Abstract This article explores the constitutional politics of electoral governance in federations by focusing on the role of election commissions, drawing mainly on examples from Asia. All democracies face the challenge of insulating electoral governance from interference and capture. Compared to unitary states, federations confront the additional dilemma of how to disperse authority over electoral governance across multiple orders of government. Federal democracies must decide whether electoral governance should be a matter for the center or the states. I argue that the basic choice is between what I will call the ‘unitary model’ and the ‘division of powers model.’ The main institution of electoral governance is the electoral management body or ‘EMB.’ In the unitary model, a central EMB administers both national and state-level elections. In the ‘division of powers model’, both a central and state-level EMBs exist, with the state commissions administering elections in the component units of the federation. In federal democracies generally, but especially in Asia, the allure of the unitary model has been strong. The article draws on the example of the Constituent Assembly in India to illustrate what is at stake in how federal constitutions allocate authority over electoral governance.
{"title":"Constitutional Design of Electoral Governance in Federal States","authors":"M. Pal","doi":"10.1017/asjcl.2021.28","DOIUrl":"https://doi.org/10.1017/asjcl.2021.28","url":null,"abstract":"Abstract This article explores the constitutional politics of electoral governance in federations by focusing on the role of election commissions, drawing mainly on examples from Asia. All democracies face the challenge of insulating electoral governance from interference and capture. Compared to unitary states, federations confront the additional dilemma of how to disperse authority over electoral governance across multiple orders of government. Federal democracies must decide whether electoral governance should be a matter for the center or the states. I argue that the basic choice is between what I will call the ‘unitary model’ and the ‘division of powers model.’ The main institution of electoral governance is the electoral management body or ‘EMB.’ In the unitary model, a central EMB administers both national and state-level elections. In the ‘division of powers model’, both a central and state-level EMBs exist, with the state commissions administering elections in the component units of the federation. In federal democracies generally, but especially in Asia, the allure of the unitary model has been strong. The article draws on the example of the Constituent Assembly in India to illustrate what is at stake in how federal constitutions allocate authority over electoral governance.","PeriodicalId":39405,"journal":{"name":"Asian Journal of Comparative Law","volume":"16 1","pages":"S23 - S39"},"PeriodicalIF":0.0,"publicationDate":"2021-11-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43636225","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}
Constitutional theory dating to Montesquieu identified three branches of government, each with a specific function: the legislature enacted general rules, the executive enforced the rules, and the judiciary resolved disputes about the rules’ meaning and application. Every government had to have these branches in some form; that is, the branches were necessary elements in a governance structure. In addition, the branches were exhaustive: that is, taken together they did everything a government could do.
{"title":"Institutions for Protecting Constitutional Democracy: An Analytic Framework, with Special Reference to Electoral Management Bodies","authors":"M. Tushnet","doi":"10.1017/asjcl.2021.27","DOIUrl":"https://doi.org/10.1017/asjcl.2021.27","url":null,"abstract":"Constitutional theory dating to Montesquieu identified three branches of government, each with a specific function: the legislature enacted general rules, the executive enforced the rules, and the judiciary resolved disputes about the rules’ meaning and application. Every government had to have these branches in some form; that is, the branches were necessary elements in a governance structure. In addition, the branches were exhaustive: that is, taken together they did everything a government could do.","PeriodicalId":39405,"journal":{"name":"Asian Journal of Comparative Law","volume":"16 1","pages":"S10 - S22"},"PeriodicalIF":0.0,"publicationDate":"2021-11-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44806639","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}
Abstract Unlike the First Amendment of the United States, the quest to develop a grand theory to explain the scope and purpose of the free speech clause of the Indian Constitution has rarely been attempted. In this void, the significant constitutional question of when expressive conduct should trigger free speech protection has not received adequate academic and judicial scrutiny in India despite its global resonance. This article examines the evolution of the current doctrine by the Indian Supreme Court on the issue of expressive conduct and finds that the Court's ad-hoc approach fails to provide a meaningful resolution framework. Analysing the jurisprudence of the US Supreme Court on its First Amendment, it discusses two potential approaches available to the Indian Supreme Court: one based on the speaker's conduct, and the other, based on state purposes. It argues that focusing on state purposes not only provides a principled answer to this conundrum but is also consistent with Indian free speech jurisprudence. Contrary to contemporary scholarship, it demonstrates that the law on Article 19(1)(a) of the Indian Constitution, as moulded by the Indian Supreme Court over decades, has implicitly treated the examination of state purpose as its predominant inquiry. This article concludes with some ideas on the limitations and prospects of adopting such an approach.
{"title":"Expressive Conduct and Article 19(1)(a) of the Indian Constitution: A Purposivist Approach","authors":"R. Kohli","doi":"10.1017/asjcl.2021.37","DOIUrl":"https://doi.org/10.1017/asjcl.2021.37","url":null,"abstract":"Abstract Unlike the First Amendment of the United States, the quest to develop a grand theory to explain the scope and purpose of the free speech clause of the Indian Constitution has rarely been attempted. In this void, the significant constitutional question of when expressive conduct should trigger free speech protection has not received adequate academic and judicial scrutiny in India despite its global resonance. This article examines the evolution of the current doctrine by the Indian Supreme Court on the issue of expressive conduct and finds that the Court's ad-hoc approach fails to provide a meaningful resolution framework. Analysing the jurisprudence of the US Supreme Court on its First Amendment, it discusses two potential approaches available to the Indian Supreme Court: one based on the speaker's conduct, and the other, based on state purposes. It argues that focusing on state purposes not only provides a principled answer to this conundrum but is also consistent with Indian free speech jurisprudence. Contrary to contemporary scholarship, it demonstrates that the law on Article 19(1)(a) of the Indian Constitution, as moulded by the Indian Supreme Court over decades, has implicitly treated the examination of state purpose as its predominant inquiry. This article concludes with some ideas on the limitations and prospects of adopting such an approach.","PeriodicalId":39405,"journal":{"name":"Asian Journal of Comparative Law","volume":"16 1","pages":"259 - 284"},"PeriodicalIF":0.0,"publicationDate":"2021-10-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45990097","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}
Abstract The Constitutional Court of Korea (CCK) has engaged with foreign law and practices in two distinct manners. While the CCK has interacted with foreign constitutional adjudicatory organs outside the courtroom, it has also developed comparative law practices inside the courtroom. This article aims to examine the interaction between the CCK's two modes of foreign engagement. The chronological inquiry, substantiated by the interviews with former and current legal practitioners of the CCK, demonstrates the gap between the CCK's two modes of foreign engagement. The CCK's evolving extrajudicial activities have provided the repositories of information adequate for the deliberation of individual cases. However, the CCK's rigid structure for comparative law practices, which was established in its initial years to learn from traditionally influential jurisdictions, restricts these repositories from being fully utilised inside the courtroom. The CCK's failure to fully incorporate its developments in its extrajudicial activities into comparative law practices disallows the CCK to grasp an evolving picture of foreign constitutional adjudicatory organs.
{"title":"The Two Modes of Foreign Engagement by the Constitutional Court of Korea","authors":"Soojin Kong","doi":"10.1017/asjcl.2021.24","DOIUrl":"https://doi.org/10.1017/asjcl.2021.24","url":null,"abstract":"Abstract The Constitutional Court of Korea (CCK) has engaged with foreign law and practices in two distinct manners. While the CCK has interacted with foreign constitutional adjudicatory organs outside the courtroom, it has also developed comparative law practices inside the courtroom. This article aims to examine the interaction between the CCK's two modes of foreign engagement. The chronological inquiry, substantiated by the interviews with former and current legal practitioners of the CCK, demonstrates the gap between the CCK's two modes of foreign engagement. The CCK's evolving extrajudicial activities have provided the repositories of information adequate for the deliberation of individual cases. However, the CCK's rigid structure for comparative law practices, which was established in its initial years to learn from traditionally influential jurisdictions, restricts these repositories from being fully utilised inside the courtroom. The CCK's failure to fully incorporate its developments in its extrajudicial activities into comparative law practices disallows the CCK to grasp an evolving picture of foreign constitutional adjudicatory organs.","PeriodicalId":39405,"journal":{"name":"Asian Journal of Comparative Law","volume":"16 1","pages":"338 - 355"},"PeriodicalIF":0.0,"publicationDate":"2021-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48372827","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}
Abstract 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.
{"title":"The Guile and The Guise: Apropos of Comparative Law as We Know It","authors":"P. Legrand","doi":"10.1017/asjcl.2021.7","DOIUrl":"https://doi.org/10.1017/asjcl.2021.7","url":null,"abstract":"Abstract 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.","PeriodicalId":39405,"journal":{"name":"Asian Journal of Comparative Law","volume":"16 1","pages":"155 - 181"},"PeriodicalIF":0.0,"publicationDate":"2021-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47024765","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}
Abstract The rise in defamation claims in Malaysia has placed an onerous workload on the courts to deal with such matters. Against this backdrop, Hamid Sultan Abu Backer JC (as his Lordship then was) (Hamid Sultan JC) suggested in two separate High Court decisions that to alleviate the courts’ burden, matters pertaining to libel and slander ought to be constrained to the criminal courts through appropriate statutory amendments, including to the Criminal Procedure Code (Malaysia). In this paper, the author cautions against the learned Hamid Sultan JC's recommendations and proffers an alternative proposal in the form of media arbitration schemes to handle the growing influx of defamation claims. In particular, the salient features of the IMPRESS and IPSO Schemes from the United Kingdom are scrutinized in detail and measured in terms of suitability for a potential arbitration scheme in the Malaysian jurisdiction.
{"title":"Media Arbitration Schemes: Addressing the Backlog of Defamation Cases in Malaysia","authors":"Imaduddin Suhaimi","doi":"10.1017/asjcl.2021.11","DOIUrl":"https://doi.org/10.1017/asjcl.2021.11","url":null,"abstract":"Abstract The rise in defamation claims in Malaysia has placed an onerous workload on the courts to deal with such matters. Against this backdrop, Hamid Sultan Abu Backer JC (as his Lordship then was) (Hamid Sultan JC) suggested in two separate High Court decisions that to alleviate the courts’ burden, matters pertaining to libel and slander ought to be constrained to the criminal courts through appropriate statutory amendments, including to the Criminal Procedure Code (Malaysia). In this paper, the author cautions against the learned Hamid Sultan JC's recommendations and proffers an alternative proposal in the form of media arbitration schemes to handle the growing influx of defamation claims. In particular, the salient features of the IMPRESS and IPSO Schemes from the United Kingdom are scrutinized in detail and measured in terms of suitability for a potential arbitration scheme in the Malaysian jurisdiction.","PeriodicalId":39405,"journal":{"name":"Asian Journal of Comparative Law","volume":"16 1","pages":"84 - 105"},"PeriodicalIF":0.0,"publicationDate":"2021-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47406854","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}
Abstract The Singapore courts often state that judicial review of executive decision-making ought only to involve an inquiry into the ‘legality’ of a decision or the ‘decision-making process’, and not the ‘decision itself’ or its ‘merits’ – let us call this the ‘Distinction’. This article argues that the Distinction should be expunged from Singapore law. The Distinction has its roots in English case law which aimed to prevent the courts from arbitrarily substituting their decision for the executive's by reason of mere disagreement. But Singapore case law has gone further and treated the Distinction as a general principle applicable to all of administrative law. However, the Distinction is too vague for this purpose (as seen from Singapore cases which have interpreted the distinction inconsistently). It is conceptually problematic, incompatible with the practicalities of judicial review (particularly substantive review as recognized in Singapore law), and has occasionally been paid lip service but not followed in substance. The Distinction cannot form a coherent principle to guide the courts and ought to be replaced by a more nuanced application of constitutional principles relevant to determining the appropriate scope of review. Whatever these principles may be, and however they are to be balanced, the Distinction can be but an over-inclusive rough approximation of them which hampers the development of the law.
{"title":"The Unmeritorious ‘Legality’/‘Merits’ Distinction in Singapore Administrative Law","authors":"B. Ong","doi":"10.1017/asjcl.2021.10","DOIUrl":"https://doi.org/10.1017/asjcl.2021.10","url":null,"abstract":"Abstract The Singapore courts often state that judicial review of executive decision-making ought only to involve an inquiry into the ‘legality’ of a decision or the ‘decision-making process’, and not the ‘decision itself’ or its ‘merits’ – let us call this the ‘Distinction’. This article argues that the Distinction should be expunged from Singapore law. The Distinction has its roots in English case law which aimed to prevent the courts from arbitrarily substituting their decision for the executive's by reason of mere disagreement. But Singapore case law has gone further and treated the Distinction as a general principle applicable to all of administrative law. However, the Distinction is too vague for this purpose (as seen from Singapore cases which have interpreted the distinction inconsistently). It is conceptually problematic, incompatible with the practicalities of judicial review (particularly substantive review as recognized in Singapore law), and has occasionally been paid lip service but not followed in substance. The Distinction cannot form a coherent principle to guide the courts and ought to be replaced by a more nuanced application of constitutional principles relevant to determining the appropriate scope of review. Whatever these principles may be, and however they are to be balanced, the Distinction can be but an over-inclusive rough approximation of them which hampers the development of the law.","PeriodicalId":39405,"journal":{"name":"Asian Journal of Comparative Law","volume":"16 1","pages":"1 - 32"},"PeriodicalIF":0.0,"publicationDate":"2021-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46513813","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}
Despite having a relatively short history as compared to its western counterparts, China’s venture capital (VC) market witnessed an impressive growth in recent years. With 29.4 per cent of global VC injected into Chinese start-ups in 2018, China’s VC market has become the second largest in the world in terms of deal value, attracting both domestic and foreign investors with immense opportunities and ever-increasing technological innovation. However, the law and practice of VC in China has not been sufficiently examined in academic writings despite its size and significance as well as the immense potential for legal research. There was a lack of discussion from a legal perspective as to how the Chinese government played a role in engineering its domestic VC market. In this regard, as a valuable and timely contribution to the scarce scholarship on the Chinese VC industry, Venture Capital Law in China fills the gap in the literature with sophisticated and systematic case studies of China. Through an in-depth comparative analysis of the VC markets in China and the United States (US), the author highlights the distinctive legal features observed in the creation and the development of the Chinese VC market, thus providing VC scholars, policy makers, and practitioners with insights into this significant yet poorly understood sector. Structurally, the book begins with a useful and pertinent introduction to the VC market in China (p 1–43). Chronologically dividing the historical development of the Chinese VC market into five periods, the author argues that the Chinese government has adopted a top-down approach characterized by a regulatory framework consisting mainly of piecemeal interim regulation to ensure the simultaneous availability of investment capital, specialized financial intermediaries, and entrepreneurs – the three essential factors presented in Ronald Gilson’s ‘simultaneity problem’ in the engineering of a VC market. The following chapters of the book provide a detailed examination of the main stages of a standard VC life cycle including fundraising (p 44–142), investment (p 143–212), and exit (p 213–304) through the lens of the VC market in China. Unique features that exist in VC practice in China have been identified and analyzed in each of the stages. For example, the author includes an in-depth account of the prevalence of the valuation adjustment mechanism (‘VAM’) agreements in VC contracting in China, which is one of the many peculiar characteristics that distinguishes it from its international counterparts (p 177–185). The author further discusses the reasons for the prevalence of this special contractual design as well as the associated problems (p 186–207) in the context of
{"title":"Venture Capital Law in China by Lin Lin, Cambridge University Press, 2021. 356 pp. Hardcover: £ 85.00","authors":"Li Guo","doi":"10.1017/asjcl.2021.8","DOIUrl":"https://doi.org/10.1017/asjcl.2021.8","url":null,"abstract":"Despite having a relatively short history as compared to its western counterparts, China’s venture capital (VC) market witnessed an impressive growth in recent years. With 29.4 per cent of global VC injected into Chinese start-ups in 2018, China’s VC market has become the second largest in the world in terms of deal value, attracting both domestic and foreign investors with immense opportunities and ever-increasing technological innovation. However, the law and practice of VC in China has not been sufficiently examined in academic writings despite its size and significance as well as the immense potential for legal research. There was a lack of discussion from a legal perspective as to how the Chinese government played a role in engineering its domestic VC market. In this regard, as a valuable and timely contribution to the scarce scholarship on the Chinese VC industry, Venture Capital Law in China fills the gap in the literature with sophisticated and systematic case studies of China. Through an in-depth comparative analysis of the VC markets in China and the United States (US), the author highlights the distinctive legal features observed in the creation and the development of the Chinese VC market, thus providing VC scholars, policy makers, and practitioners with insights into this significant yet poorly understood sector. Structurally, the book begins with a useful and pertinent introduction to the VC market in China (p 1–43). Chronologically dividing the historical development of the Chinese VC market into five periods, the author argues that the Chinese government has adopted a top-down approach characterized by a regulatory framework consisting mainly of piecemeal interim regulation to ensure the simultaneous availability of investment capital, specialized financial intermediaries, and entrepreneurs – the three essential factors presented in Ronald Gilson’s ‘simultaneity problem’ in the engineering of a VC market. The following chapters of the book provide a detailed examination of the main stages of a standard VC life cycle including fundraising (p 44–142), investment (p 143–212), and exit (p 213–304) through the lens of the VC market in China. Unique features that exist in VC practice in China have been identified and analyzed in each of the stages. For example, the author includes an in-depth account of the prevalence of the valuation adjustment mechanism (‘VAM’) agreements in VC contracting in China, which is one of the many peculiar characteristics that distinguishes it from its international counterparts (p 177–185). The author further discusses the reasons for the prevalence of this special contractual design as well as the associated problems (p 186–207) in the context of","PeriodicalId":39405,"journal":{"name":"Asian Journal of Comparative Law","volume":"16 1","pages":"182 - 185"},"PeriodicalIF":0.0,"publicationDate":"2021-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43946691","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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