ALT Book Review: Melissa Crouch (ed), ‘Constitutional Democracy in Indonesia’ Often described as the world’s ‘biggest invisible country’, Indonesia also remains largely overlooked in comparative constitutional law. Yet, its experience adds important nuance to understanding constitutionalism in the Global South. Constitutional Democracy in Indonesia shows how the country’s constitutional order both reflects and shapes its complex socio-political realities – and offers lessons for confronting today’s crisis of democratic constitutionalism. Indonesia’s case reveals how authoritarian backsliding isn’t limited to formal constitutional change. Sub-constitutional tools like legislation and judicial review, exploited by predatory elites, can be just as corrosive. This highlights flaws in counter-majoritarian institutions that allow for such elite domination. Reviewed by Ratu Durotun Nafisah

ALT Between 1979 and 1981, the drafting of Indonesia’s Criminal Procedure Code (KUHAP) was marked by tension between authoritarian conceptions of security and public order and rights-based demands for procedural safeguards. How did compromise emerge from this struggle, and what does this legacy mean for today’s reform efforts? Aristo Pangaribuan, ‘Authority, Rights, and Reform: Legislative Struggles over Indonesia’s Criminal Procedure Code (1979–1981)’, 20(1) Asian Journal of Comparative Law (forthcoming)

ALT China and Taiwan’s divergent constitutional paths reveal how their shared encounter with ‘modernity’ gave rise to contrasting approaches to the legitimacy of constitutional amendments: China emphasises revolutionary progress through preambular changes, while Taiwan affirms legal continuity through rigorous adherence to amendment rules. Ming-Sung Kuo, ‘Progress, Continuity, and Constitutional Amendment: Envisaging Legitimacy in the pre-Global South’s Quest for Modernity in China and Taiwan’, 19(3) Asian Journal of Comparative Law 436–456

ALT Book Review Olivier Gaillard & Krista Nadakavukaren Schefer (eds): ‘Private International Law in East Asia: From Imitation to Innovation and Exportation’ As East Asia’s economic influence grows, so does its discursive power in global legal development. Countries like China, Japan, South Korea, and Taiwan have not just imported Western private international law but adapted it to align with their cultural and social contexts. Now they are becoming exporters of these legal innovations, particularly influencing less developed nations seeking alternatives to traditional Western models. Reviewed by Poomintr Sooksripaisarnkit

ALT Democracy doesn’t collapse overnight. It crumbles brick by brick, often under the guise of legality. Traditional theories of unconstitutional constitutional amendments focus on dramatic ruptures, but they overlook the danger of subtle and incremental measures that pave the way for authoritarianism. As Israel’s recent judicial overhaul has shown, courts must take a broad and contextual view – and act early when there is evidence of more anti-democratic moves ahead. Tamar Hostovsky Brandes & Yaniv Roznai, ‘When the First Brick falls of the Fortress of Democracy: Dealing with the First Slice of the ‘Salami Tactic’ for Eroding Democracy’, 19(3) Asian Journal of Comparative Law 535–555

ALT Across most of Asia, women are expected to shoulder childcare responsibilities alone, as fathers receive little to no paid paternity leave. Among 21 jurisdictions analysed, only a handful promote equality through shared, non-transferable parental leave. The rest offers minimal ‘dad quotas’ or nothing at all. To close the care gap and respond to demographic shifts, Asia needs policies that enable fathers to play their part in parenting. Ramona Vijeyarasa, ‘Misdirected by the ‘daddy quota’: A comparative study of paid parental leave across twenty-one Asian nations’, 20(1) Asian Journal of Comparative Law (FirstView)

ALT Legality and legitimacy of constitutional amendments don’t always go hand in hand. Belgium’s notoriously rigid amendment rules led to ‘implicit’ amendments that stretched legality but were widely tolerated. In contrast, the fully legal opening of the amendment formula itself to amendment – and the introduction of a ‘temporary amendment procedure’ in 2012 – faced fierce criticism. Toon Moonen, ‘The Legality-Legitimacy Bifurcation in the Analysis of Constitutional Amendments: A Case Study of Belgium’s State Reforms’, 19(3) Asian Journal of Comparative Law 457–472

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ALT Out now! Special Issue: ‘Constitutional Legitimacy and Amendments’, edited by Jaclyn Neo, Kevin YL Tan & Richard Albert Constitutional amendments are contested for multiple reasons. Focusing only on legality (or ‘unconstitutionality’) and overlooking legitimacy misses deeper political and social questions. Three grounds for challenging legitimacy: – Lack of representativeness (not representative of the people’s will) – Lack of justice (unjust in a significant manner) – Bad faith (motivated by ulterior motives)

ALT Rather than serving community justice, ostracism in Japan has often been weaponised for extortion, concealing community wrongdoing, or harassing rivals. Lawsuits by ostracised individuals typically aim not for government intervention but for court validation of their innocence to counter the stigma of ostracism. J Mark Ramseyer & Eric B Rasmusen, ‘Ostracism in Japan’, 19(2) Asian Journal of Comparative Law (forthcoming)

ALT Ouster clauses, reflecting tensions between legislative and judicial powers, remain contentious. While recent UK and Singapore rulings show evolving judicial approaches, Hong Kong has been quiet under the Basic Law. A fresh approach in Hong Kong could include a local adaptation of Anisminic, remedial interpretations, and invalidating clauses that undermine the constitutional right to court access and judicial power. Trevor TW Wan, ‘Unshackling from Shadows of the Anisminic Orthodoxy: Reconceptualising Approaches to Ouster Clauses in Hong Kong’, 19(2) Asian Journal of Comparative Law (forthcoming)

ALT Book Review Ernest Lim: ‘Social Enterprises in Asia: A New Legal Form’ Social Enterprises in Asia: A New Legal Form is a seminal work that addresses the pressing need for a dedicated legal framework tailored to the hybrid nature of social enterprises, which straddle the line between profit-making and social good, to support the growth and sustainability of social enterprises in Asia. An essential read for policymakers, legal practitioners, academics, and anyone interested in the intersection of corporate law and social entrepreneurship. Reviewed by Stelios Andreadakis

ALT There are four key differences between India’s draft cross-border insolvency law and the UNCITRAL Model Law on Cross-Border Insolvency: (1) the structure of legal institutions, (2) the reciprocity requirement, (3) restrictions on foreign representatives’ access, and (4) India’s historical adherence to territorialism. The success of India’s cross-border insolvency regime – critical to attracting foreign investment – will depend on on overcoming territorialism and adopting modified universalism. Debaranjan Goswami & Andrew Godwin, ‘India’s Journey towards Cross-Border Insolvency Law Reform’, 19(2) Asian Journal of Comparative Law (forthcoming)

ALT Malaysia’s Customer Due Diligence (CDD) framework inadvertently excludes marginalised groups, such as rural residents, undocumented migrants, and refugees, financially. Banks’ overcautious compliance exacerbates the problem by failing to take advantage of regulatory flexibility. CDD rules should adopt a risk-based approach, easing documentation requirements, accepting diverse forms of identification, and offering entry-level accounts, to promote financial inclusion. Eliya Hamizah binti Halim & Subhajit Basu, ‘Customer Due Diligence and Financial Inclusion in Malaysia: Balancing Regulatory Measures and Accessibility’, 19(2) Asian Journal of Comparative Law (forthcoming)

ALT Sanctions are necessary to maintain international peace and security, but they must be fair, transparent, and respect due process to remain legitimate. Unfair targeting without adequate recourse can backfire and undermine the intended purpose of the sanctions. Legal practitioners should therefore raise awareness of sanctions mechanisms and represent petitioners in de-listing requests. Tun Richard Malanjum, ‘International Sanctions and the Rule of Law’, 19(2) Asian Journal of Comparative Law (forthcoming)

ALT The influential South African Makwanyane case does not conclusively resolve the debate on capital punishment. First, Makwanyane’s reasoning that capital punishment fails the necessity test under proportionality review concerning the right to life is analytically inconclusive, as can be seen when contrasted with decisions of the Korean Constitutional Court. Second, the Makwanyane court’s exercise of proportionality review reflects inherent value choices, rather than demonstrating neutrality and objectivity. Jimmy Chia-Shin Hsu, ‘Right to Life and Capital Punishment in Transnational Judicial Dialogue’, 16(2) Asian Journal of Comparative Law 311–337

ALT The difference between agreements forbidden by law (s 24(a)) and agreements intended to defeat the law (s 24(b)) in the Malaysian Contracts Act 1950 often seems unclear. This article suggests that 24(a) relates to agreements that are expressly or implicitly forbidden by law, while 24(b) relates to sham contracts. Adnan Trakic, ‘Agreements Forbidden by Law vis-à-vis Agreements to Defeat the Law: How Are They Different?’, 19(1) Asian Journal of Comparative Law 24–38

ALT Legal irritation is not automatic, but requires local institutional drivers. Irritation in the case of corporate criminal liability in Thailand, for example, has been driven by Thailand’s Supreme Court, whose decisions have been shaped by decades of English influence on Thai legal education and practice. Lasse Schuldt, ‘Driving Irritation: Thailand’s Supreme Court and the English Roots of Corporate Criminal Liability’, 19(1) Asian Journal of Comparative Law 142–158