In both India and Pakistan, parliament is constitutionally endowed with ‘constituent power’, that is, the power to introduce constitutional amendments via procedures laid down in the constitution itself. Duly promulgated amendments, however, are occasionally struck down when Supreme Court judges see them as violating what the judges themselves define as the ‘essential features’ of each country’s constitutional ‘basic structure’. I trace the migration of basic structure jurisprudence from India to Pakistan, focusing on the ways in which it has elevated the power of judges over that of elected officials in the realm of religion-state relations. Specifically, I highlight the ways in which judicial independence vis-à-vis judicial appointments has been described as an essential feature of each country’s constitution, greatly enhancing the autonomous power of judges to mould constitutional benches that, in turn, define India’s constitutional understanding of secularism and Pakistan’s relationship with Islam.

This article examines the objectives for the establishment of circuit tribunals of the Supreme People’s Court of China and the politico-legal functions of such tribunals in the context of judicial reforms that were first launched in 1999. It starts with an analysis of the fundamental problems and difficulties that impeded judicial reforms in the last two decades. It then provides a careful analysis of the establishment of circuit tribunals and examines the political barriers to fundamental reforms towards genuine, though limited, independent adjudication in China. Although we do not believe that the circuit tribunals will be a breakaway force in the Chinese polity, the present reforms do have the potential to break up certain circular reforms and break through some fundamental barriers to deep reform. Further, while judicial independence, in the sense of the judiciary being an independent force in the political and constitutional scheme of checks and balances, is not attainable in the political environment in China today or indeed in the near future, it is hoped that the present reforms might grant the Chinese judiciary some limited, but much needed, autonomy within the Chinese political system.

Notions of the social good including rights, fairness, and economic efficiency influence our choices of law and policymaking. The discussion on social good is normally a heated one in pluralistic societies with multiple worldviews on the right thing to do. This article brings a novel Islamic perspective on the social good in pluralistic societies. In doing so, it makes and defends three propositions: first, religious notions of the social good, including those derived from the Islamic worldview, should not be excluded from public justifications when making moral and policy choices. There is no good reason for plural/secular societies to reject the benefits of religious presence in public discourse given the overwhelming evidence on religious precepts being a mobilizing force to promote co-existence and social cooperation. Second, Islamic notions of social good can contribute to that end. The article criticizes the common perception of Islamic ethics that views Islamic doctrine as a rigid positivist system which imposes inflexible moral codes limiting the influence of independent human intellect and agency. I show that Islamic notions of the social good are dynamic and adaptable to change. The third part of the article shows that the social good in Islamic doctrine has always been defined with reference to essential human needs, including the promotion of life, intellect, social cooperation, and justice. At their core, Islamic notions of the social good exhibit an overarching deontological orientation towards moral choices. They broadly overlap with comparative and influential frameworks on human flourishing, including the ‘Human Development Paradigm’ and the ‘Capabilities Approach’.

This article analyzes the socio-economic and political contexts behind the 2013 Constitution of the Socialist Republic of Vietnam (2013 Constitution), in which demands for deeper institutional reform emerged in Vietnam, and explains the constitutional discourse within Vietnam as to its economic order. Diverse forces and platforms within Vietnam’s party-state and beyond have contributed to the exchange of ideas and values on the economic order. As a result of this public discourse, the provisions on the economic order of the 2013 Constitution are ideological compromises, reflecting the contradicting views within the party-state and society in Vietnam on the role of the market, private property, and the freedom to conduct business. The 2013 Constitution has taken a step towards a free market economy by recognizing the decisive role of the market in the national economy. It emphasizes the importance of the private sector and promises that it will be treated fairly among all other economic sectors. From this perspective, the 2013 Constitution contains the seeds of future political and legal guarantees which could protect individual liberties. However, in line with the socialist ideology adopted by its predecessors, the 2013 Constitution reaffirms the dominance of the public sector and the leading role of state-owned enterprises, and preserves the ambiguous “ownership of the entire Vietnamese people of land and natural resources”. Due to this ambiguity, the 2013 Constitution fails to lay down the foundations for far-reaching comprehensive institutional reforms that Vietnam urgently requires.

The Rule of Law is considered a major aspect of modern governance. For every legal system, it is important whether the Rule of Law is attained and how far it has been attained. Though there are various indicators and indexes of the Rule of Law they all have their limitations. This paper reported a study conducted in Hong Kong in 2005, combining qualitative and quantitative methodologies, to assess the level of attainment of the Rule of Law in Hong Kong. It is found that the level of attainment is high but a downward trend is also discovered. A main objective of developing this new methodology in assessing Rule of Law, is that it could be used for tracking the development of the Rule of Law in a particular legal system and facilitating comparison between legal systems.

The implementation of shari'ah (Islamic law) in the province of Aceh in Indonesia was the consequence of a national policy of legal pluralism, effected in 2001 when the national government decided to give a special status and wide autonomy to this region. However, certain problems have arisen. One of these is whether the Islamic courts of justice have been conferred competence to deal with Islamic criminal law and if so, which judicial institution should deal with the matter. Another is the meaning and scope of mu'amalat law (the law dealing with human relationships). It also appears that the central government has permitted shari'ah to be implemented for political reasons.

The supremacy of the Communist Party of Vietnam (CPV) has been the basic norm in Vietnam’s constitution since 1980. While it was not changed in the final constitutional amendments in 2013, this grundnorm was seriously debated during the constitutional reform process between 2010-2013, thus indicating a shift in the constitutional dialogue in Vietnam. This article traces the history of this basic norm throughout constitutional amendments of the Socialist Republic of Vietnam (SRV) and assesses how the basic norm has become increasingly contested. Contestations over this basic norm have played out markedly over the recent constitutional reform process. The discursive power in these contestations has shaken the rationality-based legitimacy of this basic norm to its root. The continuing dominance of this norm depends to a large extent on how the Vietnamese party-state’s practical policy-making and policy implementation initiatives address the increasing tension between the supremacy of the CPV and other principles in the constitution.

Shareholder activism has changed corporate governance around the world in the past decade. Conventional wisdom holds that shareholder activism is only effective in firms with dispersed ownership; there has been much less discussion on whether and how activism would work in firms with controlling shareholders. This article fills this gap by investigating whether and how legal mechanisms influence strategy planning and activism outcomes based on hand-collected data regarding activists’ initiatives against firms with concentrated ownership in Hong Kong from 2003 to 2017. This article finds that cases using formal legal mechanisms appear to have had a higher success rate. Among the legal tools available, minority veto rights are the most popular mechanism used by activists in Hong Kong, and are quite effective in leveraging their position in controlled firms. Furthermore, the availability of legal remedies and the ownership level of controlling shareholders are factors that influence activists’ strategies. Most activist initiatives against controlled firms involve corporate governance disputes where activists can rely on legal protection to enhance their bargaining position. On the other hand, activists tend not to make their demands public, and they also avoid exercising legal rights when controlling shareholders control the majority of the shares.

Although reputation in general plays an effective role in social control in human communal life, this does not seem to work well in present-day China. This article discusses why “reputation as social control” malfunctions in Chinese society in view of the widespread reputation bankruptcy in various professions. Starting with China’s discredited milk industry, it analyses similar regulatory failures in the economic, judicial, academic, and political sectors, explaining the interplay between key institutions. It argues that such regulatory failures can largely be attributed to the use, misuse, and abuse of reputation as a means of social control by the Chinese Party State to maintain monopoly power in a much diversified society resulting from China’s rapid economic development and globalization. Based on the analysis of the Chinese circumstances, this article is also meant to contribute to the study of reputation as social control in general.

This article explores horizontal non-discrimination rights under the Constitution of India (Indian Constitution). The Indian Constitution is unique in that it expressly prohibits private discrimination on the grounds of sex, race, caste, religion, etc. for the purpose of, inter alia, “access to … shops” (Article 15(2)). The article argues that a historically grounded understanding of the word “shops”, in the context of the transformative purposes of the Indian Constitution, necessitates a broad reading that covers all private economic transactions where goods and services are offered to the public at large. Furthermore, seemingly contrary Supreme Court precedent, if it is constitutionally justifiable, must be restricted to its own facts. In sum, Article 15(2) of the Indian Constitution provides a radical constitutional remedy that is directly horizontally applicable to private conduct, and goes far beyond remedies developed in other jurisdictions, which have often needed to turn to legislation in order to adequately combat private discrimination in the economic and social sphere.

Electoral Management Bodies (EMBs) are commonly established to increase electoral legitimacy by designing, implementing and/or enforcing rules surrounding nominations, polling, voting, and tabulation. Globally however, EMB design, governance, and efficacy vary considerably. Utilizing four EMB data sources, this article asks (1) to what extent do EMBs form a new pillar of constitutional governance; and (2) how effective are they in managing and increasing the legitimacy of elections? We begin by detailing the global diffusion of EMBs, temporally and geographically, together with trends in governance methods, constitutionalization, and degrees of autonomy and capacity. We then turn to examine the extent to which existing EMBs are effective, empirically testing a global sample of states on two measures associated with electoral legitimacy. Four results of our analyses stand out. First, independent EMBs are most abundant in democratizing regions, including Latin America and the Caribbean, Sub-Saharan Africa, and South Asia. Second, while EMBs are increasing in number, only a slight majority of states enshrine these institutions in their constitutions. Third, while independent EMBs are the most common systems, autonomous bodies are largely found in democracies. Finally, EMBs characterized by greater degrees of autonomy and capacity are associated with lower levels of both electoral violence and concerns regarding electoral legitimacy.

This article argues that the Chinese state has more highly articulated policies to deal with social disturbance than previously recognized by specialists. It does so by highlighting and critically analyzing the policies followed to improve the opportunities for migrant worker representation. The state has adopted a three-pronged policy. It has improved migrant worker rights, encouraged the official unions to help enforce these rights and allowed NGOs to offer certain services. The official unions are encouraged to adopt a legal watchdog role by a combination of legislation and limited external organizational competition. We argue that the dynamic of organizational competition is a previously unrecognized factor in moving China in a ‘socialist corporatist’ direction.

The question of whether constitutional law can protect, consolidate, and advance democracy has been considered extensively in multiple jurisdictions. The issue has not yet been considered in the context of one of the most problematic contemporary democratic transitions: Hong Kong’s, from an externally governed colonial outpost to a self-governed suffrage-based special administrative region of the People’s Republic of China. The Basic Law of Hong Kong proposes the eventual election of the Legislative Council and Chief Executive of Hong Kong by some form of universal suffrage. These provisions are at the core of the ‘democratic constitution’ of Hong Kong. Achieving this goal requires consensus between the executive in Hong Kong, members of the Legislative Council in Hong Kong, and the legislative body of the People’s Republic of China. Although not a formal constitutional requirement, any democratization efforts will also require popular buy-in from Hong Kong residents in order to function effectively. However, it is increasingly clear that the views of all concerned do not converge on how and when these constitutional aspirations should be realized. In addition, all parties have started moving outside of this constitutional framework when deliberating issues of political reform. This article looks at the problems in the constitutional design of the Hong Kong Special Administrative Region that have resulted in this political deadlock. The article will then look at one solution to mitigate the effect of these design issues and to move forward again on the issue of reform: ‘litigating’ the democratic constitution in the courts. The article discusses the advantages of the courts in the process: primarily the capacity of the courts to reconstitutionalize political debate on electoral issues. This article evaluates the largely unsuccessful use of the courts thus far by Hong Kong residents to correct and advance political reform. It considers possible reasons for the high failure rate in courts and proposes alternative litigation strategies that can better utilize the position of the courts to re-orient all parties to the Basic Law.

The modest level and differing structure of compensation Japanese corporate executives receive has sparked recent interest in the determinants of executive pay in Japan. One factor that remains unexamined is the role played by Article 361 of the Companies Act which requires that director pay be set by the general shareholders’ meeting. To explore the question of whether this rule, by giving shareholders a veto over changes to compensation they disagree with, matters to pay in Japan, this article examines the results of the shareholders’ meetings of companies listed on the First Section of the Tokyo Stock Exchange that voted on compensation resolutions in 2014. We find that, while all resolutions were approved, there was significant variation in both what pay directors asked for and how shareholders responded that was correlated with differences in each. The results are consistent with the view that the relevance of the rule varies depending on the context of the company. While at most companies, shareholder voting on pay is relatively uncontroversial, the changing structure of ownership and governance at some provides an avenue through which the rule may now matter to pay.

The last few decades have seen a proliferation of constitutional institutions, especially in the Global South, that do not neatly fit within any of three traditional branches of the state. These supposedly ‘fourth branch’ institutions may include electoral commissions, human rights commissions, central banks, probity bodies such as anti-corruption watchdogs, knowledge institutions such as statistics bureaus and census boards, information commissioners, auditors general, attorneys general and so on. In this paper, I will argue that some of these new institutions are best understood as “guarantor institutions”. I will show that in a given political context, a guarantor institution is a tailor-made constitutional institution, vested with material as well as expressive capacities, whose function is to provide a credible and enduring guarantee to a specific non-self-enforcing constitutional norm (or any aspect thereof).

Section I explains why polities need credible and enduring guarantees for specific norms, and claims that the expertise, independence, and accountability of guarantor institutions are likely to be key ingredients that determine their effectiveness in serving that purpose. It also argues that constitutional entrenchment of the guarantor institution is entailed in the independence requirement. Section II shows that in order to credibly and enduringly guarantee a norm, certain primary and secondary duties need to be discharged by relevant actors in relation to the norm's content as well as its impact. It further argues that while some of these duties may be performed by institutions that possess expressive capacity alone (roughly, the capacity to speak, express, communicate), others require material capacity (i.e. the physical capacity to effect material changes in the world). Guarantor institutions, unlike integrity institutions, can shoulder primary as well as secondary duties. Furthermore, they are typically vested with expressive as well as material capacities, which is key to their classification-defying hybridity. Section III argues that guarantor institutions are constitutionalised in two respects: the norm they seek to guarantee is constitutional, and the institution itself has constitutional status. What matters for a norm or institution to be constitutional is that it is entrenched, i.e. protected from change from the ordinary political and legal processes of the polity to some extent. It is their doubly constitutional character that distinguishes guarantor institutions from ordinary regulators.

Section IV explains how some constitutional norms are non-self-enforcing, in the sense that powerful actors are likely to have the will as well as the capacity to frustrate or erase them. It also shows that the three traditional branches, whether acting severally or jointly, cannot provide a credible and enduring guarantee to all non-self-enforcing constitutional norms. Hence the need for constitutional guarantor institutions. Section V highlights that guarantor institutions are typically tailor-made to guarantee specific constitutional norms. Their specificity has important consequences for their internal design and their mode of functioning, which distinguish them from key institutions in the three traditional generalist branches. Section VI concludes. Attention to guarantor institutions by constitutional scholars may help the discipline escape its blinkered worldview, which sees judicial review as the only game in constitution-town.

The Chinese Securities Regulatory Commission (CSRC) has significantly revised its overall market supervision framework over the last two decades. China’s insider trading laws, however, remain broad and abstract, while most enforcement measures take place inside a black box. These circumstances have led to an unpredictable and ineffective enforcement regime. This article examines all administrative sanctions cases from 2000 to 2013 in order to examine the CSRC’s actual enforcement practices. This data shows that the agency has a history of inconsistent enforcement, which stands as a warning against the consequences of unpredictable regulation. Moreover, it argues that the Commission’s current approach to recognizing illegal gains is both unreasonable and illegal, and that the CSRC has failed to adequately enforce actions for loss evasion cases. By adjusting enforcement policy to take these considerations into account, the CSRC would significantly improve the efficacy of the sanctions regime in China.

In Semenyih Jaya v Pentadbir Tanah Daerah Hulu Langat, the Federal Court of Malaysia asserted that the Federal Constitution continues to vest a distinct and independent judicial power in the judiciary notwithstanding earlier constitutional amendments, and also gave substantive effect to the ‘basic structure doctrine’ for the first time in Malaysia. This has contributed significantly to the long-standing discussion of whether, and to what extent, the ‘basic structure doctrine’ applies in Malaysia. Situating that landmark decision within the context of the evolving judicial practice in Malaysia and other jurisdictions on the ‘Westminster model’, this article evaluates the extent to which Semenyih Jaya has contributed towards strengthening constitutionalism and the rule of law in Malaysia. Considering that the apex court stopped short of directly invalidating the relevant constitutional amendments, this article argues that Semenyih Jaya represents a sophisticated modification of the ‘basic structure doctrine’ to fit the current context of Malaysian constitutionalism. This article also examines how Semenyih Jaya advances the ‘constitutional dialogue’ between the judiciary and its co-equal branches of government, and assesses the strengths and weaknesses of the approach taken by the Federal Court in that case.