AAS Annual Meeting

Interarea/Border-Crossing Session 642

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Session 642: Law II

The Issue of "4:1" in the Federation of Malaya Civil Service, 1948-1955.
Ahmad Kamal Ariffin Mohd. Rus, University of Malaya, Malaysia

This paper discusses the history of "4:1" agreement in the Malayan Civil Service (MCS). In the era of pre-independence, the MCS terminology was only referred to the administrative service scheme and not in the broader sense of today's public service. The meaning of "4:1" was any single intake of the non-Malay candidate to the MCS must be equalized with 4 Malay candidates. Before the ratio agreement was obtained, this issue was critically been discussed among the Malay leaders between 1948 until the formation of the Public Service Commission (PSC) in 1957. The augmentation of this issue began in 1948 as soon as the government proposed the formation of the Public Service Commission in order to manage the recruitment, appointment and promotion in the public service of the Federation of Malaya. The Malay member in the Federal Legislative Council (FLC) anxiously had urged the government to defer the proposal because the formation of the Public Service Commission possibly will impinged on the position of the rearward Malays. This paper will also glimpse through the Malay leaders reaction particularly in the Conference of Ruler and in the Federal Legislative Council as a result of that deferment. The Malay Rulers seemed reluctant to agree with the motion to open up the MCS scheme to the non-Malays whilst presented in the Conference of Rulers. The Rulers had no objection in recruiting the non-Malay to the other service scheme but not into the administrative service scheme. Finally, this issue had been resolved after the same motion was conveyed to the Conference of Ruler for the third time. The Malay Rulers accepted the "4:1" agreement with the assurance that the Malay interest will not be ignored. The motion was presented in the Federal Legislative in 1954 and the Malay representatives reluctantly had to agree with it. It was obvious later, the issue of "4:1" had been dragged into a bigger issue i.e the formation of the Public Service Commission. The Bill on the formation of the commission which had been presented in the Federal Legislative Council in June 1955 had been rejected due to the objection by the Malay representatives.

A Line Drawn in Sand?: Law and Society in India
Gopika Solanki, Carleton University, Canada

The idea and practice of legal pluralism complicates and interrogates the conceptual distinction between state and society, public and private, state power and informal authority. While some scholars argue that interacting state and societal legalities are autonomous, others suggest that legal pluralism reframes our understanding of boundaries between state and society and fragments state sovereignty. In contrast, a third approach demonstrates that legal pluralism blurs the boundaries of state and society, and, counter-intuitively, homogenises the legal sphere. This paper discusses state-society relations at the interface of law in light of these debates. The paper examines the Indian policy of legal pluralism wherein the state shares authority with informal legal bodies in the governance of the family. Based on ethnographic fieldwork conducted in formal and informal courts in Mumbai, the paper studies the interactions between different spheres of law and legal authority and argues for an alternate approach that highlights communication and negotiation between state and society over boundary-drawing in everyday legal processes.

Legal Institutions, Principal-Agent Control, and Transnational Law in Modern China
Anne R. Greenleaf, University of Washington, Seattle, USA

The Chinese Administrative Litigation Law (ALL) has been hailed as a significant step forward in China’s march towards the rule of law. Scholars have suggested that the law was passed in order for the Chinese Communist Party (CCP) to collect information on the violations of low level officials, thus helping to solve the state’s enormous principal-agent problems. However, this analysis of the ALL is unsatisfying when reconsidered today. The ALL has not been able to significantly mitigate, let alone solve, the CCP’s principal-agent problems. An examination of administrative dispute resolution mechanisms that reveals the full complexity of China’s legal, quasi-legal, and internal administrative institutions demonstrates that a thin application of principal-agent theory is insufficient to explain the evolution and mechanisms of reproduction that have sustained Chinese administrative law over the past twenty years. A content analysis of Chinese legal journals from 1978-1990 reveals the role of an epistemic community of lawyers, transnational diffusion of legal norms, and localized rights discourse in the formation and passage of the ALL. The discourse surrounding the law’s passage suggests an alternative understanding of how and why legal institutions in China are being reproduced in spite of widespread distrust in the courts.

Insolvency Law Reform in Asia in the Aftermath of the 1997 Financial Crisis
Charles D. Booth, University of Hawaii, Manoa, USA

This paper will review the impact of the various insolvency law reforms enacted in Asia over the las14 years. The actual scope of the paper will depend on which category this paper is chosen for. It is quite clear that the majority of Asian jurisdictions had inadequate insolvency law regimes in place when the Asian Financial Crisis struck Asia in 1997, which exacerbated the effect of the financial crisis. This paper will consider the steps taken by various Asian jurisdictions to address these weaknesses and analyze the effectiveness of the reforms.