Book contents
- Frontmatter
- Contents
- List of contributors
- Preface
- 1 Introduction: emergency powers and constitutionalism in Asia
- PART I Perspectives from legal and political theory
- 2 The emergency powers paradox
- 3 Emergency powers, constitutionalism and legal transplants: the East Asian experience
- 4 Constitution and ‘extraconstitution’: colonial emergency regimes in postcolonial India and Pakistan
- 5 The princely impostor: stories of law and pathology in the exercise of emergency powers
- PART II Postcolonial and post-conflict transitions
- PART III Emergencies, executive power and constitutional order
- PART IV The role of the courts
- Index
- References
2 - The emergency powers paradox
from PART I - Perspectives from legal and political theory
Published online by Cambridge University Press: 04 August 2010
Book contents
- Frontmatter
- Contents
- List of contributors
- Preface
- 1 Introduction: emergency powers and constitutionalism in Asia
- PART I Perspectives from legal and political theory
- 2 The emergency powers paradox
- 3 Emergency powers, constitutionalism and legal transplants: the East Asian experience
- 4 Constitution and ‘extraconstitution’: colonial emergency regimes in postcolonial India and Pakistan
- 5 The princely impostor: stories of law and pathology in the exercise of emergency powers
- PART II Postcolonial and post-conflict transitions
- PART III Emergencies, executive power and constitutional order
- PART IV The role of the courts
- Index
- References
Summary
Introduction
The basic principles enshrined in the constitutions of many Southeast Asian states bear at least a superficial resemblance to those in their Western, liberal-democratic counterparts. Ostensibly, these principles guarantee fundamental freedoms and place general limits on the use of coercive powers by the state. And as in liberal democracies, emergencies – especially those involving political violence – occasionally pose a serious threat to the constitutional order. Liberal-democratic theories of emergency powers, it seems, should have some relevance for anyone seeking to understand the use of formal or informal emergency powers in Southeast Asia. Yet it is precisely in the context of an emergency that the profound differences between Southeast Asian states and established liberal democracies in the practice of constitutionalism – and, more generally, the aspiration of legality – are exposed.
Theories of emergency powers in the liberal-democratic tradition tend to focus on the capacity of law and formal legal institutions, including the courts, to constrain state power and preserve the normative legal order. This is true not only of the classical theories of legality in times of crisis, but also of contemporary theories of emergency powers. These theories are important and illuminating, but they are limited in one important respect. They typically assume the presence of liberal-democratic institutions, a fully developed legal infrastructure and an entrenched culture of accountability.
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- Emergency Powers in AsiaExploring the Limits of Legality, pp. 21 - 55Publisher: Cambridge University PressPrint publication year: 2009
References
Two Treatises of Government, ed. (Cambridge: Cambridge University Press, 1988), pp. 374–81
Introduction to the Study of the Law of the Constitution, 8th edn (London: Macmillan, 1920), pp. 179–201
, Political Theology: Four Chapters on the Concept of Sovereignty, trans. (Chicago: University of Chicago Press, 2005)CrossRefGoogle Scholar
, ‘The Priority of Morality: The Emergency Constitution's Blind Spot’ (2004) 113 Yale Law Journal1753 at 1769CrossRefGoogle Scholar
and , ‘The Law of the Exception: A Typology of Emergency Powers’ (2004) 2 International Journal of Constitutional Law210CrossRefGoogle Scholar
, ‘The State of Emergency in Legal Theory’ in , and (eds.), Global Anti-Terrorism Law and Policy (Cambridge: Cambridge University Press, 2005), pp. 65–89CrossRefGoogle Scholar
, The Constitution of Law: Legality in a Time of Emergency (Cambridge: Cambridge University Press, 2006), pp. 121–73CrossRefGoogle Scholar
, ‘Chaos and Rules: Should Responses to Violent Crises Always be Constitutional?’ (2003) 112 Yale Law Journal1011CrossRefGoogle Scholar
, ‘The Imperialism of Modern Constitutional Democracy’, in and (eds.), The Paradox of Constitutionalism: Constituent Power and Constitutional Form (Oxford: Oxford University Press, 2007), pp. 315–38Google Scholar
, ‘The Making and Remaking of Constitutions in Southeast Asia: An Overview’ (2002) 6 Singapore Journal of International and Comparative Law1Google Scholar
, ‘East Timor: The Difficult Birth of a New State’, in Southeast Asia: A Political Profile, 2nd edn (Melbourne: Oxford University Press, 2005), pp. 393–413Google Scholar
, ‘The Constitution of East Timor, May 20, 2002’ (2003) 1 International Journal of Constitutional Law325CrossRefGoogle Scholar
, ‘Legal Pluralism and the Rule of Law in East Timor’ (2006) 19 Leiden Journal of International Law305 at 314–15CrossRefGoogle Scholar
, ‘Joint Command for PNTL and F-FDTL Undermines Rule of Law and Security Sector Reform in Timor-Leste’ [2008] East Timor Law Journal2Google Scholar
, Kings, Country and Constitutions: Thailand's Political Development 1932–2000 (London: RoutledgeCurzon, 2004), pp. 3–67Google Scholar
and , ‘Thailand: Another New Constitution as a Way Out of the Vicious Cycle?’ in and (eds.), Constitutionalism in Southeast Asia (Singapore: Konrad Adenauer Stiftung, 2008), vol. II, pp. 287–310Google Scholar
(ed.), Rethinking Thailand's Southern Violence (Singapore: NUS Press, 2007)
, ‘Buddhism, Human Rights, and Constitutional Reform in Thailand’ (2007) 2 Asian Journal of Comparative Law1CrossRefGoogle Scholar
, ‘Military Coup and Democracy in Thailand’, in (ed.), Thailand's Continuing Crises: The Coup, and Violence in the South (Canberra: National Thai Studies Centre, Australian National University, 2007), pp. 48–78Google Scholar
and (eds.), Constitutional Landmarks in Malaysia: The First 50 Years 1957–2007 (Singapore: LexisNexis, 2007)
, Law, Government and the Constitution in Malaysia (Kuala Lumpur: Malayan Law Journal, 1996), p. 43 and n. 98Google Scholar
, Constitutional Conflicts in Contemporary Malaysia (Kuala Lumpur: Oxford University Press, 1995), p. 104Google Scholar
, and , ‘The Legal Complex in Struggles for Political Liberalism’, in , , and (eds.) Fighting for Political Freedom: Comparative Studies of the Legal Complex and Political Liberalism (Oxford: Hart, 2007), p. 7Google Scholar
, ‘Deference, Security, and Human Rights’, in and (eds.), Security and Human Rights (Oxford: Hart, 2006), pp. 125–56 at p. 137Google Scholar
and , ‘Introduction’, in Rule by Law: The Politics of Courts in Authoritarian Regimes (New York: Cambridge University Press, 2008), pp. 1–22CrossRefGoogle Scholar
, ‘Realism and Moralism in Political Theory’, in (ed.), In the Beginning was the Deed (Princeton: Princeton University Press, 2005), pp. 1–17 at p. 3Google Scholar
, ‘An International Rule of Law?’ (2008) 56 American Journal of Comparative Law331 at 341CrossRefGoogle Scholar
, and , Can Might Make Rights? Building the Rule of Law after Military Interventions (New York: Cambridge University Press, 2006), p. 75CrossRefGoogle Scholar
‘Emergency Powers and the Rule of Law after 9/11’ (2006) 14 The Journal of Political Philosophy61CrossRef
, ‘Constitutional Justice’, in Transitional Justice (Oxford: Oxford University Press, 2000), pp. 191–211Google Scholar
, ‘Positivism and the Separation of Law and Morals’ (1958) 71 Harvard Law Review593 at 619CrossRefGoogle Scholar
's formulation: see ‘A Defence of Radbruch's Formula’, in (ed.), Recrafting the Rule of Law (Oxford: Hart, 1999), pp. 15–39 at p. 17Google Scholar
, ‘Positivism and Fidelity to Law – A Reply to Professor Hart’ (1958) 71 Harvard Law Review630 at 656–7CrossRefGoogle Scholar
, ‘Formal and Procedural Conceptions of the Rule of Law: An Analytic Framework’ [1997] Public Law467Google Scholar
, ‘Varieties of the Rule of Law: An Introduction and Provisional Conclusion’, in (ed.), Asian Discourses of the Rule of Law (London: Routledge, 2004), pp. 1–55, at pp. 2, 4CrossRefGoogle Scholar
, Constitutional Justice: A Liberal Theory of the Rule of Law (Oxford: Oxford University Press, 2001), p. 61Google Scholar
, Constitutional Law in Theory and Practice (Toronto: University of Toronto Press, 1995), pp. 15–17CrossRefGoogle Scholar
, ‘Malaysia and the Internal Security Act: The Insecurity of Human Rights after September 11’ (2002) Singapore Journal of Legal Studies56 at 60, 71Google Scholar
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