Constitutionalism in Asia – serie

This book examines the presence of ethnic, religious, political, and ideational pluralities in Southeast Asian societies and how their respective constitutions respond to these pluralities. Countries covered in this book are Brunei, Cambodia, Indonesia, Laos, Malaysia, Myanmar, the Philippines, Singapore, Thailand, and Vietnam. The chapters examine: first, the range of pluralist constitutional values and ideas embodied in the constitutions; secondly, the pluralist sources of constitutional norms; thirdly, the design of constitutional structures responding to various pluralities; and fourthly, the construction and interpretation of bills of rights in response to existing pluralities. The ‘pluralist constitution’ is thus one that recognises internal pluralities within society and makes arrangements to accommodate, rather than eliminate, these pluralities.

This book analyses the unique constitutional system in operation in Thailand as a continuous process of bricolage between various Western constitutional models and Buddhist doctrines of Kingship. Reflecting on the category of 'constitutional monarchy’ and its relationship with notions of the rule of law, it investigates the hybridised semi-authoritarian, semi-liberal monarchy that exists in Thailand. By studying constitutional texts and political practices in light of local legal doctrine, the book shows that the monarch's affirmation of extraordinary prerogative powers strongly rests on wider doctrinal claims about constitutionalism and the rule of law. This finding challenges commonly accepted assertions about Thailand, arguing that the King's political role is not the remnant of the 'unfinished' borrowing of Western constitutionalism, general disregard for the law, or cultural preference for 'charismatic authority', as generally thought. Drawing on materials and sources not previously available in English, this important work provides a comprehensive and critical account of the Thai ‘mixed constitutional monarchy’ from the late 19th century to the present day.

This volume addresses the idea of origins, how things are formed, and how they relate to their present and future in terms of ‘constitution-making’ which is a continuous process in South Asian states. It examines the drafting, nature, core values and roles of the first modern constitutions during the founding of the eight modern nation-states in South Asia. The book looks at the constitutions of Afghanistan, Bangladesh, Bhutan, India, Maldives, Nepal, Pakistan and Sri Lanka. It provides an explanatory description of the process and substantive inputs in the making of the first constitutions of these nations; it sets out to analyse the internal and external (including intra-regional) forces surrounding the making of these constitutions; and it sets out theoretical constructions of models to conceptualise the nature and role of the first constitutions (including constituent documents) in the founding of the modern nation-states and their subsequent impact on state-building in the region.

This book provides detailed insight into some of the most contentious events occurring in jurisdictions operating within China’s vast shadow. Epic clashes between law and politics have become a regular fixture throughout the world, and no region has seen more of these than Asia. In some cases these conflicts have involved newfound democratic aspirations or democratic deepening, while in others it has arisen because of pushback against authoritarian or semi-authoritarian governments. Indeed, many of these clashes centre on or involve the region’s most powerful and controversial player: China. This book focuses on several of these critical struggles, examining how democracy and the rule of law play out in a number of jurisdictions highly influenced by China’s presence. Chapters provide insightful analysis on issues such as: major threats to the rule of law and attempts to uphold the principle, oath-taking controversies, foreign judges and the disparagement of the judiciary, unconstitutional and undemocratic provisions, changing ideas of representation, a right to democracy in international law, same-sex marriage rights, and the legal responses to civil disobedience in Taiwan and Hong Kong, among other topics. Ultimately, the book delivers a contemporary understanding of how democracy and the rule of law both complement and converge in this fascinating region.

This book provides in-depth comparative analysis of how religious penal clauses have been developed and employed within Asian common law states, and the impact of such developments on constitutional rights. By examining the theoretical and conceptual underpinnings of religious offences as well as interrogating the nature and impact of religious penal clauses within the region, it contributes to the broader dialogue in relation to religious penal clauses globally, whether in countries which practise forms of secular or religious constitutionalism. Asian practice is significant in this respect, given the centrality of religion to social life and indeed, in some jurisdictions, to constitutional or national identity.Providing rigorous studies of common law jurisdictions that have adopted similar provisions in their penal code, the contributors provide an original examination and analysis of the use and development of these religious clauses in their respective jurisdictions. They draw upon their insights into the background sociopolitical and constitutional contexts to consider how the inter-relationship of religion and state may determine the rationale and scope of religious offences. These country-by-country chapters inform the conceptual examination of religious views and sentiments as a basis for criminality and the forms of ‘harm’ that attract legal safeguards. Several chapters examine these questions from a historical and comparative perspective, considering the underlying bases and scope, as well as evolving objectives of these provisions. Through these examinations, the book critically interrogates the legacy of colonialism on the criminal law and constitutional practice of various Asian states.

This new book in the Constitutionalism in Asia series considers the idea of origins, and of change and continuity in terms of ‘constitution-making’, which is an on-going process in the Northeast Asian states.The book examines the drafting, nature, core values, and roles of the first modern constitutions during the founding of the 8 modern states/territories in Northeast Asia: China (1949), Taiwan (1947), Hong Kong SAR (1997), Macau SAR (1999), Japan (1889), North Korea (1948 and 1972), South Korea (1948), and Mongolia (1924).The collection provides:- an exploratory description of the process and substantive inputs in the making of the first constitutions of these nations/territories;- analysis of the internal and external (including intra-regional) forces surrounding the making of these constitutions; and- theoretical construction of models to conceptualise the nature and role of the first constitutions (including constituent documents) in the founding of the modern nation-states/territories and their subsequent impact on state-building in the region.

This book analyses the equal citizenship claims of women and sexual and gender diverse people across several Asian jurisdictions. The volume examines the rich diversity of constitutional responses to sex, gender and sexuality in the region from a comparative perspective. Leading comparative constitutional law scholars identify ‘opportunity structures’ to explain the uneven advancement of gender equality through constitutional litigation and consider a combination of variables which shape the diverging trajectories of the jurisdictions in this study.The authors also embed the relevant constitutional and legal developments in their historical, political and social contexts. This deep contextual understanding of the relationship between sex, gender, sexuality and constitutionalism greatly enriches the analysis. The case studies reflect a variety of constitutional structures, institutional designs and contextual dynamics which may advance or impede developments with respect to sex, gender and sexuality. As a whole, the chapters further an understanding of the constitutional domain as a fruitful site for advancing gender equality and the rights of sexual and gender diverse people.The jurisdictions covered represent all Asian sub-regions including: East Asia (Japan, Taiwan, Hong Kong and South Korea), South East Asia (Malaysia, Singapore, Philippines and Indonesia), and South Asia (India, Nepal, Pakistan and Sri Lanka). The introductory framework chapter situates these insights from the region within the broader global context of the evolution of gender constitutionalism.

This volume addresses the idea of origins, how things are formed, and how they relate to their present and future in terms of ‘constitution-making’ which is a continuous process in South Asian states. It examines the drafting, nature, core values and roles of the first modern constitutions during the founding of the eight modern nation-states in South Asia. The book looks at the constitutions of Afghanistan, Bangladesh, Bhutan, India, Maldives, Nepal, Pakistan and Sri Lanka. It provides an explanatory description of the process and substantive inputs in the making of the first constitutions of these nations; it sets out to analyse the internal and external (including intra-regional) forces surrounding the making of these constitutions; and it sets out theoretical constructions of models to conceptualise the nature and role of the first constitutions (including constituent documents) in the founding of the modern nation-states and their subsequent impact on state-building in the region.

This book examines the presence of ethnic, religious, political, and ideational pluralities in Southeast Asian societies and how their respective constitutions respond to these pluralities. Countries covered in this book are Brunei, Cambodia, Indonesia, Laos, Malaysia, Myanmar, the Philippines, Singapore, Thailand, and Vietnam. The chapters examine: first, the range of pluralist constitutional values and ideas embodied in the constitutions; secondly, the pluralist sources of constitutional norms; thirdly, the design of constitutional structures responding to various pluralities; and fourthly, the construction and interpretation of bills of rights in response to existing pluralities. The ‘pluralist constitution’ is thus one that recognises internal pluralities within society and makes arrangements to accommodate, rather than eliminate, these pluralities.

This book provides in-depth comparative analysis of how religious penal clauses have been developed and employed within Asian common law states, and the impact of such developments on constitutional rights. By examining the theoretical and conceptual underpinnings of religious offences as well as interrogating the nature and impact of religious penal clauses within the region, it contributes to the broader dialogue in relation to religious penal clauses globally, whether in countries which practise forms of secular or religious constitutionalism. Asian practice is significant in this respect, given the centrality of religion to social life and indeed, in some jurisdictions, to constitutional or national identity.Providing rigorous studies of common law jurisdictions that have adopted similar provisions in their penal code, the contributors provide an original examination and analysis of the use and development of these religious clauses in their respective jurisdictions. They draw upon their insights into the background sociopolitical and constitutional contexts to consider how the inter-relationship of religion and state may determine the rationale and scope of religious offences. These country-by-country chapters inform the conceptual examination of religious views and sentiments as a basis for criminality and the forms of ‘harm’ that attract legal safeguards. Several chapters examine these questions from a historical and comparative perspective, considering the underlying bases and scope, as well as evolving objectives of these provisions. Through these examinations, the book critically interrogates the legacy of colonialism on the criminal law and constitutional practice of various Asian states.

This volume focuses on the making, nature, and role of the first modern constitutions at the founding of the modern nation-states in Southeast Asia. These historical essays add richly to our understanding and appreciation of the founding moments and to the theory and practice of constitutionalism in these states. This volume makes three significant contributions. First, it helps plug the wide knowledge gap in comparative constitutional history in Southeast Asia. Second, it furthers our understanding of contemporary constitutional practice and also anticipates possible developmental trajectories in light of the foundational values embedded in and manifested through these constitutions. Third, through the comparative historical study of these early constitutions, plausible theoretical insights may be gained to further our understanding of Southeast Asia’s constitutional history. The book is essential reading for those wishing to obtain a deeper understanding of the constitutional foundings of Southeast Asia.

This book analyses the unique constitutional system in operation in Thailand as a continuous process of bricolage between various Western constitutional models and Buddhist doctrines of Kingship. Reflecting on the category of 'constitutional monarchy’ and its relationship with notions of the rule of law, it investigates the hybridised semi-authoritarian, semi-liberal monarchy that exists in Thailand. By studying constitutional texts and political practices in light of local legal doctrine, the book shows that the monarch's affirmation of extraordinary prerogative powers strongly rests on wider doctrinal claims about constitutionalism and the rule of law. This finding challenges commonly accepted assertions about Thailand, arguing that the King's political role is not the remnant of the 'unfinished' borrowing of Western constitutionalism, general disregard for the law, or cultural preference for 'charismatic authority', as generally thought. Drawing on materials and sources not previously available in English, this important work provides a comprehensive and critical account of the Thai ‘mixed constitutional monarchy’ from the late 19th century to the present day.

This book provides detailed insight into some of the most contentious events occurring in jurisdictions operating within China’s vast shadow. Epic clashes between law and politics have become a regular fixture throughout the world, and no region has seen more of these than Asia. In some cases these conflicts have involved newfound democratic aspirations or democratic deepening, while in others it has arisen because of pushback against authoritarian or semi-authoritarian governments. Indeed, many of these clashes centre on or involve the region’s most powerful and controversial player: China. This book focuses on several of these critical struggles, examining how democracy and the rule of law play out in a number of jurisdictions highly influenced by China’s presence. Chapters provide insightful analysis on issues such as: major threats to the rule of law and attempts to uphold the principle, oath-taking controversies, foreign judges and the disparagement of the judiciary, unconstitutional and undemocratic provisions, changing ideas of representation, a right to democracy in international law, same-sex marriage rights, and the legal responses to civil disobedience in Taiwan and Hong Kong, among other topics. Ultimately, the book delivers a contemporary understanding of how democracy and the rule of law both complement and converge in this fascinating region.

This new book in the Constitutionalism in Asia series considers the idea of origins, and of change and continuity in terms of ‘constitution-making’, which is an on-going process in the Northeast Asian states.The book examines the drafting, nature, core values, and roles of the first modern constitutions during the founding of the 8 modern states/territories in Northeast Asia: China (1949), Taiwan (1947), Hong Kong SAR (1997), Macau SAR (1999), Japan (1889), North Korea (1948 and 1972), South Korea (1948), and Mongolia (1924).The collection provides:- an exploratory description of the process and substantive inputs in the making of the first constitutions of these nations/territories;- analysis of the internal and external (including intra-regional) forces surrounding the making of these constitutions; and- theoretical construction of models to conceptualise the nature and role of the first constitutions (including constituent documents) in the founding of the modern nation-states/territories and their subsequent impact on state-building in the region.

This book assesses territorial governance (that is, all forms of subnational governance) as a constitutional artefact in five Southeast Asian countries - Indonesia, Malaysia, Myanmar, the Philippines, and Thailand. Starting with the linked ideas of localism and subsidiarity, the argument is that these states have used various forms of subsidiarity for dealing with ethnic and religious pluralism and the social diversity for which Southeast Asia is especially noted. Territorial governance mechanisms discussed range from decentralisation to special regional autonomy, federalism, and local government, including village autonomy. A silent revolution has occurred in which our view of these states as highly centralised ‘developmental states’ is in need of serious modification. Southeast Asia, the book argues, presents a high degree of originality in the framing of territorial governance.

This book assesses territorial governance (that is, all forms of subnational governance) as a constitutional artefact in five Southeast Asian countries - Indonesia, Malaysia, Myanmar, the Philippines, and Thailand. Starting with the linked ideas of localism and subsidiarity, the argument is that these states have used various forms of subsidiarity for dealing with ethnic and religious pluralism and the social diversity for which Southeast Asia is especially noted. Territorial governance mechanisms discussed range from decentralisation to special regional autonomy, federalism, and local government, including village autonomy. A silent revolution has occurred in which our view of these states as highly centralised ‘developmental states’ is in need of serious modification. Southeast Asia, the book argues, presents a high degree of originality in the framing of territorial governance.

This book analyses the equal citizenship claims of women and sexual and gender diverse people across several Asian jurisdictions. The volume examines the rich diversity of constitutional responses to sex, gender and sexuality in the region from a comparative perspective. Leading comparative constitutional law scholars identify ‘opportunity structures’ to explain the uneven advancement of gender equality through constitutional litigation and consider a combination of variables which shape the diverging trajectories of the jurisdictions in this study.The authors also embed the relevant constitutional and legal developments in their historical, political and social contexts. This deep contextual understanding of the relationship between sex, gender, sexuality and constitutionalism greatly enriches the analysis. The case studies reflect a variety of constitutional structures, institutional designs and contextual dynamics which may advance or impede developments with respect to sex, gender and sexuality. As a whole, the chapters further an understanding of the constitutional domain as a fruitful site for advancing gender equality and the rights of sexual and gender diverse people.The jurisdictions covered represent all Asian sub-regions including: East Asia (Japan, Taiwan, Hong Kong and South Korea), South East Asia (Malaysia, Singapore, Philippines and Indonesia), and South Asia (India, Nepal, Pakistan and Sri Lanka). The introductory framework chapter situates these insights from the region within the broader global context of the evolution of gender constitutionalism.

This book presents an in-depth interrogation of the theory and application of the Basic Structure Doctrine in the Federation of Malaysia.The Basic Structure Doctrine, famously introduced in the 1973 Indian Supreme decision of Kesavananda Bharati v State of Kerala AIR – which held that certain core or fundamental features in the Constitution of India could not be amended by Parliament even if it met all procedural requirements – was initially rejected when it was first argued in Malaysia in the 1975 case of Loh Kooi Choon v Government of Malaysia and lay dormant for the next three decades.Judicial winds shifted in 2010 when Malaysia’s apex court, the Federal Court, cited Kesavananda with approval in the case of Sivarasa Rasiah v Badan Peguam Malaysia & Anor, and observed that it was ‘clear from the way in which the Federal Constitution is constructed that there are certain features that constitute its basic fabric’ and that ‘any statute (including one amending the Constitution) that offends the basic structure may be struck down as unconstitutional.’ In a quick succession of cases, the Federal Court cemented this doctrine in Malaysia’s jurisprudence and deployed it to defend the court’s judicial power. These widely-publicised cases generated much debate beyond the legal fraternity and judiciary and often polarised different sectors of Malaysian society.This collection of essays responds to this extremely important debate on the limits of constitutional amendments as a form of constitution-making in Malaysia by considering the theory behind the Basic Structure Doctrine and critically examining how it has been harnessed by the Federal Court and by other political actors – most notably Islamists and secularists; and royalists and republicans – on the ground.

This book presents an in-depth interrogation of the theory and application of the Basic Structure Doctrine in the Federation of Malaysia.The Basic Structure Doctrine, famously introduced in the 1973 Indian Supreme decision of Kesavananda Bharati v State of Kerala AIR – which held that certain core or fundamental features in the Constitution of India could not be amended by Parliament even if it met all procedural requirements – was initially rejected when it was first argued in Malaysia in the 1975 case of Loh Kooi Choon v Government of Malaysia and lay dormant for the next three decades.Judicial winds shifted in 2010 when Malaysia’s apex court, the Federal Court, cited Kesavananda with approval in the case of Sivarasa Rasiah v Badan Peguam Malaysia & Anor, and observed that it was ‘clear from the way in which the Federal Constitution is constructed that there are certain features that constitute its basic fabric’ and that ‘any statute (including one amending the Constitution) that offends the basic structure may be struck down as unconstitutional.’ In a quick succession of cases, the Federal Court cemented this doctrine in Malaysia’s jurisprudence and deployed it to defend the court’s judicial power. These widely-publicised cases generated much debate beyond the legal fraternity and judiciary and often polarised different sectors of Malaysian society.This collection of essays responds to this extremely important debate on the limits of constitutional amendments as a form of constitution-making in Malaysia by considering the theory behind the Basic Structure Doctrine and critically examining how it has been harnessed by the Federal Court and by other political actors – most notably Islamists and secularists; and royalists and republicans – on the ground.