This article examines why Japan is a prominent exception to the global trend towards recognition of same-sex marriage and evaluates the prospects for change. It does so through an analysis of five cases brought on Valentine's Day – 14 February 2019. Unlike many jurisdictions where religious opposition to same-sex relationships has been intense and sometimes violent, Japan has a history of relative tolerance towards LGBT individuals. Nonetheless, despite the creation of civil partnership ordinances in some localities, national legislation seems unlikely, and a group of lawyers filed suit in five district courts across Japan. The litigation was brought under the State Redress Act and is based on tort rather than directly on constitutional doctrine. It claims that marriage equality is constitutionally required and that the failure of the government to recognize same-sex marriage constitutes a tort that has harmed the LGB plaintiffs and entitles them to compensation. This article analyzes the nature of the cause of action founded on the State Redress Act, and examines the arguments, which are based more on the plaintiffs’ suffering than on their desire for self-expression. Subsequently, it presents and evaluates the possible outcomes

The Penal Code of Bhutan was introduced just four years before that nation became a democratic state in 2008. After a brief outline of the origins of that Code, this article proceeds to describe the qualities of a ‘good’ code, as viewed by Thomas Macaulay, the principal drafter of the Indian Penal Code. Thereafter, the Penal Code of Bhutan is measured against these qualities and found to be wanting in many significant areas. This article concludes with two possible solutions to rectify this unsatisfactory situation.

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.

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.

This article examines the legal and political context for prosecuting corporate crime in Indonesia. It presents a case study of the landmark case in which a migrant labour recruitment agency was successfully prosecuted for human trafficking. This article explains the rationale and motivation of the prosecution in four sections. First, it considers the development and purpose of corporate liability as a legal concept to foreground the second section, which outlines the legal and policy framework for pursuing corporations that commit crime in Indonesia. This section also offers a detailed discussion about how individuals have been proceeded against in human trafficking cases that involve corporations. Third, this article presents a case study of the first and only instance where a corporation was successfully prosecuted for human trafficking to highlight the sequence of events that made the effort possible. Fourth, the discussion that follows identifies the prosecution's motivations for bringing the case, and makes empirical conclusions about the purpose of prosecuting corporations for human trafficking through the Indonesian legal system. In conclusion, this article argues that the institutional drive to punish corporate involvement in economic crime has created the necessary systems to seek the punishment of a wider range of other corporate crimes, including human trafficking.

This article examines the transplantation of the Takeover Panel model from the United Kingdom into the takeover regulatory systems in Hong Kong and Singapore. It focuses on the extent to which this has resulted in formal convergence between the Takeover Panel in the UK and those established in Hong Kong and Singapore. Formal convergence is assessed in terms of the institutional structures of these Panels and is based on their independence and roles, the powers of the Panels and their Executives, and review of their decisions. Applying these criteria, this article concludes that there are medium levels of formal convergence with the UK Panel in both the Hong Kong and Singapore Panels. This article also examines functional convergence, namely the extent to which the Hong Kong and Singapore Panels operate similarly to the UK Panel in practice. In relation to the procedural rules and processes implemented by the Panels, this article concludes that there is a medium form of functional convergence in the case of the Hong Kong Panel, and a weak form of this for the Singapore Panel. Finally, the study of functional convergence in decision-making also includes an examination of the extent to which the Hong Kong and Singapore Panels refer explicitly to the UK approach in their decisions.

What lessons can we learn from the way in which the South African experience of transformative constitutionalism was invoked in Sri Lanka's recent constitutional reform experience? What conditions allow experiences of transformative constitutionalism to travel? In this article, I respond to these two questions, using Frankenberg's idea of a ‘layered approach’ in comparative constitutional law. My analysis affirms that in the comparative enterprise, a thick explanation that allows each experience to ‘speak for itself’ heightens the value of a comparative example. In the case of South Africa, I demonstrate that transformative constitutionalism is in fact a specific genre of constitutionalism. It demands attention not only to substantive constitutional guarantees and institutional design, but also to the process of constitutional reform. Moreover, effective measures for transitional justice are an essential component of transformative constitutionalism. A closer reading of the South African experience that paid attention to these factors would have led to better use of this experience in Sri Lanka's post-war constitutional governance.

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.

With the global proliferation of antitrust law enforcement, multinational businesses, scholars, and practitioners have clamoured for stronger due process protection in competition adjudication. Often, the argument assumes the existence of a due process standard applicable internationally to all competition jurisdictions. The standard comprises certain features typical of adversarial adjudication, including a neutral decision-maker, a live in-person hearing before such decision-maker, and the right to present and cross-examine evidence and witnesses. This paper challenges this alleged due process standard on two different levels by comparing the competition adjudication procedures of the United States Federal Trade Commission, the European Commission, and the Korea Fair Trade Commission. First, the paper shows that such a standard, which advances certain features of Anglo-American adversarial adjudication, is at odds with the local due process laws of the European Union and South Korea. Second, the paper shows that implementing such adversarial features would pose significant practical problems in jurisdictions where existing administrative procedures are largely inquisitorial or ‘continental.’ While the supporters of the due process argument identify a number of procedural problems that should be addressed, framing these problems as a due process issue would only be counterproductive.

The rise of China's tech companies in the global economy raises an urgent need to understand how China incubates its tech startups. China's tech startup ecosystem presents two puzzling legal arrangements for human capital in light of Silicon Valley's experience, the co-existence of enforceable non-compete agreements and the high-velocity labour market, and the common use of stock options with a buyback norm. This article delves into the peculiarities of China's legal and political institutions to resolve these legal puzzles. This article also speaks to a global policy debate about the replicability of Silicon Valley and the necessity of such replication. The Chinese experience offers opposite examples showing the replication complexity: replication yet with deformed practices, and non-replication yet with similar outcomes. The findings suggest that there is unlikely to be a one-size-fits-all model for creating an innovation economy.

Public participation in administrative rulemaking is typically embodied in notice-and-comment procedures essentially mandating the publication of a proposed rule and an opportunity for the public to submit comments thereon prior to its adoption. This article presents a comparative analysis of the notice-and-comment regimes under the Philippine Administrative Code (PAC) and the United States’ Administrative Procedure Act (APA). In stark contrast to the Philippine legal framework which renders compliance with the notice-and-comment procedure practically discretionary on the part of the agency, the APA prescribes the conduct of notice-and-comment as a general rule, and courts rigorously police agencies’ compliance with the procedure. This article argues that the mandatory (or discretionary) nature of the notice-and-comment mechanism impinges on the efficacy of procedural challenges to administrative rules, the standard of judicial review applied to agency statutory interpretation, and the statutory creation of public norms. The article hopes to inspire a re-evaluation of the Philippine framework while providing valuable lessons to other jurisdictions with similar legal architectures.

This article explores the implications of an absence of anti-discrimination legislation on the grounds of sexual orientation and gender identity (SOGI) in Hong Kong. Strategic litigation has played an important role in securing legal protections for the Lesbian, Gay, Bisexual, and Transgender (LGBT) community in the face of resistance from the Hong Kong Special Administrative Region (HKSAR) government, as well as religious and parental concern groups. Despite a growing body of evidence which outlines the self-reported daily discrimination experienced by LGBT individuals, the HKSAR government has resisted calls to adopt anti-discrimination legislation on the grounds of SOGI, focusing instead on self-regulation and education. Grounded in qualitative research interviews examining the feasibility of adopting anti-discrimination legislation on the grounds of SOGI in Hong Kong, this article explores the current legal landscape for LGBT rights, resistance, and possibilities for reform.

While Atiyah's and Summers’ concepts of form and substance in the context of constitutional law are often associated with constitutional interpretation, they can also be fruitfully applied to other areas of constitutional and administrative law. The intent of this paper is to apply the concepts of form and substance to Singapore constitutional and administrative law to illustrate that beyond constitutional interpretation, formalism is an apt description for several key areas of constitutional and administrative law doctrine and reasoning in Singapore, even to the extent of being formalistic. This article will argue that formalism in legal reasoning obtains in several important constitutional and administrative law doctrines in Singapore – specifically in the grounds of judicial review, ouster clause doctrine, and the rules on standing. This article will also evaluate the implications of these findings for the development of constitutional and administrative law in Singapore.

This marvellous book by Rohit De flows from the meeting of two important aspects of Indian constitutional practice. First, the organization of the republic fashioned at independence as an instrument of socio-political change granting the state vast power over social, economic, and cultural activity. Second, a state organized to separate institutional powers and to protect individual freedom in order to check the runaway exercise of institutional power. In De's own words, the book is organised as a ‘dialectic between the Indian Constitution as “politics of state desire” and the Constitution as “articulating insurgent orders of expectations from the state.”’ Set against these tensions in Indian constitutional practice, through a set of detailed ethnographies, De foregrounds citizen efforts to defend rights and freedoms that have operated to deepen constitutional culture in the early years of Indian independence.

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.

I am grateful to Professor Mathew John for his deep and rigorous engagement with A People's Constitution: The Everyday Life of Law in the Indian Republic, and to the editors of this journal for giving me the opportunity to be in dialogue with some of the questions he raises.