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Full-Text Articles in Comparative and Foreign Law
Ktunaxa Nation V. British Columbia: A Historical And Critical Analysis Of Canadian Aboriginal Law, Jennifer Mendoza
Ktunaxa Nation V. British Columbia: A Historical And Critical Analysis Of Canadian Aboriginal Law, Jennifer Mendoza
Washington International Law Journal
Aboriginal law is a developing and emerging area of the law in Canada. In fact, Aboriginal rights were not constitutionally protected until the ratification of the Canadian Constitution in 1982. What followed was a series of precedent-setting cases that clarified what “rights” meant under Section 35 of the Constitution, how Aboriginal title and rights could be established, and what duty the federal government had to the First Nations when trying to infringe on those rights. In 2017, the Canadian Supreme Court heard Ktunaxa Nation v. British Columbia, which was the first case to interpret Aboriginal rights under Section 2(a) religious …
People's Movements As A Strand Of Popular Constitutionalism: Driving Forces, Distinctive Features, And Dilemmas, Binendri Perera
People's Movements As A Strand Of Popular Constitutionalism: Driving Forces, Distinctive Features, And Dilemmas, Binendri Perera
Washington International Law Journal
Constitutional democracies claim themselves to be constructed upon the will of the people. As the agency gap between the rulers and the ruled widens, people are increasingly more frustrated and compelled to actively take a stand. Advances of technology and social mobilization give increasing opportunities for the people to directly express their will and call for accountability from their representatives. Against this backdrop, this paper engages in a comparative analysis of people’s movements that happened and are continuing to take place in South Korea, Sri Lanka, Venezuela and Algeria. Based on the analysis, the paper maps out the common weaknesses …
Breaking The Equilibrium: From Distrust Of Representative Government To An Authoritarian Executive, Gábor Attila Tóth
Breaking The Equilibrium: From Distrust Of Representative Government To An Authoritarian Executive, Gábor Attila Tóth
Washington International Law Journal
Although contemporary populist authoritarians have not entirely abandoned the aims and methods of their ancestors, authoritarianism has been undergoing a reinvention in recent years. Behind a façade of constitutionalism, new authoritarianism claims to abide by democratic principles. Populist authoritarians legitimize themselves through popular elections and maintain the entire set of formal institutions associated with constitutional democracy, using them as both an appearance of representation and a tool of authoritarian imposition. The article focuses on the concepts of trust and distrust of representative government to afford a better understanding of populist authoritarianism. The paper describes two rival theoretical conceptions of government, …
Statutory Anti-Constitutionalism, Maciej Bernatt, Michał Ziółkowski
Statutory Anti-Constitutionalism, Maciej Bernatt, Michał Ziółkowski
Washington International Law Journal
The article aims at demonstrating that unconstitutional results, marking an illiberal transformation may be achieved by means of a series of statutory amendments outside the constitutional amendment procedure, when the guardian of the constitution is deactivated. In other words, the evasion of the constitution becomes a means of illiberal change of the legal system. This process is referred to as “statutory anti-constitutionalism.” The article offers a detailed analysis of the legal methods which are used to evade the constitution. These include excessive use of transitional and intertemporal provisions in the statutes, shortening vacatio legis, shortening of constitutionally-determined terms of …
The Resurgence Of Executive Primacy In The Age Of Populism: Introduction To The Symposium, Peter Cane
The Resurgence Of Executive Primacy In The Age Of Populism: Introduction To The Symposium, Peter Cane
Washington International Law Journal
The articles in this issue, devoted to legal and constitutional issues around executive primacy and populism, were first presented at an Advanced Workshop on the Resurgence of Executive Primacy in the Age of Populism, organised by Professor Cheng-Yi Huang and held at the Institutum Jurisprudentiae of the Academica Sinica in Taipei, Taiwan on June 21 and 22, 2018. Scholarly interest in populism has grown over the past thirty years to the point where it could recently be the subject of The Oxford Handbook of Populism, published late in 2017. According to the editors of that volume, the bulk of …
Implicit Limits On Amending The Japanese Constitution, Adam N. Sterling
Implicit Limits On Amending The Japanese Constitution, Adam N. Sterling
Washington International Law Journal
Japan's Liberal Democratic Party has advocated many years for constitutional revision, and after attaining a two-thirds majority in both Houses of the Diet in 2017, Prime Minister Shinzō Abe is poised to move forward with that goal. The only hurdles to amending the Constitution of Japan are the amendment procedures stipulated in Article 96. The plain text of Article 96 requires a two-thirds vote in both Houses followed by popular referendum, but it poses no explicit limitations on the scope of any amendment even the amendment process itself is fair game at first glance. Nevertheless, Japanese scholars have claimed that …
The Limits Of Constitutional Deferral: Lessons From The History Of The 2004 Constitution Of Afghanistan, Shamshad Parsarlay
The Limits Of Constitutional Deferral: Lessons From The History Of The 2004 Constitution Of Afghanistan, Shamshad Parsarlay
Washington International Law Journal
In an important recent work, Rosalind Dixon and Tom Ginsburg noted that constitution writers regularly choose to defer to the future important questions of constitutional design. They argue that an “optimal” level of constitutional deferral might contribute to constitutional stability and help constitutions live longer. This Article argues that although constitution makers might choose to defer on many important questions of constitutional design to promote agreement, certain types of deferral might turn out to be counterproductive, and thus constitution writers’ choice to defer should be limited. The Article highlights that it is risky to defer to future legislatures the powers …
Globalization Of Constitutional Identity, Bui Ngoc Son
Globalization Of Constitutional Identity, Bui Ngoc Son
Washington International Law Journal
This Article extends Gary J. Jacobsohn’s theory of constitutional identity to better understand the dynamics of constitutional identity in the era of globalization. The extended theoretical framework features the relation of constitutional globalization to the change of national constitutional identity. Within that framework, this Article offers an original, empirical examination of the case of Vietnam and compares it with other socialist regimes (China, Laos, North Korea, and Cuba). It argues that globalization induces adaption to the socialist constitutional identity. The socialist constitutional identity is adapted by the pragmatic incorporation of fundamental ideas and principles of global constitutionalism. Consequently, the essence …
Can The Japanese Supreme Court Overcome The Political Question Hurdle?, Po Liang Chen, Jordan T. Wada
Can The Japanese Supreme Court Overcome The Political Question Hurdle?, Po Liang Chen, Jordan T. Wada
Washington International Law Journal
In 1947, a new Japanese Constitution (“Kenpō”) was born and its pacifist ideal was embodied in Article 9. Meanwhile, judicial review was transplanted, mainly from the United States (“U.S.”), into Japan. While the U.S. Supreme Court has narrowed its political question doctrine since Baker v. Carr in 1962, Japan developed its constitutional avoidance and political question doctrine in part to avoid deciding the merits of Article 9 disputes, including the legitimacy of Japan’s Self-Defense Force, the Security Treaty between the US and Japan, and the stationing of U.S. Forces in Japan. The Japanese Supreme Court (“SCJ”) adopted a deferential …
Entrenching The Minority: The Constitutional Court In Thailand's Political Conflict, Khemthong Tonsakulrungruang
Entrenching The Minority: The Constitutional Court In Thailand's Political Conflict, Khemthong Tonsakulrungruang
Washington International Law Journal
Since 2006, Thailand has witnessed an unprecedented surge of judicial activism from the Constitutional Court to scrutinize elected politicians in the name of the rule of law. Democracy, argued Constitutional Court judges, could only be consolidated if the rule of law was maintained. But examination of several high-profile constitutional cases suggested that the Constitutional Court was actually working on behalf of the powerful elite minority to obstruct the democratic process under the pretext of protecting the rule of law. This antagonistic position brewed resentment and violence which jeopardized the Constitutional Court’s legitimacy as a neutral political arbiter. The 2014 coup …
The End Of Constitutional Pacifism?, Yasuo Hasebe
The End Of Constitutional Pacifism?, Yasuo Hasebe
Washington International Law Journal
On September 19, 2015, the National Diet of Japan enacted a series of statutes which enable the government to exercise the right of collective self-defense. One of the statutes also enables the government to dispatch the Self-defense Forces to take charge of logistics for foreign military forces waging wars. This enactment symbolises Japan’s turn of course regarding its long-held stance on constitutional pacifism. Pacifism maintained under the Constitution of Japan was not pure pacifism rejecting any use of force. The successive governments held that the right of individual self-defense, in other words, the right to use force in order to …
Contemplated Amendments To Japan's 1947 Constitution: A Return To Iye, Kokutai And The Meiji State, Carl F. Goodman
Contemplated Amendments To Japan's 1947 Constitution: A Return To Iye, Kokutai And The Meiji State, Carl F. Goodman
Washington International Law Journal
The post World War II American Occupation of Japan was a huge programmatic success. Its disarmament, repatriation, land reform, and health programs put a defeated Japan on the road to recuperation, while providing a military shield that enabled Japan to focus on recovery from the War and rebuilding the country and economy. Perhaps its most enduring legacy was its Enlightenment-based, American-drafted, rights-oriented Constitution of 1947 [hereinafter “the Constitution”]. Drafted in English, the Constitution was promulgated in Japanese, resulting in some substantive changes. Among the most important of these were changing the English word “people” into the Japanese “kokumin” …
Constitution And Narrative In The Age Of Crisis In Japanese Politics, Keigo Komamura
Constitution And Narrative In The Age Of Crisis In Japanese Politics, Keigo Komamura
Washington International Law Journal
The most significant political issue facing the legal world in Japan is the drive for constitutional revision led by Prime Minister Shinzo Abe and his Liberal Democratic Party (LDP). This paper situates the revisionist movement within the context of postwar Japanese politics before drawing on theoretical literature in critical legal studies to analyze the LDP’s draft constituion to reveal the magnitude of the proposed changes and to assess the risk they pose to the rule of law in Japan. The paper argues that the proposed draft constitution eschews the languages of the current constitution like “a universal principle of mankind”, …
Interpretation Of The Pacifist Article Of The Constitution By The Bureau Of Cabinet Legislation: A New Source Of Constitutional Law?, Hajime Yamamoto
Interpretation Of The Pacifist Article Of The Constitution By The Bureau Of Cabinet Legislation: A New Source Of Constitutional Law?, Hajime Yamamoto
Washington International Law Journal
This article analyzes recent change of Japanese governmental interpretation of Article 9 of the Constitution of Japan concerning the right of collective self-defense. This governmental interpretation of Article 9 has been elaborated by the Bureau of Cabinet Legislation. This article criticizes a recent critique of this situation by main stream Japanese constitutional scholars as “crisis of constitutionalism”.
On The Uneven Journey To Constitutional Redemption: The Malaysian Judiciary And Constitutional Politics, Yvonne Tew
On The Uneven Journey To Constitutional Redemption: The Malaysian Judiciary And Constitutional Politics, Yvonne Tew
Washington International Law Journal
This article explores the Malaysian judiciary’s approach toward interpreting the Federal Constitution of Malaysia and situates it within the context of the nation’s political and constitutional history. It traces the judiciary’s movement toward a more rights-oriented approach followed by its more recent retreat, which has been marked by strict formalism and insularity in several appellate court decisions. This article argues that the Malaysian courts’ journey toward constitutional redemption has been uneven so far. In order to reclaim its constitutional position as a co-equal branch of government, the Malaysian judiciary must be willing to uphold its constitutional duty to assert its …
Constitutional Fig Leaves In Asia, Po Jen Yap
Constitutional Fig Leaves In Asia, Po Jen Yap
Washington International Law Journal
Constitutional landscapes in Asia are littered with fig leaves. These proverbial fig leaves are legal principles, doctrines, and theories of interpretation that judges appeal to when resolving constitutional disputes. This article uncovers and examines three constitutional fig leaves that are prevalent and flourishing in Asia: 1) formalism and its conceptual variants; 2) the exercise of judicial review that is merely symbolic; and 3) the invocation of vacuous constitutional doctrines. This article further argues that judicial recourse to fig leaves is not intended to deceive anyone about what courts are doing; the fig leaves are on public display merely to demonstrate …
The Rise And Fall Of Historic Chief Justices: Constitutional Politics And Judicial Leadership In Indonesia, Stefanus Hendrianto
The Rise And Fall Of Historic Chief Justices: Constitutional Politics And Judicial Leadership In Indonesia, Stefanus Hendrianto
Washington International Law Journal
In the decade following its inception, the Indonesian Constitutional Court has marked a new chapter in Indonesian legal history, one in which a judicial institution can challenge the executive and legislative branches. This article argues that judicial leadership is the main contributing factor explaining the emergence of judicial power in Indonesia. This article posits that the newly established Indonesian Constitutional Court needed a strong and skilled Chief Justice to build the institution because it had insufficient support from political actors. As the Court lacked a well-established tradition of judicial review, it needed a visionary leader who could maximize the structural …
Moving Towards A Nominal Constitutional Court? Critical Reflections On The Shift From Judicial Activism To Constitutional Irrelevance In Taiwan's Constitutional Politics, Ming-Sung Kuo
Washington International Law Journal
The Taiwan Constitutional Court (TCC, also known as the Council of Grand Justices) has been regarded as a central player in Taiwan’s transition to democracy in the late twentieth century. Transforming from a rubberstamp under the authoritarian regime into a facilitator of political dispute settlement, the TCC channelled volatile political forces into its jurisdiction. Thanks to the TCC’s judicial activism, the judicialization of constitutional politics was characteristic of Taiwan’s democratization in the last two decades of the twentieth century. The TCC scholarship asserts that the TCC has continued to play a pivotal role in Taiwan’s constitutional politics in the twenty-first …
The "Chaudhry Court": Deconstructing The "Judicialization Of Politics" In Pakistan, Moeen H. Cheema
The "Chaudhry Court": Deconstructing The "Judicialization Of Politics" In Pakistan, Moeen H. Cheema
Washington International Law Journal
The Supreme Court of Pakistan underwent a remarkable transformation in its institutional role and constitutional position during the tenure of the former Chief Justice of Pakistan, Iftikhar Muhammad Chaudhry (2005–2013). This era in Pakistan’s judicial history was also marked by great controversy as the court faced charges that it had engaged in “judicial activism,” acted politically, and violated the constitutionally mandated separation of powers between institutions of the state. This article presents an in-depth analysis of the judicial review actions of the Chaudhry Court and argues that the charge of judicial activism is theoretically unsound and analytically obfuscating. The notion …
The Politics Of Constitutional Common Law In Hong Kong Under Chinese Sovereignty, Eric C. Ip
The Politics Of Constitutional Common Law In Hong Kong Under Chinese Sovereignty, Eric C. Ip
Washington International Law Journal
This article studies how the Hong Kong Court of Final Appeal has come to develop a sophisticated judicial gloss on the provisions of the Basic Law, Hong Kong’s constitutional document, in ways unforeseen by the Chinese National People’s Congress that enacted it. The ascendancy of constitutional common law in Hong Kong after the end of British rule is remarkable when considered in light of the continuing denial of democratic self-rule by China’s authoritarian Party-state. This article argues that the profusion of political transaction costs due to the fragmentation of the ruling elite and state-society discord consequent to the resumption of …
The Emerging Structures Of Socialist Constitutionalism With Chinese Characteristics: Extra-Judicial Detention And The Chinese Constitutional Order, Larry Catá Backer, Keren Wang
The Emerging Structures Of Socialist Constitutionalism With Chinese Characteristics: Extra-Judicial Detention And The Chinese Constitutional Order, Larry Catá Backer, Keren Wang
Washington International Law Journal
China is developing its own distinctive path towards socialist constitutionalism and rule of law, one that reflects China's history and its unique circumstances but also conforms to the general principles of transnational constitutionalism. The Chinese constitutional order is grounded on a principal of separation of powers that distinguishes between an administrative power assigned to the government and a political authority assigned to the Chinese Communist Party (“CCP”). This constitutional order is reflected in two related but distinct legal contexts—laojiao (the system of administrative detentions, re-education through labor, or “劳动教养”) and shuanggui (the system of intra-CCP discipline of its cadres, …
Reverse Revolution: Russia's Constitutional Crisis, Sarah E. Cox
Reverse Revolution: Russia's Constitutional Crisis, Sarah E. Cox
Washington International Law Journal
Russia is experiencing a crisis that threatens the continued relevance of its Constitution. This is demonstrated first by Vladimir Putin’s return to the presidency and the political crisis it has fueled. Second, it is shown by the Constitution’s inability to remedy the political crisis due to the collapse of separation of powers and federalism in Russia, and severe party underdevelopment. Part A of this note discusses Russia’s political crisis, namely the demise of democracy. Part B discusses the Constitution’s injuries, specifically the collapse of federalism, the demise of the separation of powers, and the state’s party underdevelopment. Together, these factors …
An Early Tragedy Of Comparative Constitutionalism: Frank Goodnow And The Chinese Republic, Jedidiah Kroncke
An Early Tragedy Of Comparative Constitutionalism: Frank Goodnow And The Chinese Republic, Jedidiah Kroncke
Washington International Law Journal
This article recovers a lost episode in the neglected early history of comparative constitutionalism in the United States. In 1913, pioneering comparative lawyer Frank Goodnow went to China to assist the new Chinese Republic in the writing of its first constitution. Goodnow’s mission reflected the growing interest of the United States in China’s legal development in this era, and his constitution-writing project won broad support from the U.S. legal profession. Goodnow’s tenure ultimately generated great controversy when he advised China’s leaders to adopt a constitutional monarchy rather than continue on as a republic. This article describes this controversy and how …
A Battle Between Law And Society In Micronesia: An Example Of Originalism Gone Awry, Brian Z. Tamanaha
A Battle Between Law And Society In Micronesia: An Example Of Originalism Gone Awry, Brian Z. Tamanaha
Washington International Law Journal
Two conceptions of the relationship between law and society appear to compete: the idea that law mirrors society and the notion that a gap exists between law and society. Both ideas have some truth—law is an imperfect mirror of society. For various reasons, law and society can fall out of sync or even come into conflict. The 1975 Constitutional Convention, which led to the formation of the Federated States of Micronesia (“FSM”), marked the beginning of a battle between that society and its legal institutions. The Constitution’s framers strove to preserve traditional Micronesian culture by ensuring it a respected place …
Separation Of Religion And State In Japan: A Pragmatic Interpretation Of Articles 20 And 89 Of The Japanese Constitution, Andrew B. Van Winkle
Separation Of Religion And State In Japan: A Pragmatic Interpretation Of Articles 20 And 89 Of The Japanese Constitution, Andrew B. Van Winkle
Washington International Law Journal
Article 20 of Japan’s Constitution establishes freedom of religion. To protect this freedom, the provisions of Articles 20 and 89 separate religion from the state to prevent the return of State Shintō. Despite this separation, the Japanese Supreme Court has consistently upheld instances where state entities interact with religious groups. These decisions have raised the ire of numerous academics and legal professionals in and out of Japan who believe that Japan’s constitutional separation requires absolute separation, or at least something more stringent than the Supreme Court has been willing to find. Although this comment rejects the approach taken by the …
The Limits Of Global Judicial Dialogue, David S. Law, Wen-Chen Chang
The Limits Of Global Judicial Dialogue, David S. Law, Wen-Chen Chang
Washington Law Review
The notion that “global judicial dialogue” is contributing to the globalization of constitutional law has attracted considerable attention. Various scholars have characterized the citation of foreign law by constitutional courts as a form of “dialogue” that both reflects and fosters the emergence of a common global enterprise of constitutional adjudication. It has also been claimed that increasing direct interaction between judges, face-to-face or otherwise, fuels the growth of a global constitutional jurisprudence. This Article challenges these claims on empirical grounds and offers an alternative account of the actual reasons for which constitutional courts engage in comparative analysis. First, it is …
Mōri V. Japan: The Nagoya High Court Recognizes The Right To Live In Peace, Hudson Hamilton
Mōri V. Japan: The Nagoya High Court Recognizes The Right To Live In Peace, Hudson Hamilton
Washington International Law Journal
The following is a translation of the Nagoya High Court’s decision in Mōri v. Japan, a case challenging the constitutionality of Japan’s deployment of its Self-Defense Forces (“SDF”) to the Middle East in connection with the United States-led occupation of Iraq. Beginning in December of 2003, Japan deployed ground and air forces of the SDF to the Middle East, including three C-130H “Hercules” transport aircraft which were used to airlift coalition forces and supplies between Kuwait and Baghdad. In response, more than 5,700 citizens, represented by over 800 attorneys, filed lawsuits in eleven district courts across the country in …
The Misapplication Of Leung Kwok Hung In Hong Kong: Authorizing The Rationality Requirement For Textually Absolute Rights, Albert Connor Buchman
The Misapplication Of Leung Kwok Hung In Hong Kong: Authorizing The Rationality Requirement For Textually Absolute Rights, Albert Connor Buchman
Washington International Law Journal
The Hong Kong Bill of Rights Ordinance (BORO) guarantees many fundamental rights to Hong Kong’s permanent residents. In these constitutionally significant statutes, two types of rights exist: 1) textually qualified rights, which contain qualifying language indicating for what purposes a legislated restriction is permissible, such as when necessary for national security, public order, public health or morals, and 2) textually absolute rights, which contain no language indicating when a legislated restriction on that right is permissible. In Leung Kwok Hung & Others v. HKSAR, the Hong Kong Court of Final Appeal formulated a rationality requirement for when restrictions are …
As A Negative Right, Article 25 Can Have A Positive Effect Combating Japan's Poverty, Amelia S. Kegan
As A Negative Right, Article 25 Can Have A Positive Effect Combating Japan's Poverty, Amelia S. Kegan
Washington International Law Journal
Article 25 of the Showa Constitution guarantees everyone in Japan a minimum standard of “wholesome and cultured living.” Contrary to the force originally envisioned by the Constitution’s framers, the Supreme Court of Japan has interpreted the provision as merely a programmatic declaration that guides the legislature rather than as an enforceable right under which an individual may sue. As a result, individuals cannot seek relief from the judiciary for Article 25 violations. The Supreme Court should recognize Article 25 also as a negative, concrete right, allowing individuals to seek judicial relief when the government fails to appropriately apply laws intended …
Reconciliation In The Wake Of Tragedy: Cambodia's Extraordinary Chambers Undermines The Cambodian Constitutiton, Tessa V. Capeloto
Reconciliation In The Wake Of Tragedy: Cambodia's Extraordinary Chambers Undermines The Cambodian Constitutiton, Tessa V. Capeloto
Washington International Law Journal
Between 1975 and 1979, the Khmer Rouge regime was responsible for approximately 1.7 million deaths caused by deportation, starvation, murder, and torture. In 2001, Cambodia established the Extraordinary Chambers, an internationalized domestic tribunal, or “hybrid court,” to prosecute the perpetrators most responsible for these atrocities. As the Cambodian government’s primary legal response to the Khmer Rouge, the tribunal conflicts with the requirements of Article 52 of the Cambodian Constitution, an article that requires a policy of national reconciliation to ensure national unity. Cultural conceptions of national reconciliation coupled with the legislative history and purpose of the constitution strongly suggest that …