Promulgated 1987, South Korea‘s current constitution states in its preamble that this is the ninth revision of the first constitution adopted in 1948. Its immediate predecessor constitution of 1980, however, proclaims that the constitution had been changed three times before. What explains this discrepancy? Drafters of the two constitutions evidently had different ideas as to...
Hyper-legislation and deference to the executive
Two particular features of hyper-legislation are the broad discretion that laws confer on government officials, and the extent to which they authorise officials to make decisions that restrict fundamental rights. These issues pose a challenge for courts, whose role it is to ensure that discretionary powers are exercised lawfully while respecting the mandate of democratically...
Identity and Communitarian Constitutional Rights in Singapore
This paper presents a theory of an inclusive communitarian approach to constitutional rights that non-liberal, self-professed communitarian Singapore should adopt. Instead of prioritising the community over the individual and subjugating some identities to the collective will, the paper argues that, by adopting a pluralistic conception of ‘community’ as the communities that constitute our identity, a...
Implementing a Right of Secession: Constitutional and International Legal Strategies
Assuming one wanted to support a right of secession – hardly the dominant view in law or politics – what would be the most promising strategy? The most common approach is constitutionalization, as recent secession attempts suggest. But this is only half right. The path leads through many small changes, rather than a single, quixotic...
Internet Courts: Mapping a new development of Online Dispute Resolution mechanisms in China
This paper examines the online dispute resolution (ODR) mechanisms in China, with a particular focus on a new development: Internet courts. The paper questions the trend towards greater state intervention on ODR mechanisms, especially in the matter of regulation. China has applied a co-regulation approach toward the governance of solving online disputes, instead of allowing...
Interoperability, Global Security Law and the Politics of Data Formatting
This paper critically examines efforts to make the UN Al-Qaida and ISIL sanctions list interoperable with the Advanced Passenger Information (API) data used by the global aviation industry. The aim of this experiment to control the movements of foreign terrorist fighters. It is part of a panoply of recent UN Security Council (UNSC) measures requiring...
Is Immigration a Chance to Rethink Social Citizenship?
One obvious response to the challenges of an ageing population and a lower birth-rate is immigration. Japan now seems to have chosen that path as it is preparing grounds to welcome a wider, economically active foreign population in the near future. In the last couple of years, the government has made some last adjustments to...
Lese-Majeste and Sacred Kingship in Southeast Asia
In the works of 18th century comparative constitutional lawyer Montesquieu, the existence and use of lese-majeste laws was the ultimate marker of “oriental despotism“. Today, lese-majeste laws remain in use in various Southeast Asian countries to protect sacred monarchs, most prominently so in Thailand, but also in Brunei or Malaysia – and it was recently...
Litigating Religions
Religions are a problem for human rights, and human rights are a problem for religions. And both are problems for courts. This paper, based on a recently published book, presents an interpretation of how religion and human rights interrelate in the legal context, and how this relationship might be reconceived to make this relationship somewhat...
Maintaining Institutional Strength: the Court and the Rule of Law
A perennial problem in the “One Country, Two Systems“ model is the demarcation between “one country“ and “two systems“. Balancing security with liberty is particularly challenging in HK when security is approached from a national legal-political system that does not share HK‘s values on the rule of law, judicial independence, the court‘s role, and the...