New Book Edited by Kelley Loper et al: Gender, Sexuality and Constitutionalism in Asia

Gender, Sexuality and Constitutionalism in Asia
Edited by Wen-Chen Chang, Kelley Loper, Mara Malagodi, Ruth Rubio-Marín
Bloomsbury Publishing
Published in January 2024
384 pp.

Description: This book analyses the equal citizenship claims of women and sexual and gender diverse people across several Asian jurisdictions. The volume examines the rich diversity of constitutional responses to sex, gender and sexuality in the region from a comparative perspective. Leading comparative constitutional law scholars identify 'opportunity structures' to explain the uneven advancement of gender equality through constitutional litigation and consider a combination of variables which shape the diverging trajectories of the jurisdictions in this study. 

     The authors also embed the relevant constitutional and legal developments in their historical, political and social contexts. This deep contextual understanding of the relationship between sex, gender, sexuality and constitutionalism greatly enriches the analysis. The case studies reflect a variety of constitutional structures, institutional designs and contextual dynamics which may advance or impede developments with respect to sex, gender and sexuality. As a whole, the chapters further an understanding of the constitutional domain as a fruitful site for advancing gender equality and the rights of sexual and gender diverse people. 

     The jurisdictions covered represent all Asian sub-regions including: East Asia (Japan, Taiwan, Hong Kong and South Korea), South East Asia (Malaysia, Singapore, Philippines and Indonesia), and South Asia (India, Nepal, Pakistan and Sri Lanka). The introductory framework chapter situates these insights from the region within the broader global context of the evolution of gender constitutionalism.

New Book edited by Anselmo Reyes and Wilson Lui et al: Choice of Law and Recognition in Asian Family Law (Hart Publishing)

Choice of Law and Recognition in Asian Family Law

Edited by Anselmo Reyes, Wilson Lui (Pre-Doctoral Fellow) and Kazuaki Nishioka

Hart Publishing

Published in October 2023

512 pp.

Book Description: This thematic volume in the series Studies in Private International Law – Asia outlines the general choice of law and recognition rules relating to family matters of 15 Asian jurisdictions: Mainland China, Hong Kong, Taiwan, Japan, South Korea, Singapore, Malaysia, Vietnam, Cambodia, Myanmar, the Philippines, Indonesia, Thailand, Sri Lanka and India. The book examines pressing questions and proposes ways in which their systems may be reformed. A concluding chapter considers the extent to which Asian cross-border family law systems can and should be harmonised.

The book provides a comprehensive analysis of cross-border family law challenges, including child surrogacy, child abduction, the recognition of same-sex unions, the recovery of maintenance, and the regulation of intercountry adoption. These are among the matters now testing Asian institutions of private international law and acting as forces for their modernisation.

With contributions by leading Asian private international law experts, the book proposes necessary reforms for each of the jurisdictions analysed as well as for Asia as a whole.

Wilson also contributed to Chapter 3 (pp. 51–80) on “Hong Kong”.

Hualing Fu and Weitseng Chen on Mapping the Authoritarian and Democratic Divide: The Transformation of Policing in Asia (CUP book chapter)

"Mapping the Authoritarian and Democratic Divide The Transformation of Policing in Asia"
Hualing Fu and Weitseng Chen
in Weitseng Chen (ed) and Hualing Fu (ed), Regime Type and Beyond: The Transformation of Police in Asia, (Cambridge University Press, May 2023), pp. 3-25

Summary: This edited volume explores the nature of authoritarian policing, its transformation and resilience, and its rule of law implications. The discussion of the evolution of policing takes place in the context of the overall development of the police, their professionalization, institutional autonomy and neutrality, legality, and their credibility within the communities they manage and serve. What makes policing “democratic” is a contested concept and the definition varies depending on the level of abstraction and the particular focus of the inquiry. While regime type, which is itself a contested concept, the close nexus between the coercive power of the police and the state, it is never dispositive. Thus, the dichotomous categorization of authoritarian policing (AP) and democratic policing (DP), while useful as a starting point for comparative analysis, misses a large amount of nuance and often overlooks the plurality of either system, neglecting the fact that a police system can be authoritarian or democratic in multiple ways and in different aspects of policing. This volume rejects this simple binary view. It aims to untie and unpack the nexus between the police and the political system and to explore the plurality of both AP and DP.

New Book Edited by Hualing Fu and Weitseng Chen: Regime Type and Beyond: The Transformation of Police in Asia (Cambridge University Press)

"Regime Type and Beyond: The Transformation of Police in Asia"
Edited by Weitseng Chen, Hualing Fu
Cambridge University Press
Published in May 2023
400 pp.

Book Description: Policing is legitimized in different ways in authoritarian and democratic states. In East and Southeast Asia, different regime types to a greater or lesser extent determine the power of the police and their complex relationship with the rule of law. This volume examines the evolution of the police as a key political institution from a historical perspective and offers comparative insights into the potential of democratic policing and conversely the resilience of authoritarian policing in Asia. The case studies focus on eight jurisdictions: Singapore, Thailand, Hong Kong, Vietnam, China, Taiwan, Japan and South Korea. The theoretical chapters analyse and explain the links between policing and society, the politics of policing and recent police reforms. This volume fills a gap in the literature by exploring the nature of authoritarian policing and how it has transformed and developed the rule of law throughout East and Southeast Asia.

Reviews:

‘A comprehensive, in-depth and insightful study of policing and its political context in East and Southeast Asia, including the relationship between authoritarian and democratic policing and democratization.’

Albert Chen - Cheng Chan Lan Yue Professor and Chair of Constitutional Law, The University of Hong Kong

 

‘The case studies of diverse East Asian societies make clear that an independent legal system and police professionalism can do much to protect citizen rights and wellbeing, even with dictatorial leaders and colonial and authoritarian pasts. This volume is essential reading for those committed to democracy and decency in government. The realism and knowledge the book provides with its’ attention to paradoxes and ambivalences in a rich, nuanced, interdisciplinary tapestry significantly expands understanding. It sets a high standard for comparative international studies of policing and democracy and will become a classic.’

Gary T. Marx - Professor Emeritus, MIT

‘In exploring the complex commonalities and divergences of policing in Asia, Chen and Fu have produced the very best kind of edited volume. It brings together a range of great scholars on a novel question, and collectively moves our knowledge forward. Highly recommended!’

Tom Ginsburg - Leo Spitz Distinguished Service Professor of International Law, Ludwig and Hilde Wolf Research Scholar, Professor of Political Science, The University of Chicago

Daniel Bell on Legalist Confucianism: What's Living and What's Dead (new book chapter)

"Legalist Confucianism: What's Living and What's Dead"

Daniel A. Bell in Zhengxu Wang (ed),  The Long East Asia: The Premodern State and Its Contemporary Impacts (Palgrave Macmillan 2023) Chapter 9

Abstract: Confucianism and Legalism are the two most influential political traditions in Chinese history. They are diverse and complex traditions with different interpretations in different times (especially in the case of Confucianism), but there are continuities and commonalities and ongoing themes in each tradition. Although the two traditions contrast with each other at the level of philosophy, they were combined in different ways in Chinese imperial history and some form of Legalist Confucianism continues to be influential in the twenty-first century. In this essay, I will identify the main traits of the Confucian and Legalist traditions and show how they were combined in Chinese history. I hope the reader will forgive the broad brushstrokes that simplify a complex history. My aim here is to set the stage for the normative question: Which aspects of Legalist Confucianism should be promoted in the future and which parts should be consigned to the dustbin of history? I will illustrate my response with examples from contemporary China to suggest it is both possible and desirable to promote a form of Legalist Confucianism today and in the foreseeable future.

New Book Edited by Po Jen Yap & Rehan Abeyratne : Routledge Handbook of Asian Parliaments (Routledge)

Routledge Handbook of Asian Parliaments
Edited By
Po Jen Yap & Rehan Abeyratne

Routledge

Published in March 2023

408 pp.

Book Description: This Handbook showcases the rich varieties of legislatures that exist in Asia and explains how political power is constituted in seventeen jurisdictions in East, Southeast and South Asia.

     Legislatures in Asia come in all stripes. Liberal democracies co-exist cheek by jowl with autocracies; semi-democratic and competitive authoritarian systems abound. While all legislatures exist to make law and confer legitimacy on the political leadership, how representative they are of the people they govern differs dramatically across the continent, such that it is impossible to identify a common Asian prototype. Divided into thematic and country-by-country sections, this handbook is a one-stop reference that surveys the range of political systems operating in Asia. Each jurisdiction chapter examines the structure and composition of its legislature, the powers of the legislature, the legislative process, thereby providing a clear picture of how each legislature operates both in theory and in practice. The book also thematically analyses the following political systems operating in Asia: communist regimes, liberal democracies, dominant party democracies, turbulent democracies, presidential democracies, military regimes, and protean authoritarian rule.

     This handbook is a vital and comprehensive resource for scholars of constitutional law and politics in Asia.

New Book edited by Daisy Cheung & Michael Dunn: Advance Directives Across Asia (Cambridge University Press)

Advance Directives Across Asia
Edited by Daisy Cheung & Michael Dunn
Cambridge University Press

Published in February 2023
342 pp.

DOI: https://doi.org/10.1017/9781009152631

Book Description: This book is the first to consider comprehensively and systematically the law and practice of advance directives across Asia. It will thus be important not only as a reference volume that documents how advance directives are regulated and used throughout Asia, but also as an exploration of the concept of the advance directive itself, in context. By examining how advance directives operate in Asian countries, we will also shed light on the principle of personal autonomy in this context, alongside other values and religious and socio-cultural factors that shape health and care decision-making. As such, this book will have broad appeal not only to Asian scholars, students, policymakers and practitioners in the fields of health law and ethics and end-of-life care more generally, but will also be of wider interest to an international academic audience in the fields of law, ethics and health and social care research. This title is also available as open access on Cambridge Core.
Book Review by Alex RK on 25 February 2023: 

It is always a joy when a book not only lives up to what it promises in its title, but goes substantially further. This book is just such a one. Daisy Cheung, Assistant Professor at the Centre for Medical Ethics and Law at the University of Hong Kong, and Michael Dunn, Associate Professor at the Centre for Biomedical Ethics, National University of Singapore, have gathered a wide range of contributors to analyse the very different places of advance directives in end of life decision-making in 14 jurisdictions across Asia.[1] Crucially, they have also done the necessary heavy-lifting behind the scenes and on the page to pull together the threads to pose fascinating and important questions both about advance directives specifically but also about the interaction between international consensuses and localised traditions and expectations.

     Of particular interest, and importance, is that the editors deliberately sought to cast their net widely in terms of defining ‘Asia,’ the book taking in countries as diverse as Israel, Saudi Arabia and the Philippines. This has the huge advantage of making clear that it is just as reductionist to talk about an ‘Asian’ approach to issues around advance directives as it is to talk about a ‘Western’ approach: and one only needs to compare the chapters about Saudi Arabia and Pakistan to understand that it is equally reductionistic to talk about an Islamic approach to such issues. Further, as it is impossible to talk about advance directives without talking about the framework within which they sit, the book also serves as a fascinating tour d’horizon of end of life decision-making more broadly in each of the jurisdictions.

     In the discussion that I did with the editors for my website, they (rightly) squirmed when asked to highlight jurisdictions which they found particularly interesting; they also (and equally rightly) wanted to emphasise that they wanted the book to stand alone, rather than continually to refer back or across to jurisdictions such as England & Wales. So whilst knowing it is perhaps wrong, I cannot help resist highlighting some of the points that particularly struck me in different chapters and some of the reflections that this Anglo-author had in response):The discussion in Ilhak Lee’s chapter on South Korea of the Boromae Hospital case (page 58), in which the Korean Supreme Court found surgeons guilty as accomplices to murder in a case where a wife obtained the discharge of her husband from hospital because she could not continue to pay for his care, [2] the Supreme Court considering that his wife’s decision could not be regarded as an authoritative proxy decision, and that the surgeons had not taken proper measures to prevent an anticipated harm;

     Daniel Fu-Chang Tsai’s discussion (in the chapter on Taiwan, pages 88-89) of the 2019 Taipei Declaration of Advance Care Planning, which expressly recognises that family members and other care givers have needs that should be attended to as part of the patient’s care;

       The observation in Kelly Amal Dhru and Ravindra B Ghooi’s chapter on India (pages 116-120) that the introduction of advance directives in the end of life context has been accompanied by far more controversy than their introduction in the psychiatric context by the Mental Healthcare Act 2017 (in complete contrast, it might be noted, to the situation in jurisdictions such as England & Wales). The same chapter also contains a fascinating discussion of the way in which the courts in India appear to view the family as part of the problem, rather than (potentially) as part of the solution, in decision-making;

      The detailed analysis of what Islamic law requires, or is considered to require in Saudi Arabia (by Z. Abbas Syed, E. Shamshi-Gookshi and A. Parsapoor) and Pakistan (by Mohammed Asim Beg, Erfan Hussain, Noshin Khan, Asma Hamid and Muhammad Atif Waqar), albeit that this is one area where it would have been very interesting had the authors of the respective chapters expressly commented on the interpretations advanced in the other, as this would have been a conversation I would very much liked to have been privy to;

       The relevance of resignation to uncertainty within Filipino culture analysed by L.D. de Castro, R.B. Manaloto, and A.A.L. Lopez (pages 192-5), a cultural phenomenon which it might be thought is more widely spread than just within the Philippines (and the Filipino diaspora), and might well be thought to play at least some part in the universally low uptake of advance decisions in every jurisdiction;

       The (tantalisingly brief) discussion in Bo Chen’s chapter (at pages 240-1) of the role of voluntary guardianship amongst the LGBT community in mainland China as a way in which to seek to secure recognition of the place of a partner within decision-making;

      The emphasis placed in Japan (discussed by Reina Ozei-Hayashi, Futoshi Iwata, Satoshi Kodama and Miho Tanaka, at pages 248-249) on consensus in healthcare decision-making, including the family as part of the consensus group. Whilst this might be thought to sit at odds with the focus on the patient in ‘Western’ systems, one might ask how often decisions to honour advance decisions to refuse treatment are honoured where (at the point that the decision is ‘active’) there is a mismatch between any indications that the patient may be able to give, the view of the family and the view of the medical team.

      What is set out above are but a few of the points at which I found myself reaching for a Post-It note to put on the (curiously shiny) pages of the hardback, but hopefully serve to indicate just how many different directions it would be possible to jump from the springboard of the book’s chapters.

      Structurally, the editors have divided the jurisdictions that are covered into three categories: (1) well-regulated; (2) semi-regulated; and (3) non-regulated. However, as the editors make clear (page 13), “well-regulated” simply means that there is a clear set of rules, rather than that those rules actually work effectively. Miriam Ethel Bentwich (for instance) making a powerful case in relation to Israel (a supposedly “well-regulated” jurisdiction) that “the restrictive nature and supposed strict regulation of Israeli advance directives have actually led to their under-regulation” (page 19). As developed in the final chapter, the differences in approach represent different aspects of “generative accommodation” to “an emerging international consensus in healthcare practice and regulation regarding the value of an AD and its underlying ethical principle of respect for patient autonomy” (page 332). Cheung and Dunn’s view, one which appears amply borne out on the evidence in the preceding pages, is that this a better way to explain the growing place of advance directives in different shapes in the jurisdictions they examine than indigenous development. The concept of generative accommodation, with its requirement for acute sensitivity to local traditions, is a helpful explanatory and descriptive tool for other areas where change is afoot: an obvious one being in relation to the Convention on the Rights of Persons with Disabilities. It is also one which is helpful in prompting reflection as to whether a failure to respond to the asserted consensus in the ‘required’ fashion simply because of wrong-headedness or bias, or is it because the accommodation reached actually represents the ‘right’ result for that particular jurisdiction at that point in time.

      The only, minor, reservation that I have about this book is that, whilst the editors are at pains (page 14) to make clear that they did not seek to encourage their contributors to advance a case that advance directives are ‘a good thing,’[3] the tenor of each of the chapters suggests that the contributors did, in fact, appear to consider this to be the case. It would have been interesting, if only to give shade to the light, to have had a chapter written by a contributor who appeared to have reservations about them, as it is clear that many people, in many of the jurisdictions covered, do indeed have reservations. However, I anticipate that it might well have proven challenging to find contributors with such views to take part in such a project, and even those contributors who are clearly most concerned to advance the cause of advance directives within their own jurisdiction give more than enough material relating to that jurisdiction to enable the reader to gain what appears to be a rounded picture of the position.

     Overall, therefore, this book comes highly recommended, and, as a real bonus, it is open access in its electronic form, thereby making its insights readily available to all.

      [Full disclosure: I was involved in the conference in 2020 from which the book took its genesis; I was also provided with a review copy by the publishers. I am always happy to review books in the fields of mental capacity, mental health and healthcare ethics and law (broadly defined)]

Kelley Loper on Dignity as a Constitutional Value in Hong Kong: Toward a Contextual Approach? (new book chapter)

"Dignity as a Constitutional Value in Hong Kong:
Toward a Contextual Approach?"

Kelley Loper
in  Human Dignity in Asia: Dialogue between Law and Culture, 
edited by Jimmy Chia-Shin Hsu (Cambridge University Press, 2022),
Chapter Seven, pp. 160-186

Introduction: This chapter considers the development of “dignity” as a constitutional value in Hong Kong, a special administrative region (SAR) of the People’s Republic of China (PRC). Hong Kong has maintained a separate legal system since its reversion to Chinese sovereignty in 1997 after more than 150 years as a British colony. The 1984 Sino-British Joint Declaration promised Hong Kong a high degree of autonomy in all areas except foreign affairs and defence. The Basic Law, Hong Kong’s constitutional document, sets out the terms of this “One Country, Two Systems” arrangement, including guarantees of fundamental rights. In particular, it provides for the continuing application of the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). The PRC has not ratified the ICCPR, so its place in Hong Kong’s regional constitutional framework is a key feature of the SAR’s autonomy. The ICCPR has also been directly incorporated in the Bill of Rights Ordinance (BOR), a statute which has achieved constitutional status. While dignity is not mentioned in the Basic Law, these international standards have supported the judiciary’s use of dignity as a core value that underpins constitutional rights and informs a purposive approach to their interpretation. 

Albert Chen et al : Constitutional Politics in Asia (Oxford Bibliographies)

Constitutional Politics in Asia
Kevin Y.L. Tan, P.Y. Lo, Albert H.Y. Chen
Oxford Bibliographies 
Last Modified: 12 January 2023

DOI: 10.1093/OBO/9780199756223-0354

Introduction: The term “constitutional politics” is used far more often than it is defined. Many writers who use the term do not bother defining it, presuming its meaning to be self-evident. Thus, “constitutional politics” is not a term of art and has been used to describe various political or legal phenomena. Broadly speaking, “constitutional politics” may be used to refer to events or developments in which constitutional law interacts with, provides a setting for, or to some extent shapes political processes. In a sense, it deals with that intersection between constitutional law and politics in issues that are neither wholly legal nor political but a mix of both. Plainly, this may manifest when a country drafts its own constitution or undergoes profound changes in its constitutional arrangement. It also arises if political questions are contested in the courts, or where the judiciary takes on a particularly active role in determining constitutional questions of the day, or where a particularly contested constitutional change or amendment takes place. The nature of constitutional law and constitutional adjudication is such that it is impossible to make a clear distinction between law and politics when discussing constitutional law. Key political actions, decisions, and bargains are often enshrined in constitutions and contestations as to their meanings and ambit, lending a heavy air of politics to judicial decision-making. Whether an issue is one that falls within the realm of “constitutional politics” depends on the context in which it arises. Take for example the appointment of judges. In many jurisdictions, this is an uncontroversial matter. However, in some other jurisdictions where the court is highly politicized and where the elected representatives hold power by a tenuous thread, such appointments invariably involve constitutional politics. Asia is the world’s largest continent both in terms of land mass and population. In this bibliography, we will attempt to examine and recommend the relevant literature pertaining primarily to the regions broadly described as Northeast Asia, Central Asia, South Asia, and Southeast Asia. Jurisdictions surveyed include: China, Japan, Hong Kong SAR, Macau SAR, Mongolia, North Korea, South Korea, Taiwan, India, Pakistan, Bangladesh, Sri Lanka, Maldives, Nepal, Afghanistan, Bhutan, Indonesia, Thailand, Malaysia, the Philippines, Singapore, Myanmar, Vietnam, Cambodia, Laos, Brunei, Timor Leste, Afghanistan, Kazakhstan, Tajikistan, and Uzbekistan. We are fortunate that in recent decades, academia and academic publishers have taken a keen interest in constitutional law and politics in Asian countries, as demonstrated by the publication of several series of books such as Routledge Law in Asia (Routledge), Constitutionalism in Asia (Hart Publishing), Comparative Constitutional Law and Policy (Cambridge University Press), and Constitutional Systems of the World (Hart Publishing). It is possible to discuss constitutional politics in Asia in several ways. One possibility is to take a geographical country-by-country or region-by-region approach. Another is to do so on the basis of constitutional regime types such as democracies, socialist states, monarchies, and hybrid regimes. A further way is by grouping countries according to legal traditions. Having considered these possibilities, we felt it most logical to organize the bibliography along thematic or topical lines. This will make it easier for readers to use the bibliography and head straight for the topics that most interest them. We begin by looking at some general works dealing with the subject in the first two sections. The subsequent sections of the bibliography are organized thematically.

Overview of Individual Jurisdictions: The Constitutional Systems of the World series, published by Hart Publishing (Series General Editors: Peter Leyland, Andrew Harding, Benjamin L Berger, Rosalind Dixon, and Heinz Klug), is a series of introductory books featuring monographs of individual jurisdictions with accounts of how the constitutions are developed, interpreted, and utilized in their specific contexts. The studies on Asian jurisdictions deal with the constitution-making processes as well as the most important constitutional and political contests in each of these jurisdictions within their introductory chapters. These books are a good place to start for anyone hoping to know and understand the nature of constitutional politics in these countries. The Asian jurisdictions presented in this series of books include Central Asian States (Newton 2017), China (Zhang 2012), India (Thiruvengadam 2017), Indonesia (Butt and Lindsey 2012), Japan (Matsui 2010), Malaysia (Lee 2017, cited under Separation of Powers, Executive Power, and Inter-Branch Conflicts in Asian Jurisdictions), Myanmar (Crouch 2019), Pakistan (Aziz 2018), Singapore (Tan 2015); Taiwan (Yeh 2016), and Thailand (Harding and Leyland 2011).

Syren Johnstone on Crypto-assets and Disintermediation in Finance: A View from Asia (new book chapter)

“Crypto-assets and disintermediation in finance: A view from Asia”
Syren Johnstone
in E. Kaili and D. Psarrakis (eds.) Disintermediation Economics:The Impact of Blockchain on Markets and Policies (Palgrave Macmillan, 2021), Chapter 10, pp. 215-245

Abstract: The response in Asia to the emergence of crypto-assets has varied enormously intra-regionally due to variances not only in legal systems and regulatory preoccupations but also in cultural values, political ideologies, economic and social development, and the maturation of financial systems. After a review of the Asian narrative in Section 1, the current status of regulation in Asia is summarized in Section 2. Sections 3 and 4 address the hurdles to ecosystem development and questions whether regulatory incrementalism is sustainable. The final Section 5 provides suggestions for policy development.