After a period of decline, judicial mediation has been recently revived in China. The revival has occurred as a result of a combination of political and juridical forces. China's courts have been struggling to meet demand for access to justice and the revival of judicial mediation is part of a broader policy to promote mediation as a mainstream dispute resolution mechanism. At the same time, the revival of judicial mediation also reflects the disaffection of China's political elite with an emphasis upon adversarial, western style legal process. China's establishment appears to be seeking a more responsive multi-door style of court system. This article traces recent developments in China which track the rise, fall and rise of judicial mediation.

In 2008, Indonesia introduced its first “freedom of information” statute – Law 14 of 2008 on Disclosure of Public Information (the “FOI Law” or the “Law”) – which became fully operational in 2010. The FOI Law is an important component of the government transparency and accountability mechanisms established after Soeharto and his authoritarian “New Order” government fell in 1998. This article assesses the extent to which the FOI Law has been effective in requiring public bodies to disclose “public” information that they would rather keep within their ranks. More time is needed for these reforms to take hold. However, this article, which provides the first academic analysis of the freedom of information reforms “in practice”, shows that Indonesia’s central Information Commission and the courts have, with two important exceptions, applied the FOI Law in favour of information-seekers, thereby providing some reason for optimism for the future of this reform.

The controversy over the provincial spatial planning regulation for Bali Province reflects the dynamic of Balinese society in the era of regional autonomy. The dynamic is polarised between expanding the tourism and real estate industry for economic reasons and constraining such expansion for the sake of protecting Bali’s environment and culture. Thus, the law governing space becomes an essential means to intervene in crafting the relations between competing interests over space. The application of the law itself is also complicated by the condition of legal pluralism which provides different and sometimes conflicting sources of legality to be used to justify the interests of legal actors. This article aims at highlighting how space is produced in a pluralistic legal setting and examining whose interests are served by the condition of legal pluralism in contemporary Bali. Employing socio-legal methods with Lefebvre’s conception of space and legal pluralism as an integrating analytical framework, the article contributes to the literature on spatial planning law in Indonesia that is dominated by “legal centralism” and a given notion of space.

‘Cracked trials’, where defendants enter a late guilty plea after a trial date has been set, are considered a societal problem because public resources set aside for trials are wasted. Various government reports attribute the main cause to tactical defendants playing the system, and reforms have been initiated to encourage early guilty pleas and strongly discourage late ones. The aim of the present study is to investigate the reasons for cracked trials in the Hong Kong context, insofar as the reasons for late guilty pleas can be investigated without the influence of reforms seen in other jurisdictions used to discourage late pleas. A mixed methods approach of courtroom observations and interviews with defendants was adopted. We find that defendants who were represented by publicly-funded lawyers or who were in prolonged pre-trial detention were more disposed to changing their pleas. Subsequent interviews illustrate why these factors are salient. The findings support the notion that it is the pressures of the criminal justice process that lead defendants to ‘crack’ and highlight the costs to defendants for decisions on how to plead that are influenced by considerations other than actual culpability.

The definition of consideration in Section 2(d) of the Indian Contract Act 1872 substantially anticipated the far-reaching reforms to the orthodox doctrine of consideration that were proposed by the English Law Revision Committee (1937). These included making enforceable, through the doctrine of promissory estoppel, promises without consideration in the traditional sense that were meant to and did induce reliance; making enforceable a promise to perform a pre-existing duty; and making binding a promise to keep an offer open. The pivots of the definition in Section 2(d) were: a ‘subjective’ conception of consideration on which value was to be measured by the desire of the contractors alone, as opposed to an external standard; a concomitant purging of the traditional requirements of benefit and detriment; and the recognition of induced reliance as a form of consideration. The definition was designed to mark the vanishing point of consideration without having to formally abolish it. This design, however, went awry as courts and scholars in India projected the orthodox English model of consideration, replete with benefit and detriment, and external standards of value, upon this provision. Consequently, an ingenious piece of draftsmanship came to be eclipsed by orthodoxy.

This article compares the Australian and Chinese adult guardianship systems, and considers whether there is potential for drawing on some (or many) aspects of the Australian model for the Chinese legal framework. Australia has a well-developed guardianship framework that provides mechanisms for making healthcare decisions when an adult is no longer able to do so. This framework has evolved over many years and, in some cases, individuals can decide about medical treatment in advance of the situation arising, or who should be the decision-maker if he or she later loses capacity. The current Chinese legal framework, on the other hand, is a fragmented one and comprises laws that were not designed to deal with how healthcare decisions can be made for a person without capacity. This article outlines the legal framework in both jurisdictions and considers whether, having regard to the fact that these two countries have different values and cultures, there are features of the Australian guardianship system that could inform the development of Chinese law.

Ethno-religious violence in Sri Lanka is a chronic problem, and it can be sustained even without the active support of a particular government. This understanding of violence prompts further reflection – both on the factors that drive such violence and the complex relationship between ethnicity, religion, and the Sri Lankan constitution. This article delves into the post-war context in Sri Lanka and examines how and why ethno-religious violence has persisted regardless of the government in power. It is presented in three sections. The first analyzes the current state of ethno-religious violence in Sri Lanka. The second offers a hypothesis on why such violence has persisted despite the democratic transition of January 2015. It argues that democratic transitions alone cannot prevent chronic ethno-religious violence due to certain factors that serve to entrench violence within the country’s constitutional practice. The final section discusses the relationship between ethno-religious relations, the nature of the Sri Lankan constitution, and the space for meaningful constitutional reform. It concludes that the Sri Lankan state – informed by Sri Lanka’s ‘political constitution’ – embodies a certain structural dispensation towards ethno-religious violence. Until this fundamental dispensation is in some way transformed, meaningful religious freedom and power sharing will remain elusive aims.

Recurrent proposals to establish a constitutional supervisory committee have been pertinaciously rejected in spite of widespread recognition of the Chinese Constitution’s ineffectiveness. And yet, the Hong Kong Basic Law Committee has long epitomized in practice a prototypic form of constitutional supervision. Vested with quasi-judicial competences, the Committee seemed destined for a central role under the “One Country, Two Systems” arrangement. The tight secrecy imposed on its proceedings and the suppression of its potential to act consistently and with a distinct identity have fatally undermined the Committee’s ability to modulate constitutional tensions by way of coordinating expectations of the Basic Law’s proper meaning. The experience of the Basic Law Committee reveals the recalcitrance of the Party-state toward constitutional interpretation by any specialized body, even one whose powers are heavily circumscribed and whose membership is tightly controlled.

The global financial system experienced its first systemic crisis since the 1930s in autumn 2008, with the failure of major financial institutions in the United States and Europe and the seizure of global credit markets. Although Hong Kong was not at the epicentre of this crisis, it was nonetheless affected. Following an overview of Hong Kong's existing financial regulatory framework, the article discusses the global financial crisis and its impact in Hong Kong, as well as regulatory responses to date. From this basis, the article discusses recommendations for reforms in Hong Kong to address weaknesses highlighted by the crisis, focusing on issues relating to Lehman Brothers “Minibonds.” The article concludes by looking forward, recommending that the crisis be taken not only as the catalyst to resolve existing weaknesses but also to strengthen and enhance Hong Kong's role and competitiveness as China's premier international financial centre.

This article discusses the state of socio-legal scholarship on Southeast Asia and situates the special journal issue in relation to its key patterns, emerging trends, and future directions. Southeast Asian literature in leading socio-legal journals exhibits an imbalanced geographical coverage and tends to cluster around research on state law’s intersection with Islamic and/or customary norms, women’s equality and legal status, and land and the natural environment. These prevailing patterns lead to uneven attention paid to Southeast Asia. However, growing bodies of work along the major themes of legal pluralism, law and development, and dispute processing show the potential of Southeast Asian research to advance important debates and sub-fields in the scholarship at large. Proposals from a December 2012 workshop initiative further identified research directions that could enrich this field of study as well as understandings of law-society relations in Southeast Asia.

This article analyzes the constitutional debate on and development of human rights in Vietnam throughout five constitutions from 1946 to 2013, as well as the prospects and challenges in promoting human rights in Vietnam during and after the development of its 2013 Constitution. It begins with an investigation and discussion of the human rights provisions from the 1946 Constitution to the 1992 Constitution – a period where the socialist human rights tradition was established in Vietnam. It follows with an analysis of the debates on the new human rights and citizens’ rights provisions in the 1992 Constitution, where a new concept of natural human rights emerged. The article continues to explore how the struggle and debates surrounding the competing conception of rights – socialist and positivist on one hand and natural law-based on the other – come into play in shaping the 2013 Constitution. It then proceeds to evaluate the potential challenges involved in the implementation of these rights in the coming years. The authors argue that the development of constitutional human rights in Vietnam is still limited by ideological barriers. It also faces substantial practical challenges owing to, inter alia, the absence of provisions for the immediate implementation of such rights as well as legal mechanisms for the protection of constitutional rights, such as a constitutional review system.

The paper examines the tension amongst the Indonesian government and Islamic organisations in dealing with the plurality of interpretation within Islamic tradition and at the same time maintaining the unity and harmony of the Muslim ummah. I provide two case studies here: first, the issue of determining the first and the end of Ramadan and also 10 Zul Hijjah (for Idu al-Adha). Second, who has the authority to issue halal certificate? Due to different methods of hisab (astronomical calculation) and ru'yah (sighting a new crescent), Islamic organisations (Muhammadiyah, Nahdlatul Ulama and Majelis Ulama Indonesia) have produced different fatwas. At the same time, the Government has to make announcement on which dates to begin or to end fasting. With regard to the second issue, there is currently a tension between the Government and the MUI as the first thinks it falls into its authority whereas the latter insists that halal certificate is a written fatwa which belongs to its ‘jurisdiction’.

The questions are: how does the government decide which fatwa to choose, and what are the reactions of Islamic organisations when their views differ with the position of the government? There is also tension in society in celebrating Idul Fitri and Idul Adha on different dates. How far should the government go to accommodate such different views, to maintain harmony in the community?

This article considers the extent to which the legal framework for making land use decisions in Singapore allows for public participation. It examines the issue from two angles: the creation and preservation of the built environment, and the transient use of public space. The first angle is discussed primarily from a heritage law viewpoint, focusing on planning law, compulsory acquisition law, and the legal regime for creating national monuments. As for the second angle, the article looks at how the use of common spaces for assemblies and processions is regulated. The foregoing are examined in the context of Edward Soja’s assertion in Seeking Spatial Justice (2010) that the equitable distribution of resources, services, and access in cities is an important right.

Courts in China are often criticized for lacking ‘independence’ from the Chinese party-state. Entrenched perceptions of interference in the judiciary by the political branches of government have continued to fuel public resentment in recent years, risking the legitimacy of the party-state. Such criticisms, however, often fail to appreciate the complex political reality in China and the evolving role of Chinese courts following China's incremental legal reforms since the reform era. What does ‘judicial independence’ mean in the context of a socialist rule of law state such as China? More importantly, can we identify the touchstone of ‘independence’ that should be intrinsic in any judicial institution? In recognition of the resilience of the Chinese party-state in the foreseeable future, the authors contend that widening the scope of judicial independence, as conceptualized herein, in line with China's ongoing judicial reforms provides a better tool for promoting economic development and good governance and enhancing the state's legitimacy in a dominant party state. In this regard, insights are drawn from Singapore, which presents two broad lessons for China: first, a rule of law framework can be established in which the state in a non-Western liberal democracy respects the autonomy of the courts and the judiciary strictly enforces the law enacted by the state within its institutional limits; second, judicial pragmatism in the exercise of judicial power enables the courts to ensure that governmental power is exercised in accordance with the principle of legality, which ensures good governance in a polity governed by a strong state. Contrary to claims that such reforms may serve as an apology for power in China, it is hoped that such reforms may lay the foundation for normative constitutionalism in the future.

Cambodia's Constitution, promulgated in September 1993, was to be the foundation of a transition to liberal, multiparty democracy. Yet, despite the document's seeming commitment to those very principles, constitutional provisions are frequently used to undermine liberal rule of law and to impose restrictions on political processes, freedoms, and rights. Focusing on the events of 2016–2017, including the jailing of opposition politicians, controversial legal reforms, and the dissolution of the country's foremost opposition party, this article demonstrates how authoritarian practices in Cambodia are framed in terms of adherence – even fidelity – to the Constitution. Further, it explores how ideas of ‘stability’ and ‘law and order’ often elide with those of rule of law in discourses and practices that simultaneously exalt and hollow out the normative power of the Constitution. This article posits that a socio-legal approach that pays particular attention to discourse can shed new light on the empirical fact of authoritarian constitutionalism, but also the processes of meaning-making that accompany, facilitate, and legitimize its practice. Far from merely a sham, then, Cambodia's Constitution – like many others – is imbricated in a complex web of contestation and legitimation that extends far beyond the walls of any courtroom.

This paper is an empirical study on the nominations and appointments of Supreme Court Justices during a twenty-year period from 1988, when the Judicial and Bar Council (JBC) was created in the 1987 Philippine Constitution, to 2008. The study examines the profile of individuals nominated by the JBC including their gender, age, geographical origin, academic background, and professional experience. It also explores whether the appointing Presidents display any preferences based on personal characteristics relating the effects of these preferences to the diversity on the Supreme Court. The study indicates that nominees and appointees all hail from the same background. As a result, membership of the Supreme Court is sorely unrepresentative of Philippine society. This study sets the stage for future research that will determine how this lack of diversity on the Supreme Court can affect the resolution of legal issues.

This article investigates the extent of state intervention in the administration of Islam in Indonesia. The 1945 Constitution of Indonesia does not explicitly recognize or privilege any particular religion. Yet, the boundaries of religion-state relations in the country are often unclear and complex, especially in light of policies and laws that regulate religious life and appear to privilege the dominant religion and its adherents. In this article, I demonstrate the ways in which the state has increasingly interfered in the administration of Islam in Indonesia by focusing on two case studies: the management of Hajj and zakat. However, it is observed that the vague constitutional arrangements on religion in Indonesia provide avenues for interpretations (especially by the Ministry of Religious Affairs) that the state has a constitutional obligation to interfere in the administration of religion and implement religious doctrines; and in the case of Islam, to ‘bureaucratize’ the shariah. This further complicates the exercise of distinguishing between religious doctrines that require state intervention for implementation and those that do not.

This article examines how labour law contributes to labour resistance in Vietnam through an empirical case study of the ‘core workers’ in Đồng Nai Province. These core workers are factory workers who have undergone legal training and who provide legal aid to factory workers in need. They have, at the same time, deployed their legal knowledge to demand access to justice for themselves and the factory workers. This article demonstrates that the core workers’ legal consciousness is shaped by their mobilization of the law and their own workplace experiences. It then investigates in detail a core worker’s engagements with individual and collective disputes, and discusses his views on legal aid, labour law, and workplace relationships. This article argues that the core workers’ resistance is not only a fight against illegal practices, but that it also embodies a call for the management’s moral obligations towards its workers.

This article addresses the role of legal research methodologies in the development of legal science and the creation of social change in Indonesia. Based on fieldwork conducted at Indonesian law schools between 2014 and 2016, this article reveals that legal research methods taught in Indonesia are starkly divided into normative-juridical and empirical-juridical approaches. Misunderstandings between adherents of these different schools of thought pose significant obstacles to the development of interdisciplinary approaches to law that span or go beyond the divide. Methodological conflicts resulting in the absence of socio-legal approaches in Indonesian law schools, coupled with outdated and limited source materials, limit the study of comparative law in Indonesia to the mere comparison of statutes and rules shorn of socio-political context. They also fail to instill awareness of the importance of considering social – on top of legal – impact in the context of Indonesia's complex and pluralist legal system.

This article takes a contextual approach to analyzing judicial engagement with the doctrine of unconstitutional constitutional amendments. It argues that in assessing judicial reception of the basic structure doctrine, and the content of the constitutional identity that such a doctrine seeks to preserve, a normative universalist or even functionalist approach is not sufficient. Instead, such a doctrine should be justified and understood contextually. It is necessary to contextualize constitutional identity in order to give it a robust character, rather than assuming a set of characteristics most often associated with liberal democratic constitutionalism and without understanding the political, social, and economic conditions in which the constitution operates. This article thus uses the example of Malaysia and how the courts have engaged with the basic structure doctrine to show how a contextual approach could have greater explanatory effect, including on why certain issues are more strongly contested in some countries than in others.