The Singapore courts often state that judicial review of executive decision-making ought only to involve an inquiry into the ‘legality’ of a decision or the ‘decision-making process’, and not the ‘decision itself’ or its ‘merits’ – let us call this the ‘Distinction’. This article argues that the Distinction should be expunged from Singapore law. The Distinction has its roots in English case law which aimed to prevent the courts from arbitrarily substituting their decision for the executive's by reason of mere disagreement. But Singapore case law has gone further and treated the Distinction as a general principle applicable to all of administrative law. However, the Distinction is too vague for this purpose (as seen from Singapore cases which have interpreted the distinction inconsistently). It is conceptually problematic, incompatible with the practicalities of judicial review (particularly substantive review as recognized in Singapore law), and has occasionally been paid lip service but not followed in substance. The Distinction cannot form a coherent principle to guide the courts and ought to be replaced by a more nuanced application of constitutional principles relevant to determining the appropriate scope of review. Whatever these principles may be, and however they are to be balanced, the Distinction can be but an over-inclusive rough approximation of them which hampers the development of the law.

This symposium explores the role of “fourth branch” institutions, and specifically the role of independent electoral commissions (IECs) in protecting and promoting constitutional democracy. It does so by focusing on the global South, and Asia in particular. It aims to go beyond the “usual suspects” in comparative constitutional law, and put the constitutional experiences of countries such as Indonesia, Kenya, Myanmar, Malaysia, and Sri Lanka at the centre of a decolonized constitutional project and understanding, supplementing them with an examination of more-often-studied systems such as Australia and India.

Typically one member of a sitting panel of Hong Kong's Court of Final Appeal is a senior jurist drawn from another common law jurisdiction. In the Court's early years, these ‘overseas judges’ were responsible for writing approximately one quarter of the lead opinions across a vast range of cases. This article demonstrates, however, that this practice has changed. The overseas judges now write a smaller share of lead opinions and no longer write lead opinions related to issues of fundamental human rights or the relationship between Hong Kong and the rest of China. This article suggests this change has been made for good reason. Though valid questions about the legitimacy of the role of the overseas judges can be made, they also continue to perform a valuable communicative role regarding the status of Hong Kong's judicial independence under the ‘one country, two systems’ framework. A recent rise in attacks on overseas and other ‘foreign’ judges in Hong Kong can be understood as part of a broader project that seeks to constrain the role of the independent judiciary. By continuing to invite overseas judges to sit on the Court of Final Appeal but reducing their public prominence, the Court has sought not only to reduce avenues for attacks on the legitimacy of particular decisions, but to protect the autonomy and independence of the judiciary more broadly.

Constitutional theory dating to Montesquieu identified three branches of government, each with a specific function: the legislature enacted general rules, the executive enforced the rules, and the judiciary resolved disputes about the rules’ meaning and application. Every government had to have these branches in some form; that is, the branches were necessary elements in a governance structure. In addition, the branches were exhaustive: that is, taken together they did everything a government could do.

From the size of A4 paper to 5G in the telecommunications sector, standards are ubiquitous. Standard essential patents (SEPs), which protect technology essential to standards, enable their proprietors to gain significant market power. Antitrust authorities therefore scrutinize the exercise of SEPs for breaches of competition law. In this regard, the ability of SEP proprietors to obtain injunctions against implementers as a remedy for infringement of SEPs where licensing negotiations have broken down or are ‘ongoing’ has proven controversial. Some fear that this enables SEP proprietors to threaten injunctions unless implementers agree to unfair, unreasonable, or discriminatory terms. In Huawei Technologies Co Ltd v ZTE Corp [2015] ECLI:EU:C:2015:477, the Court of Justice of the European Union identified circumstances where a SEP proprietor's application for injunctive relief as a remedy for infringement of its SEP constitutes an abuse of a dominant position, with the classification of the SEP proprietor's application as being abusive forming a ‘FRAND Defence’ which implementers may invoke against the grant of the injunction requested. This article analyzes whether this approach can be replicated by the Singapore Courts and whether the Chinese Courts, which have already dealt with SEP licensing disputes, adopt a similar approach.

In Singapore, the key institutions driving environmental protection are the legislature and the executive. The judiciary's role in environmental protection has thus far been relatively minor. By drawing upon environmental law theory and comparative analysis of other common law jurisdictions, this article explores avenues through which the common law can be engaged more meaningfully to further environmental protection in Singapore. A conceptualisation of environmental law as directed at furthering the rule of law by promoting carefully-considered and participatory environmental governance will be suggested as a fruitful way forward for thinking about the role of the common law in environmental protection. Drawing upon this theory, as well as the experience of other common law jurisdictions, the article proposes a set of concrete steps by which greater common law engagement with environmental protection in Singapore can be achieved.

This article develops a comparative analysis of specialised courts in intellectual property across both Japan and the US. This article considers the IPHC through the lens of the CAFC to investigate the differing institutional impact and illuminate the most pressing issues in Japanese patent law that have emerged as a result of transplanting this specialised court. Rather than a more conventional analysis of the implementation of these institutions, this article focuses instead on a comparative investigation of the soft law elements that have significantly influenced their effectiveness, providing a different insight on the relationship between these institutions and their broader contextual impact.

The main findings of the comparative analysis are found in two primary areas – the impact of specialised courts on the consistency and reliability of patent law; and secondly, recommendations regarding the potential reform of Japanese patent law as it relates to the role of the IPHC. In terms of reform, this article analyzes the double-track problem in Japanese patent law and the key role that, with some modification to the court/patent office relationship, the IPHC could play in addressing this issue with a more fundamental realignment of patent law with its Continental history.

In upholding a consumer's right to information, regulations prohibiting misleading or deceptive conduct perform a critical role in supporting consumer welfare and encouraging equity in business and commerce. While Vietnam enacted a Law on Consumer Protection in 2010, its provisions in this area are limited in ambit and application. In order to improve the effectiveness of a consumer's right to information in Vietnam, it is useful to examine the Australia Consumer Law which has a sophisticated regulatory framework in this area. By comparing the laws prohibiting misleading or deceptive conduct in the Vietnamese Law on Consumer Protection and the Australia Consumer Law, this article identifies certain similarities and differences between the two legal systems, thereby clarifying shortcomings that can lead to inadequacies and inefficiencies of this area of the law and providing a platform for law reform in Vietnam.

This article explores the constitutional politics of electoral governance in federations by focusing on the role of election commissions, drawing mainly on examples from Asia. All democracies face the challenge of insulating electoral governance from interference and capture. Compared to unitary states, federations confront the additional dilemma of how to disperse authority over electoral governance across multiple orders of government. Federal democracies must decide whether electoral governance should be a matter for the center or the states. I argue that the basic choice is between what I will call the ‘unitary model’ and the ‘division of powers model.’ The main institution of electoral governance is the electoral management body or ‘EMB.’ In the unitary model, a central EMB administers both national and state-level elections. In the ‘division of powers model’, both a central and state-level EMBs exist, with the state commissions administering elections in the component units of the federation. In federal democracies generally, but especially in Asia, the allure of the unitary model has been strong. The article draws on the example of the Constituent Assembly in India to illustrate what is at stake in how federal constitutions allocate authority over electoral governance.

Unlike the First Amendment of the United States, the quest to develop a grand theory to explain the scope and purpose of the free speech clause of the Indian Constitution has rarely been attempted. In this void, the significant constitutional question of when expressive conduct should trigger free speech protection has not received adequate academic and judicial scrutiny in India despite its global resonance. This article examines the evolution of the current doctrine by the Indian Supreme Court on the issue of expressive conduct and finds that the Court's ad-hoc approach fails to provide a meaningful resolution framework. Analysing the jurisprudence of the US Supreme Court on its First Amendment, it discusses two potential approaches available to the Indian Supreme Court: one based on the speaker's conduct, and the other, based on state purposes. It argues that focusing on state purposes not only provides a principled answer to this conundrum but is also consistent with Indian free speech jurisprudence. Contrary to contemporary scholarship, it demonstrates that the law on Article 19(1)(a) of the Indian Constitution, as moulded by the Indian Supreme Court over decades, has implicitly treated the examination of state purpose as its predominant inquiry. This article concludes with some ideas on the limitations and prospects of adopting such an approach.

The last few decades have seen a proliferation of constitutional institutions, especially in the Global South, that do not neatly fit within any of three traditional branches of the state. These supposedly ‘fourth branch’ institutions may include electoral commissions, human rights commissions, central banks, probity bodies such as anti-corruption watchdogs, knowledge institutions such as statistics bureaus and census boards, information commissioners, auditors general, attorneys general and so on. In this paper, I will argue that some of these new institutions are best understood as “guarantor institutions”. I will show that in a given political context, a guarantor institution is a tailor-made constitutional institution, vested with material as well as expressive capacities, whose function is to provide a credible and enduring guarantee to a specific non-self-enforcing constitutional norm (or any aspect thereof).

Section I explains why polities need credible and enduring guarantees for specific norms, and claims that the expertise, independence, and accountability of guarantor institutions are likely to be key ingredients that determine their effectiveness in serving that purpose. It also argues that constitutional entrenchment of the guarantor institution is entailed in the independence requirement. Section II shows that in order to credibly and enduringly guarantee a norm, certain primary and secondary duties need to be discharged by relevant actors in relation to the norm's content as well as its impact. It further argues that while some of these duties may be performed by institutions that possess expressive capacity alone (roughly, the capacity to speak, express, communicate), others require material capacity (i.e. the physical capacity to effect material changes in the world). Guarantor institutions, unlike integrity institutions, can shoulder primary as well as secondary duties. Furthermore, they are typically vested with expressive as well as material capacities, which is key to their classification-defying hybridity. Section III argues that guarantor institutions are constitutionalised in two respects: the norm they seek to guarantee is constitutional, and the institution itself has constitutional status. What matters for a norm or institution to be constitutional is that it is entrenched, i.e. protected from change from the ordinary political and legal processes of the polity to some extent. It is their doubly constitutional character that distinguishes guarantor institutions from ordinary regulators.

Section IV explains how some constitutional norms are non-self-enforcing, in the sense that powerful actors are likely to have the will as well as the capacity to frustrate or erase them. It also shows that the three traditional branches, whether acting severally or jointly, cannot provide a credible and enduring guarantee to all non-self-enforcing constitutional norms. Hence the need for constitutional guarantor institutions. Section V highlights that guarantor institutions are typically tailor-made to guarantee specific constitutional norms. Their specificity has important consequences for their internal design and their mode of functioning, which distinguish them from key institutions in the three traditional generalist branches. Section VI concludes. Attention to guarantor institutions by constitutional scholars may help the discipline escape its blinkered worldview, which sees judicial review as the only game in constitution-town.

The rise in defamation claims in Malaysia has placed an onerous workload on the courts to deal with such matters. Against this backdrop, Hamid Sultan Abu Backer JC (as his Lordship then was) (Hamid Sultan JC) suggested in two separate High Court decisions that to alleviate the courts’ burden, matters pertaining to libel and slander ought to be constrained to the criminal courts through appropriate statutory amendments, including to the Criminal Procedure Code (Malaysia). In this paper, the author cautions against the learned Hamid Sultan JC's recommendations and proffers an alternative proposal in the form of media arbitration schemes to handle the growing influx of defamation claims. In particular, the salient features of the IMPRESS and IPSO Schemes from the United Kingdom are scrutinized in detail and measured in terms of suitability for a potential arbitration scheme in the Malaysian jurisdiction.

Electoral Management Bodies (EMBs) are commonly established to increase electoral legitimacy by designing, implementing and/or enforcing rules surrounding nominations, polling, voting, and tabulation. Globally however, EMB design, governance, and efficacy vary considerably. Utilizing four EMB data sources, this article asks (1) to what extent do EMBs form a new pillar of constitutional governance; and (2) how effective are they in managing and increasing the legitimacy of elections? We begin by detailing the global diffusion of EMBs, temporally and geographically, together with trends in governance methods, constitutionalization, and degrees of autonomy and capacity. We then turn to examine the extent to which existing EMBs are effective, empirically testing a global sample of states on two measures associated with electoral legitimacy. Four results of our analyses stand out. First, independent EMBs are most abundant in democratizing regions, including Latin America and the Caribbean, Sub-Saharan Africa, and South Asia. Second, while EMBs are increasing in number, only a slight majority of states enshrine these institutions in their constitutions. Third, while independent EMBs are the most common systems, autonomous bodies are largely found in democracies. Finally, EMBs characterized by greater degrees of autonomy and capacity are associated with lower levels of both electoral violence and concerns regarding electoral legitimacy.

This article explores Japanese transactional lawyers’ attempts to transplant American legal practice concerning corporate acquisition contracts into Japan. Despite their extensive efforts to disseminate legal concepts originating from the common law into the Japanese legal community, their transplantation attempts produced somewhat unexpected results by the promoters of the transplant. Faced with unfamiliar drafting styles and legal concepts, Japanese courts interpreted American-style corporate acquisition contracts in accordance with traditional Japanese-style contract interpretation. As a result, attempts by Japanese practitioners at transplantation were incomplete. This incompleteness is attributable to their inattention to the differences in approaches to contract interpretation between Japanese and New York courts. New York's approach is much more formalistic and literal than Japan's. If fully aware, however, they could have filled the gap by using functional substitutes for American techniques of controlling adjudicators’ contract interpretation which would effectively operate under Japanese law. Japan's experience confirms that a widely supported view in comparative law scholarship that transplanted law does not necessarily operate in the recipient jurisdiction as it did in its host jurisdiction is applicable to the transplantation of contract drafting practices.

Western liberal constitutionalism, the dominant vision of which is rights-oriented and court centric is hegemonic to the discourse. While important, this is a particular rather than total expression of constitutionalism which conflates constitutionalism with liberalism and treat this as paradigmatic. This may obscure all other non-liberal models or fuel their dismissal as sham constitutions. A third space must be found, without collapsing anti-constitutionalist, illiberal despotism with no objective limits on power into the sphere of constitutionalism, and without equating judicial review with constitutionalism. To that end, this article seeks to advance the project of pluralising understandings of constitutionalism, drawing from the rich variety of constitutional experiments in Asia, with its multiplicity of religions, political ideologies government systems, cultures, and levels of economic development. Against an idealised model of liberal constitutionalism deployed as an organisational tool to highlight features of non-liberal constitutionalism in their full variety, the article examines three typologies of constitutionalism: religious, socialist and communitarian. In so doing, the idea of normatively desirable and defensible constitutionalist models is investigated, through an inquiry that goes beyond text and courts to other sites of constitutional practice and governance.

Wealth management products have been popular investment vehicles in China, and they are governed by standard form contracts. Existing studies mainly focus on the risk of such products and suggest having special laws to provide more protection for customers. Little is known about the actual contents of wealth management product contracts. Based on 66 hand-collected wealth management product contracts from major Chinese commercial banks, this article tries to explore the contractual relationship between giant banks and individual customers. It also tests the exploitation theory in a Chinese context by analysing whether the wealth management product contracts are more pro-seller or pro-buyer relative to the laws and regulations in China. Our findings reinforce the argument that standard form contracts are designed in favour of the sellers. The wealth management product contracts are tilted toward the commercial banks relative to the default rules. These contracts contain massive clauses that limit banks’ liabilities and restrict customers’ choice of conflict resolution mechanisms. However, a counter-intuitive finding is that national commercial banks provide less pro-seller terms than the local ones. We argue that the explanations for such variation in contract practices among Chinese commercial banks lie in the enforcement of relevant laws and regulations and the unique nature of national commercial banks.

Comparative law and politics literature widely recognizes the role of election management bodies (EMBs) in securing the well-being of constitutional democracies. Scholars have noted the political desirability of both independence and accountability of these institutions. But striking balance between these two values is easier said than done. This Article highlights the dilemma of accountability by focusing on India's Election Commission (ECI) as a paradigmatic version of a powerful EMB. Scholars of Indian politics have long noted the institution's widening powers – often beyond the original constitutional intent or parliamentary legislation – over the last few decades. This, they argue, has impaired its institutional accountability. This Article adopts a fresh perspective on the ECI's expansive functions, and the attendant concerns these raise. It argues that the ECI regulates the electoral process not through what we may ordinarily identify as the law. The most compelling and consequential of its functions are through extra-legal modalities of regulation. Drawing from recent scholarship on regulation, the Article argues that the ECI shapes the electoral environment and behaviour through non-legal modalities of architecture, nudge and notice-based regulations. Much like the other fields where they are deployed, these extra-legal modalities exhibit unique, and in many ways, inherent limitations with respect to transparency. It is thus this character of the ECI's functions – rather than only their widening breadth – that poses the most significant challenge for democratic accountability. Based on this assessment, the Article notes that for powerful EMBs like the ECI, accountability in the form of on-going operational accountability is inherently limited in compelling ways. This increases the stakes for accountability of these institutions through other means, particularly by securing their constitution, composition and tenure.

In this article, I bring the constitutional jurisprudence of major East Asian courts into reconstructive dialogue with that of the United States, South Africa, and several former Soviet-bloc countries, on per se review of capital punishment. This fills in a gap in the literature, which has failed to reflect new developments in Asia. Besides analysing various review approaches, I extrapolate recurrent analytical issues and reconstruct dialogues among these court decisions. Moreover, I place the analysis in historical perspective by periodising the jurisprudential trajectory of the right to life. The contextualised reconstructive dialogues offer multilayered understanding of my central analytical argument: for any court that may conduct per se review of capital punishment in the future, the highly influential South African Makwanyane case does not settle the lesson. The transnational debate has been kept open by the Korean Constitutional Court's decisions, as well as retrospectively by the US cases of Furman and Gregg. This argument has two major points. First, the crucial part of the reasoning in Makwanyane, namely that capital punishment cannot be proven to pass the necessity test under the proportionality review, is analytically inconclusive. The Korean Constitutional Court's decision offers a direct contrast to this point. Second, the exercise of proportionality review of the Makwanyane Court does not attest to the neutrality and objectivity of proportionality review. Rather, what is really dispositive of the outcome are certain value choices inhering in per se review of capital punishment.

The field of comparative law prioritizes the ascertainment of universals or commonalities across laws, two chimerical pursuits. In the process, comparative research abides significant distortion of information, not always in good faith, and a correlative loss of intellectual warrant. This article urges acknowledgment of such serious epistemic deficit, of its detrimental impact on comparative law, and of the need to restore intellectual integrity to comparative research in law through a radically different approach to foreignness.

The urgency of electoral reforms has long been identified as a key to improving democracy in Malaysia. For decades, electoral manipulation through gerrymandering, malapportionment, and issues with the electoral roll and conduct of elections have undermined democratic quality and competition. The Malaysian Election Commission (EC) has – understandably – come under scrutiny for its role in facilitating and sustaining these problems. However, what requires a greater level of attention is the question of how the EC – despite its position as a constitutional institution that exists independently from the other branches of government – has operated in ways that undermined Malaysia's democracy and maintained a dominant party regime for over six decades. This Article brings this to light by examining the structural, institutional, and political conditions that shape the EC's operation, particularly with regard to re-delineation of constituencies and the conduct of elections. It argues that flaws in constitutional design, along with subsequent constitutional amendments, have rendered the EC vulnerable to partisan capture and thus affected its ability to function as an independent constitutional institution. In addition, this Article demonstrates how changes in political imperatives and judicial restraint in reviewing the EC's decision-making have also contributed to the deficiencies in Malaysia's electoral democracy.