This edited volume explores the nature of authoritarian policing, its transformation and resilience, and its rule of law implications. The discussion of the evolution of policing takes place in the context of the overall development of the police, their professionalization, institutional autonomy and neutrality, legality, and their credibility within the communities they manage and serve. What makes policing “democratic” is a contested concept and the definition varies depending on the level of abstraction and the particular focus of the inquiry. While regime type, which is itself a contested concept, the close nexus between the coercive power of the police and the state, it is never dispositive. Thus, the dichotomous categorization of authoritarian policing (AP) and democratic policing (DP), while useful as a starting point for comparative analysis, misses a large amount of nuance and often overlooks the plurality of either system, neglecting the fact that a police system can be authoritarian or democratic in multiple ways and in different aspects of policing. This volume rejects this simple binary view. It aims to untie and unpack the nexus between the police and the political system and to explore the plurality of both AP and DP.

The chapter assesses the effectiveness of the ICJ. The authors set out an evaluative framework for assessing the Court’s effectiveness, adopting a goals-based analysis. They identify the ICJ’s goals, and then consider the structural features of the Court that assist and hinder it from achieving those goals. By reference to specific examples, the authors then consider whether the ICJ has achieved its goals in practice, concluding that its record of achievement produces mixed results, but highlighting the Court’s success in preserving confidence in international adjudication.

[5.1] Judges are required to be independent in statutory interpretation in two main senses. First, they are independent in the sense of sovereign. In Australian law, judges are the sole authoritative arbiters of the meaning of legislation.

A court is said to be the last branch of government because it is the first defence of the individual – individuals rely on the judiciary to protect their rights and freedoms from intrusion by the exercise of public power. Does this apply to the CJEU? Does it protect individuals and Union citizens? To what extent does it act as the ‘third branch’ of government, ensuring that public powers are exercised in the interests of the ‘peoples’ of Europe, or even those people beyond affected by EU law such as the Inuits of Canada? These questions highlight the main themes in this chapter. They can only be partly answered by examining the organisation of the CJEU – its tasks and composition. A fuller answer requires further exploration of the extent to which individuals can access the Court to challenge Union legal acts. This chapter will therefore focus on the two main procedures to bring actions before the CJEU: direct actions via Article 263 TFEU and indirect actions under Article 267 TFEU.

In this chapter we examine the structural reforms to the apex of the judicial branch implemented as a result of the Constitutional Reform Act 2005. By reforming the office of Lord Chancellor and establishing a Supreme Court for the UK, the Constitutional Reform Act severed the structural link between the executive, legislature and the senior judiciary in the UK. As a result, the Act has arguably cemented the idea of the institutional independence of the judiciary and has shown the contemporary relevance of ideas associated with separation of powers in achieving and implementing constitutional renewal.

A small but influential number of States or their subdivisions have put substantial resources into establishing courts that operate outside of or have a special status within their traditional judicial systems. In instances, the judges of these courts are not citizens of the seats of the respective courts. The courts typically apply foreign law and do so in English. Why the removal of certain cases from local courts and local law or the establishment of new specialized courts within existing systems? An argument is that the new courts enhance the rule of law, both in the location of the court as well as regionally and even internationally. This chapter examines court rules and practices to assess the influence of international commercial courts on the rule of law.

This chapter develops the criteria relevant to assess a dispute resolution mechanism or DRM’s compliance with fair trial standards. The discussion focuses on the three broad fair trial guarantees that an institutional DRM must incorporate if it is to be considered appropriate. These are independence, impartiality and fairness. First, the discussion shows that for a DRM to be considered independent, it must possess institutional, decisional and personal/individual independence. Those three aspects will be explained succinctly. The chapter then focuses on the concept of judicial impartiality. For a fair trial to be provided, impartiality in its objective and subjective sense is critical. Finally, the chapter demonstrates how the right to a fair trial also demands that a claimant is treated fairly. Fairness is a broad guarantee and is explored through seven sub-component fair trial rights. Fairness cannot be achieved unless the right to equal access to the courts, the right to equality of arms, the right to an oral hearing, the right to appeal, the right to a reasoned judgment, the right to access justice without undue delay and the right to an effective remedy are provided for in the law, and importantly, practically realised.

Courts are political institutions. And judges do not operate in an institutional or ideological vacuum, as they are shaped by the social, political, and economic struggles that take place within their political systems. Where the strategic environment confers discretion on the courts, the judges can construct a constitutional identity for their jurisdiction distinct from their government’s vision and redefine the polity’s place in the world. And this constitutional convergence in East Asia will endure so long as the political system in each jurisdiction remains fragmented, the courts continue to be independent and judges choose to align their local jurisprudence with Western human rights law.

Hong Kong, Taiwan, and South Korea have the only courts in Asia that regularly use a structured four-stage Proportionality Analysis system to invalidate laws. They also have the only courts in Asia that routinely apply innovative constitutional remedies such as Suspension Orders and Remedial Interpretation to rectify constitutionally flawed legislation. This book explores the constitutional convergence in East Asia and explains its limits.

Comparing and contrasting the ICJ and the Appellate Body of the World Trade Organization, I assess whether those international judicial mechanisms possess the basic degree of independence required for a court to be able to maintain its credibility so that it can continue to perform its core function of adjudicating interstate disputes. With those two interstate adjudicative bodies constituting the two leading international courts in terms of participation and the sheer number of cases decided, much may be learned from comparing them. I start by considering what the concept of judicial independence means in general and how it can specifically be assessed. The chapter then considers whether the ICJ and AB possess the basic degree of independence necessary to properly discharge the judicial function. In pointing out that real deficits exist, I argue there is a case for bolstering the independence of the ICJ; and without immediate reforms to the AB’s institutional design, its potential demise is likely to be hastened. I conclude that if a basic degree of judicial independence cannot be guaranteed, it is preferable to let a court vanish for a while than to maintain a significantly deficient one.

There are two inter-related institutional reasons for this judicialization of public law norms, which promotes this constitutional convergence within East Asia. First, in each jurisdiction, judicialization is fostered by a fragmentation of power within the political branches of government, which hampers the ability of the government of the day to pursue a unified legislative agenda efficaciously. Second, judicialization is facilitated by an independent judiciary. Hong Kong, Taiwan and South Korea have the most liberal courts in Asia precisely because of the political fragmentation in their constitutional systems, and the insulation of their judges from the control of one dominant party in government, which allow for independent liberal judges to be regularly appointed to the highest court. And these liberal judges in turn can choose to hand down liberal rulings when they secure a majority on the bench.