This chapter highlights the practice of constitutionalism in hybrid regimes. In the contemporary world, constitutionalism is practiced by not only democratic countries but also authoritarian states for the sake of economic development. This chapter addresses the following questions: First, why would authoritarian regimes accept the idea of constitutionalism and legality? Second, what makes authoritarian constitutionalismfunctional and stable and why has it worked in some countries but not others? Third, whether and under what conditions would authoritarian constitutionalism transit towards a more liberal and democratic system down the road? This chapter examines these topics in the context of selected Asian countries and provides literature review and research guidelines for readers of the Oxford Handbook of Constitutional Law in Asia.
The constitutional arrangement of “One Country, Two Systems” as applied to Hong Kong since 1997 was designed to enable Hong Kong as a Special Administrative region (SAR) of the People’s Republic of China (PRC) to enjoy a high degree of autonomy, to preserve its common law based legal system, the rule of law, judicial independence and the protection of human rights. Given the vast differences between the political and legal systems and cultures of mainland China and the HKSAR, the practice of “One Country, Two Systems” has resulted in increasing conflicts, culminating in the “Occupy Central” movement of 2014. This chapter analyzes the constitutional framework of “One Country, Two Systems” as established by the Basic Law, particularly the respective powers of the central government and the HKSAR government, and relevant political developments in Hong Kong. It also considers the important role played by the Hong Kong courts in sustaining the operation of “One Country, Two Systems”.
This chapter focuses on avenues by which judges in Asia interact with their counterparts in other States on constitutional questions. The practice of judicial networking in Asia is illustrated through case studies of the Association of Asian Constitutional Courts, the Asian Judges Network on Environment, and the Korean Constitutional Court. The chapter argues that the existing culture of judicial cooperation is characterised by a competitive dynamic and instrumentalism rather than infused with the notions of comity and parity that are regularly associated with direct judicial contact in horizontal settings. A growing emphasis placed on transnational training and education is laying a foundation for formalised cooperation. Meanwhile, geographic proximity is on the ascent as an identity marker, with the result that future judicial cooperation arrangements may exhibit a stronger intra-Asian or sub-regional dimension.
How far has constitution-making in East Asian countries been influenced by the international law (and international society)? Many Asian countries established independence and stipulated their own constitutions for the first time after World War II. Therefore constitution-making was a new experience. It is not surprising that they overtly or covertly sought international or foreign aid. This phenomenon results in the adoption of certain characteristic clauses that pay respect to the international law and especially human rights treaties. This chapter examines this phenomenon and also reviews the direct and indirect applicability of international law in East Asian domestic legal orders.
This chapter surveys the right to life as a constitutional right in Japan, South Korea, Taiwan, Hong Kong, the Philippines, Indonesia, Malaysia, and Singapore. I begin with a recount of the history of the right to life. I argue that the right to life before WWII is typically formulated in the “due process model”, such as in the Fifth and Fourteenth Amendments to the US Constitution. After WWII, a second generation version of the right to life evolved with its own distinctive characteristics. The direct effect of this development is the decline of death penalty. The right to life in Asia mainly reflects the first generation understanding. Only recently has the second-generation understanding begun to infiltrate into some Asian constitutions.
Socio-economic rights have been increasingly recognized in constitutions and jurisprudence across the world. South-East Asia represents, however, a partial outlier in this development. The region is only outmatched by the Arab States in its reluctance to recognize socio-economic rights. For core rights pertaining to the workplace, it is the most conservative region in the world. Courts are held generally on a tight constitutional leash with limited recognition of the judiciary’s competence to enforce socio-economic rights. Nonetheless, it is possibly to observe variations amongst the states and apex courts in Indonesia, Malaysia, Philippines, South Korea and Taiwan have increasingly adjudicated civil and social rights, sometimes in direct and spectacular conflict with mercantilist interests. This development is largely a result of bottom-up legal mobilization and the turn to rights strategies in the post-Cold War period.