JournalTOCs

Asian Journal of Comparative Law
Journal Prestige (SJR): 0.129

Number of Followers: 11

Hybrid journal (It can contain Open Access articles)
ISSN (Print) 2194-6078 - ISSN (Online) 1932-0205
Published by Cambridge University Press

[387 journals]

ACL volume 15 issue 1 Cover and Front matter
- PubDate: 2020-07-01T00:00:00.000Z
  DOI: 10.1017/asjcl.2020.12
  Issue No: Vol. 15, No. 1 (2020)
ACL volume 15 issue 1 Cover and Back matter
- PubDate: 2020-07-01T00:00:00.000Z
  DOI: 10.1017/asjcl.2020.11
  Issue No: Vol. 15, No. 1 (2020)
The Penal Code of Bhutan: Broken from the Start'
- Authors: Dema LHAM; Stanley YEO
  Pages: 1 - 22
  Abstract: The Penal Code of Bhutan was introduced just four years before that nation became a democratic state in 2008. After a brief outline of the origins of that Code, this article proceeds to describe the qualities of a ‘good’ code, as viewed by Thomas Macaulay, the principal drafter of the Indian Penal Code. Thereafter, the Penal Code of Bhutan is measured against these qualities and found to be wanting in many significant areas. This article concludes with two possible solutions to rectify this unsatisfactory situation.
  PubDate: 2020-07-01T00:00:00.000Z
  DOI: 10.1017/asjcl.2019.38
  Issue No: Vol. 15, No. 1 (2020)
Prosecuting Corporate Crime in Indonesia: Recruitment Agencies that
Traffic Migrant Workers
- Authors: Wayne PALMER
  Pages: 23 - 44
  Abstract: This article examines the legal and political context for prosecuting corporate crime in Indonesia. It presents a case study of the landmark case in which a migrant labour recruitment agency was successfully prosecuted for human trafficking. This article explains the rationale and motivation of the prosecution in four sections. First, it considers the development and purpose of corporate liability as a legal concept to foreground the second section, which outlines the legal and policy framework for pursuing corporations that commit crime in Indonesia. This section also offers a detailed discussion about how individuals have been proceeded against in human trafficking cases that involve corporations. Third, this article presents a case study of the first and only instance where a corporation was successfully prosecuted for human trafficking to highlight the sequence of events that made the effort possible. Fourth, the discussion that follows identifies the prosecution's motivations for bringing the case, and makes empirical conclusions about the purpose of prosecuting corporations for human trafficking through the Indonesian legal system. In conclusion, this article argues that the institutional drive to punish corporate involvement in economic crime has created the necessary systems to seek the punishment of a wider range of other corporate crimes, including human trafficking.
  PubDate: 2020-07-01T00:00:00.000Z
  DOI: 10.1017/asjcl.2020.5
  Issue No: Vol. 15, No. 1 (2020)
From South Africa to Sri Lanka: Prospects of Travel for ‘Transformative
Constitutionalism’
- Authors: Dinesha SAMARARATNE
  Pages: 45 - 68
  Abstract: What lessons can we learn from the way in which the South African experience of transformative constitutionalism was invoked in Sri Lanka's recent constitutional reform experience' What conditions allow experiences of transformative constitutionalism to travel' In this article, I respond to these two questions, using Frankenberg's idea of a ‘layered approach’ in comparative constitutional law. My analysis affirms that in the comparative enterprise, a thick explanation that allows each experience to ‘speak for itself’ heightens the value of a comparative example. In the case of South Africa, I demonstrate that transformative constitutionalism is in fact a specific genre of constitutionalism. It demands attention not only to substantive constitutional guarantees and institutional design, but also to the process of constitutional reform. Moreover, effective measures for transitional justice are an essential component of transformative constitutionalism. A closer reading of the South African experience that paid attention to these factors would have led to better use of this experience in Sri Lanka's post-war constitutional governance.
  PubDate: 2020-07-01T00:00:00.000Z
  DOI: 10.1017/asjcl.2020.4
  Issue No: Vol. 15, No. 1 (2020)
A Contextual Approach to Unconstitutional Constitutional Amendments:
Judicial Power and the Basic Structure Doctrine in Malaysia
- Authors: Jaclyn L. NEO
  Pages: 69 - 94
  Abstract: This article takes a contextual approach to analyzing judicial engagement with the doctrine of unconstitutional constitutional amendments. It argues that in assessing judicial reception of the basic structure doctrine, and the content of the constitutional identity that such a doctrine seeks to preserve, a normative universalist or even functionalist approach is not sufficient. Instead, such a doctrine should be justified and understood contextually. It is necessary to contextualize constitutional identity in order to give it a robust character, rather than assuming a set of characteristics most often associated with liberal democratic constitutionalism and without understanding the political, social, and economic conditions in which the constitution operates. This article thus uses the example of Malaysia and how the courts have engaged with the basic structure doctrine to show how a contextual approach could have greater explanatory effect, including on why certain issues are more strongly contested in some countries than in others.
  PubDate: 2020-07-01T00:00:00.000Z
  DOI: 10.1017/asjcl.2020.8
  Issue No: Vol. 15, No. 1 (2020)
Notice-and-Comment Rulemaking in Comparative Perspective: Some Conceptual
and Practical Implications
- Authors: Graciela BASE
  Pages: 95 - 125
  Abstract: Public participation in administrative rulemaking is typically embodied in notice-and-comment procedures essentially mandating the publication of a proposed rule and an opportunity for the public to submit comments thereon prior to its adoption. This article presents a comparative analysis of the notice-and-comment regimes under the Philippine Administrative Code (PAC) and the United States’ Administrative Procedure Act (APA). In stark contrast to the Philippine legal framework which renders compliance with the notice-and-comment procedure practically discretionary on the part of the agency, the APA prescribes the conduct of notice-and-comment as a general rule, and courts rigorously police agencies’ compliance with the procedure. This article argues that the mandatory (or discretionary) nature of the notice-and-comment mechanism impinges on the efficacy of procedural challenges to administrative rules, the standard of judicial review applied to agency statutory interpretation, and the statutory creation of public norms. The article hopes to inspire a re-evaluation of the Philippine framework while providing valuable lessons to other jurisdictions with similar legal architectures.
  PubDate: 2020-07-01T00:00:00.000Z
  DOI: 10.1017/asjcl.2020.6
  Issue No: Vol. 15, No. 1 (2020)
Sexual Orientation, Gender Identity, and Equality in Hong Kong: Rights,
Resistance, and Possibilities for Reform
- Authors: Amy BARROW
  Pages: 126 - 155
  Abstract: This article explores the implications of an absence of anti-discrimination legislation on the grounds of sexual orientation and gender identity (SOGI) in Hong Kong. Strategic litigation has played an important role in securing legal protections for the Lesbian, Gay, Bisexual, and Transgender (LGBT) community in the face of resistance from the Hong Kong Special Administrative Region (HKSAR) government, as well as religious and parental concern groups. Despite a growing body of evidence which outlines the self-reported daily discrimination experienced by LGBT individuals, the HKSAR government has resisted calls to adopt anti-discrimination legislation on the grounds of SOGI, focusing instead on self-regulation and education. Grounded in qualitative research interviews examining the feasibility of adopting anti-discrimination legislation on the grounds of SOGI in Hong Kong, this article explores the current legal landscape for LGBT rights, resistance, and possibilities for reform.
  PubDate: 2020-07-01T00:00:00.000Z
  DOI: 10.1017/asjcl.2020.2
  Issue No: Vol. 15, No. 1 (2020)
Imagining the Post-colonial Lawyer: Legal Elites and the Indian
Nation-State, 1947–1967
- Authors: Alexander WILLIAMS
  Pages: 156 - 186
  Abstract: A key feature of British rule in India was the formation of a class of elite metropolitan lawyers who had an outsized role within the legal profession and a prominent position in Indian politics. This paper analyzes the response of these legal elites to the shifting social and political terrain of post-colonial India, arguing that the advent of the Indian nation-state shaped the discursive strategies of elite lawyers in two crucial ways. First, in response to the slipping grasp of lawyers on Indian political life and increasing competition from developmentalist economics, the elite bar turned their attention towards the consolidation of a national professional identity, imagining an ‘Indian advocate’ as such, whose loyalty would ultimately lie with the nation-state. Second, the creation of the Supreme Court of India, the enactment of the Constitution of India, and the continuous swelling of the post-colonial regulatory welfare state partially reoriented the legal elite towards public law, particularly towards the burgeoning field of administrative law.
  PubDate: 2020-07-01T00:00:00.000Z
  DOI: 10.1017/asjcl.2020.7
  Issue No: Vol. 15, No. 1 (2020)
Authoritarian+Constitutionalism:+Comparative+Analysis+and+Critique+Edited+by+Helena+Alviar+GARCÍA+and+Günter+FRANKENBERG+Edward+Elgar+Publishing,+2019+xii+++386+pp.+Hardcover:+£90.00+eBook:+£22/$31+DOI:+https://doi.org/10.4337/9781788117852&rft.title=Asian+Journal+of+Comparative+Law&rft.issn=2194-6078&rft.date=2020&rft.volume=15&rft.spage=187&rft.epage=190&rft.aulast=BUI&rft.aufirst=Ngoc&rft.au=Ngoc+Son+BUI&rft_id=info:doi/10.1017/asjcl.2020.1">Authoritarian Constitutionalism: Comparative Analysis and Critique Edited
by Helena Alviar GARCÍA and Günter FRANKENBERG Edward Elgar Publishing,
2019 xii + 386 pp. Hardcover: £90.00 eBook: £22/$31 DOI:
https://doi.org/10.4337/9781788117852
- Authors: Ngoc Son BUI
  Pages: 187 - 190
  PubDate: 2020-07-01T00:00:00.000Z
  DOI: 10.1017/asjcl.2020.1
  Issue No: Vol. 15, No. 1 (2020)
Comparative+Law+by+Uwe+KISCHEL+Oxford:+Oxford+University+Press,+2019.+X+++960+pp.+Hardcover:+£150&rft.title=Asian+Journal+of+Comparative+Law&rft.issn=2194-6078&rft.date=2020&rft.volume=15&rft.spage=191&rft.epage=194&rft.aulast=GREBIENIOW&rft.aufirst=Aleksander&rft.au=Aleksander+GREBIENIOW&rft_id=info:doi/10.1017/asjcl.2020.3">Comparative Law by Uwe KISCHEL Oxford: Oxford University Press, 2019. X +
960 pp. Hardcover: £150
- Authors: Aleksander GREBIENIOW
  Pages: 191 - 194
  PubDate: 2020-07-01T00:00:00.000Z
  DOI: 10.1017/asjcl.2020.3
  Issue No: Vol. 15, No. 1 (2020)