Law, Capitalism and Power in Asia

362 Pages·1999·46.561 MB·English

by  Kanishka Jayasuriya

&
LAW, CAPITALISM AND POWER IN ASIA
Liberal democracy is often derided by the political elites of East Asia, and yet
the rule of law is a concept that finds a warm reception within the same circles.
At first sight this seems to be a paradox, but this discrepancy is in large part
a misconception by Western observers who confuse their own idea of what
the rule of law should mean and what it often means, in reality, in East Asia.
This book demonstrates how the rule of law in Asia is more likely to be used
as a means of consolidating executive power, than as a vehicle for introducing
democratically controlled legal, economic and political reforms. A funda-
mental argument of the authors is that the rule of law needs to be understood
in the context of notions of political authority to be found within the state.
There are chapters on Hong Kong, China, Malaysia, Taiwan and Vietnam
that cover issues such as corporate law, the role of law in politics and legal
institutions.
Law, Capitalism and Power in Asia casts serious doubt on the assumed linkage
between the development of the rule of law and the emergence of market
economies. It suggests that the notions ofjudicial organisation and indepen-
dence need to be located in the specific ideological and political context of
East Asia.
Kanishka Jayasuriya is a Senior Research Fellow at the Asia Research
Centre, Murdoch University. He is co-editor of Dynamics of Economic Policy
Reform in Southeast Asia and Southwest Pacific Asia and co-author of Towards
Illiberal Democracy in Pacific Asia.
ASIAN CAPITALISMS
Edited by Richard Robison
Director, Asia Research Centre, Murdoch University, Australia
At the end of the twentieth century capitalism stands triumphant. Yet, it has
not been the liberal model of free markets, democratic politics, rule of law
and citizenship that has enjoyed general ascendancy. Within Asia, a range of
dirigiste, predatory and authoritarian systems have emerged under the
general rubric of Asian Capitalism. In this series we seek to explain the politi-
cal, ideological and social bases of this phenomenon and to analyse the
collision of these systems with the power of global economic markets and
highly mobile capital and their confrontation with emerging social and politi-
cal interests domestically. In the context of the financial crisis we ask whether
we are witnessing the end of Asian Capitalism. Is Asia caught in an inexorable
metamorphosis towards liberal capitalism and what factors drive the pro-
cesses of transformation?
LAW, CAPITALISM AND POWER IN ASIA
The rule of law and legal institutions
Edited by Kanishka Jayasuriya
LAW, CAPITALISM
AND POWER
IN ASIA
The rule of law and legal institutions
Edited by
Kanishka Jayasuriya
London and New York
First published 1999 by Routledge
11 New Fetter Lane, London EC4P 4EE
Simultaneously published in the USA and Canada
by Routledge
29 West 35th Street, New York, NY 10001
© 1999 Selection and editorial matter Kanishka Jayasuriya;
individual chapters © the contributors
Typeset in Baskerville by
BC Typesetting, Bristol
Printed and bound in Great Britain by
Creative Print & Design (Wales), Ebbw Vale
All rights reserved. No part of this book may be reprinted or
reproduced or utilised in any form or by any electronic,
mechanical, or other means, now known or hereafter
invented, including photocopying and recording, or in any
information storage or retrieval system, without permission in
writing from the publishers.
British Library Cataloguing in Publication Data
A catalogue record for this book is available from the British Library
Library of Congress Cataloging in Publication Data
A catalog record for this book has been requested
ISBN 0-415-19742-2 (hbk)
ISBN 0-415-19743-0 (pbk)
CONTENTS
List of contributors vii
Series editor’s preface x
Preface xii
1 Introduction: a framework for the analysis of legal
institutions in East Asia 1
KANISHKA JAYASURIYA
2 The many meanings of the rule of law 28
DAVID CLARK
3 Politics postponed: law as a substitute for politics
in Hong Kong and China 45
CAROL JONES
4 Market economy and the internationalisation of
civil and commercial law in the People’s Republic
of China 69
JIANFU CHEN
5 The political economy of institutional reform in
Indonesia: the case of intellectual property law 95
ANDREW ROSSER
6 Law and development in ‘the market place’:
an East Asian perspective 118
JOHN GILLESPIE
v
CONTENTS
7 The rule of law and corporate insolvency in six
Asian legal systems 151
BAHRIN KAMARUL AND ROMAN TOMASIC
8 Corporatism and judicial independence within
statist legal institutions in East Asia 173
KANISHKA JAYASURIYA
9 Between law and politics: the Malaysian judiciary
since independence 205
KHOO BOO TEIK
10 Magic memos, collusion and judges with attitude:
notes on the politics of law in contemporary
Indonesia 233
DAVID BOURCHIER
11 A community changes: Taiwan’s Council of
Grand Justices and Liberal Democratic reform 253
SEAN COONEY
12 ‘Independence’ and the judiciary in the PRC:
expectations for constitutional legality in China 281
MARK FINDLAY
13 Vietnamese legal institutions in comparative
perspective: contemporary constitutions and
courts considered 300
PENELOPE NICHOLSON
Index 330
vi
CONTRIBUTORS
David Bourchier is a Research Fellow at the Asia Research Centre, Mur-
doch University. A graduate of Monash University, his research focuses
on Indonesian politics, culture and society. He is the author of a Cornell
University monograph entitled: Dynamics of Dissent in Indonesia: Sawito and
the Phantom Coup and a contributing editor of Democracy in Indonesia, 1950s
and 1990s (Monash University).
Jianfu Chen is a Senior Lecturer in Law and Legal Studies, La Trobe Uni-
versity, and a Senior Researcher (part-time) at the Van Vollenhovenm
Institute for Law and Administration in Non-Western Countries, Faculty
of Law, Leiden University, The Netherlands. His research focuses on
legal developments in China and his publications include: From Administra-
tive Authorisation to Private Law: A Comparative Perspective of the Developing
Civil Law in the People’s Republic of China (Martinus Nijhoff 1995) .
David Clark is Associate Professor at Flinders University, and teaches Legal
Studies. Before coming to Australia in 1991 he taught for 12 years at the
University of Hong Kong in a public administration programme. He is
the author of a book on Hong Kong Administrative Law, and the co-
editor with Ming Chan of The Hong Kong Basic Law: Blueprint Stability and
Prosperity Under Chinese Sovereignty (Sharpe).
Sean Cooney is a Lecturer in the Law School, University of Melbourne, and
a member of that university’s Asian Law Centre. His research interests
are in comparative employment law and Chinese legal systems, in particu-
lar, law in Taiwan. He has written widely in the areas of employment and
constitutional law in comparative perspective, and more specifically on
Taiwan.
Mark Findlay is Professor and Head of the Department of Law and Deputy
Director of the Institute of Criminology, University of Sydney. He is also
an adjunct Professor at the School of Criminology, Simon Fraser Univer-
sity. He was previously the Foundation Professor of Law, University of
the South Pacific. His most recent book entitled: The Globalisation of Crime,
vii
CONTRIBUTORS
will be published by Cambridge University Press. His research interests
include the development of criminal justice in Hong Kong and China.
John Gillespie is a Senior Lecturer at the Law School, Deakin University,
Melbourne, Australia. He has worked as a legal practitioner in Asia, and
now researches and acts as a consultant to multilateral aid organisations
on legal economic reform in Vietnam and Indonesia. He has several publi-
cations on the Vietnamese and East Asian legal systems.
Kanishka Jayasuriya is a Senior Research Fellow at the Asia Research
Centre of the Department of Politics and International Studies, Murdoch
University where he leads a research project on the emergence of the rule
of law in East Asia. He has held teaching and research positions at the
National University of Singapore and several Australian universities. He
is a co-author of Towards Illiberal Democracy in Pacijic-Asia (Macmillan
19 95) and co-editor of Dynamics ofEconomic Policy Reform in South West Pacific
(Oxford University Press 1992).
Carol Jones is currently a Visiting Fellow at the Research School of Social
Sciences, Division of Philosophy & Law, Australian National University.
Prior to this she was Senior Lecturer in Law, University of Wales, Cardiff
and Fellow, Centre for Asian Studies, University of Hong Kong. She has
been working in Hong Kong since 1990 and her main areas of interest are
comparative sociology of law, rise of the legal ‘profession’ in China,
critiquing theories of globalisation of law and the relationship between
rule of law and the free market.
Bahrin Kamarul is a Senior Lecturer in Law at the University of Canberra.
He was a member of a research team which conducted an Australian
Research Council funded study of insolvency law and practice in six
Asian jurisdictions. He is currently a member of a joint research team
(University of Canberra and the China University of Politics and Law)
undertaking an examination of the reform of economic laws of China.
Khoo Boo Teik is a Lecturer in the School of Social Sciences, Universiti
Sains Malaysia, Penang, Malaysia. From 1987 to 1993 he taught in the
Department of Public Policy and Planning, Universiti Brunei Darussalam.
He is the author of Paradoxes of Mahathirism: An Intellectual Biography of
Mahathir Mohamad (Kuala Lumpur, Oxford University Press, 1995).
Penelope Nicholson is a graduate of the University of Melbourne and is
currently completing a doctorate on the Vietnamese court system at the
Law school of the University of Melbourne. In addition to lecturing on
the Vietnamese legal system at the University of Melbourne, she also co-
ordinates legal training programmes for Vietnamese lawyers.
viii
CONTRIBUTORS
Andrew Rosser is a Lecturer in Politics and International Studies as well as
a member of the Asia Research Centre of Murdoch University. His
research interests are in the area of Indonesian political economy and com-
parative political economy.
Roman Tomasic is Professor of Law and Director of the National Centre for
Corporate Law and Policy Research at the University of Canberra. He
has held research and teaching positions in the United States, Hong Kong
and Australia and has published extensively. His most recent publications
include a co-authored, empirically based study, on Insolvency Law and Prac-
tice in Asia (Hong Kong by FT Law & Tax, Hong Kong, 1997), and a co-
edited and co-authored major international collaborative study entitled:
Hong Kong Company Law: Legislation and Commentary (Butterworths Asia,
Singapore, 1998).
tx