This paper presents the understanding of the constitutional identity in the jurisprudence of the Polish Constitutional Court, with regard to European integration. The Court defines constitutional identity as a sum of certain legal principles of the Constitution of 1997. It seems more adequate to understand identity as allowing changes, including amendments of the core provisions...
Constitutional Review in Action?: the Current Developments of the NPCSC‘s Record and Review Mechanism
Is China‘s constitutional review in action? It shall be answered from two perspectives: normative and practical. The Chinese Constitution authorized the NPC and NPCSC to supervise constitutional enforcement. However, this supervision did not run routinely. There is no special mechanism of constitutional review in China. It is embedded in the NPCSC‘s mechanism of Record and...
Constitutional Rights, Corporate Persons, and Accountability in the United States
The United States Constitution, as well as those of many of the states in the Union, contain extensive and well known categories of fundamental rights which are protected against the assertion of governmental power. These fundamental protections are derived from the Constitutional documents themselves or are extracted from ancient rights and customs recognized at the...
Constitutionalization of Transitional Justice and the Constitutional Identity in Korea
Since the establishment of the Constitution of the Republic of Korea in 1948, Korea has sought constitutional democracy in its unique constitutional political context. In such path, the nation experienced two military coup d‘états with ensuing authoritarian regimes, then has incrementally achieved citizen-initiated democratization process. Most conspicuously noted idiosyncrasy in Korea‘s democratization process is the...
Cosmopolitanizing engagement of the South Korean Constitutional Court
Rights practices in South Korea are cosmopolitanizing and have rich implications for the future of Global Constitutionalism, for its further development as a truly global project. Not having a regional human rights system, but with active participation by global-minded rights-holders, the South Korean Constitutional Court serves as a venue where international human rights law interacts...
Courts and Constitutional Adjudication in Contemporary Malaysia and Singapore
This paper explores constitutional adjudication in the contemporary constitutional contexts of Malaysia and Singapore. It focuses on judicial decisionmaking in these post-colonial constitutional systems on issues engaging fundamental liberties and judicial articulation of the basic structure of these constitutions. The role of the courts can only properly be understood by situating their judgments in the...
Courts as Democracy Builders in Asia
What is the relationship between the strength of a country’s democracy and the ability of its courts to address deficiencies in the electoral process? Drawing a distinction between democracies that can be characterised as ‘dominant-party’ (for example Singapore, Malaysia, and Hong Kong), ‘dynamic’ (for example India, South Korea, and Taiwan), and ‘fragile’ (for example Thailand,...
Cultural Institutions versus Cultural Policies? Accommodating National Cultural Priorities within the International Treaty Framework protecting to Cultural Property
The increasing illicit trade in cultural property is a global problem in need of a global response. Accession to the international treaty system designed to tackle this trade and protect heritage more broadly has, however, been slow among many States, some of whom nevertheless regard cultural heritage as an important defining characteristic of their nationhood...
Democracy and Constitutional Legitimacy in Canada/Québec and Spain/Catalonia
In the 1998 Secession Reference, the Supreme Court of Canada opined that while a majority vote in favour of the independence of Québec would give rise to a duty to negotiate eventual separation, only the outcome of a negotiation, not the vote itself, could legitimate secession. Similar questions regarding the legitimacy of a unilateral declaration...
Democratic Legitimacy vs. Rule of Law: A Comparative Study of Oath-taking Controversies in Hong Kong and Taiwan
In 2016 some pro-independence advocates in Hong Kong attempted to enter into the Legislative Council to promote their causes. Their political endeavors were thwarted by the legal means sought by the authorities. Six members-elect of the LegCo were disqualified by the courts for invalidly taking the oath. Similar controversies also played out in Taiwan as...