‘Cracked trials’, where defendants enter a late guilty plea after a trial date has been set, are considered a societal problem because public resources set aside for trials are wasted. Various government reports attribute the main cause to tactical defendants playing the system, and reforms have been initiated to encourage early guilty pleas and strongly discourage late ones. The aim of the present study is to investigate the reasons for cracked trials in the Hong Kong context, insofar as the reasons for late guilty pleas can be investigated without the influence of reforms seen in other jurisdictions used to discourage late pleas. A mixed methods approach of courtroom observations and interviews with defendants was adopted. We find that defendants who were represented by publicly-funded lawyers or who were in prolonged pre-trial detention were more disposed to changing their pleas. Subsequent interviews illustrate why these factors are salient. The findings support the notion that it is the pressures of the criminal justice process that lead defendants to ‘crack’ and highlight the costs to defendants for decisions on how to plead that are influenced by considerations other than actual culpability.

The question of whether constitutional law can protect, consolidate, and advance democracy has been considered extensively in multiple jurisdictions. The issue has not yet been considered in the context of one of the most problematic contemporary democratic transitions: Hong Kong’s, from an externally governed colonial outpost to a self-governed suffrage-based special administrative region of the People’s Republic of China. The Basic Law of Hong Kong proposes the eventual election of the Legislative Council and Chief Executive of Hong Kong by some form of universal suffrage. These provisions are at the core of the ‘democratic constitution’ of Hong Kong. Achieving this goal requires consensus between the executive in Hong Kong, members of the Legislative Council in Hong Kong, and the legislative body of the People’s Republic of China. Although not a formal constitutional requirement, any democratization efforts will also require popular buy-in from Hong Kong residents in order to function effectively. However, it is increasingly clear that the views of all concerned do not converge on how and when these constitutional aspirations should be realized. In addition, all parties have started moving outside of this constitutional framework when deliberating issues of political reform. This article looks at the problems in the constitutional design of the Hong Kong Special Administrative Region that have resulted in this political deadlock. The article will then look at one solution to mitigate the effect of these design issues and to move forward again on the issue of reform: ‘litigating’ the democratic constitution in the courts. The article discusses the advantages of the courts in the process: primarily the capacity of the courts to reconstitutionalize political debate on electoral issues. This article evaluates the largely unsuccessful use of the courts thus far by Hong Kong residents to correct and advance political reform. It considers possible reasons for the high failure rate in courts and proposes alternative litigation strategies that can better utilize the position of the courts to re-orient all parties to the Basic Law.

In considering the articles in this Special Issue, I am struck by the importance of a set of factors that, in my view, both run through the articles like a leitmotif, as well as shape the major ‘take away’ lesson(s) from the articles. In this short commentary, I elaborate on these factors and the lesson(s) to take from them through five ‘Cs’: context; complexity; contestation; the framework of constitutions; and the role of comparative law. The first three ‘Cs’ are lessons from the case studies of the articles themselves, while the second two ‘Cs’ are offered as lessons to help take the dialogue forward. Fundamentally, these five ‘Cs’ highlight the importance of the articles in this Special Issue and the conference from which they emerged on the one hand, while on the other hand, also making us aware of what are the limits of what we should conclude from the individual articles. In other words, taken together, the five ‘Cs’ are, one might say, lessons about lessons.

Ever since the Constitution of Japan was enacted in 1946, conservative Japanese people must have been unhappy with it. Their past attempts to enact a new constitution or to make radical revisions have been unsuccessful, but they might finally accomplish their goal under the current Abe Cabinet. Why are conservative people unhappy with the Constitution? It is because the Constitution prevents Japan from becoming a ‘normal state’, and it is deemed not in line with ‘traditional Japanese values’. The fundamental human rights provisions are their main target. Therefore, conservative people want to restore ‘traditional Japanese values’ by amending the bill of rights of the Constitution. This article will examine the reasons why conservative people are upset with the Constitution, how they would like to amend it, and whether their arguments are persuasive. It will conclude that their arguments, just like the ‘Asian values’ theory, are hardly justifiable and could completely undermine the foundation of individual rights protection.

In 2004, South Korean lawmakers introduced sweeping legislation to regulate Korean private equity funds. I describe this Korean regulatory initiative as a ‘law-first’ approach to financial regulation: the laws first clearly outline the terms of an ideal private equity structure, and private equity funds and their managers are required to comply with such terms to gain entry into the Korean private equity market. Elsewhere, private equity funds are referred to as shadow banks, with the descriptor ‘shadow’ referring to the funds’ ability to remain outside of the regulatory purview. Attempts to regulate private equity funds and other shadow banks more extensively have been resisted with claims that such regulation will go either too far and regulate shadow banks out of existence, or not nearly far enough as shadow banks expediently exploit loopholes to navigate around new regulation. This article presents the Korean private equity regulatory regime as a counterexample to the existing discourse by showing that private equity funds can survive, and in some cases thrive, under a law-first regulatory approach.

The modest level and differing structure of compensation Japanese corporate executives receive has sparked recent interest in the determinants of executive pay in Japan. One factor that remains unexamined is the role played by Article 361 of the Companies Act which requires that director pay be set by the general shareholders’ meeting. To explore the question of whether this rule, by giving shareholders a veto over changes to compensation they disagree with, matters to pay in Japan, this article examines the results of the shareholders’ meetings of companies listed on the First Section of the Tokyo Stock Exchange that voted on compensation resolutions in 2014. We find that, while all resolutions were approved, there was significant variation in both what pay directors asked for and how shareholders responded that was correlated with differences in each. The results are consistent with the view that the relevance of the rule varies depending on the context of the company. While at most companies, shareholder voting on pay is relatively uncontroversial, the changing structure of ownership and governance at some provides an avenue through which the rule may now matter to pay.

This article explores the constitutional provisions that define the role of Islam and the shariah in Afghanistan’s many constitutions. It highlights that successful Afghan constitutions have always recognized Islam and the shariah and established a method of realizing them, while leaving open the possibility that the government could change its approach to realizing them in the future. Unsuccessful Afghan constitutions, by contrast, have allowed actors at the center to try to realize and interpret Islam in a rigid way that does not allow for ongoing negotiations with actors who would prefer to realize and interpret Islam in a different manner. In other words, Afghanistan’s longest-lived and successful constitutions have not entrenched Islam in a way that imposes the desires of one side of the debate. Instead, they have designed religious provisions in vague and ambiguous terms, thereby deferring to the future the question of what Islam really means and how it should be realized in practice – a strategy that proved considerably effective in preventing conflict over the role of Islam in a severely divided and heavily armed society. Drawing on this insight, the article explores how in overwhelmingly, but diversely, Muslim societies, it is important to create constitutional regimes that recognize Islam but leave room for rival interpretations of Islam. Incremental constitution writing is a useful tool in creating such constitutional regimes.

Insolvency practitioner remuneration is a vexed topic globally and the role of courts in fixing and reviewing remuneration is controversial. This article compares the approaches adopted by the courts in the United Kingdom, Australia and Singapore to the issue of fixing and reviewing corporate insolvency practitioners’ remuneration. The analysis considers the factors that the courts in the three jurisdictions consider in deciding remuneration claims including reasonableness, proportionality and the need for insolvency practitioners to justify their claims. Measures taken in each of the jurisdictions to facilitate predictability in time-based remuneration, whether through legislation, professional codes or judicial development, are examined. Various initiatives towards greater participation of external experts in deciding remuneration claims are also considered. The analysis finds that the three jurisdictions share some similarities despite jurisdictional differences but also differ in some important aspects. The article argues that courts have taken the initiative in each jurisdiction to fill a perceived regulatory gap where legislation provides little or ambiguous guidance, or where the judiciary believes that legislation and regulation have not kept up with community expectations. The results also highlight the cross-pollination of ideas in these jurisdictions.

This article adds nuance to the classical account depicting Thailand as a secularized country by documenting how Buddhism informs constitutional thought and practices in contemporary Thailand. Throughout the twentieth century, Buddhist discourses have been used to bypass constitutional provisions in the name of ‘dhamma’ through the reliance on the rediscovery of the doctrine of the dhammarāja (the righteous King). In the early twenty-first century, a second rebirth of the discourse of the dhammarāja led to a further devaluation of the constitution as the supreme norm. The principles of a righteous King (totsapitrājadhammā) were reconceptualized as a functional equivalent to constitutionalism – as constraining the King’s power. This article first examines how modern lawyers used Buddhism as the vehicle to import Western constitutional ideas into the Siamese polity while reconstructing them as part of a royal legacy through the doctrine of the Ten Royal Virtues. It then turns to an analysis of the ever-increasing enshrinement of Buddhism in successive Thai constitutions since 1932. It concludes with an account of the politicization of the righteous King doctrine and its impact on constitutional practices.

There is vast literature on secularism in India and on the effects of Hindu nationalism on secular constitutionalism. This article takes a different tack. It focuses on cases where minority status is contested or competing rights of minorities are at stake. The article uses three exemplary recent cases to illustrate how judicial doctrines devised to reform discriminatory religious practices or to protect minority interests have, perversely, favoured certain groups at the expense of others. In each area examined, the jurisprudence privileges the more powerful of those interests: the sanctity of Muslim personal law over the rights of Muslim women; Hindu dalits over dalits that converted to other religions; and minority educational institutions over children from ‘weaker’ and ‘disadvantaged’ sections of society. The article concludes by proposing a new jurisprudence of religion and constitutional practice for India, one that takes account of these inequalities and gives meaning to the fundamental rights of the most vulnerable individuals and groups.

In both India and Pakistan, parliament is constitutionally endowed with ‘constituent power’, that is, the power to introduce constitutional amendments via procedures laid down in the constitution itself. Duly promulgated amendments, however, are occasionally struck down when Supreme Court judges see them as violating what the judges themselves define as the ‘essential features’ of each country’s constitutional ‘basic structure’. I trace the migration of basic structure jurisprudence from India to Pakistan, focusing on the ways in which it has elevated the power of judges over that of elected officials in the realm of religion-state relations. Specifically, I highlight the ways in which judicial independence vis-à-vis judicial appointments has been described as an essential feature of each country’s constitution, greatly enhancing the autonomous power of judges to mould constitutional benches that, in turn, define India’s constitutional understanding of secularism and Pakistan’s relationship with Islam.