II China as Non-Traditional Legal Donor

Whereas the PRC has emerged as one regional power in Asia, a threshold question is whether the Party-State needs or wants its law to travel to other jurisdictions. The argument for traveling Chinese law is that such movement may confer commercial, geostrategic, and symbolic advantages. Commercially, in addition to the increasing use of PRC law in international business transactions as well as PRC courts and arbitration to resolve disputes that arise in the course thereof, Chinese companies (and their lawyers) may have greater familiarity with such sources and institutions of law.

Further, to the extent that the Party-State can supply the raw materials for legal development in developing countries, such accomplishments are a “win” for the PRC and give some credence to its promotion of its own conception of development overseas. Geostrategically, whether China can truly become a legal hub for resolving commercial disputes, a center for legal education, and a jurisdiction for addressing not just national, but also intra-regional, and transnational legal problems would significantly boost the country’s economic, diplomatic, and potentially military relations with other states.

In addition to material benefits and facilitation of foreign policy, building a market for one’s law can raise the profile of a donor state on the world stage and communicate its sophistication and attractiveness to global audiences. Hence, there are signaling effects to China’s would-be law exportation.

The argument against exporting Chinese law is that China is not a legal superpower in the sense of the United States (US) or the United Kingdom (UK) and does not need to be. It can rely on preexisting legal infrastructures (e.g., English law as governing law of its contracts or International Criminal Court (ICC) arbitration for dispute resolution), rather than establish its own alternatives. While there is merit to the con argument, that argument has largely been abandoned in the age of Chinese hyper-nationalism, wherein the promotion of Chinese law overseas has become a building block of foreign policy.Footnote ⁹ This is particularly so under the current “foreign-related ‘rule of law’” (shewai fazhi) campaign.Footnote ¹⁰

Another threshold question, beyond the subjective aims of Chinese nationalism, is whether Chinese law is objectively different from the law of other jurisdictions. While there are numerous examples of China borrowing from other legal systems, for example, Chinese company law has increasingly assumed features familiar to US corporate law scholars and Chinese criminal law borrows from German law,Footnote ¹¹ demonstrating the palimpsestic nature of Chinese law,Footnote ¹² there are undoubtedly distinct features of the Chinese legal system that warrant attention. A few of the more noteworthy ones include: its role in encoding aspects of the Chinese “socialist market” economy,Footnote ¹³ the centrality of the administrative state (and corresponding inversion of norms between, on the one hand, the non-justiciable PRC Constitution and, on the other hand, local administrative regulations having considerable influence in the everyday lives of PRC citizens),Footnote ¹⁴ and, perhaps most glaringly, the predominant position of the Chinese Communist Party (CCP) as either formally reflected in the law or as occupying a status above the law.Footnote ¹⁵

For most of its modern history, China has been a recipient of traveling law from other jurisdictions, and while such trajectories continue to this day, China has in recent years started showcasing its own laws, policies, and regulations to countries in the Global South. Historically, the centers of European civil law, namely, France, Germany, and the common law metropoles, the UK and the US, actively engaged in different types of law promotion beyond their borders. These types run the gamut from colonialism, the most violent imposition of foreign law, to a range of projects born out of the foreign policy needs of advanced economies (e.g., law and development, legal development assistance, “rule of law” advocacy, etc.) to more potentially innocuous versions pursuant to the emergence of regional and megaregional regulations, as well as international law.Footnote ¹⁶ China has experienced most all of these law exports as a recipient country; it is only recently, however, that it has begun initiatives to offer its own experience in law and development for audiences outside of China, and principally, Inter-Asia.

As with Japan’s approach to providing legal development assistance mainly to its own former colonial possessions in Southeast Asia, China’s entry into the legal donation market is relatively “light-touch” compared to the European or Anglo-American versions. Whereas Western promoters of law and development have sought to introduce constitutional, legislative, and regulatory reform in host states, including designing new legal institutions, whether courts or law schools, the Chinese approach is much more muted. On the supply side, and pursuant to the “foreign-related ‘rule of law’ campaign,” the main institutions involved in what in the Chinese lexicon is called “legal cooperation” (falü hezuo or falü jiaoliu) are the Supreme People’s Court, Ministry of Justice, All China Lawyers’ Association, China Law Society, law schools, law firms, arbitration commissions, and other members of the legal industry. These legal and judicial experts build platforms for learning and exchange with counterparts from other countries in Asia and beyond. Often such platforms take the form of international conferences or symposia organized around themes like “risk mitigation for foreign investment” or “commercial dispute resolution.” These platforms further build transnational networks that continue legal exchanges.

At the same time, China has sought to bring more foreign lawyers, judges, and arbitrators from host states to China for training, workshops, and continuing education. The main goals from the Chinese perspective are both practical and geostrategic. As to the former, the Chinese judiciary is concerned about the enforceability of PRC courts’ judgments overseas and so is actively working with judiciaries in host states to agree to mechanisms, including soft and hard law, to address that concern. As to the latter, the CCP and the legal and judicial organs of the state have an interest in “good-telling the story of Chinese rule of law” (jianghao Zhongguo fazhi gushi),Footnote ¹⁷ to increase the understanding of the Chinese legal system to foreign lawyers, judges, and arbitrators to suggest that Chinese law has generated solutions to socioeconomic problems that other developing states can consult for their own developmental needs. Throughout its engagement with other states, Chinese representatives are mindful to avoid ethnocentric positions and statements, and while they may not always be successful in practice, their cultural sensitivity (at least at the elite level) suggests an awareness that may not have characterized past legal donors.Footnote ¹⁸

In addition to its bilateral and multilateral efforts vis-à-vis host states, China has become an active member of international law organizations as part of its broader effort to shape international law. On the public international law side, China is a vocal participant in the UN system and has sought to introduce its own definitions of human rights, including the “right to development” into UN resolutions. On the private international law side, including trade and investment, China has embraced a number of international organizations, including the World Trade Organization and the United Nations Commission on International Trade Law as well as the United Nations Conference on Trade and Development. China has sought to master the procedural rules of these organizations and to promote its developmental approach through them. Whereas in many cases, the Party-State was not one of the original designers of these organizations, it has studied them as an insider and is thus positioned to shape norms from within.Footnote ¹⁹ In summary, China has adapted tools of sending law and policy used by previous legal donors and has also innovated in its outreach to host states and international organizations.

III Chinese Law as a Mirror to Comparative Law Theory

Does the movement of Chinese law require rethinking conventional comparative law theories and the categories they employ? There are grounds to suggest that given the nature of China’s relationships with other states in Inter-Asia and the international legal order, some aspects of China’s legal interactions require new or at least partially revised explanatory models. First and foremost, while the idealized “tributary system”Footnote ²⁰ has since undergone revision by historians, and it is generally agreed that imperial China exercised military domination in border zones, Chinese rulers did not engage in the kind of the colonization of distant territories that characterized the age of imperialism.Footnote ²¹

Second and subsequently, contemporary China is not a (neo)colonial and military power as traditionally understood, at least based on the familiar examples of Euro-American empires, although based on imperial China’s long interactions with bordering states, such relationships are contentious and may touch on sensitive issues involving territorial and judicial sovereignty. As a result, China’s relationships with recipient states may present a different paradigm. The PRC may be closer to what historians have called “informal empire”Footnote ²² through its trade imbalances and lending practices. The implications for traveling Chinese law are that its movements are perhaps bargained for but they are not forced, that is, the home state cannot coerce the recipient to adopt its law at least through traditional military force. To date, the Party-State couples the building of regional and global frameworks (e.g., Shanghai Cooperation Organization (SCO), Belt and Road Initiative, Asian Infrastructure and Investment Bank, Global Development Initiative, Global Security Initiative, etc.) with government-to-government relations that sometimes show severe asymmetries.

Hence, different types of Chinese actors, whether governmental, corporate, private, or semi-private, are engaged in different types of Chinese law promotion. Multilaterally, within its new frameworks, the Party-State may supply its own laws and standards for novel legal infrastructures. Consensus (or its appearance) may be the chief aim of such efforts. Bilaterally, through international investment agreements and diplomacy, the Party-State may bring its weight as investor-lender to bear on transactional issues. State-owned enterprises (SOEs) may, in particular, benefit from the Party-State’s resources. These relationships are characterized by economic coercion. At a more granular level, counterparties may be attracted to the Chinese approach to development, including questions of law and policy, as it presents an “alternative” to familiar ones, including those of the International Monetary Fund (IMF) and World Bank. Such interactions are characterized by inducement. While the Party-State may not be the originator of these strategies for law promotion, it deploys them in ways that differ from Anglo-American predecessors.

While recognizing that China – as the donor – may exercise pressure on its trade partners, its “softer” strategies to date to promote its law, including legal and judicial education, training, and networks, open the door to balancing the Party-State’s incentives and aims with those of its partners. “Law’s Crossings” will provide a series of examples where Chinese law or regulation traveled to another jurisdiction with varying degrees of success. In particular, the analysis points to transnational networks that may function to migrate law from China to host states, but not always unproblematically.

IV Law’s Crossings

Instances of the mobility of Chinese law are not common. The reasons for this have to do with both China’s foreign policies (which, historically, were “non-interventionist” although China’s commitment to non-intervention appears to be eroding in the course of its increasing economic integration in host states) and inherent qualities of the law (i.e., Chinese law may not offer optimal modeling, although, depending on the area of law, Chinese law may offer host states relatively low-cost solutions to emerging problems). Nonetheless, there have been a number of cases where Chinese law has traveled, to varying degrees, in Inter-Asia, including to Cambodia, Uzbekistan, and Vietnam. For each case, I explain how and why Chinese law was adopted by another jurisdiction, with particular attention to law shopping and the movers of law and suggest reasons as to why outcomes differ.

V Conclusion: Explaining Outcomes

The Party-State is building transnational networks of legal experts, lawyers, and consultants throughout Inter-Asia. Chinese law, as a result, is becoming integrated into the domestic and transnational law of the region. China is both sending its legal technicians out to recipient countries to provide advice on legislative drafting and institutional design and judicial and legal elites from host states to attend trainings and workshops in China to study Chinese legislation and associated regulations. The Party-State did not invent transnational networks; the Americans, British, French, German, and Japanese, have all been building their own versions for decades. These networks consist of law schools and continuing legal education, inter-judicial dialogue, international law firms, trainings led by judicial officials and civil society members, alumni organizations, and other platforms. The Chinese approach borrows from these preceding ones; for example, Chinese law schools recruit overseas students. Notably, at least up until the COVID-19 pandemic, such programs saw an increase in the proportion of foreign students from developing countries throughout Asia, Africa, and even Latin American relative to students from the West, a reflection of the geopolitics of education.

Nonetheless, there are historical and structural reasons that suggest that the Chinese approach to developing transnational networks through “legal cooperation” is different. Notably, China lacks the military power that was formative of colonial relationships and which has undergirded much of the modern geography of transnational mobility, whether in the fields of education, industry, or trade. Rather, China’s attraction lies in its economic model. China has, at times, struggled to tell the story of Chinese law in its economic development. The current emphasis on “foreign-related ‘rule of law’,” part of which mandates the “good-telling the story of Chinese rule of law” is meant to address this gap, although time will tell whether it can gain traction with foreign audiences.Footnote ⁷²

Along these lines, Chinese law may be significantly modified in transit or not always reach its destination altogether. The above cases of Cambodia, Uzbekistan, and Vietnam have different outcomes which require explanation. The Cambodian government has begun looking to China for constitutional law reform and legal institutions without noticeable problems. Yet doing so is more a reflection of Cambodia’s utilitarianism and ecumenism than any Chinese hegemony. Weak states in Inter-Asia attempt to balance the interests of competing powers, including legal donors.Footnote ⁷³ Such optionality benefits their legal development as they may reap the rewards of a competitive market in traveling laws, although optionality may not always lead to optimality.

Cambodia is perhaps the best example of this. A (French) civil law system, Cambodia has also borrowed heavily from both Anglo-American common law and Japanese civil law. It further looks to Singapore, Thailand, and other Southeast Asian states. Chinese law is the most recent entrant to its legal eclecticism. Political and legal elites in Cambodia are content shopping around for laws including those of the PRC. Popular views toward China vary, and yet concerns are, to date, insufficient to thwart Chinese-inspired law-making.

Likewise, Uzbekistan, a country with a stronger economy than Cambodia, also seeks to straddle the Russia–China divide, borrowing the most optimal attributes from both systems. Under the current Uzbek leadership, China’s approach to data governance benefits the regime and, as with Cambodia, civil society cannot provide a check to governmental action, especially in the field of cybersecurity. Uzbekistan may continue to absorb Russian law for certain legal fields and look to China as an innovator in others. While doing so, it will endeavor not to appear too close to either, although China still lags Russia in its influence in Central Asia.

For Vietnam, a country with a booming export-led economy, it must balance its ties to China with its strategic links with the US and, as such, walks a fine line between its economic interdependence with China and popular perceptions that it is ceding Vietnamese sovereignty toward the Chinese. The SEZ Bill and Cybersecurity Law fall on opposite sides of this divide, the former failing to pass through popular and formal vetting and the latter ultimately attaining passage. The public’s concerns about Chinese influence were enough to thwart the SEZ Bill, but given that governing cyberspace is an existential concern for the regime, the government would brook no challenge to the law’s passing. It is conceivable that the government gave up the SEZ Bill, as a concession, to get the Cybersecurity Law through the National Assembly.

The three cases afford an opportunity to reasses some of the conventional thinking about how and why law moves from one jurisdiction to another. Specifically, the Chinese preference for or tendency toward networks spotlights the human actors who push and pull law. In all three cases, politicians, lawyers, and judges travel to China to study Chinese experience in law and development. In the Vietnam case, not only is training held in China, but also Chinese legal technicians travel to Vietnam to provide onsite consultation. It is possible that Chinese experts have also traveled to Cambodia and Uzbekistan, as well. Amid this traveling to and from, legal and judicial elite are not just transporting ideas about legal reform and innovation, but they are molding them to their respective agendas, ideologies, and cognitive frames. Traveling is, after all, motion, and motion is synonymous with change. As legal precepts, constitutional provisions, grounding principles, and representative institutions travel, they are also being modified and tailored to individual contexts through the specific lenses of laws’ travelers. More focus on the aspirations, motives, and incentives of the doers of traveling law, perhaps through micro-histories or ethnographies, may explain how and why adaptations happen and under what conditions they work or fail to do so, or, in other words, why transplants fail.Footnote ⁷⁴

In terms of the study of China-beyond-China, the case studies suggest that Inter-Asia features several crisscrossing legal circuits that inform any number of law’s movements, whether for legal development assistance or international commerce, collective security, and related questions of regional importance. China does not act on a blank slate. Proponents of Chinese law’s popularization abroad must grapple with not only domestic legal environments of host states but also regional and even global dynamics, and both the domestic and regional are shaped, in part, by other competing legal traditions.Footnote ⁷⁵ Inter-Asia is not necessarily unique in the matrices of competing legal traditions that shape domestic and regional legal reforms.Footnote ⁷⁶ Yet, given its colonial and imperial legacies, informal and formal empires, and rising economic superpowers, Inter-Asia may be a site of particularly intense legal interaction. Whether it’s leave-no-stone-unturned Cambodian law, Uzbek law at the Eurasian cross-roads of Russian and Chinese law, or Vietnamese law, with its equal parts French civil law and Soviet law, and which must respond to US–China tensions, host countries are simultaneously constrained by and potentially enabled developmentally by the multiple legal influences in which they are embedded.

The multiple sourcing of law by low-income and middle-income states in Inter-Asia has further implications for political developments in the region. The fact that China supplies legal and regulatory tools that nondemocratic states can adopt into their own frameworks suggests that such offerings may embolden such regimes leading to further repression of the population. The nature of China’s offerings, whether personal data law, cybersecurity, or constitutional provisions, which prohibit alleged “anti-state” acts, all point to such an outcome. Such possibilities have generated concerns about “authoritarian international law” or China’s “making the world safe for autocracy.”Footnote ⁷⁷ These are valid concerns, yet such thinking occasionally elides the fact that Chinese law can be a poor traveler and miss its landing. The SEZ Bill in Vietnam is one such casualty.Footnote ⁷⁸ There is real fragility in Chinese law’s portability into other states, both on the China side and the host state side. Most recently, the November 2022 “white paper” protests led by Chinese college students clamoring for “fazhi” (rule of law) and “minzhu“ (democracy) illustrate the former, although the regime’s ability to clamp down on such protests suggests the opposite – its resilience. Similarly, contentious politics in would-be host states evince uncertainty on that side. While the spread of Chinese law calls for diligence, it equally requires calibrated analysis.

Further, enhancing repression in host states and those states’ being beholden to China are two different outcomes and should not be conflated. While China may be deepening the economic dependencies of weaker states throughout Inter-Asia, such states may also continue to source law from other donor states, including China’s competitors. One traveling Chinese law does not a tributary state make. Nonetheless, the fact that China has entered the competitive field of law and development should make the more traditional donors, including the US, take notice. While China may borrow from previous approaches, its methods and ends may also show degrees of difference, even novelty. While these may struggle in the short term, and their viability depends on a number of variables, including the extent to which China can remain attractive as an exemplar of development to other states in the region, it is plausible they will gain in popularity in the long term, particularly in Inter-Asia.

II Indonesia’s Existing Criminal Code

Before considering which external actors compete to influence legal reform in Indonesia, we should define the competition. At the heart of this case study in contestation is the Indonesian Criminal Code, the existing KUHP, which originated with the Dutch Penal Code (Wetboek van Strafrecht or WvS) of 1881.Footnote ⁶ Upon independence in 1945, the Indonesian government retained that Code,Footnote ⁷ the Wetboek van Strafrecht voor Nederlandsch-Indie (WvS NI).Footnote ⁸ A year later, it was officially restated as Indonesia’s Criminal Code.Footnote ⁹ However, it remained in Dutch with no official Indonesian translation until the Code reform of 2023.Footnote ¹⁰ This was a full twenty-five years after the intense constitutional and legal reforms that followed Indonesia’s democratization in 1998 and nearly eighty years after its independence.

It is important to note that neither the existing nor the new KUHP represents the totality of criminal law in Indonesia. As with other codified civil law systems, the general provisions in the KUHP apply to criminal acts in the Code and to separate statutes that supplement the Code by covering specific crimes, such as money laundering, corruption, terrorism, and sexual violence. A significant number of administrative statutes also contain criminal sanctions, such as the laws on education, natural resources, broadcasting, and intellectual property.Footnote ¹¹

The new KUHP has been designed to resolve inconsistencies and ambiguities in the language of the Code, while achieving three fundamental policy goals: decolonization, democratization, and harmonization.Footnote ¹² Decolonization signifies a move away from the Code’s Dutch colonial roots. Democratization expresses the aspiration that the new KUHP will reflect democratic principles and the will of Indonesia’s people. Harmonization stands for the alignment of the new KUHP with other Indonesian laws and international standards. Looking at continuities between the existing and the new KUHP, Butt argues persuasively that none of these policy goals was fully achieved.Footnote ¹³ While the new KUHP is a milestone for Indonesia as a new industrialized economy in Asia and marks a new level of maturity for its political and legal systems, it has been the focus of criticism nationally and internationally.Footnote ¹⁴

III “Decolonizing” and “Democratizing” the Criminal Code

The KUHP has always been accused of being a colonial legacy – neither aligning with Indonesian society’s values nor conforming to international norms, including the many international conventions that Indonesia has ratified. Between 1946 and 2022, the KUHP was partially amended more than ten times. As early as 1961, Indonesian scholars started initiatives to fully replace the “colonial” KUHP with a “national” KUHP.Footnote ¹⁵ However, the Code’s complexity, the pluralist nature of Indonesian society and a lack of political will stymied progress.

The sixty years that it took to draft the new KUHP was an extended time frame, even for Code reform in a civil law system. The new KUHP emerged from at least fifteen drafts, led by teams under five prominent criminal law professors who served under thirteen Ministers of Law and Human Rights and six Presidents. The product of those efforts, Law No. 1 of 2023 on the Criminal Code, comes into force in 2026.Footnote ¹⁶

The reform process initially focused on decolonization. Many Indonesians saw the existing KUHP as inconsistent with Indonesia’s sovereignty, full of articles designed to create public order for the colonists, and not reflecting Indonesian values. Indonesia is a multiethnic, multicultural archipelago of over 17,500 islands with over 1,300 recognized ethnic groups and more than 700 living languages. Legal pluralism is an inevitable consequence: adat (or customary law), Islamic law, and state law are intertwined in Indonesia,Footnote ¹⁷ although the political and cultural dominance of central Java is also a constant thread in Indonesian political and social history.

Although it gained its independence in 1945, Indonesia was an authoritarian state until the democratic reforms that followed President Suharto’s fall in 1998. In the period that followed independence, an unspoken dimension of “Indonesian values” was their relationship to religion. Indonesia is a majority Muslim country with 275 million people, 87 percent of whom comprise the world’s largest Muslim population. Within Indonesian Islam, 99 percent of those who identify as Muslim are Sunni, with the balance being Shi’a or belonging to other smaller groups such as Ahmadi Muslims (or Ahmahdiyah). Post-1945 nation-building efforts by Presidents Sukarno (1945–1967) and Suharto (1968–1998) were avowedly secular – pro-development, pro-modernization, and anti-competing normative forces such as Islam and communism. This was expressed in the nationalist philosophy of Pancasila (which recognizes six formal religions), the outlawing of Marxism and communism and the subordination of Islamic law and Islamic courts to state law. The new Criminal Code (KUHP) retains provisions prohibiting the public “spread or development” through any media, of communist and Marxist-Leninist teachings or “other understandings that conflict with Pancasila” (Article 188(1)).Footnote ¹⁸

Indonesia today is not an Islamic state; Islamic law covers family relations for Muslims and Islamic banking, finance, and dispute resolution for those who choose them.Footnote ¹⁹ Only the province of Aceh has an Islamic criminal jurisdiction.Footnote ²⁰ Islamic family law in Indonesia is codified as state law and generally interpreted through the lens of Shafi’i jurisprudence.

IV Regulating Morality Under Indonesian Law

The new KUHP was not the first post-democratic legal reform in Indonesia in which Islamic morality, gender equality, and democratization have been contested: The 2008 Pornography Law and the 2022 Sexual Violence Law were also arenas in which transregional influences – particularly through proxies for Saudi Arabia – were visible.

In Indonesia, marriage between men and women to have children and build a family is widely understood to be the only proper concept of sexuality.Footnote ³⁴ Both state and community see this as a “traditional value,”Footnote ³⁵ despite the lived reality of other expressions of sexual identity among Indonesians.Footnote ³⁶ It also reflects the Islamic approach of regulating life through marriage and the belief that a good family is the foundation of a good society.Footnote ³⁷ Women are idealized as mothers and faithful wives and “belong” to the family and household; men are the breadwinners and “belong” to the state and community.Footnote ³⁸

The Suharto regime (1968–1998) used these beliefs to promote its preferred view of national development. Gender and family ideology blurred the boundaries between public and private, strengthened state power, and allowed the state to assert the right to govern the family.Footnote ³⁹ This helped to combat competing forces within society, such as religion or ethnic allegiances.Footnote ⁴⁰ When Suharto fell in May 1998, political actors were newly able to assert moral authority that did not originate with the state.Footnote ⁴¹

The reformasi period following Suharto was an intense decade of replacing authoritarian laws and institutions with democratic ones, including human rights. At the same time, new social freedoms allowed Indonesian Muslims to express their piety publiclyFootnote ⁴² – part of the “Islamic revival” in Southeast Asia.Footnote ⁴³ Many who believed in Suharto’s prescriptive ideals saw social norms weakening.Footnote ⁴⁴ They demanded that the state enforce Islamic morality more actively, giving Islamic groups and parties an increased voice in Indonesian politics,Footnote ⁴⁵ including opportunist politicians, who used Islamic narratives to gain votes.Footnote ⁴⁶

V Passage of Law No. 1 of 2023 on the Criminal Code (The New KUHP)

The new KUHP was passed by Parliament in December 2022 and promulgated as Law No. 1 of 2023 with some controversial articles intact. Those attracting the most concern related to “living law,” freedom of expression (including provisions related to demonstrations, insults to the President, Vice President and the government), and the articles related to zina and cohabitation.

Critique of the new KUHP came predominantly from the community, law reform actors and human rights organizations rather than religious organizations. In the months preceding its passage, the Criminal Code Drafting Team, particularly the Deputy Minister of Law and Human Rights, approached stakeholders to discuss and build support for the Bill. Those consulted ranged from the MUI and Islamic organizations to academics, CSOs, and activists. The result was several changes to the draft of the new KUHP often referred to as a “middle way” or compromise among the diversity of views, which had emerged over the long period of its drafting.

VI Implications of the New Criminal Code’s Treatment of Morality

The new Criminal Code broadened the definition of adultery to include unmarried individuals and allowed parents or children over sixteen to file complaints about adultery. It also criminalized the offense of cohabitation while acknowledging that marriage exists in various customary and religious forms, though it does not recognize de facto or same-sex relationships. The lengthy drafting process for the new KUHP reflects a government trying to navigate between the expectations of very different parties and interests.

Some people see the criminalization of sexual relations between consenting adults as government interference with both individual privacy and individual rights and freedoms.Footnote ¹¹¹ The secular nationalist parties with a majority in the legislature were against stricter laws on morality but did not want to openly oppose the idea because it could lead to them being painted as supportive of adultery and free sex in a climate of increasing social and Islamic conservatism. Using the limiting techniques in the drafting kept them safe from that accusation.

One technique the government used to steer to the middle ground was “absolute complaints.” Both the zina (adultery) and cohabitation provisions are absolute criminal complaints: Prosecution requires a complaint from the parties named in the law. This is intended to prevent moral policing by unrelated individuals or groups. It tries to balance state interference in private matters by limiting prosecution to instances where people who are harmed (the husband, wife, parents, or their children) make a complaint to the police.

On the other hand, groups such as the MUI and conservative Islamic parties saw these provisions as bulwarks against moral decline. Although Islamic conservatives were not satisfied with the light sentences in the final version of the Code, they succeeded in shaping provisions reflecting Indonesia’s values and identity in more Islamic rather than pluralist terms. The advantage for the government was that Law No. 1 of 2023, as national law, eliminates the possibility of regulating these offenses at the regional level (beyond Aceh) and so is a structural barrier to vigilantism and arbitrary actions.Footnote ¹¹²

The new KUHP also has unresolved challenges. One is realizing gender equality. On their face, the zina and cohabitation provisions suggest that two persons commit the crime. This means both the man and woman involved should be prosecuted, but it relies on the morality articles not being manipulated to punish women.

Another challenge is the social reality of underage sexual activity and child marriage in Indonesia. Parents often address the “problem” of sexually active children by using religious celebrants or local officials to perform early marriages.Footnote ¹¹³ This avoids zina and upholds religious and social norms, although economic pressure and other motives also play a role. Because a parent can file a complaint and withdraw it at any time before trial, there is a risk that parents might use this to coerce their children into marriage, even though this is an offense under the Sexual Violence Law.

VII Conclusion

These compromises are unlikely to satisfy international critics of the new KUHP (including the Western providers of legal technical assistance through official development assistance), who see it as part of the slippage in Indonesia’s commitment to the rule of law and international human rights obligations post-reformasi. However, they represent the political reality of a secular democracy in which religion (particularly Islam) remains an important factor in the foundation and politics of the stateFootnote ¹¹⁴ and where legal reform is a domestic and international battleground for conflicting worldviews. Until the law is implemented in 2026 and until the Code of Criminal Procedure is revised, it will be difficult to ascertain with confidence whether the new KUHP is simply a symbolic marker of Islamic virtue or has the intended effect of shaping Indonesian behavior in practice, and how justice actors such as the police, prosecutors, and courts will enforce and interpret it.

II New Systems of Lay Participation in Asia

Four Asian countries have introduced new systems of lay participation in the last several decades: Russia,Footnote ¹⁴ Japan, South Korea, and, most recently, Taiwan. This chapter explores the context and motives for introducing lay participation, and how each country debated and decided upon a specific form of citizen involvement in legal decision-making. The chapter also reviews research on the experiences with lay participation in these countries.

III Motivation to Introduce New Systems of Lay Participation

In each of the four countries, the adoption of new systems of lay participation occurred during a period of political democratization. Those who pressed for citizen decision-making in law emphasized how citizen involvement would promote democratic self-governance, create connections between the citizenry and the government, and improve public confidence in the courts.

Russia and former countries within the Union of Soviet Socialist Republics (USSR) provide a clear example of political upheaval leading to democratization and legal reform. Trial by jury has a long history in Russia, where it was first introduced in the 1860s. However, it was effectively abolished during the Bolshevik Revolution and eventually replaced by a mixed court of lay and professional judges, which prevailed during the Soviet period.Footnote ¹⁵ Jury trials were resurrected in Russia in 1993, after the collapse of the Soviet Union led to significant judicial and other reforms.Footnote ¹⁶ International organizations interested in promoting democracy in former Soviet countries provided advisors and external funding, which contributed to the development and launching of Russia’s modern jury system.Footnote ¹⁷

In Japan, during the same period of the 1990s, there was growing interest in reforming the legal system. The business community was frustrated by the slow pace of the country’s judicial process, inadequate numbers of individuals in the legal profession, and minimal alternative dispute resolution options. Rieko Kage writes that the Japanese business community was not especially interested in citizen participation, but they did constitute a powerful force demanding general judicial reforms.Footnote ¹⁸ The business community’s interest in reform converged with that of other groups. Japan’s remarkably high conviction rate of 99 percent had led one scholar to identify it as a “prosecutor’s paradise,”Footnote ¹⁹ raising concerns about whether professional judges were overly inclined to accept prosecution arguments even in cases with strong defense claims.Footnote ²⁰ Reinforcing these concerns, reports surfaced about notable cases of wrongful conviction.Footnote ²¹ The Japan Federation of Bar Associations, which represents lawyers in private practice across the country, also pressed for reform, including the introduction of a jury system in Japan, as did members of the Research Group on Jury Trial, who had been encouraging a return to Japan’s jury system for years.Footnote ²² The Justice System Reform Council was thus created in 1999 to analyze and recommend legal reforms for the purposes of “clarifying the role to be played by justice in Japanese society in the 21^st century and examining and deliberating fundamental measures necessary for the realization of a justice system that is easy for the people to utilize, participation by the people in the justice system … and other reforms of the justice system …”Footnote ²³ After protracted and intense debate, it ultimately recommended that Japan adopt a mixed court system, Saiban-in seido. After a five-year period of preparation, the first trial was held in 2019. The intent of the legislation enacting Saiban-in seido was “to contribute to the promotion of the public’s understanding of the judicial system and thereby raise their confidence in it.”Footnote ²⁴

In his summary of South Korea’s jury system, Park noted the “significant strides toward the democratization of the country” in the 1980s after political successes in challenging its oppressive military government; changes included direct election of government leaders by citizens and greater independence of judges.Footnote ²⁵ By the 1990s, policymakers and activists urged the introduction of judicial reforms, including citizen participation in legal decision-making, “to enhance the democratic legitimacy of and public confidence in the trial processes.”Footnote ²⁶

Finally, the debates over the form of Taiwan’s lay participation system tracked political divisions, as Kage explains, with the conservative KMT party inclined toward a mixed court system that would keep professional judges in control, whereas the opposition DPP endorsed a jury system in which jurors would deliberate independently of professional judges.Footnote ²⁷ Ultimately, a mixed court system similar to that of Japan’s Saiban-in seido was decided upon. Interestingly, Taiwan’s Citizen Judge Act begins with the following language imbued with democratic concepts of popular sovereignty and transparency: “This Act is enacted to facilitate the participation in the criminal trial by both citizens and judges, enhance the transparency of the judiciary, account for the public’s opinions towards the law, promote the public’s confidence in the judiciary, and provide the public with a better understanding of the judiciary, so as to honor the ideal of popular sovereignty.”Footnote ²⁸

Although the political, social, and legal circumstances differed, policymakers in all four countries were motivated by the potential benefits of a more democratically responsive legal process. An interesting question is whether democratizing the legal system by incorporating lay citizen decision-makers strengthens democracy more generally. Using a global database that included information about countries’ lay participation systems and their political characteristics, Sanja Kutnjak Ivković and I calculated the statistical associations between the presence of citizen participation in a country and country-level democracy indicators.Footnote ²⁹ We discovered that countries with lay participation systems had significantly higher democracy scores.Footnote ³⁰ The relationships between lay participation democracy measures were strongest and most consistent for countries with jury systems; the relationships were less consistent for countries with mixed courts as their form of lay participation. Of course, we cannot say from the statistical analysis alone that lay participation causes greater democratization. The causal arrow may go the other way; countries with strong democracies may provide the conditions for lay participation to flourish.Footnote ³¹

IV Inter-Asian and Global Influences

What is notable about these introductions of lay participation is the way in which judges, lawyers, and policymakers actively engaged in exploring different international models for lay participation. Of course, with two-thirds of global countries having some form of lay participation, there were multiple models to examine. We can also observe the operation of inter-Asian influence, as experts from Asian countries advised policymakers in other Asian countries about the advantages and disadvantages of different approaches.

In South Korea, a Judicial Reform Committee was established in 2003 to consider judicial reforms; its report recommended an “advisory jury” in part because of concerns about the constitutionality of a criminal verdict decided by non-law-trained judges.Footnote ³² Although Japan had not yet settled on its lay participation system, members of Korea’s Judicial Reform Committee were “well aware of the debates over justice system reform in neighboring Japan.”Footnote ³³ South Korea introduced its advisory jury system in 2008; it reflects diverse global influences in that it includes features of both the United States (US) jury system (independent deliberation) and the German lay assessor system (opportunities to consult with the professional judge during deliberation).Footnote ³⁴ Defendants must request a jury trial and a professional judge must approve the request, which over time has limited the number of jury trials.

In Japan, in advance of introducing the Saiban-in seido system, the Japanese Supreme Court engaged in a “study tour” of jury and lay judge systems around the world.Footnote ³⁵ Furthermore, the Ministry of Justice established a Study Group on the Saiban-in System to review the implementation of the new system; members of the Study Group referenced a variety of global sources in their discussions. Rieko Kage analyzed the minutes of the Study Group’s eighteen meetings from September 2009 through June 2013; she found that their discussions included periodic references to practices in other countries.Footnote ³⁶ The most frequent references – a total of 41 – were to practices in the US. Second in frequency were eleven references to the advisory jury system in South Korea.Footnote ³⁷ Third most frequent were six references to the United Kingdom. Fewer than five references were made to the practices in Italy, Germany, France, Sweden, and Europe more generally. It is interesting to observe that the most common references were to countries with jury systems, rather than to countries with other mixed court systems like Japan’s. Kage found that study group members referenced the outside world on a variety of topics, including lay judge selection, the eligibility of cases to be decided by the lay judge system, the appeals process, and lay jurors’ psychological stress.Footnote ³⁸

Taiwan began examining different models of lay participation as early as 1988. The Judicial Yuan sent officials on fact-finding trips to multiple countries around the globe, including France, Switzerland, and Austria.Footnote ³⁹ Despite intensive study and discussion, no proposals were successfully launched in this early period.

Reinvigorating the debates in 2011, a committee chaired by Judicial Yuan Vice President Su included legal scholars who had obtained doctorates in different countries: two from the US, one from Germany, and one from Japan. The committee also invited scholars from Germany, Japan, and Korea to give lectures on their countries’ lay participation systems.Footnote ⁴⁰ The “trial observer” system that emerged from the committee’s deliberations, however, met with strong objections.Footnote ⁴¹ The trial observer system created a mixed court of lay and professional judges; however, the votes of the lay judges were to be nonbinding, leading eventually to rejection of that model.

As Taiwan’s policymakers continued to debate the appropriate lay participation model for the country, policymakers drew on the experiences of both Japan’s mixed court system and South Korea’s advisory jury system, again revealing the role of inter-Asian communication in legal reform.Footnote ⁴² The Japanese lawyer Satoru Shinomiya, for example, visited Taiwan to lecture and consult with legal and policy experts about Japan’s Saiban-in seido. Based on Japan’s experience with a mixed court, Shinomiya proffered advice about how to create and maintain a successful lay participation system.Footnote ⁴³

The lay participation reform process in South Korea, Japan, and Taiwan thus drew on models and practices from around the globe, as well as from other Asian countries. Through visits to other countries’ courts to observe trials with lay judges or juries, consultations with legal officials in other countries, and participation in international conferences and working groups, these legal actors and policymakers were engaged in the business of legal transplantation.

A “legal transplant” refers to the common occurrence of one country incorporating into its own legal system another country’s law, legal procedure, or legal institution, or even entire legal system.Footnote ⁴⁴ Some scholars of comparative law object that the term “legal transplant” conveys the mistaken idea that a transplanted law or legal procedure will operate in the same way in a new country as it did in the country of origin. They suggest that referring to the process as “legal translation” more accurately captures the ways in which countries adopt but also modify laws and legal procedures from other countries to suit their own needs.Footnote ⁴⁵ Because the four countries I discuss modified the approaches used elsewhere to create new institutions that fit within their own legal systems, these activities certainly qualify as exercises in legal translation.

V A Common and Distinctive Feature of Asian Lay Participation Systems: A Strong Role for Professional Judges

One noteworthy feature of the four systems of lay participation in Asia is that each of them preserves a strong role for the professional judges. In Russia, the trial judge has a great deal of power to shape the jury’s experience and responses. Rather than obtaining a jury’s general verdict of guilty or not guilty, the trial judge provides the jury with a list of specific questions about the evidence in the case. If there are apparent inconsistencies or errors in the jury’s responses, the judge can set aside the jury’s factual conclusions. During a jury trial, the judge may halt the proceeding and return the case to the prosecutor for further development of the facts and more investigation. In addition, appeals courts can overturn not only jury convictions but also jury acquittals. All these features create a relatively weak jury system that is vulnerable to political pressures.Footnote ⁴⁶ In other reforms, the Russian government restricted the types of cases that juries may hear, in particular political crimes in which an independent jury might be considered to be most valuable (or most threatening, from a governmental perspective).Footnote ⁴⁷

In Japan’s mixed courts, the most serious crimes must be tried by the mixed court; lay judges participate in both guilt and sentencing decisions; and (unlike South Korea) their votes are binding. These requirements suggest a robust presence for citizens. However, a mixed court system in which lay citizens and professionally trained judges decide the case together is likely to privilege professional judges’ voices. Sanja Kutnjak Ivković has written extensively about the advantages that professional judges hold in a mixed tribunal based on their legal expertise and previous experiences.Footnote ⁴⁸ Research on agreement rates between lay and professional judges in mixed tribunals finds them to be extraordinarily high, suggestive of strong professional judge influence. Ironically, the vitality of lay judge input in mixed courts may depend on the willingness of professional judges to cede some of their advantages.

These four countries follow civil law traditions. I have previously written about the way in which some countries with civil law traditions and the institution of the jury trial shifted from independent jury systems to mixed tribunals:

Finally, in South Korea, the jury system is “advisory” only.Footnote ⁵⁰ The three professional judges presiding over the jury trial may set aside the jury’s recommended verdict and substitute their own judgment. In addition, under certain conditions, the presiding judge may enter the deliberation room to offer advice. If the jury is not unanimous, the judge must join the deliberation; and even when the jury is unanimous, the jurors may still invite the judge to join the deliberation if a majority of jurors agree to it. Research on the South Korean advisory jury has found extraordinarily high agreement rates between the jury and the judge, which is not surprising given the required intervention of the judge when the jury is not unanimous.Footnote ⁵¹

The robust role for professional judges in these new Asian systems of lay participation contrasts with the judge’s role in other countries that have recently adopted lay participation systems. Argentina’s new jury systems provide the strongest contrast. After one province introduced a mixed court system in 2004,Footnote ⁵² other provinces that later adopted lay participation chose a classic jury model rather than a mixed court.Footnote ⁵³

VI Impact of New Systems of Lay Participation

The introduction of new systems of lay participation is a scholar’s dream. The structures and operation of existing jury systems were created and reified over many decades and even centuries, so that it is difficult as a scientific matter to identify the effects of the characteristics of lay participation systems. By comparing before and after the advent of a lay participation system, these new introductions allow us to examine how lay participation affects other aspects of the legal system, the outcomes of trials, the public’s support for the courts, and more.

The East Asian countries have facilitated scholarly assessment by providing data and information for regular evaluations of the introductions of their lay participation systems. Russia also collected data early on, but according to some researchers, it has become more difficult to track developments over time.

In Japan, there were numerous pre-implementation studies, including a remarkable 640 mock Saiban-in trials held in front of public audiences between 2004 and 2009.Footnote ⁵⁴ In some of the mock trials, the mixed court’s deliberations were videotaped and became the subject of scholarly study. Since the introduction of Saiban-in seido, the Japanese Supreme Court has regularly surveyed the Saiban-in and makes reports of case outcomes publicly available on its website. Likewise, in South Korea, a series of surveys of the public, criminal defendants, and legal elites explored attitudes and views about lay participation.Footnote ⁵⁵ In addition, the Korean Supreme Court’s Committee for Citizen Participation in Law has engaged in extensive reviews of jury trials, and the National Court Administration of South Korea has released information about the types of crimes heard by juries, the conviction rates, and judge–jury agreement rates.Footnote ⁵⁶

Taiwan’s Citizen Judges Act includes an article specifically requiring systematic research on the new mixed court system.Footnote ⁵⁷ Chapter 6 is devoted to the creation of a fifteen-person assessment committee and its required activities. For example, Article 105 provides:

Setting aside Russia, where it has been difficult to assess the contemporary operation of its jury system, the extensive collection of data by Japan and South Korea allows us to get a sense of the experiences and impact of these new systems of lay participation. Overall, both Japan and South Korea consider their implementations to have been successful.

Vanoverbeke and Fukurai, taking advantage of the extensive data that the Japanese Supreme Court has published on its website, show that there was a remarkable degree of stability in trial outcomes over the first ten years of Saiban-in seido.Footnote ⁵⁸ Perhaps surprisingly, trial conviction rates have remained close to 99 percent, dipping a bit to 98 percent in the few years prior to the pandemic.Footnote ⁵⁹ Mari Hirayama has identified some small declines in indictment rates (which one might expect if prosecutors are more selective in bringing cases before mixed tribunals) and some increases in criminal sentences, particularly in sex offense cases.Footnote ⁶⁰ In contrast, Japanese lawyers have reported dramatic effects on criminal investigation and trial procedures, such as increases in court-appointed lawyers, recording of interrogations, more evidence disclosures, and greater overall transparency from the oral trial.Footnote ⁶¹ In addition, several researchers have reported positive effects of lay judge service on the Saiban-in.Footnote ⁶² The lay judges are more positive about the courts following their lay judge service, which is in line with the greater positivity following jury service in the US and Argentina.Footnote ⁶³ Vanoverbeke and Fukurai also report post-service political activity among former Saiban-in, consistent with the civic engagement effects found elsewhere for jury service.Footnote ⁶⁴

The South Korean jury experiment has also continued, although the number of jury trials is low in part because of defendant choices and professional judges’ ability to veto a jury trial in specific cases.Footnote ⁶⁵ As noted earlier, the advisory jury and the trial judges agree at extremely high rates, perhaps attributable to the interjection of the trial judge into nonunanimous jury deliberations. As Park explains, there continue to be concerns about the nonbinding nature of the advisory jury’s verdicts. Yet, surveys suggest that this feature of the jury system is well-supported by the public and legal actors. The majority of the public, former jurors, and judges expressed support for the nonbinding nature of the advisory jury’s verdict and do not favor a change. The sole exception: criminal defendants.Footnote ⁶⁶ Prosecutors often appeal South Korean jury verdicts; however, higher courts have upheld the vast majority, and at higher percentages than bench trial case decisions.Footnote ⁶⁷

VII Conclusion

It is an exciting time to be examining lay participation in law. Taiwan’s incorporation of systematic study of the implementation and operation of the Citizen Judges Act in its first years deserves applause. That information will be valuable not only for improving Taiwan’s new system, but also to provide documentation about how legal systems adapt to the presence of community members as legal decision-makers. Armed with information about how similar systems in Asian countries are working, Taiwan can anticipate some of the challenges it will face to ensure a vibrant system of lay participation that provides a robust voice to the community in the resolution of criminal cases. Fortuitously, this volume on Inter-Asian Law (IAL) provides an opportunity to consider how citizen participation in law and other law reforms affect legal processes, decision-makers, and society at large in Asia and elsewhere in the world.