Prof Albert Chen, member of CCPL Board of Management and CCPL Fellow, co-authored an article “Constitutional Politics in Asia” in Oxford Bibliographies.
The term “constitutional politics” is used far more often than it is defined. Many writers who use the term do not bother defining it, presuming its meaning to be self-evident. Thus, “constitutional politics” is not a term of art and has been used to describe various political or legal phenomena. Broadly speaking, “constitutional politics” may be used to refer to events or developments in which constitutional law interacts with, provides a setting for, or to some extent shapes political processes. In a sense, it deals with that intersection between constitutional law and politics in issues that are neither wholly legal nor political but a mix of both. Plainly, this may manifest when a country drafts its own constitution or undergoes profound changes in its constitutional arrangement. It also arises if political questions are contested in the courts, or where the judiciary takes on a particularly active role in determining constitutional questions of the day, or where a particularly contested constitutional change or amendment takes place. The nature of constitutional law and constitutional adjudication is such that it is impossible to make a clear distinction between law and politics when discussing constitutional law. Key political actions, decisions, and bargains are often enshrined in constitutions and contestations as to their meanings and ambit, lending a heavy air of politics to judicial decision-making. Whether an issue is one that falls within the realm of “constitutional politics” depends on the context in which it arises. Take for example the appointment of judges. In many jurisdictions, this is an uncontroversial matter. However, in some other jurisdictions where the court is highly politicized and where the elected representatives hold power by a tenuous thread, such appointments invariably involve constitutional politics. Asia is the world’s largest continent both in terms of land mass and population. In this bibliography, we will attempt to examine and recommend the relevant literature pertaining primarily to the regions broadly described as Northeast Asia, Central Asia, South Asia, and Southeast Asia. Jurisdictions surveyed include: China, Japan, Hong Kong SAR, Macau SAR, Mongolia, North Korea, South Korea, Taiwan, India, Pakistan, Bangladesh, Sri Lanka, Maldives, Nepal, Afghanistan, Bhutan, Indonesia, Thailand, Malaysia, the Philippines, Singapore, Myanmar, Vietnam, Cambodia, Laos, Brunei, Timor Leste, Afghanistan, Kazakhstan, Tajikistan, and Uzbekistan. We are fortunate that in recent decades, academia and academic publishers have taken a keen interest in constitutional law and politics in Asian countries, as demonstrated by the publication of several series of books such as Routledge Law in Asia (Routledge), Constitutionalism in Asia (Hart Publishing), Comparative Constitutional Law and Policy (Cambridge University Press), and Constitutional Systems of the World (Hart Publishing). It is possible to discuss constitutional politics in Asia in several ways. One possibility is to take a geographical country-by-country or region-by-region approach. Another is to do so on the basis of constitutional regime types such as democracies, socialist states, monarchies, and hybrid regimes. A further way is by grouping countries according to legal traditions. Having considered these possibilities, we felt it most logical to organize the bibliography along thematic or topical lines. This will make it easier for readers to use the bibliography and head straight for the topics that most interest them. We begin by looking at some general works dealing with the subject in the first two sections. The subsequent sections of the bibliography are organized thematically.
Click here to read the full article.