Constitutional Convergence in East Asia

This comparative study examines how the constitutional jurisprudence of three East Asian jurisdictions - Taiwan, Korea, and Hong Kong - has converged due to their unique political contexts. The courts in these areas use the structured proportionality doctrine and innovative constitutional remedies to address human rights issues, such as Suspension Orders and Remedial Interpretation. The book covers the latest developments in Asian constitutional law and provides detailed analysis of key cases.

Format: Hardback
Length: 250 pages
Publication date: 25 November 2021
Publisher: Cambridge University Press

This comprehensive comparative study delves into the constitutional jurisprudence of three East Asian jurisdictions, examining how the rulings of the Constitutional Court of Taiwan, the Constitutional Court of Korea, and the Hong Kong Court of Final Appeal have converged. The unique political contexts of these three jurisdictions have fostered robust courts that employ the structured proportionality doctrine and innovative constitutional remedies to address human rights issues. Notably, Hong Kong, Taiwan, and South Korea stand out as the only courts in Asia that regularly employ a structured four-stage Proportionality Analysis to invalidate laws and routinely apply innovative constitutional remedies such as Suspension Orders and Remedial Interpretation to rectify constitutionally flawed legislation. This volume explores the impact of politics within these diverse constitutional systems on judges, shedding light on the latest developments in Asian constitutional law through detailed analysis of key cases.

The study highlights the convergence of legal principles and approaches across these jurisdictions, emphasizing the role of constitutional courts in safeguarding human rights and promoting the rule of law. It explores the historical backgrounds, legal frameworks, and decision-making processes of these courts, shedding light on the factors that have influenced their development and evolution.

One of the key findings of the study is the use of the structured proportionality doctrine by these courts to invalidate laws that violate fundamental rights. The doctrine requires courts to assess the proportionality of a law's impact on a protected right before determining its constitutionality. This approach has enabled these courts to strike a balance between the interests of the state and the rights of individuals, ensuring that laws are not overly restrictive or discriminatory.

In addition to the structured proportionality doctrine, these courts have also employed innovative constitutional remedies to address human rights issues. For instance, the Hong Kong Court of Final Appeal has used Suspension Orders to suspend the operation of laws that are found to be unconstitutional, providing immediate relief to affected individuals and communities. Similarly, the Constitutional Court of Korea has employed Remedial Interpretation to interpret statutes in a way that aligns with constitutional principles, ensuring that they are consistent with the Constitution.

The study also examines the impact of politics on the decisions of these courts. It highlights the challenges faced by judges in balancing their judicial duties with political pressures and influences. The study explores the mechanisms in place to ensure the independence and impartiality of the judiciary, including the appointment and removal of judges, the role of constitutional review bodies, and the protection of judicial rights.

Furthermore, the study discusses the role of international law and regional institutions in shaping the constitutional jurisprudence of these jurisdictions. It explores the influence of the United Nations, the Asian Human Rights Commission, and other regional organizations on the development of constitutional law and the protection of human rights in East Asia.

In conclusion, this comparative study of the constitutional jurisprudence of three East Asian jurisdictions provides valuable insights into the role of constitutional courts in promoting human rights and the rule of law. It highlights the convergence of legal principles and approaches across these jurisdictions, emphasizing the importance of robust courts that can effectively address human rights issues. The study also sheds light on the challenges faced by judges in balancing their judicial duties with political pressures and influences, and the mechanisms in place to ensure the independence and impartiality of the judiciary. The study's findings have implications for the development of constitutional law and the protection of human rights in other regions of the world.

Weight: 457g
ISBN-13: 9781108831178
Edition number: New ed