In recent times, Malaysian courts have resorted to a ritual incantation of unconscionability and the notion of a remedial constructive trust to justify a declaration of a constructive trust. This methodology is unhelpful for approaching constructive trusts and has led the law to develop in an unprincipled and unpredictable fashion. Our central thesis is that the key Malaysian decisions could have been decided on the basis of pre-existing legal principles upon which English and Commonwealth courts have declared a constructive trust. We argue that future courts ought to realign their methodology with the orthodox tradition of incremental development of the law in this area instead of resorting to broad notions of unconscionability and the remedial constructive trust.

In Hong Kong, the basic joint enterprise principle is recognised as an independent basis for attributing criminal liability. Although the principle has been recognised by the highest courts of the United Kingdom, Australia, and Hong Kong at different times, this article suggests that it does not have a historical foundation in common law. This article further argues that the basic joint enterprise principle (i) has no practical utility as it completely overlaps with traditional accessorial liability and the inchoate offence of conspiracy; (ii) necessarily requires the court to engage in circular reasoning; (iii) is unable to deal with situations of evidential uncertainty; and (iv) unjustifiably disrupts the principal-accessory distinction under common law. It is therefore recommended that the basic joint enterprise principle be abolished.

Countries across Asia have attempted to expand the involvement of fathers in childcare, motivated by declining birth rates, growing elderly populations, notable gender inequality gaps, and the demand of fathers for paid leave. This article assesses the efforts of twenty-one Asian nations to achieve a more equal distribution of the responsibility for child-rearing by comparing legal entitlements to paid maternity leave, paternity leave, and parental leave. Twenty-one jurisdictions are classified according to three models. Model A is a ‘gender equality’ model where non-transferable paid leave is provided in more equal share to parents, with an additional post-birth period exclusively for birth mothers. Model B is a ‘quota for fathers’ approach where a number of days or weeks are provided in amounts that fall far short of the amount of paid leave exclusively offered to mothers. Model C captures countries that offer no legal entitlements for paid leave for fathers. The data reveals the extent to which Asia lags behind global good practice in the provision of leave to different-sex and same-sex parents, with regional laws reflecting the view that caregiving primarily or exclusively falls upon women. Generous, paid and non-transferable leave for fathers is needed to increase leave-taking.

This article examines the central-local relation between China's unitary and socialist state and its capitalist Special Administrative Region (SAR) of Hong Kong, and considers that, notwithstanding the centralised system underpinning the relationship, Chinese central decision-making in respect of Hong Kong could raise issues of legitimacy. This article focuses on the decision-making of China's National People's Congress and its Standing Committee between 2016 and 2021, purportedly pursuant to the Chinese Constitution and the Hong Kong Basic Law (the instruments providing for Hong Kong's different systems). Upon examination, this article argues that legitimacy-based inhibition, restriction, and resistance arises in relation to the legal control exercised by the Chinese central authorities over Hong Kong. This is made possible by the ‘conditionality’ of the Basic Law, framed as the implementation of China's policies for the return of Hong Kong on 1 July 1997, and by the nurturing of the perceived pluralistic premise of the policy of ‘One Country, Two Systems’ by Hong Kong's common law judges and lawyers in their interpretation and application of the ‘imposed constitution’ of the Basic Law.

This article examines the relationship between legality and legitimacy in postcolonial constitution-making, focusing on Singapore's two stages of sovereignty transfer from colonial rule to independent statehood: its decolonisation from Britain in 1963, achieved through merger with Malaysia, and its separation from Malaysia in 1965. The article shows how different forms of legitimacy were established and sustained during these transitions. The first independence was characterised by legal continuity and political legitimacy, solidified through peaceful negotiations and the strategic use of a 1962 referendum that helped mitigate internal opposition. By contrast, the second independence in 1965 was a ‘legal revolution’, as neither the Malaysian Federal Constitution nor the State of Singapore Constitution 1963 provided for secession and the People's Action Party (PAP) government lacked an explicit public mandate to negotiate the secession. This break in legal continuity required new sources of (revolutionary) legitimacy, which the PAP government secured through subsequent electoral dominance, constitutional consolidation, and political manoeuvres. This article underscores the fact that legitimacy in making, amending, and consolidating constitutions is inherently transient and unstable, requiring continuous renewal through various political and legal mechanisms.

This article compares constitutional amendments in China and Taiwan to explore the long shadow cast by the Chinese encounter with ‘modernity’ on their divergent constitutional roads. It observes that in China, preambular changes have been the characteristic of the amendments to the 1982 Constitution of the People's Republic of China, while the rule-conformity feature of Taiwan's multiple rounds of constitutional revision indicates that the preservation of the formal identity of the 1946 Constitution of the Republic of China is central to Taiwan's constitutional transformation. The article argues that the prominence of the preamble in China's constitutional amendments reflects the programmatic character of its socialist constitution, which is seen as an instrument for progress and emancipation through revolutionary forces. In contrast, Taiwan's rigorous observance of amendment rules underscores the pivotal role of legality in its constitutional development. Progress and continuity underlie the respective necessary legitimating conditions for constitutional amendment in China and Taiwan. Tracing the revolution-progress and the legality-continuity nexuses to the Chinese quest for liberation from Western imperialism, this article suggests that modernity guides both China and Taiwan in maintaining the legitimacy of their respective constitutions. China's path towards modernity tells a story of constitutional struggle in the prehistory of the Global South.

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.