Pub Date : 2023-08-13DOI: 10.1080/14729342.2023.2244774
A. Wong
{"title":"Blurring boundaries on ‘taking part’ in an unlawful assembly: HKSAR v Choy Kin Yue (2022) 25 HKCFAR 360","authors":"A. Wong","doi":"10.1080/14729342.2023.2244774","DOIUrl":"https://doi.org/10.1080/14729342.2023.2244774","url":null,"abstract":"","PeriodicalId":35148,"journal":{"name":"Oxford University Commonwealth Law Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-08-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45435735","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-01-02DOI: 10.1080/14729342.2023.2222977
Lady Justice Carr
ABSTRACT This is the text of the Harris Society Annual Lecture 2023, delivered at Keble College, Oxford, on 16 May 2023. The Lecture is reproduced here with minor editorial changes. The Lecture discusses the role of academic literature in judicial decision-making, and argues that academics help judges to reach decisions that are more conceptually sound, morally satisfactory, and legally coherent. To make this argument, it asks whether academics are ‘delicate plants’ (that is, overly analytical and abstract) or alternatively ‘loose cannons’ (proposing unduly radical suggestions for law reform). After reviewing the historical relationship between academics and the judiciary, a series of cases in which academics have made major contributions to legal development are discussed, including in the field of unjust enrichment and criminal attempts. Following that, cases are discussed in which academic literature might be seen as overly analytical, either because the academics took a more abstract approach than the judiciary, or focussed on socio-economic concerns rather than ‘black letter’ law. It is argued that the concern about academics being ‘delicate plants’ has been overstated and, in particular, the value of socio-economic scholarship should not be underestimated. The next section moves to discuss cases in which judges have disregarded academic literature because it was overly forward-thinking; although, again, the label of academics as ‘loose cannons’, it is argued, is going too far. The Lecture concludes by discussing how academic literature can continue to be applied usefully by judges in the future.
{"title":"‘Delicate plants’, ‘loose cannons’, or ‘a marriage of true minds’? The role of academic literature in judicial decision-making","authors":"Lady Justice Carr","doi":"10.1080/14729342.2023.2222977","DOIUrl":"https://doi.org/10.1080/14729342.2023.2222977","url":null,"abstract":"ABSTRACT This is the text of the Harris Society Annual Lecture 2023, delivered at Keble College, Oxford, on 16 May 2023. The Lecture is reproduced here with minor editorial changes. The Lecture discusses the role of academic literature in judicial decision-making, and argues that academics help judges to reach decisions that are more conceptually sound, morally satisfactory, and legally coherent. To make this argument, it asks whether academics are ‘delicate plants’ (that is, overly analytical and abstract) or alternatively ‘loose cannons’ (proposing unduly radical suggestions for law reform). After reviewing the historical relationship between academics and the judiciary, a series of cases in which academics have made major contributions to legal development are discussed, including in the field of unjust enrichment and criminal attempts. Following that, cases are discussed in which academic literature might be seen as overly analytical, either because the academics took a more abstract approach than the judiciary, or focussed on socio-economic concerns rather than ‘black letter’ law. It is argued that the concern about academics being ‘delicate plants’ has been overstated and, in particular, the value of socio-economic scholarship should not be underestimated. The next section moves to discuss cases in which judges have disregarded academic literature because it was overly forward-thinking; although, again, the label of academics as ‘loose cannons’, it is argued, is going too far. The Lecture concludes by discussing how academic literature can continue to be applied usefully by judges in the future.","PeriodicalId":35148,"journal":{"name":"Oxford University Commonwealth Law Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44384823","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-01-02DOI: 10.1080/14729342.2023.2210920
P. Scott
ABSTRACT The report of the recent Commission of Inquiry into possible corruption in the British Virgin Islands exemplifies a number of themes present in previous reports relating to other Overseas Territories. This article considers the question of corruption in the Overseas Territories in the context of the constitutional relationship between the Territories and the United Kingdom, considering the extent to which the UK is responsible for addressing the question and whether it might bear some responsibility for the existence of such corruption in the first place.
{"title":"Corruption and the constitutional position of the Overseas Territories","authors":"P. Scott","doi":"10.1080/14729342.2023.2210920","DOIUrl":"https://doi.org/10.1080/14729342.2023.2210920","url":null,"abstract":"ABSTRACT The report of the recent Commission of Inquiry into possible corruption in the British Virgin Islands exemplifies a number of themes present in previous reports relating to other Overseas Territories. This article considers the question of corruption in the Overseas Territories in the context of the constitutional relationship between the Territories and the United Kingdom, considering the extent to which the UK is responsible for addressing the question and whether it might bear some responsibility for the existence of such corruption in the first place.","PeriodicalId":35148,"journal":{"name":"Oxford University Commonwealth Law Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48410995","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-01-02DOI: 10.1080/14729342.2023.2189359
M. Cheong, Divyangana Dhankar, Shaun Star
ABSTRACT While contracts by minors are generally voidable in most common law jurisdictions, the apex court in India and in Malaysia has each held that such contracts are void ab initio, following a century-old Privy Council decision in Mohori Bibee (1903) 30 ILR Cal 539. This article explores minors’ contracts through the lens of legal transplant—viewing transplanted laws on a continuum, from a ‘Strong Watson’ perspective where English common law was adopted by the Indian courts, to a ‘Weak Watson’ position following the Privy Council’s interpretation of the law in the Indian Contract Act 1872. The authors conclude that the current Weak Watson transplant of laws on minors’ contracts is a ‘misfitted’ transplant which is neither consistent with the original intent of the transplanted law nor fit for purpose in a modern context. Given minors’ inability to enter into contracts or seek remedies, urgent legislative reform or judicial reinterpretation is required in India and Malaysia.
摘要尽管在大多数普通法管辖区，未成年人的合同通常是可撤销的，但印度和马来西亚的最高法院都认为，根据百年前枢密院在Mohori Bibee（1903）30 ILR Cal 539中的裁决，此类合同从一开始就无效。本文通过法律移植的视角探讨了未成年人的合同——从印度法院采用英国普通法的“强Watson”视角，到1872年枢密院对《印度合同法》中法律的解释后的“弱Watson”立场，在一个连续体上看待移植的法律。作者得出结论，目前对未成年人合同法律的弱Watson移植是一种“不合适”的移植，既不符合移植法律的初衷，也不符合现代背景下的目的。鉴于未成年人无法签订合同或寻求补救，印度和马来西亚迫切需要进行立法改革或司法重新解释。
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Pub Date : 2023-01-02DOI: 10.1080/14729342.2023.2238454
A. Bindal
ABSTRACT This article examines the judicial discourse around cow protection laws in India, tracing the trajectory of the Indian Supreme Court’s reasoning in cases where the constitutional validity of anti-cow-slaughter laws was challenged in post-independence India. The mainstream scholarship on Article 48 of the Indian Constitution has emphasised the existence of a religious motive behind this constitutional provision and its apparent justification through utility-based economic reasoning. However, most critical writings utilise a simplistic, binary formulation: religious versus secular. Through a close analysis of the judicial decisions in which anti-cow-slaughter laws were constitutionally challenged, the article proposes a move beyond the religious/secular divide and attends to the implications of the uneasy coexistence of the secular and the mythical. It further demonstrates that the invocation of the common law doctrine of presumption of constitutionality has acquired the status of what I term ‘secular mythology’ in the context of anti-slaughter laws.
{"title":"Constitutionalism and the sacred cow: the secular mythology of the Indian Supreme Court","authors":"A. Bindal","doi":"10.1080/14729342.2023.2238454","DOIUrl":"https://doi.org/10.1080/14729342.2023.2238454","url":null,"abstract":"ABSTRACT This article examines the judicial discourse around cow protection laws in India, tracing the trajectory of the Indian Supreme Court’s reasoning in cases where the constitutional validity of anti-cow-slaughter laws was challenged in post-independence India. The mainstream scholarship on Article 48 of the Indian Constitution has emphasised the existence of a religious motive behind this constitutional provision and its apparent justification through utility-based economic reasoning. However, most critical writings utilise a simplistic, binary formulation: religious versus secular. Through a close analysis of the judicial decisions in which anti-cow-slaughter laws were constitutionally challenged, the article proposes a move beyond the religious/secular divide and attends to the implications of the uneasy coexistence of the secular and the mythical. It further demonstrates that the invocation of the common law doctrine of presumption of constitutionality has acquired the status of what I term ‘secular mythology’ in the context of anti-slaughter laws.","PeriodicalId":35148,"journal":{"name":"Oxford University Commonwealth Law Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49640829","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-01-02DOI: 10.1080/14729342.2023.2234749
K. Kalra
ABSTRACT This article argues that the exceptionless prohibition on active euthanasia contained in Indian penal law constitutes indirect discrimination against terminally ill persons disabled from committing suicide, and that reasonable accommodation by way of permitting assisted suicide for persons falling within this class is necessary to address such discrimination. While terminally ill persons physically capable of committing suicide may do so without the threat of penal sanction due to the general decriminalisation of the attempt to commit suicide under the Mental Healthcare Act 2017, those who are physically disabled and require assistance are forbidden therefrom due to the exceptionless prohibition under the Indian Penal Code. I argue, therefore, that the current law constitutes both indirect discrimination and a denial of reasonable accommodation, and is incompatible with the constitutional pursuit of substantive equality. I also argue that this incompatibility cannot be saved by a proportionality-backed justification.
{"title":"‘The law has taken all my rights away’: on India’s conundrum of able-normative death with dignity","authors":"K. Kalra","doi":"10.1080/14729342.2023.2234749","DOIUrl":"https://doi.org/10.1080/14729342.2023.2234749","url":null,"abstract":"ABSTRACT This article argues that the exceptionless prohibition on active euthanasia contained in Indian penal law constitutes indirect discrimination against terminally ill persons disabled from committing suicide, and that reasonable accommodation by way of permitting assisted suicide for persons falling within this class is necessary to address such discrimination. While terminally ill persons physically capable of committing suicide may do so without the threat of penal sanction due to the general decriminalisation of the attempt to commit suicide under the Mental Healthcare Act 2017, those who are physically disabled and require assistance are forbidden therefrom due to the exceptionless prohibition under the Indian Penal Code. I argue, therefore, that the current law constitutes both indirect discrimination and a denial of reasonable accommodation, and is incompatible with the constitutional pursuit of substantive equality. I also argue that this incompatibility cannot be saved by a proportionality-backed justification.","PeriodicalId":35148,"journal":{"name":"Oxford University Commonwealth Law Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42086784","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-07-03DOI: 10.1080/14729342.2022.2151793
Aparajita Kaul, Rishika Agarwal
ABSTRACT The objective of this article is to determine how Indian law can resolve the conflict of dual loyalties faced by nominee directors. We first study nominee directors’ duties towards their nominator in commercial practice, and directors’ duties under the stakeholder-oriented provision of section 166(2) in Indian Companies Act 2013. We then take stock of the judicial approaches towards nominee directors in the United Kingdom and in India. The Companies Act 2013 is presently inadequate to resolve the identified conflict. We suggest codifying a pragmatic approach by allowing nominee directors to pursue their nominator’s interests, subject to the company’s interests. To determine the company’s interests, we refer to the Entity Maximisation and Sustainability Approach proposed by Andrew Keay that allows for a plurality of interests to be considered by a director, while providing a clear objective. In concluding, we call for further deliberation on the enforcement of the nominee directors’ duties.
{"title":"Neither here nor there: reconciling nominee directors’ dual loyalties under the Indian Companies Act 2013","authors":"Aparajita Kaul, Rishika Agarwal","doi":"10.1080/14729342.2022.2151793","DOIUrl":"https://doi.org/10.1080/14729342.2022.2151793","url":null,"abstract":"ABSTRACT The objective of this article is to determine how Indian law can resolve the conflict of dual loyalties faced by nominee directors. We first study nominee directors’ duties towards their nominator in commercial practice, and directors’ duties under the stakeholder-oriented provision of section 166(2) in Indian Companies Act 2013. We then take stock of the judicial approaches towards nominee directors in the United Kingdom and in India. The Companies Act 2013 is presently inadequate to resolve the identified conflict. We suggest codifying a pragmatic approach by allowing nominee directors to pursue their nominator’s interests, subject to the company’s interests. To determine the company’s interests, we refer to the Entity Maximisation and Sustainability Approach proposed by Andrew Keay that allows for a plurality of interests to be considered by a director, while providing a clear objective. In concluding, we call for further deliberation on the enforcement of the nominee directors’ duties.","PeriodicalId":35148,"journal":{"name":"Oxford University Commonwealth Law Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48627828","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-07-03DOI: 10.1080/14729342.2022.2109272
Joel Soon
ABSTRACT Harassment continues to plague modern society. Yet, countries have not found the panacea. Some have opted for a common law tort approach, while others have sought to legislate for protection against harassment. Singapore initially tackled this issue with the former, but turned to the latter after the common law tort created by the Singapore High Court in Malcomson Nicholas Hugh Betram v Naresh Kumar Mehta was thrown into disarray by AXA Insurance Singapore Pte Ltd v Chandran s/o Natesan. This article undertakes a comparative analysis of similar harassment legislation in the United Kingdom and New Zealand and English and Hong Kong case law. It argues that while statutory protection from harassment is preferred over a common law tort, several recommendations can be considered to calibrate the scope of harassment and provide greater clarity as to what constitutes impermissible social interaction.
{"title":"A comparative analysis of legislative protection from harassment: a view from Singapore","authors":"Joel Soon","doi":"10.1080/14729342.2022.2109272","DOIUrl":"https://doi.org/10.1080/14729342.2022.2109272","url":null,"abstract":"ABSTRACT Harassment continues to plague modern society. Yet, countries have not found the panacea. Some have opted for a common law tort approach, while others have sought to legislate for protection against harassment. Singapore initially tackled this issue with the former, but turned to the latter after the common law tort created by the Singapore High Court in Malcomson Nicholas Hugh Betram v Naresh Kumar Mehta was thrown into disarray by AXA Insurance Singapore Pte Ltd v Chandran s/o Natesan. This article undertakes a comparative analysis of similar harassment legislation in the United Kingdom and New Zealand and English and Hong Kong case law. It argues that while statutory protection from harassment is preferred over a common law tort, several recommendations can be considered to calibrate the scope of harassment and provide greater clarity as to what constitutes impermissible social interaction.","PeriodicalId":35148,"journal":{"name":"Oxford University Commonwealth Law Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44695629","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-07-03DOI: 10.1080/14729342.2022.2153508
S. E. Ojogbo, O. K. Edu
ABSTRACT Two dominant legal systems operate in a typical post-colonial African state: the indigenous customary law of the African people and the Received Colonial Laws. Despite the elevation of statutory laws above customary law under the modern state structure in Africa, customary law is still pervasive and regulates most aspects of the personal lives of Africans. Most commentators argue that the practice of customary law discriminates against women. This paper discusses the practice of customary law, its impact on statutory marriages, and how human rights have engendered a new trajectory in the development of customary law in Africa. The paper identifies the positive influence of the Received Colonial Laws and human rights law on maintenance and property rights and suggests the adaptation of the positive aspects of statutory law, the amendment of marriage laws, and the enactment of gender-sensitive legislation on marriage rights for women.
{"title":"Comparing maintenance and property rights in marriage under customary law and statutory law in Africa","authors":"S. E. Ojogbo, O. K. Edu","doi":"10.1080/14729342.2022.2153508","DOIUrl":"https://doi.org/10.1080/14729342.2022.2153508","url":null,"abstract":"ABSTRACT Two dominant legal systems operate in a typical post-colonial African state: the indigenous customary law of the African people and the Received Colonial Laws. Despite the elevation of statutory laws above customary law under the modern state structure in Africa, customary law is still pervasive and regulates most aspects of the personal lives of Africans. Most commentators argue that the practice of customary law discriminates against women. This paper discusses the practice of customary law, its impact on statutory marriages, and how human rights have engendered a new trajectory in the development of customary law in Africa. The paper identifies the positive influence of the Received Colonial Laws and human rights law on maintenance and property rights and suggests the adaptation of the positive aspects of statutory law, the amendment of marriage laws, and the enactment of gender-sensitive legislation on marriage rights for women.","PeriodicalId":35148,"journal":{"name":"Oxford University Commonwealth Law Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42081515","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-07-03DOI: 10.1080/14729342.2022.2106734
Ashutosh Kumar Singh
ABSTRACT Hans Kelsen's theory of the nature of legal systems—and how legal systems are changed—has been endorsed in a series of cases in which courts have adjudicated the legality of a revolution. In all of these cases except one, courts have validated the revolutionary regime. This article focuses on the sole case that stands against this jurisprudential tide: Republic of Fiji v Prasad. In Prasad, the Court explicitly criticised Kelsen's influence on the jurisprudence of revolution and, remarkably, declared the coup in question unlawful. Commentators have received the case positively, arguing that the court's eschewal of Kelsen was instrumental to the result in the case. I seek to rebut this received view. I show that the Kelsenian view is alive and well in the Court's method and result. I conclude with broader reflections on the very coherence of a jurisprudence of revolution itself.
{"title":"Republic of Fiji v Prasad: revolutionary legality and the taxonomy of legal change","authors":"Ashutosh Kumar Singh","doi":"10.1080/14729342.2022.2106734","DOIUrl":"https://doi.org/10.1080/14729342.2022.2106734","url":null,"abstract":"ABSTRACT Hans Kelsen's theory of the nature of legal systems—and how legal systems are changed—has been endorsed in a series of cases in which courts have adjudicated the legality of a revolution. In all of these cases except one, courts have validated the revolutionary regime. This article focuses on the sole case that stands against this jurisprudential tide: Republic of Fiji v Prasad. In Prasad, the Court explicitly criticised Kelsen's influence on the jurisprudence of revolution and, remarkably, declared the coup in question unlawful. Commentators have received the case positively, arguing that the court's eschewal of Kelsen was instrumental to the result in the case. I seek to rebut this received view. I show that the Kelsenian view is alive and well in the Court's method and result. I conclude with broader reflections on the very coherence of a jurisprudence of revolution itself.","PeriodicalId":35148,"journal":{"name":"Oxford University Commonwealth Law Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45018986","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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