Comparative Constitutional Law in Asia

Comparative Constitutional Law in Asia

Edited by Rosalind Dixon and Tom Ginsburg

Comparative constitutional law is a field of increasing importance around the world, but much of the literature is focused on Europe, North America, and English-speaking jurisdictions. The importance of Asia for the broader field is demonstrated here in original contributions that look thematically at issues from a general perspective, with special attention on how they have been treated in East Asian jurisdictions.

Chapter 9: The comparative constitutional law of freedom of expression in Asia

Adrienne Stone, Rishad Chowdhury and Martin Clark

Subjects: asian studies, asian law, law - academic, asian law, comparative law, constitutional and administrative law

Extract

Constitutional protection of freedom of expression is virtually universal (Barendt 2005; Currie and de Waal 2005; Krotoszynski 2006; Rishworth et al. 2003; Stone 2005). While freedom of expression has particularly strong roots in the Western liberal political tradition, the arrival of constitutionalism in Asia has brought constitutional protection of freedom of expression with it. Most Asian constitutions, reflecting the international consensus evident in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights (which were either in existence or in the pipeline at the time most Asian constitutions were adopted) afford explicit protection, in one form or the other, to the right to speech and expression. However, just as Western forms of constitutional law have been adapted to the particular contexts of Asian countries, understandings of freedom of expression too have been shaped by the distinctive political contexts and traditions of Asia. As in the West, the scope and reach of the right varies greatly across Asian nations, on paper as well as in its actual enforcement on the ground (Thio 2003; Zhang 2010; Chen 2010, for an exploration of the effect of historical contingencies on the actualization of constitutional rights in Asia). Despite these variations, there are significant common factors across many Asian countries. A majority of Asian nations gained independence from foreign rule only in the twentieth century. Governance is generally weaker, the strength of enforcement of formally entrenched constitutional rights often varies widely (Chen 2010) and these features can significantly affect the protection afforded to the freedom of expression.

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