PANEL SESSIONS III TUESDAY JUNE 26 2018 11.00 AM – 12.30 PM

Room: CYTT 7.24

  • EMERGENCY, LEGALITY AND RESISTANCE IN ASIA
    This panel explores relationships between sovereign prerogative, legality and rights in different Asian contexts. Eva Pils and Rawin Leelapatana apply long-standing theorisation about exceptional state power to contemporary politics in China and Thailand respectively. Pils draws on Frankel‘s conception of the “dual state“ to analyse the reversion to arbitrary displays of state power in China. Leelapatana argues that, even in a non-liberal political regime such as Thailand, the Schmittian conception of sovereignty has declining viability and explanatory power. Surabhi Chopra and Hualing Fu consider the security-based arguments states make when their powers are challenged. Chopra examines arguments the Indian government makes to preserve impunity for armed forces fighting separatist groups, and reflects upon wider debates about constitutional retrogression. Fu looks at security-based, rule-based, and rights-based responses to political protest in Hong Kong, Taiwan and Mainland China.
  • China‘s contemporary dual state and its global implications
    After the death of Mao Zedong in 1976, the Chinese Party-State initiated a legal revival that raised many hopes of an eventual transition to rule of law, conceived in terms of a global constitutional model. In recent years, however, the leadership has increasingly rejected the values underpinning rule of law and relied on controlling society through arbitrary measures. Drawing on Fraenkel‘s 1940 concept of the Dual State — a duality of coexisting normative and prerogative states, established to normalise ‘emergency‘ exemptions from legality – I discuss the global implications of, and outline possible responses to, China‘s current prerogative state revival
  • The Kelsenian and Schmitian views on the nature and use of emergency powers revisited: the lesson from Thailand‘s colour-coded politics
    This paper will examine the collision between Kelsenian and Schmittian ideas in relation to Thailand‘s contemporary colour-coded crises. The application of the Kelsen-Schmitt debate in the Thai context exemplifies the declining dominance of the Schmittian idea. Though the “Yellow-shirt“ faction in Thai politics is still capable of engineering a military coup—the exercise of sovereign decisionism in the Schmittian sense – such hegemony and ability are declining due to the rise of pro-democracy movements calling for placing political power under the control of a liberal-democratic constitution. Overall, the Thai case reveals the growing need to ‘liberalise‘ and ‘institutionalise‘ the Schmittian idea, especially by resorting to the Kelsenian legal-technical mechanism, the Constitutional Court. Meanwhile, to move the Kelsenian liberal-democratic project forward, there is also a growing need to resort to Schmitt‘s idea of political struggle.
  • Impunity and public law in India: Lessons for challenging constitutional retrogression in liberal democracies
    Focusing on India, I analyse long-running friction between the national and state governments over their constitutional powers to investigate abuses by the military. The national government argues that states cannot inquire into unlawful violence by soldiers. The Manipur government demurs, citing its duty to manage public protest against the military‘s misdeeds. I also look at ongoing litigation challenging extrajudicial killing by the military. I argue that attempts to hold domestically-deployed troops accountable in India carry lessons about the resilience of constitutional-democratic norms. They suggest that constitutional retrogression can be ameliorated by constitutional review, public protest, and the constitutional division of power between national and sub-national governments. However, such gains tend to be minimal and ad hoc. Both in principle and practice, the executive branch remains committed to the authoritarian practices it was empowered by legislation to pursue.
  • Three Approaches to Political Protest: A Hong Kong, Taiwan and Mainland China Comparison
    Different types of regimes face distinct political challenges, perceive and define political protest differently and develop unique measures to manage their political crises. This paper first identifies three distinct approaches to political protest: a security-based approach, a rule-based approach, and a rights-based approach, and then uses Hong Kong, Taiwan and Mainland China as case studies to explore the relationship between political protest and regime type.