Over the last six decades, the Supreme Court of India has created and re-created a right to property from very weak textual sources, despite constitutional declarations calling for social revolution, numerous amendments to reverse key judgments, and even, in 1978, the repeal of the core constitutional provisions guaranteeing a right to property. This article challenges the usual account of these developments. The primary contention is that the 1978 repeal is much less significant than it appears, due to the Court’s creative interpretation of other constitutional provisions. The Supreme Court has consistently advanced liberal models of constitutionalism and property, despite the influence of other models on the original constitutional design and later amendments. This article also examines whether the Court’s liberalism is compatible with the egalitarian values of the Constitution, and how its position will affect attempts to address social issues relating to the distribution of property in India.

In July 2010 the Timor-Leste Government promulgated the Law Against Domestic Violence. This is part of a constitutional promise to improve women and child security. Inherent in this development is the shift from traditional dispute resolution system to a state criminal justice system. This shift identifies domestic violence as a public crime and relies on greater participation from the stakeholders of domestic violence, i.e., the police, prosecution, legal services, health care services, social care services and community leaders. This paper examines the legal framework of the new domestic violence law and the impact on the stakeholders in delivering the legal obligation to promote women and child security in Timor-Leste. Inherent in this discussion is the question of whether the new law can reform the traditional justice system, change community behaviour and meet the competing challenges of cultural relativism in each district of Timor-Leste.

The 2018 amendments to the People's Republic of China (PRC) Constitution saw the establishment of a system of supervisory commissions, which is a landmark development not only for anti-corruption, but also constitutional law in China. After providing an overview of the background and legal framework of the reform, this article discusses its constitutional implications from three perspectives. First, the reform alters the long-established state structure and creates interesting dynamics of institutional interactions among various branches of state structure. Second, it marks a reversal from the principle of ‘party-state separation’ and raises difficult issues of interface and transition between the party disciplinary system and the formal legal system. Finally, it legalises the previously extralegal practice of shuanggui (‘double specifications’) and affects the individual rights of those subject to investigation. The article concludes with some brief reflections on what this development indicates for the future of the rule of law in China, and highlights the potential for further research.

The field of comparative law prioritizes the ascertainment of universals or commonalities across laws, two chimerical pursuits. In the process, comparative research abides significant distortion of information, not always in good faith, and a correlative loss of intellectual warrant. This article urges acknowledgment of such serious epistemic deficit, of its detrimental impact on comparative law, and of the need to restore intellectual integrity to comparative research in law through a radically different approach to foreignness.

It has been more than a decade since China began her experiment of “One Country, Two Systems” in Hong Kong (HK). It is now generally assumed that the relationship between the legal systems of these two jurisdictions is monistic. Analysing post-Handover constitutional case law in HK, including a recent landmark decision on sovereign immunity, FG Hemisphere Associates LLC v. Democratic Republic of Congo, this article challenges this assumption and argues that the relationship between the two legal systems is best conceptualized as a form of legal pluralism found in the European Union.

This article examines the history of the evolution of Islamic legal authority in Indonesia and provides an account of how it is contested and negotiated in contemporary Indonesia, using the history of family law reform as an example. There is a plurality of sources of authority for Islamic law as they operate within the domain of family law. The case studies reveal tensions between continuity and change in the development of Islamic legal principles and the strategies that different actors employ to advance their preferred version of Islamic legal norms: while the state has adopted a synthetic approach in order to accommodate these multiple legal authorities and increase the efficacy of its own statutes, the ulama persistently insist on the authority of fiqh as the immutable point of reference in resolving legal problems faced by Muslims. These conflicts ensure that the statutes will continue facing challenges as a legitimate interpretation of Islamic law in Indonesia.

Parties to a dispute that goes to court typically seek to retain the best lawyer they can afford. But do the ‘best’ lawyers get better results? This article surveys the literature across various jurisdictions before introducing a recent study of determinants of litigation outcomes in Singapore. The focus is on whether there is a correlation between various measures of lawyer quality (size of law firm, professional status, years of experience, etc) and actual success in court. Consistent with past studies, larger and better-resourced law firms tend to do better on average – though Singapore is unusual in that the Government Legal Service functions like the largest and best-resourced law firm. Individual lawyers, however, yield unusual results, with more experienced lawyers sometimes having a lower success rate in court – perhaps due to them taking on more complex cases. The study also shows that women are significantly underrepresented as lead counsel in Singapore, but on average may outperform men.

In Hong Kong, the Postgraduate Certificate in Laws is the normal prerequisite for practice. Following a comprehensive review in 2001, the programme was redesigned to emphasize problem-oriented learning and skills-based training. This discussion explains the principal features of the current curriculum and how it has worked out in practice. It calls for a systematic collection and study of feedback on the current programme, and announces a plan for that purpose.

Since 1984, the Sultanate of Brunei Darussalam has chartered its post-independence course through its proclaimed ideological compass of MIB (Melayu, Islam, Beraja). All three pillars of MIB - Malay culture, the religion of Islam, and the institution of an absolute Monarchy - are traditional, long standing Bruneian features, which have been expertly crafted in the last two decades to act as the filter by which modernisation and development can occur. As the ideology is all-encompassing, law has not only been one of the vehicles for implementation, but is being shaped to accord with the tenets of MIB. This can be seen in legislation, legal institutions and processes for dispute resolution with the promotion of a more distinctive Malay character as well as a discernible Islamization agenda. The paper explores each of these as well as processes of enacting laws in this Sultanate where, in the absence of an elected democratic parliament, all law emanates from the monarch.

Public interest litigation [‘PIL’], typically defined as proceedings in which the public or the community at large has some pecuniary or legal interest, demonstrates an ability to foster human rights compliance. It does this by enabling broader community or ‘public’ interests to be recognised and enforced through the judicial process, thereby revealing greater potential than private rights litigation in addressing the systemic nature of many human rights violations. This in turn has presented greater opportunities domestically to monitor each state's accountability to international human rights standards.

This paper compares and contrasts the emergence and development of PIL in two jurisdictions - India and Australia. India was chosen for its remarkable and extensive development of PIL unparalleled in Commonwealth jurisdictions to date, and Australia, for its adoption of a much more restrained and traditional trajectory in line with other members of the Commonwealth. Although PIL has developed differently in the two countries, inevitably shaped by differences in culture, economic development, law and politics, both provide illustrations of PIL's potential (and limitations) in facilitating the development of human rights norms in domestic legal systems.

This article explores how and why Afghan merchants choose to use courts or informal dispute resolution methods. It goes beyond the common corruption and inefficiency arguments, which maintain that Afghans do not use courts because they are corrupt and inefficient. It leverages rich, original data on variation of dispute resolution practices across provinces and types of disputes to gain insights into Afghan merchants’ dispute resolution decisions. In so doing, I reveal a more complex picture of commercial dispute resolution in Afghanistan. In this article, I demonstrate that Afghan merchants do choose courts when courts enforce the parties’ expectations and courts’ judgments are necessary and effective. Moreover, while Afghan merchants do prefer informal dispute resolution methods, they do so because informal methods hold important advantages over courts in the context of Afghanistan where the formal property rights system is a failure, and the business climate is highly volatile.

Chinese court cases have attained increasing importance in recent studies of Chinese law, but remain insufficiently understood. In this article, I demonstrate why Chinese court cases should be given more weighty consideration in comparative studies involving Chinese law as a comparator, and how such cases, particularly ‘Guiding Cases’ and ‘Gazette Cases’ (which are published in the official Gazette of the Supreme People's Court), should be properly dealt with and assessed in view of the complexity of the court case system in China.

This article addresses three questions. First, what is the effect on the civil law in Asia of young (and old) academics adopting English, the language of the common law, as a second language – rather than a civil law language, either a Continental European language (French, German etc), or another Asian civil law language (Japanese, Chinese etc)? Second, what is the effect on the civil law of civil law jurists pursuing their graduate studies not only in English but also in common law jurisdictions, rather than in civil law jurisdictions and returning home to become academics or practicing lawyers in civil law jurisdictions? Finally, since English is the lingua franca of civil law jurists in Asia, how can we adapt English to the civil law so as to make English one of our civil law languages?

Current reform concerning directors’ remuneration relies on improving legal rules and self-regulation to minimise expropriation of minority shareholders. These have prominently focussed on empowering shareholders. Nonetheless, it is unclear as to the extent these reform proposals are compatible within the concentrated shareholding structure. Some of the reforms taking place in developed countries are suited for dispersed shareholding structure and thus transplanting them to emerging economies with concentrated shareholders may be ineffective. Malaysia poses an interesting case study, especially to countries with similar ownership structure as the concentrated shareholding structure raises different agency problems. The issue of protection of minority shareholder rights and the prevention of abuse of the controlling power by paying excessive remuneration to the executives is therefore a subject of due consideration in Malaysia and countries with similar shareholding structures. This article recommends that Malaysia and other emerging countries look into encouraging limited shareholder empowerment in tandem with laws.

The doctrine of ‘best interests of the child’ has guided courts in determining post-divorce child custody cases in Taiwan since 1996 amendments to the Civil Code. Amended Article 1055-1 requires judges to consider factors such as ‘the age, sex, and wishes of the child’ and ‘the age, occupation, character, health condition, economic condition, and lifestyle of the parents.’ However, previous studies have not clarified which factors judges consider primary. This article collects Taiwanese family court decisions from 2012 to 2017, involving 1,126 children whose parents were both Taiwanese and who both sought to acquire custody, in which Taiwanese district courts granted sole custody to the husband or wife. The article employs decision tree methodology, a commonly used machine learning technology. The article concludes that the three most significant factors considered by Taiwanese judges are first, which parent is the child's current primary caregiver, followed by the wishes of the child and the judge's assessment of parent-child interaction. This result runs counter to widely held beliefs that parental gender and parents’ occupations and economic resources are still prime factors in judges’ contemplation. Decision tree learning, we suggest, can assist parents’ and lawyers’ case evaluations and speed up extrajudicial custody determination arrangements.

In 2012–2013, the people of Vietnam participated in a lengthy process of public consultation to amend the constitution and land law. This article analyzes the approach that party leaders took during the 2013 constitutional consultation and law-making period as the leaders responded to submissions calling for radical reforms of constitutional and legal arrangements of land ownership. This analysis will provide insights into how, if at all, the discussion in 2012–2013 was different from previous discussions in relation to reforming the constitutional and legal arrangements of land ownership in Vietnam. The article argues that despite unprecedented consultation and discussion, party leaders did not intend to make substantive changes to land ownership.

In Bangladesh, disputes over custody and guardianship involving Muslim parties are principally governed by Muslim personal law. There remains a constant dilemma in judicial decisions over custody and guardianship matters as to what should be the paramount consideration in awarding child custody to a party – should traditional Muslim personal law rules or the welfare of the child prevail? The findings of this study indicate that there is a steady but inconsistent trend towards child welfare considerations. However, it cannot conclusively be said that a child’s welfare is now the most dominant, or the only consideration for the courts. Focusing on this shift towards a welfare approach, this article critically examines some of the leading reported judgments of the Supreme Court of Bangladesh on the issue.