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...
In Defence of Empirical Entanglement: The Methodological Flaw in Waldron‘s Case against Judicial Review
Jeremy Waldron‘s sustained critique of judicial review has provoked a series of responses endeavouring either to defend that institution or to join in the critique with renewed zeal. All of the responses to date accept the methodological premise of Waldron‘s intervention – that judicial review may be defended or critiqued in abstract normative terms once...
In the Name of Social Harmony: Ethnic Dominance, Rights Limitations and Pluri-nationalism in South Asia
Several Asian constitutions have provisions allowing States to curtail democratic rights in the name of social harmony. Synthesizing literature on rights restrictions, this paper examines how framing social harmony as a rights restriction links social harmony to security, an accepted limitation on rights, highlighting an antagonization of identity politics and security. Social harmony restrictions empower...
Infrastructure Institutions: Democracy, Dictatorship, and Corporation
This paper investigates three models for subway building: New York City, Shanghai City, and Hong Kong. It argues that the NYC subway suffers from too much democracy, allowing for contestation between the NY city and state governments, different interest groups, and other stakeholders. In the Shanghai model, the city government centralizes power and resources and...
India‘s Third Constitutional Retrogression
The current retrogressive phase marks the 3rd substantial challenge the Indian Constitution has faced. The first arose in the 1970s, when Indira Gandhi‘s government used the Emergency powers under the Constitution to suspend fundamental rights and sought to entrench its powers through an Amendment. The second threat came in the late 1990s, when Vajpayee‘s government...
Individuals in the Constitutional Court: Complaint, Protest, Scandal, and Weapons of the Weak
This paper comparatively examines the means for resistance of individuals against the constitutional judiciary. Starting with the case of the Slovak Constitutional Court, the paper critically assesses the different ways in which the Court relates to and interacts with an individual, including a change from a constitutional petition to complaint (coordinate) mechanism by an amendment...
Institutions Supporting Constitutional Democracy: South Africa
Scholars are increasingly taking note of a species of government institutions that fall outside the traditional separation of powers and have come to be known as the “fifth branch“: these institutions are created by constitutional design to engage in independent oversight and investigation of the other branches. Using South Africa as a case study of...
Inter-legal perspectives on the Public/Private Partnership
In the context of electronic mass surveillance, private actors have gained an intermediate position in-between the state and the individuals, by which they are entitled to negotiate the balance of inter-ests. This prerogative has traditionally belonged to the state, as the only legal body enabled – even through the judicial power – to make a...
International human rights law and the protection of refugee women in Asia
Some have questioned the continuing relevance of the 1951 Refugee Convention. International human rights law has expanded rapidly since 1951 and UN human rights treaties and relevant interpretive materials have clarified states‘ obligations to protect refugees and other migrants beyond the confines of the Refugee Convention. As a result, some argue that the broader remit...
International Law in Domestic Courts in an Era of Populism
This article examines the manner in which the rise of populism affects the use of international law by domestic courts. It argues that populism may have a negative effect on the willingness of domestic courts to refer to international law. It further argues that although such response is understandable, it is regrettable, since incorporation of...