Emergency Powers in Asia: Exploring the Limits of Legality

by Victor V. Ramraj (Editor), Arun K. Thiruvengadam (Editor)

Overview

What is the relevance of contemporary debates over emergency powers for countries situated in Asia? What role does, and should, the constitution play in constraining these powers? The essays in this collection address these issues, drawing on emergency situations in over 20 countries in Asia as a ready-made laboratory for exploring the relationship between emergency powers and constitutionalism. This volume therefore rests squarely at the intersection of two debates – a debate over the ability of law to constrain the invocation and use of emergency powers by the executive in times of crisis, and a debate over the nature and viability of constitutionalism in Asia. At this intersection are fundamental questions about constitutionalism and the nature of the modern state, questions that invite legal, political, sociological and historical analysis.

Product Details

ISBN-13:	9780521768900
Publisher:	Cambridge University Press
Publication date:	12/10/2009
Pages:	530
Product dimensions:	6.20(w) x 9.00(h) x 1.20(d)

About the Author

Victor V. Ramraj is an Associate Professor in the Faculty of Law at the National University of Singapore, where he is also Vice-Dean for Academic Affairs.

Arun K. Thiruvengadam is an Assistant Professor in the Faculty of Law at the National University of Singapore.

Table of Contents

List of contributors ix

Preface xi

1 Introduction: emergency powers and constitutionalism in Asia Victor V. Ramraj Arun K. Thiruvengadam

Part I Perspectives from legal and political theory

2 The emergency powers paradox Victor V. Ramraj 21

3 Emergency powers, constitutionalism and legal transplants: the East Asian experi ence Albert H. Y. Chen 56

4 Constitution and 'extraconstitution': colonial emergency regimes in postcolonial India and Pakistan Anil Kalhan 89

5 The princely impostor: stories of law and pathology in the exercise of emergency powers Vasuki Nesiah 121

Part II Postcolonial and post-conflict transitions

6 From Myanmar to Manila: a brief study of emergency powers in Southeast Asia Kevin Y. L. Tan 149

7 Discourses of emergency in colonial and postcolonial Burma Maitrii Aung-Thwin 187

8 Emergency and Islamic law in Aceh Michelle Ann Miller R. Michael Feener 213

9 UNaccountable" The United Nations, emergency powers and the rule of law in Asia Simon Chesterman 237

Part III Emergencies, executive power and constitutional order

10 Emergency powers and the rule of law in Indonesia Nadirsyah Hosen 267

11 Emergency powers with a moustache: special powers, military rule and evolving constitutionalism in Thailand Andrew Harding 294

12 Emergency powers and the limits of constitutionalism in Japan Mark Fenwick 314

13 States of exception in an exceptional state: emergency powers law in China Jacques deLisle 342

Part IV The role of the courts

14 Constitutionalised emergency powers: a plague on Asian constitutionalism" H. P. Lee 393

15 Political emergencies in the Philippines: changing labels and the unchanging need for legitimacy Raul C. Pangalangan 412

16 Islamism as a response to emergency rule in Pakistan: the surprising proposal of Justice A. R. Cornelius Clark B. Lombardi 436

17 Asian judiciaries and emergency powers: reasons for optimism" Arun K. Thiruvengadam 466

Index 495

Editorial Reviews

"While emergency powers are most frequently resorted to in Asia, there is little systematic or comprehensive study of this phenomenon. Emergency powers can be a threat to liberal constitutionalism; it may also be a measure to restore stability and constitutional order. It may be an instrument of suppression, and yet in some circumstances, it may also serve to galvanize public support against authoritarian regimes. The role of emergency powers in liberal constitutional democracies, through which emergency powers are conventionally analyzed, is very different from that in developing countries, particularly in the transition from colonial rule to independence, or from political turbulence to relative tranquility. Can emergency powers be contained by the constitution, and more fundamentally, can constitutionalism be sustained and evolved alongside real, exaggerated or perceived emergency situations with a relatively fragile judiciary in many Asian states? This book provides a fresh perspective in understanding emergency powers by putting them squarely in the post-colonial and post-conflict social, legal, political and comparative context in Asia, thereby enabling an intellectual and theoretical engagement of the contemporary debates on this complex yet fascinating subject."

- Johannes Chan S. C., University of Hong Kong




"Drawing on impressive presentations of factual material and offering provocative theoretical insights, the essays here make an important contribution to our understanding of the constitutional regulation of emergency powers, one of the central questions in constitutional law and theory in today's world."

- Mark Tushnet, Harvard Law School




"The role of emergency provisions in the constitutional order has generated a good deal of attention recently, but too often, the analysis is either abstract or focused on a single jurisdiction. Ramraj and Thiruvengadam have produced a wonderful comparative collection on the use and misuse of emergency powers in Asia. With its wide range of political regimes, constitutional traditions, and security challenges, Asia offers a fruitful environment to examine how policy makers and judges have grappled with emergencies, both real and imagined. Theoretically informed, empirically rich and conceptually nuanced, this volume is a major contribution to the ongoing debates on constitutionalism and security, and should be read throughout the region and beyond."

- Tom Ginsburg, University of Chicago Law School

From the Publisher