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 many African countries with hegemonic-party or de facto one-party systems, political leaders have historically exploited ostensibly proper constitutional amendments to undermine constitutionalism, a practice raising questions about the legitimacy, or lack thereof, of such amendments. This article argues that amendment legitimacy is contingent on achieving ‘broad consensus’, a concept endorsed by the African Charter on Democracy, Elections and Governance. Traditional amendment procedures, such as supermajorities and referendums, while crucial, have proven to be imperfect proxies for ensuring such broad consensus. To more effectively safeguard the core constitutional rules of democratic governance, this article contends that political parties must be recognised as key sites of power division and checks and balances. Accordingly, constitutional amendment procedures should require some level of cross-party approval for key amendments, thus preventing individual political groups, regardless of their dominance, from unilaterally altering fundamental rules of the game. This approach would not only enhance the legitimacy of amendments but also serve as a safeguard against contemporary forms of democratic backsliding, where incumbents exploit formal processes to undermine democratic competition. While this process might make constitutional changes more difficult, it would apply only to a narrow set of fundamental aspects of constitutional democracy. Moreover, it does not necessarily conflict with popular self-governance (and its majoritarian expression), but instead calls for an inclusive re-imagining of majoritarianism.

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.

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 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.

This article examines the likely role of competition in the regulatory analysis of bank mergers in China. Despite financial reforms, the banking sector remains subject to a complex web of financial regulation, with industrial policy favouring stability to facilitate national economic development. While there are currently no Ministry of Commerce (MOFCOM) bank merger determinations under the Anti-Monopoly Law (AML), examples of MOFCOM’s merger analysis in other sensitive industries diverge from a pure competition-based analysis, favouring grounds linked to national economic development broadly within the terms of the AML. Given the importance of banking to the Chinese economy, this article argues that competition is unlikely to play a large part in any assessment of bank mergers by MOFCOM, particularly where a foreign bank is involved. Instead, issues linked to ‘national economic development’ and stability are likely to play the most important role, leading to less predictable merger approval outcomes.

The Straits Settlements comprised a group of British territories located in the Malay Peninsula in Southeast Asia. It initially comprised Penang, Singapore, and Malacca, and was formed in 1826. Unlike Malacca which was a thriving city with a substantial Chinese community, Penang and Singapore were relatively uninhabited when the British arrived, but Chinese immigration to both territories swiftly took place and on a large scale. For much of the nineteenth century, British policy towards the Chinese community in the Straits was one of minimal governance. They were largely left to order their affairs privately and this suited the Chinese, who tended to be aloof from the machinery of government and were also unfamiliar with English law. While there were many positive aspects of such private ordering, some negative features included the manner in which secret societies evolved and the treatment of coolies. It was only when the colonial government introduced strong measures that these negative aspects were ameliorated.

A combination of factors has led to an increasing imbalance in the sex ratio of China's population. China's sex ratio at birth is 119 boys per 100 girls, far above the global norm of 106. This paper will focus on the abnormal sex ratio as a consequence of traditional Chinese gender attitudes holding women inferior and subordinate to men, which have been brought to the fore by a combination of fertility decline and technological advancement. Accordingly, any solution to the demographic problem must address these prevalent, entrenched mind-sets. The government appears to realise that existing laws prohibiting sex-selective abortion and infanticide will fail to correct the sex ratio. This paper examines the trend in government responses towards efforts to address traditional gender attitudes and argues that the demographic crisis may have turned the Chinese government into an unlikely champion of gender equality.

The Yogyakarta Ombudsman was established in 2005 as the first Local Ombudsman in Indonesia. Its introduction forms part of the democratic reforms aimed at tackling the problem of corruption within the bureaucracy. This article examines the Local Ombudsman's first year of operation, and asks whether it is addressing corruption and promoting good governance as hoped.

This article analyzes the liability of the Philippine President for the tort of constitutional negligence in relation to the murders and forced disappearances of leftists, journalists, and other dissidents. It uses the international law doctrine of command responsibility as a form of attribution that may be used, by analogy, to hold the President accountable for a culture of impunity. The article describes the role of the President as the regulator of a human rights-conducive information ecology and argues that massive human rights violations meant to silence dissidents are a source of liability for which a class action suit is an available remedy. Finally, it looks at the concept of presidential immunity from suit from a comparative perspective and argues that the continued application of restrictive immunity rules established during the American colonial era is misplaced considering the universalist design of the present Philippine Constitution and developments in immunity jurisprudence in the United States.

There is vast literature on secularism in India and on the effects of Hindu nationalism on secular constitutionalism. This article takes a different tack. It focuses on cases where minority status is contested or competing rights of minorities are at stake. The article uses three exemplary recent cases to illustrate how judicial doctrines devised to reform discriminatory religious practices or to protect minority interests have, perversely, favoured certain groups at the expense of others. In each area examined, the jurisprudence privileges the more powerful of those interests: the sanctity of Muslim personal law over the rights of Muslim women; Hindu dalits over dalits that converted to other religions; and minority educational institutions over children from ‘weaker’ and ‘disadvantaged’ sections of society. The article concludes by proposing a new jurisprudence of religion and constitutional practice for India, one that takes account of these inequalities and gives meaning to the fundamental rights of the most vulnerable individuals and groups.

The corporate law reform initiatives proposed by the Korean government in 2008 are still pending before the National Assembly. While the Korean government was sympathetic to the arguments by business interests for liberal rules conducive to business organization, these demands have to be weighed against the desire for good corporate governance norms that promote accountability and transparency. Such a tension has unfortunately resulted in internal contradictions and uncertainties in the context of Korea. This article points out the uncertainties that the reform initiatives have left unresolved and the potential for their resolution by the judiciary. More fundamentally, the author argues that, in order to resolve the issues currently left unanswered, there is a need to address the debates regarding the theoretical foundations of the corporation.

This article is based on a case study of the developing process of devolution of powers in Sarawak as an aspect of the operation of cooperative federalism in Malaysia. The argument developed is that devolution can be seen and used in conjunction with and in reinforcement of federalism, rather than being simply an alternative method of decentralizing powers. The study finds that this approach may be more promising than a more confrontational approach based on arguments around the fulfilment of the original federal bargain, and is also potentially more open-ended and creative (a process rather than an event), embracing issues within the federal bargain but also issues that are not dealt with in that bargain. The study is based on a unique opportunity to canvass the views of Sarawak leaders at the iteration of the devolution process.

Review of “Interregional Recognition and Enforcement of Civil and Commercial Judgments” by Professor Jie Huang (Oxford and Portland, Oregon: Hart Publishing, 2014) which analyses the status quo of judgment recognition and enforcement in the Mainland China, Macao and Hong Kong under the ‘One Country, Two Systems’ regime. The book also presents a comparative study of the interregional recognition and enforcement of judgments in the US and EU.

It is likely that no criminal behaviour breeds as much condemnation and fear as sex offences. Tragic examples of young victims of sex offenders from around the world have raised societal concerns and prompted calls for increased surveillance and control. It is responsible public policy to address these concerns in ways that will increase public protection and allay unnecessary fears. The purpose of this paper is three-fold. First, the paper examines Hong Kong’s recently implemented Sexual Conviction Record Check Scheme against the Territory’s low crime victimization rate. Second, it compares the Scheme with pre-employment screening checks in Australia and the UK. The paper finally concludes with proposals for changes to the Scheme.

By religious legal pluralism we usually mean state-recognised legal pluralism, such as the kind of legal pluralism implemented in Singapore through the Administration of Muslim Law Act. But there is also religious legal pluralism outside State recognition and enforcement. Many religions have very long legal traditions which have survived, often without much support or official recognition by States (Jewish law, for example). In this paper we shall look at one such tradition, the canon law of the Latin Church of the Roman Catholic Church and its implementation by the Church in Singapore, including the establishment of very busy ecclesiastical tribunals in Singapore to administer disputes relating to the possible nullity of religious marriages, for example. The hope is that this example of Canon Law in Singapore will show that there can be very detailed and formal religious laws implemented by formal institutions such as tribunals outside the ambit of the State.

A key feature of British rule in India was the formation of a class of elite metropolitan lawyers who had an outsized role within the legal profession and a prominent position in Indian politics. This paper analyzes the response of these legal elites to the shifting social and political terrain of post-colonial India, arguing that the advent of the Indian nation-state shaped the discursive strategies of elite lawyers in two crucial ways. First, in response to the slipping grasp of lawyers on Indian political life and increasing competition from developmentalist economics, the elite bar turned their attention towards the consolidation of a national professional identity, imagining an ‘Indian advocate’ as such, whose loyalty would ultimately lie with the nation-state. Second, the creation of the Supreme Court of India, the enactment of the Constitution of India, and the continuous swelling of the post-colonial regulatory welfare state partially reoriented the legal elite towards public law, particularly towards the burgeoning field of administrative law.

This paper explores the paradox of diversity and similarity within legal “traditions”. More particularly, in looking especially at comparative law scholarship on Southeast Asia, it asks if there are any lessons that comparative law theory can learn about how to account for commonality and difference in large and diverse contexts from the perspectives of intersectionality and anti-essentialism that have been developed in feminist scholarship. The paper concludes that feminist scholarship does not resolve the paradox that comparative legal study makes evident but that it does make us better realise the importance of open-textured “narratives of affinity” and “contingent classification” in legal contexts.