and regulations of the national Legislature in the sovereign state of Indonesia. (2) The rules of the Civil Code are valid if they are not considered contrary to the principles of the 1945 Constitution. (3) It is the judge who determines whether a certain rule of the Civil Code is contrary to the principles of the 1945 Constitution. (4) The Civil Code has not been discarded in entirety. Only some articles, namely those which according to the changed views in society are no longer suitable, are to be positively considered as a dead letter. (5) The Commercial Code and the Bankruptcy Ordinance must be considered valid, because they function as media in Indonesia’s striving to take part in the international business and provide for the needs of the rising Indonesian commerce.”[41]

As for the legal system of Thailand, former Premier Tanin Kraivixien, in an article on the subject, stated that close to the end of the 19th Century, Western jurisprudence was adopted. Prior to that, what was enforced was the Dhammasattam as the law code of the realm forming part of its national heritage. It was derived from the Hindu Code of Manu.[42] It was during the reign of King Chulalongkorn when in the last decade of the 19th Century, a Ministry of Justice was created with the view to introducing a unified judicial system and a revision of the existing law. According to him: “Thailand would have preferred to adapt English law, because many distinguished members of its legal profession had been trained in England and had become well acquainted with English law. They had seen the merits of that system and what it had achieved in its motherland and in other parts of its Empire. Moreover a branch of the English law had already been introduced, namely, the Commercial Law. Thus where there was neither Thai law nor custom applicable to any commercial matter, the English law was to be applied thereto. On the other hand, the law reformers thought, it was equally true that however excellent the English system might be, it was peculiar to the English circumstances in which it was originated and developed; and to them it seemed most impracticable for any country to adopt a system of law that could not be found in any accessible form. With this disadvantage in view, save in certain branches of the Thai law, such as the laws of Bills of Exchange and Bankruptcy, over which English influence was and still is strong, Thailand, for its general law reform, turned to the Continental tradition of codification in which the leading principles of Roman jurisprudence prevailed in logical form and with scientific arrangements.”[43]

Accordingly, a Royal Commission on Codification was set up in 1897 with membership drawn from foreign and Thai jurists. There were, however, other Royal commissions that were set up. As a result, in 1895, Thailand had a Law of Evidence and in 1896 both a Criminal Procedure Code and a Transitory Civil Procedure Code. In 1908, a Penal Code influenced by the French, Italian, Indian, and Japanese, was promulgated. It was not, as he stressed, “a slavish imitation of any of the prevailing Penal Codes of other states, it owed much of its form and inspiration to the labour of many predecessors in the same field, particularly the French, Italian, Indian, and Japanese Penal Codes.”[44]

It was not until 1935 though that the Thailand Civil and Commercial Code under preparation for over three decades was completed.[45] As he stated further: “While the Code profited from modern concepts, especially from its French, German, Japanese and Swiss counterparts, it preserved much that was praiseworthy in the institution and custom of the country, predominantly in such matters as matrimony and inheritance. Being a combined work of eastern and western legal wisdom, it is noteworthy that the codifiers succeeded in avoiding anything that would prevent the free flow of ideas from one part of the Code to another. It was remarkably brief, yet most comprehensive. The Code was universally recognized as a thoroughly sound piece of codification and the measure of success achieved by it has been great.”[46]

Lastly, there is the Philippine legal system. The influence of the Anglo-American Common Law and the Continental Civil Law is still apparent. Before independence in 1946, it hardly had any real choice on the matter. Its discretion even when the government was in Filipino hands after 1935 was still limited. After assuming statehood, there has been a reorientation of the jural norms in the Philippines to suit local conditions. When a Code Commission was created by an Executive Order in 1947, it was explicitly stated that there was a “need for immediate revision of all existing substantive laws of the Philippines and of codifying them in conformity with the customs, traditions, and idiosyncracies of the Filipino people and with modern trends in legislation and the progressive principles of law.”[47]

As far back as 1920, in a landmark decision, In re Shoop,[48] the scholarly opinion being penned by a distinguished American jurist,[49] Justice George A. Malcolm, the Supreme Court of the Philippines spoke of a Philippine Common Law based on the traditional Common Law but effective only “in so far as it does not conflict with the express language of the written law or with the local customs and institutions.”[50] The basic written law as of that time was the Civil Code of Spain of 1889, which continued to be applicable even after the Philippines was ceded to the United States by Spain under the Treaty of Paris ratified on April 11, 1899. The Penal Code, although supplemented by statutes of American origin, was essentially the Spanish Penal Code of 1870 until January 1932 when the revised Penal Code framed by a group of Filipino lawyers became effective.[51] In the field of commercial law, the Philippines understandably enacted statutes based on American models. The same was true of the Code of Civil Procedure[52] which came into force in 1901. The Philippine judiciary had to apply American constitutional law doctrines. That was to be expected, as in the sphere of public law, with the exception of the Penal Code above mentioned, American legal concepts were controlling.As far as Anglo-American common law is concerned, it was made clear in United States v. Cuna[53] early during the period of American rule that “neither English nor American common law is in force in these Islands, nor are the doctrines derived therefrom binding upon our courts, save only in so far as they are founded on sound principles applicable to local conditions, and are not in conflict with existing law; * * *.”[54] Further on the same point, it was pointed out by another noted American jurist, Justice Street, in Javellana v. Mirasol:[55] “It is to be assumed that our law-makers, whether Americans or Filipinos by nationality, have legislated with knowledge of conditions here existing; and even those laws which have been bodily taken from American sources not infrequently acquire a characteristic coloring from the change of environment.”[56]

Of late, during the period of martial law, President Ferdinand E. Marcos has been issuing decrees legislative in character. His power to do so was challenged in Aquino, Jr. v. Commission on Elections,[57] but he was sustained not only because the interim National Assembly as provided in the present Constitution had not been convened, but also because the Constitution impliedly recognized such authority.[58] The Presidential decrees of such character include the new Labor Code,[59] the Child and Youth Welfare Code,[60] which is supplementary to the present Civil Code, and the Insurance Code.[61] Intensive studies are being conducted by Filipino legal scholars both from the ranks of law professors and practitioners to ascertain what other statutes stand in need of modification in the light of the social and economic reforms that have been introduced and implemented.

It is time to deal with the other factor likewise conducive to the growth of an ASEAN community of legal scholarship, traceable to the fact that the member-countries are developing nations. Shaplen spoke of Southeast Asia after World War II beginning “the slow, snakelike process of shedding its colonial skin.”[62] It could be so at that time, but certainly not now. There are impressive signs all over the region to indicate that the pace is not that lethargic. Economic growth is emphasized. That is the way it should be. Only thus may a state be true to its mission of promoting the general welfare and creating for its inhabitants, all of them but certainly with the priority accorded the economically under-privileged, the atmosphere that will lend substance and significance to their lives. It is an unfortunate fact that in the Third World, poverty, illiteracy, and disease, for a great number of its citizens, remain to be conquered.

Understandably, Premier Lee’s program of government stresses social justice, better living, freedom, and peace.[63] The efficiency of government for him is tested by its capacity to “provide adequate housing, education, health and social servies.”[64] Only a few days ago, on September 21, to be exact, the celebration of the fifth year of the New Society of the Philippines, President Marcos spoke of the development plans for 1978-1982[65] embodied in Presidential Decree No. 1200, signed by him on that day. He stressed: “At the heart of the Plans is the concern for social justice. The preparation of these social and economic development plans has been guided by one objective: ‘No Filipino will be without sustenance.’ We have therefore set our development plans toward a direct and purposeful attack against poverty: by focusing on the poorest of our society, by planning to meet their basic nutritional needs, by reducing if not entirely eliminating illiteracy, by expanding employment opportunities, by improving access to basic social services, by equalizing opportunities, by the equitable sharing of the fruits of development, and by introducing the requisite institutional changes. We will pursue economic development for social justice. We will engage the initiative and resources of our people, according all citizens a rightful share in benefits and obligations. As both the source and object of development, our people will be provided with adequate opportunities and social amenities to attain a dignified existence.”

For the men of our profession, development poses both a challenge and an opportunity. The former must not be avoided and the latter missed. Otherwise the law itself will be discredited. It would not lend itself to such a reproach if there be an appreciation of the social and economic forces that throb and clamor for expression. That is to manifest fidelity to the realities of time and place. This is not to minimize the difficulty involved. Certainly, there is much more comfort in wearing the garment of orthodox conformity. Considering though the complexity of the problems to be faced and the necessity of adherence to the rule of law, the legal profession is left with no choice. For to stand still is to lose ground.There is thus, to my mind, an even more predisposing factor for the existence of an ASEAN fraternity of men of the law whether belonging to the bench, the bar, or the law schools. What is more, such a community of legal scholarship can be truly innovative and creative. There is need for such an approach. Western powers have not been remiss in tendering advice to developing countries as to the concepts, techniques, and practices conducive to the attainment of their goal. It must be conceded that while their motives may not be entirely suspect, what is recommended may not prove suitable. Professor Trubek of the Yale Law School, in a learned and comprehensive article,[66] noted that at times they are “more concerned with the exploration of Western systems that with efforts to understand the legal life of the Third World.”[67] He demonstrated in a persuasive fashion the fallacy of the assertion “that Western experience is necessarily a guide for the Third World.”[68]

This is not to advocate a wholesale rejection of doctrines in the legal systems of the region having their roots in the Common Law and the Civil Law. Far from it. Certainly, as far as trade, investments, and business in general are concerned, it would be sheer folly to depart in a radical manner from what has been and likely will continue to be. Otherwise, the element of predictability might be lacking. There could then be a deterrent effect on efforts to attract foreign capital. Even so, modifications should not be ruled out. In the same way that the traditional concepts of the Western legal system, whether of the Civil Law or the Common Law variety, had to undergo changes when introduced in ASEAN countries, there may be such a need for the purpose of devising the legal practices and techniques that will further the development process. Fidelity to the accepted canons of yesteryears may pose obstacles.

What of the role of the judiciary then? Admittedly, there is likely to me much that is novel in the issues that confront the courts. The traditional orientation may thus be inappropriate. The urgency for the measures that call for adoption cannot be denied. Doctrines deeply rooted in the past may be inadequate for present needs. In the performance of the task assigned to the judiciary then, it must take care lest by inadvertence it sets up legal barriers to the hoped-for accelerated economic progress. There must be full recognition of the wide discretionary authority vested in the policy-making branches to enact measures towards the attainment of that goal. The judiciary, it is submitted, cannot be insensitive to such considerations.

This is not to say that it must close its eyes to transgressions of the fundamental liberties or constitutional rights. Certainly where intellectual freedom is concerned, it has no choice except to require fealty to a constitutional command. That is likewise true where physical freedom is restricted, except perhaps during periods of emergency where good faith may suffice to justify governmental action not otherwise allowable. There cannot be the same degree of unyielding insistence on full respect for a constitutional prescription when the act complained of is alleged to trench upon property rights. Let me not be misunderstood. I speak in the context of the fundamental law of my country that has adopted the welfare state concept. From such a basic premise, it would not be an easy matter to lend plausibility to the claim of unconstitutionality. That for me is the counsel of realism, for the judicial process does not take place in a social void. It calls for a full appreciation of the environmental facts and the compulsion of the times.

Such a happy state may be on the way to realization if there be an active ASEAN community of legal scholars. It will do for a start if the members of the profession in the region exert efforts to familiarize themselves with the legal institutions, judicial decisions, and the legal literature of the area. There are difficulties arising from differences in language. Fortunately, there are many law journals and other publications in English. Without being exhaustive, mention may be made of the Malaya Law Review of this University and the Jernal Undang-Undang, the English title of which is the Journal of Malaysian and Comparative Law of the University of Malaya. The Philippines has the Philippine Law Journal of the College of Law of the University of the Philippines, the Santo Tomas Law Review of the University of Santo Tomas, and the Integrated Bar Journal. Conferences and seminars on legal matters should be held as often as is feasible. Last January, the Philippines played host in the first International Conference of Appellate Magistrates to Justices coming from Asia, the United States, Europe, and South America. It was my good fortune to be in the same panel with your Chief Justice Wee Chong Jin and Lord President Tun Suffian of Malaysia. There could be visiting Lecturers in the region. Even the process of mutual consultations by practitioners can be of an incalculable benefit. Perhaps of much more significance is the establishment of an ASEAN Law Center, where an extensive collection of books, law journals, and other legal papers and materials of the various legal systems may be compiled and where serious and dedicated scholars and researchers may further their studies.

There is, of course, to be no violent break with the past. While there is need for dynamism in the law, an innovative and creative ASEAN legal community should not be disruptive. History does not permit men the luxury of escaping their inheritance. There should be alertness, however, to the probability that the past may render futile any attempt to come to terms with the present. It is not to be forgotten, to paraphrase Holmes, that continuity with what has been may be at times a necessity, but not a duty. At the most, it should be persuasive, not controlling. To follow Maitland: “Nowadays we may see the office of historical research as that of explaining, and therefore lightening, the pressure that the past must exercise upon the present upon the future. Today we study the day before yesterday, in order that yesterday may not paralyze today, and today may not paralyze tomorrow.”[69] History, as was so well stressed by Justice Cardozo, “in illuminating the past, illuminates the present, and in illuminating the present, illuminates the future.”[70] That is the kind of legal thinking that flows freely in the channel of contemporary life and that may yield lessons for the unknown future.

May I, in closing, submit that the unity so marked in the political, economic and cultural fields in this region must consistently and energetically be striven for by men of the law. It could be that in time this corner of the globe will witness the dawn of a new juridical age and the beginning of a new legal science – at the very least, adequate for the purpose of assuring a faster rate of development.[71] To that vision and to that ideal, the ASEAN legal community must be committed. Perhaps in the not distant future, it can stand in the bright sunlight of aspirations fulfilled and hopes realized.

You have been indulgent long enough. Accept my sincere thanks for your kind attention.

** Senior Associate Justice, Supreme Court of the Philippines.

[1] Lerner, the Mind and Faith of Justice Holmes, 29, 31 (1943). The address was given by the famed jurist at the Suffolk Bar Association Dinner, February 5, 1885.

[2] Griswold, The Community of Legal Scholarship, 42-47 (1965).

[3] Ibid, 48.

[4] According to Aristotle: “The law is reason unaffected by desire.” Politics, Translation by Jowett, 140 (1926).

[5] According to Cicero: “True law is right reason in agreement with nature: it is of universal application, unchanging and everlasting: it summons to duty by its commands, and averts from wrongdoing by its prohibitions.” De Re Publica, Translation by Keyes, 201 (1928).

[6] According to St. Thomas Aquinas: “Law is a rule and measure of acts, whereby man is induced to act or is restrained from acting, for lex (law) is derived from ligare (to bind), because it binds me to act. * * * But in order that the volition of what is commanded may have the nature of law, it needs to be in accord with some rule of reason.” VIII The Summa Theologica, Part II, Translated by the Fathers of the English Dominican Province, 2 (1927).

[7] Blackstone, Commentaries on the Law of England, 40 (1880).

[8] 1 Pound, Jurisprudence 13 (1959).

[9] Blackstone, op. cit., 40.

[10] Rostow, ed., Is Law Dead. 11 (1971).

[11] 1 Pound, op. cit., 12 (1959).

[12] Ibid.

[13] Ibid, 14.

[14] Ibid.

[15] Holmes, The Patch of the Law, 10 Harv. Law Rev. 547, 461 (1897).

[16] Douglas, Stare Decisis in Essays on Jurisprudence, 18, 19 (1963).

[17] Hughes, The Existence of a Legal System, 35 New York University Law Review, 1029 (1960).

[18] Frank, Law and the Modern Mind, 280 (1930).

[19] Holmes, The Common Law, 1 (1923).

[20] Hall, ed., Selected Writings of Cardozo, 102 (1974).

[21] Cf. Ehrlich, Fundamental Principles, Foreword (1936).

[22] Cf. Holmes, op. cit. Reference may likewise be made to his article, The Patch of the Law, 10 Harvard Law Review, 457 (1897).

[23] Cf. Cardozo, The Nature of Judicial Process (1921); The Growth of the Law (1924); and the Paradoxes of Legal Science (1928).

[24] Cf. Pound, Jurisprudence (1958). This masterly treatise in five volumes is a distillation of his extensive studies on the subject.

[25] Cf. Stone, Province and Function of Law (1946). Subsequently, there was published a massive three-volume edition entitled, Legal System and Lawyers’ Reasonings (1964), Human Law and Human Justice (1965), and Social Dimensions of Law and Justice (1966), respectively.

[26] Cardozo, Nature of Judicial Process, 34 (1921).

[27] Cf. Kelsen, The Pure Theory of Law (1967); Hart, The Concept of Law (1961).

[28] Llewellyn, A Realistic Jurisprudence ­– The Next Step, 30 Col. Law Rev. 431 (1962); Ibid, Some Realism About Realism, 44 Harvard Law Review 1222 (1962); Ibid, Jurisprudence (1962).

[29] Cf. McDougal and Associates, Studies in World Public Order (1960).

[30] Ibid, 948-949.

[31] Cf. Berman, The Origins of Western Legal Science, 90 Harv. Law Rev. 894, 942 (1947).

[32] Buckland McNair, Roman Law and Common Law, 2nd ed., revised by F.H. Lawson, XX (1952).

[33] Sheridan, IX The British Commonwealth 14 (1961).

[34] Ibid. Terrell was reported in [1953] 2 Q.B. 482; Khoo Hooi Leong in [1930] A.C. 346; Choa Choon Neoh in [1869] 1 Ky. 216; and Yeap Chea Neo in [1875] L.R. 6 P. C. 381.

[35] Wu Min Aun, An Introduction to the Malaysian Legal System, 18 (1975).

[36] Ibid, 24.

[37] Gautama (Gouwgioksiong), Legal Developments in Independent Indonesia (1945-1970), I Lawasia, 157 (1970).

[38] Ibid.

[39] Ibid, 162-163.

[40] Ibid, 163-164.

[41] Ibid, 169-170.

[42] Kraivixien, The Legal System in the Administration of Justice in Thailand, 1.

[43] Ibid, 4.

[44] Ibid.

[45] Ibid.

[46] Ibid, 6.

[47] Executive Order No. 48.

[48] 41 Phil. 213, 253.

[49] During the period of the American regime until the inauguration of the Commonwealth of the Philippines in November 15, 1935, while the Chief Justice of the Supreme Court was a Filipino, there was a majority of American Justices on the bench.

[50] 41 Phil. 213, 253.

[51] Act No. 3815.

[52] Act No. 190. For some time, criminal procedure was governed by General Order No. 58 (1898).

[53] 12 Phil. 241 (1908).

[54] Ibid, 244. The Cuna decision was cited with approval in Arnaldo v. Llorente, 18 Phil. 258 (1911) and in Alzua v. Johnson, 21 Phil. 308 (1912).

[55] 40 Phil. 761 (1920).

[56] Ibid, 775.

[57] 62 SCRA 275 (1975).

[58] Under the amendments adopted in 1976, the interim National Assembly was replaced by the Batasang Pambansa. The elections for such legislative body are scheduled for next year.

[59] Presidential Decree No. 442, as amended (1974).

[60] Presidential Decree No. 603 (1974).

[61] Presidential Decree No. 612 (1974).

[62] Shaplen, Time Out of Hand (1962). He included India, Burma, Vietnam, Laos, and Cambodia in his reckoning.

[63] Cf. Josey, Lee Kuan Yew 5 (1974).

[64] Ibid, 88.

[65] Marcos: The Philippine Development Plan: An Instrument for the Democratization of Development (1977).

[66] Trubek, Toward a Social Theory of Law: An Essay on the Study of Law and Development, 82 Yale Law Journal (1972).

[67] Ibid, 11.

[68] Ibid.

[69] Maitland, III Selected Papers, 438 (1911).

[70] Cardozo, Selected Writings, 128 (1947).

[71] Cf. Gautama, S., The Role of Law in the Development Process, 14 Malaya Law Review, 259-275 (1972).