Jindal Global Law Review

THE CHANGING ROLE OF LAW IN ASIA

VOLUME 2, ISSUE 2, 2011

Issue Editors: Shilpi Bhattacharya Prabhakar Singh

Editor’s Foreword:  (PDF)

ARTICLES

1. Locating the Rule of Law in Asia Justice
     V. R. Krishna Iyer
     Article (PDF) | Abstract

The rule of law must govern mankind as a whole beyond regionalism. In my humble view if our world is to reflect a civilised order and cultural comity, the world order must be socialist and democratic. Pluralism, in the matter of religions is a product of diversity of faith and creed. If peace is to prevail and cosmos is free from chaos we must have a creative sublimity in our values, a transformation of the existing system where justice, social, economic and political, which can be claimed by every member of humanity. It is this conviction of mine, this abhorrence of functional anarchy and terrorism that persuaded me to write this long piece.
V.R. Krishna Iyer, Jindal Global Law Review, Volume 2, Issue 2, March 2011,1:13, ISSN 0975-2498.


2. Does Law Matter in Japan?: The Emerging Role of Law, Lawyers, and Legal Institutions in the Revitalization of Japan
    Gerald Paul McAlinn
    Article (PDF) | Abstract

The Japanese have long had a reputation for being non-litigious and possessed of a low level of legal consciousness. In the Meiji Era (1868-1912), Germany provided the model for efforts to modernize law, medicine, science and various social institutions. During the period following the end of World War II Japan looked primarily towards the United States for inspiration. The administrative state under the direction of elite ministerial bureaucrats was remarkably successful in forging a partnership between government and industry known as colloquially as ‘Japan Inc.’, and then bringing about the ‘Economic Miracle’ of Japan’s rise from the ashes of defeat following World War II. Unfortunately, the methods and institutions that worked well for rebuilding contained the seeds of their own downfall. Japanese politicians and the public alike grew disillusioned with the central command economy dominated by unchecked ministerial discretion and a lack of transparency. The response was to launch a sweeping series of legal and institutional reforms over the past two decades. After 20 years, reforms and corresponding infrastructure are now in place for law, lawyers and legal institutions to take a central role in the revitalisation of Japanese society.
Gerald Paul McAlinn, Jindal Global Law Review, Volume 2, Issue 2, March 2011,15:36, ISSN 0975-2498.


3. Erasing the Non Judicial Narrative: Victim Testimonies at the Khmer Rouge Tribunal
     Mahdev Mohan and Vani Sathisan
     Article (PDF) | Abstract

While discussing the International Criminal Tribunal for the Former Yugoslavia (ICTY), our article disputes the frequently asserted.- but rarely examined – claim that victim- participants benefit from participating in war crimes trials and may be able to reconcile with their traumatic pasts. In particular, our article will consider the Extraordinary Chambers in the Courts of Cambodia’s (ECCC) first trial (‘’Case 001’’) which concluded in July 2010. Drawing upon the seminal work of Judith Shkalr and her description of gradations or degrees of legalism, we analyze journalistic and trial monitoring reports relating to the experiences of victims before the ECCC in Case 001. This article will, we hope, serve to guide the ECCC in how it should modify the trial process and consider ways in which to conceive and engage with non-judicial measures outside the court-room which may be more resonant with victim civil parties.
Mahdev Mohan and Vani Sathisan, Jindal Global Law Review, Volume 2, Issue 2, March 2011, 37:54, ISSN 0975-2498.


4. The Constitution of China: What Purpose Does it (Not) Serve?
    Surya Deva
    Article (PDF) | Abstract

It is widely accepted that constitutions serve several important purposes in Western as well as non-Western traditions. In this article, I propose that constitutions ought to serve at least the following six core purposes: signify a break from the past, organise political power, provide legitimacy to the legal system, empower people, limit the power of government organs and work as a unifying force for diverse interests and groups. Against this background, this article seeks to ask and answer the following question: does the Constitution of the People’s Republic of China (PRC) serve these core purposes? Although the PRC Constitution resembles – at least in appearance – Western liberal constitutions in many respects, it is really doubtful if it serves many of these core purposes. This is not to suggest, however, that the PRC Constitution is devoid of any real value. It does serve some other ‘secondary’ purposes within the current Chinese legal framework. This article will try to shed some light on what those purposes are and whether they mean anything to people outside China interested in the study of constitutionalism.
Surya Deva, Jindal Global Law Review, Volume 2, Issue 2, March 2011, 55:77, ISSN 0975-2498.


5. Chinese Policies in Tibet: Should India Remain Concerned
     Michael C. Davis
     Article (PDF) | Abstract

India has long been engaged with the Tibet issue, through in recent years this engagement tends to focus more on strategic considerations, as some critics question the costs, in terms of Sino-Indian relations, of hosting Tibetan exiles. These costs are said to arise out of tense relations over border disputes, security concerns and trade. These strategic considerations may tend to drown out evaluation of the substantive situation that has produced the Sino-Tibetan impasse – which is the focus of this article. With its long relationship with Tibet, India can ill afford to ignore deep-seated social justice problems in the community that stretches along most of its northern border, especially if Chinese policies in Tibet are likely to increase or decrease refugee flows. This article offers an overview of the Sino-Tibetan dispute and efforts at resolution. After the March 2008 uprising, in a Chinese effort at damage control in the lead up to the Olympics, three quick Sino-Tibetan meetings took place, in May, July and October. In the October meeting the Tibetans produced a ‘’Memorandum on Genuine Autonomy for the Tibetan People’’, which the Chinese side quickly rejected. In a November plenary meeting of representatives of the worldwide Tibetan exile community, which took place in Dharamsala, India. Tibetans resolved to push on with their efforts to achieve autonomy. With China knocking at the door, these developments will continue to demonstrate the importance of India’s fundamental commitments to the Tibetans people.
Michael C. Davis, Jindal Global Law Review, Volume 2, Issue 2, March 2011, 79:98, ISSN 0975-2498.


6. Charting Corporate and Financial Governance in Korea in the New Decade: World Bank and IMF Reports
      Young Cheol and David K. Jeong
      Article (PDF) | Abstract

Since the financial crisis of 1997, Koreans have begun to understand the true meaning of the rule of law. By increasing transparency in the law, the Korean government has tried to make corporate governance practices more foreseeable. The rule of law based on transparency and expectation should continue to prosper in Korea, which would lead to a more competitive corporate community. Furthermore, the Korean government should implement policies for the development of an active market for corporate control and professional managers.
Young-Cheol and David K. Jeong, Jindal Global Law Review, Volume 2, Issue 2, March 2011, 99:125, ISSN 0975-2498.


7.Independent Directors and their Constraints in China and India
      Umakanth Varottil
     Article (PDF) | Abstract

Although the concept of the independent director evolved in the US and the UK (that are outsider systems with companies maintaining diffused shareholding), it has been transplanted to several other countries (including those that are insider systems with concentrated shareholding). The recipients of the concept include the two leading emerging economies of India and China. Available empirical studies have not been optimistic regarding the role of that independent directors can play in these countries as compared to the US and UK where the concept originated. This article discusses the various constraints operating in China and India that undermine the efficacy of independent directors. The wide spectrum of constraints comprises structural, legal, cultural, and political constraints. A study of these concludes with some pointers for reform in China and India so as to bolster the independent director institution as a measure of enhanced corporate governance.
Umakanth Varottil, Jindal Global Law Review, Volume 2, Issue 2, March 2011,127:155, ISSN 0975-2498.


8.The Changing Scope of Human Rights in the Context of Counter Terrorism in      Singapore: A Comparative Perspective
     Sarah Shi and Ronald Wong
     Article (PDF) | Abstract

The article conducts a brief comparative survey of human rights practice and policy in the context of counter-terrorism, looking particularly at the measures of preventive detention and torture. The article focuses on Singapore, with a comparative analysis between the United States and the United Kingdom. The way each jurisdiction deals with the key tension between individual liberty and collective security is discussed. The latter two jurisdictions were chosen as they are often perceived to be vocal advocates of human rights. Singapore, by contrast, eschews ‘rights’ discourse in favour of a ‘responsibilities’ discourse and holds firm to the view that rights are culture-specific; drawing lines between Singapore and ‘Western societies’ to justify differences in the scope of protection afforded to human rights in this country. The article examines the three jurisdictions to explore whether the two Western societies to indeed stand apart from Singapore in the context of counter-terrorism. This comparative analysis will reveal that the practices of the executive government in the three countries are inf act broadly similar. Yet, the UK and the US have taken a more robust role in judicially reviewing executive action, in contrast with the Singapore judiciary, which has been said to be ‘deferential’ to the executive.
Sarah Shi and Ronald Wong, Jindal Global Law Review, Volume 2, Issue 2, March 2011,157:186, ISSN 0975-2498.


9. A Review of China’s Anti-Monopoly Law
     Gu Minkang and Chen Bing
     Article (PDF) | Abstract

The promulgation of the Chinese Anti-monopoly Law (AML) has attracted global attention. International press and academics have already commented on this law based on various standards. Interestingly, though they consider it as a historical step for the development of the Chinese legal system, at the same time, they criticize it for its inadequacies and glitches. The paper intends to critically evaluate some negative comments and clarify some misperceived notions. Three main criticisms have been analysed in this paper, namely: (a) non-competition related objective; (b) uncertainty regarding the implementing of the AML; and (c) discrimination against foreign undertakings. This paper then undertakes a comparative analysis of the AML with EU competition law and US antitrust law. Finally, this paper puts forward relevant suggestions for enhancing the effectiveness of AML.
Gu Minkang and Chen Bing, Jindal Global Law Review, Volume 2, Issue 2, March 2011,187:206, ISSN 0975-2498.


BOOK REVIEW

10. Legal Education in Asia: Globalization, Change and Contexts
       Suvrajyoti Gupta
        (PDF)