"The claim that civil law system is being practiced in some of the South East Asian States is rather an exaggeration, and in fact a misconception. The truth of the matter is that apart from the fact that some of the major areas of law in these States are codified, nothing else resembles the system as found either in France or in Germany."
The Civil Law system is said to be practiced in many countries in the world. However, there is a claim that the practice of this system in some of the South East Asian states is rather an exaggeration. It is said that there is nothing else that resembles the system as found either in France or Germany apart from the fact that some of the major areas of law in these states are codified.
The meaning of Civil Law is the entire system of law that currently applies to most Western European countries, Latin America, countries of the Near East, large parts of Africa, Indonesia and Japan. It is derived from ancient Roman law, and originated in Europe on the basis of the Roman jus civile, which is the private law that was applicable to the citizen and between citizens within the boundaries of a State in a domestic context. It was also called the jus quiritum, as opposed to the jus gentium, which is the law applied internationally, that is between States.
There are many features of Civil Law system. The first feature is the creation of doctrine of binding precedent. The authority of binding precedent is attributed in Federal Germany to the decisions of the Federal Constitutional Court the decisions of which for this reason are published in the official Federal Journal (Bundesgesetzblatt). In contrast, the doctrine in the French Legal System is not a binding authority on the courts, or a binding guide to the decision.
This is because the doctrine places court decisions in their proper perspective and indicates the policies underlying legislation. This means it has merely persuasive authority. Per se judicial decisions are not binding. However, they have de facto authority.
The second feature is codification. In Civil Law system, code is an authoritative, comprehensive and systematic collection of general clauses and legal principles, divided into Books or Parts dealing in a logical fashion with the law relating thereto. Civil codes are thereto regarded as the primary sources of law to which other sources are subordinate and often the only source of law on a particular matter. However, the codification movement was not wholly beneficial even with respect to the cohesion of the system. The "perfection of reason" achieved in the form of the civil codes of France (1804) and Germany (1896).
Next, the third feature is the doctrine of legal writing, the styles of doctrinal writing in France and Germany are, it would seem, more approximate now than at one time. The annotated codes (Kommentare) are now more often discursive and critical in approach, and German manuals or treaties (Lehrbucher) deal more with decided cases and aspects of actual practice than they once did.
The fourth feature is the court system. The Civil Law system has separate court system to trial different types of cases. The German Civil System has Ordentliche Gerichtsbarkeit (court with ordinary jurisdiction), Arbeitgerichtsbarkeit (employment law jurisdiction), Sozialgerichtsbarkeit (social jurisdiction), Finanzgerichtsbarkeit (fiscal jurisdiction), Verwaltungsgerictsbarkeit (administrative jurisdiction) and the Verfassungsgerichtsbarkeit, dealing with constitutional cases. The French Courts are organized on the basis of general and limited jurisdiction. The system has a dual court system. There are ordinary courts (the ordre judiciaire) and administrative courts (ordre administrative). The Supreme Administrative Court, known as the Conseil d’Etat. However, the Administrative Court more likely to belong to the executive, and it is only the ordinary court that can really be regarded as having its judicial functions, its autorite judiciare- the judicial power.
The hierarchy of courts is divided in a three- tier level, where in the lower tier, there is tribunaux d’instance, and also tribunaux de commerce. Together with the two courts are tribunals; those are social security tribunals, employment tribunals, and Landlord and tenant tribunals. In the second tier level, is the tribunaux de grande instance, which can try both civil and criminal matters, do not have any appellate jurisdiction, and functions as a regional court. Finally, at the top of the hierarchy is the cour d’appel, which hear appeal cases. The cour d’appel is divided into several divisions and do not simply try any kind of cases.
Eventually, the final feature is the difference between public and private law. In the French Civil system, the establishment of the courts, which governed the private and public matters distinctively, noted as a different feature as compared to the English Common Law. Those courts are Supreme Court, (cour de’cassation) which deal with private law (droit prive); while the Conseil d'Etat handle concerns about the public law (droit public). The droit prive handle private matters, the rights and duties of private persons. Public law on the other hand, would govern disputes involving States as one of the parties.
After identifying all the features of Civil Law system, we will then compare Indonesia, Thailand and Philippines to all those features mentioned. First, let's take a look at Indonesia law system. The main and most important source of the Indonesian National Law is the philosophy of Pancasila, as contained in the Preamble to the 1945 Constitution. Pancasila consists of five main principles, which are belief in the one supreme God, humanity, national unity, deliberations (musyawarah) towards consensus (mufakat) or democracy, and social justice. The Pancasila is regarded as the grundnorm or rechtsidee of the Indonesian Law, so that any law or regulation is expected to conform to this philosophy in its details. The policy of 'partial' codification has been developed, meaning that specific parts of the Civil or Commercial Courts are promulgated separately from time to time, as was the case with the new Company Law. A special body was established with the task of legal reform.
This body, named the Lembaga Pembinaan Hukum Nasional (or Institute for the Development of the National Law) was placed under the authority of the Prime Minister and consisted of representatives of political parties and law professors. Moreover, the Civil Code comprise of systematic laws, whereby the contract law is part of the Civil Court.
The structure of the Indonesian Courts is the general court is executed by the District Court (Pengadilan Negeri) and High Court (Pengadilan Tinggi) at the summit at the juridical system is the Supreme Court, the country’s highest juridical body. The judges and those involved in the lawsuit have direct contact with each other. In addition, Indonesia does not have binding precedents doctrine as in Malaysia.
Next, we will look into the country of Thailand. The sources of law are Code of Manu (Dharmasastera), which is the ancient Hindu Jurisprudence and Dhammasattham, which is the fundamental law of individual liberty and private rights dealing with both civil and criminal matters. The court system in Thailand commonly known as the 'Law of the three Great Seals', was more restatement of the prevailing Penal and Civil Law. It contained not only the Dhammasattham but also the existing royal decrees and edicts. In 1891, the Ministry of Justice controlled the courts. The Courts of Justice are divided into three-tiers, namely the Courts of First Instance that are divided into Courts of First Instance in Bangkok Metropolis and the Courts of First Instance in the province. Next are the Court of Appeal and the Regional Court of Appeal and the highest Court of Justice is the Supreme Court.
Finally, we will take a look in the Philippines law system. The main sources of Philippines law are the Constitution, statutes, treaties and conventions, and judicial decisions. The Constitution is the fundamental law of the land and as such, it is authority of the highest order against which no other authority can prevail. In addition, Philippines law is also derived from cases because the Civil Court provides that 'judicial decisions applying to or interpreting the laws or the Constitution shall form a part of the legal system of the Philippines. Only decisions of its Supreme Court established jurisprudence and are binding on all other courts. The judge may still apply the customs of the place or, in its default, the general principles of law in the absence of any statutes governing the point in controversy. The Civil Court also provides that 'customs which are contrary to law, public order or public policy shall not be countenanced', and 'a custom must be proved as a fact according to the rules of the evidence'. Thus, Philippines law takes cognizance of customs, which may be considered, as supplementary sources of the law.
The five principles in the Constitution, which are regarded as the New Charter is described as 'pro-life, pro-people, pro-poor, pro-Filipino and anti-dictatorship'. There is a formal separation of powers between legislative, executive and judiciary. The judicial system of the Philippines consists of a hierarchy of courts with the Supreme Court at the apex. Under the Judicial Reorganization Act, the other courts are one Court Of Appeals; Regional Trial Courts divided into 13 judicial regions, composing a total of 950 branches; and 82 Metropolitan Trial Courts, 124 Municipal Trial Courts in Cities and 438 Municipal Trial Courts and 480 Municipal Circuit Trial Courts.
For Muslims, there are 51 shari'a circuit and 5 shari'a district courts. Aside form these tribunals, there are Special Courts, namely, the Court of Tax Appeals and the Sandiganbayan. The highest court in the judicial system of the Philippines is the Supreme Court. The cases that are heard and decided by the Supreme Court en banc are those involving the constitutionality of a treaty, executive agreement or law. Law doctrine or principle of law laid down by the court in a decision rendered en banc or in division may be modified or reversed except by the court sitting en banc.
The Civil Code was drafted by a Code Commission and came into effect on 1 July 1950, replacing the Spanish Civil Court 1889. It includes new rules aimed at incorporating Filipino customs and new rights in courses of action such as civil actions for obstruction on civil liberty, moral and nominal damages. There are 27 Codes in force in the Philippines.
As a conclusion, there are some of the features in the Civil Law system of Germany and France, which can be found in the South East Asian States that include Indonesia, Thailand and Philippines. Therefore, we cannot say it as merely an exaggeration and misconception.
