A. Pakistan

In Pakistan, a country that has regularly fluctuated between military rule and civilian government, the judiciary’s position has often been precarious. The Supreme Court of Pakistan has often taken a deferential attitude toward the governing regime, validating actions taken by the military or civilian powers.Footnote ¹⁰ While there have been periods during which the Supreme Court has attempted to take steps toward strengthening its institutional position,Footnote ¹¹ at other times, the Court has also retreated in the face of governing power. In a case decided under the General Musharraf’s military rule, for example, the Court dismissed the notion of judicially enforceable limitations based on the constitution’s basic structure, stating that the “remedy lay in the political not the judicial process.”Footnote ¹²

Judicial appointments have been a fault line of tension between the executive and judiciary in Pakistan. General Musharraf’s removal of the chief justice and sixty superior court judges in 2007 instigated a lawyers’ movement and a nationwide protest march in 2009.Footnote ¹³ Following Musharraf’s replacement by a coalition government, with Iftikhar Chaudhry restored as the chief justice, the Supreme Court subsequently declared Musharraf’s 2007 state of emergency illegal and invalidated the appointments of judges made by Musharraf during that period.Footnote ¹⁴

In 2010, the Chaudhry court considered a challenge to the Eighteenth Amendment introducing a judicial appointments process requiring nominations to be put forward by a Judicial Commission and vetted by a Parliamentary Committee, which was not required to provide reasons for rejecting the Commission’s nominees.Footnote ¹⁵ The Court issued an interim order recommending that Parliament make specific changes to the appointments process, including increasing the number of judges on the Judicial Commission and empowering the Commission to overrule the decision of the Parliamentary Committee.Footnote ¹⁶

The following year, Parliament incorporated most of the judiciary’s proposed changes by passing the Nineteenth Amendment, which increased judicial representation on the Commission and required the Parliamentary Committee to provide reasons for rejecting judicial nominees put forward by the Judicial Commission.Footnote ¹⁷ In 2011,Footnote ¹⁸ the Court upheld the Nineteenth Amendment in form, but not in substance, by ruling that the Parliament Committee’s reasons for refusing a nomination put forward by the Judicial Commission were reviewable.Footnote ¹⁹

Then came the Pakistan Supreme Court’s landmark decision in the 2015 case of District Bar Association v Federation of Pakistan (Rawalpindi).Footnote ²⁰ The case involved a challenge to the Eighteenth Amendment on the judicial appointments process as well as to the Twenty First Amendment, which authorized terrorist suspects to be tried by military court martials.

In this decision, a majority of the Supreme Court of Pakistan expressly recognized substantive limits on Parliament’s amending power.Footnote ²¹ Thirteen out of seventeen justices agreed that the judiciary could review the substance of constitutional amendments to protect the Constitution’s core, endorsing the court’s power to strike down constitutional amendments passed by Parliament. According to the plurality opinion joined by eight justices, Pakistan’s Constitution contains “salient features,” including democracy, a parliamentary form of government, and the independence of the judiciary, and it was for the Court to review constitutional amendments “to determine whether any of the Salient Features of the Constitution has been repealed, abrogated, or substantively altered.”Footnote ²² Five other justices also held that the Court had the power to determine the legality of constitutional amendments, although they located the basis for judicially enforceable limits on Parliament’s power in the Constitution and its preamble.Footnote ²³ Thus, a clear majority on the Supreme Court explicitly held that the judiciary could strike down procedurally valid constitutional amendments passed by Parliament.

Still, despite laying out a broad power to declare unconstitutional constitutional amendments, the Supreme Court refrained from directly exercising that power. Indeed, it did not seek to invalidate either of the two challenged constitutional amendments.Footnote ²⁴ The amendment providing for military court trials was upheld as a proportionate response to terrorist threats.Footnote ²⁵ The Supreme Court also left intact the Eighteenth Amendment on the judicial appointments process in its current form – that is, as amended by the Nineteenth Amendment in line with the Court’s interpretation in previous precedent – where “the power to initiate and the primacy of decisiveness with regard to the final outcome of the process must vest in the Chief Justices and the Members of the Judiciary.”Footnote ²⁶

Even so, the Rawalpindi plurality opinion sounded a warning note for the government. If the provision “was to be amended or reinterpreted, compromising either of the two limbs of the test mentioned above,” it warned, “it may not be possible to hold that the provisions so amended or interpreted are not in conflict with the Independence of the Judiciary, which is a Salient Feature of the Constitution.”Footnote ²⁷

The Supreme Court of Pakistan’s decision laid the framework for establishing an expansive judicial power to review constitutional amendments as unconstitutional. At the same time, the narrow ruling in Rawalpindi left the constitutional amendments intact, avoiding immediate political or public backlash.

B. Malaysia

We see another illustration of judicial statecraft at play in the Malaysian Federal Court. For six decades of the country’s history, Malaysia, like the neighboring state of Singapore, operated as a dominant-party political system. Since Malaysia’s independence in 1957, the country had been governed by a single ruling coalition, until it lost to the opposition coalition in an unprecedented election outcome in 2018. After the new government alliance was dismantled in a political kerfuffle in 2020, Malaysia’s political landscape has remained volatile. Once an exemplar of a dominant-party system, Malaysia is now better characterized as a fragile democracy.Footnote ²⁸

For many decades, the Malaysian judiciary employed a highly passive, rigidly formalistic approach marked by extensive deference to the consolidated political branches.Footnote ²⁹ Courts in “Asian nonliberal democracies,” like Malaysia, Singaporean scholar Thio Li-ann has observed, play “a relatively marginal role in constitutional politics” and “do not play a primary role in shaping constitutional understandings.”Footnote ³⁰

The Malaysia Federal Court’s approach shifted, however, in a number of assertive judicial decisions delivered in 2017 and 2018.Footnote ³¹ In a sequence of landmark cases, the Malaysian apex court carved out a power for courts to nullify constitutional amendments that would undermine the constitution’s foundational structure. Through this carefully staged process, the Malaysian Federal Court sought to establish the power to review unconstitutional constitutional amendments in a fraught political context.

The 2017 decision in Semenyih Jaya appeared to be a seemingly prosaic case over land acquisition compensation.Footnote ³² The dispute, on its face, involved a provision in the Land Acquisition Act that enabled lay assessors, sitting with a High Court judge, to determine the amount of compensation for land acquisition. Dissatisfied landowners challenged the statute’s provision allowing lay assessors to make a conclusive determination on land compensation, arguing that this infringed the constitutional judicial power vested in the courts under Article 121(1). The challenge thus brought into play the clause in Article 121(1) of Malaysia’s Federal Constitution regarding the judicial power – long the site of tension between the judiciary and the government.

Some history is in order: In 1988, the Malaysian Parliament, under the administration of then Prime Minister Mahathir Mohamad, had amended Article 121(1) to remove the provision that “the judicial power … shall be vested” in the courts. The clause was amended to state that the courts “shall have such jurisdiction and powers as may be conferred by or under federal law.” The year 1988 also saw the highly controversial removal of the head of the judiciary and five other Supreme Court justices by the Mahathir administration, widely viewed as a moment of judicial crisis in Malaysia.

For decades after the legislature’s aggressive move to cull judicial power by amending the Constitution’s judicial power provision, Malaysian courts took on a subservient position toward the political branches. In the 2007 case of Kok Wah Kuan, for example, the Federal Court affirmed that the scope of judicial power “depends on what federal law provides,” ruling that the amended Article 121(1) meant that the courts’ powers and jurisdictions were indeed subject to federal law.Footnote ³³

The Malaysian Federal Court’s Semenyih Jaya decision was a remarkable about-turn, marking a robust assertion of judicial power. In a unanimous decision, the Federal Court struck down a land acquisition statutory provision as unconstitutional – the first time in twenty years it had struck down a federal statute – for infringing the judicial power and separation of powers. The Federal Court renounced the 1988 constitutional amendment in uncategorical terms, declaring that “the judicial power of the court resides in the Judiciary and no other as is explicit in [Article] 121(1) of the Constitution.”Footnote ³⁴ Malaysia’s apex court embraced the notion of the basic structure doctrine as inherent to the Malaysian Constitution, explicitly stating that “Parliament does not have power to amend the Federal Constitution to the effect of undermining the features” of the doctrine of separation of powers and the independence of the judiciary.Footnote ³⁵

Still, it is worth noting that the Malaysian Federal Court did not expressly invalidate the 1988 constitutional amendment; instead, it interpretively nullified the amendment so that the amended provision had no effect on the judicial power of the courts. In short, as a matter of constitutional interpretation, the Federal Court effectively returned Article 121(1) to the position it had before 1988.

Another curious feature of the Semenyih Jaya decision lies in its remedy: The Malaysian Federal Court provided a detailed set of procedural guidelines to replace the statutory provision that it invalidated, but stated that its decision would only have prospective effect.Footnote ³⁶ Thus, even as it issued a maxi-minimalist ruling that mitigated the immediate impact of its decision and helped insulate the court from any immediate political ramifications, the Malaysian apex court embedded the seeds for a broad doctrine of judicial authority over fundamental constitutional features.

The following year, in 2018, the Malaysian Federal Court built on the foundations it had laid earlier to further entrench the doctrine of protecting the constitution’s basic structure. Unlike Semenyih Jaya, Indira Gandhi was a blockbuster case. This time, the judiciary asserted itself in one of the most highly charged area of Malaysian law and politics: the authority of civil courts vis-à-vis religious courts.

The challenge in the case was brought by Indira Gandhi, a mother of three children; unknown to her, her ex-husband had converted to Islam and then officially converted all their children to Islam and obtained custody orders from the Sharia courts. At stake was another constitutional provision that had been inserted along with the 1988 amendments to the Article 121(1) judicial power provision. Article 121(1A) provides that the civil courts “shall have no jurisdiction in respect of any matter within the jurisdiction of the Sharia courts.” For many years, the civil courts had relied on Article 121(1A) to justify their extensive deference of jurisdiction to the Sharia courts, even in cases with religious freedom implications, vastly expanding the reach of the religious courts.Footnote ³⁷

The Malaysian Federal Court in Indira Gandhi – in another unanimous decision written by Justice Zainun Ali, the author of the Semenyih judgment – relied on the basic structure doctrine it had articulated in its earlier decision to nullify the Article 121(1A) constitutional amendment on the basis that the amendment undermined the civil courts’ power of judicial review.Footnote ³⁸ The Court quashed the children’s conversion certificates, ruling that the Malaysian Constitution’s equal protection guarantee requires that both parents consent to changing their children’s religion.

More broadly, and significantly for the judiciary’s own institutional position, the Federal Court held that the civil courts have jurisdiction over constitutional matters even when questions of Islamic law are involved.Footnote ³⁹ Affirming the basic structure doctrine, the Federal Court declared that powers of judicial review and constitutional interpretation are “part of the basic structure of the constitution,” which “cannot be abrogated from the civil courts or conferred upon the Syariah Courts, whether by constitutional amendment, Act of Parliament or state legislation.”Footnote ⁴⁰

On display here is the Malaysian Court’s careful endeavor building on the foundations it had laid earlier in Semenyih Jaya in order to assert its judicial power in Indira Gandhi, this time with a highly charged issue at stake. The Federal Court laid the foundation for the basic structure doctrine in its 2017 Semenyih Jaya judgment, which the Court would then cite as precedent in its decision nullifying the constitutional amendment a year later in Indira Gandhi. In a multistage sequence of a maxi-minimalist decision followed by a mini-maximalist one, the once-passive Malaysian court established and expanded a basic structure doctrine empowering the judiciary to protect the Constitution’s core from legislative intrusion.

A. ERP in Malaysia

Malaysia’s ethnic and religious diversity is pronounced. Along religious lines, a Muslim majority of roughly 61 percent exists alongside significant Buddhist (20 percent), Christian (9 percent), and Hindu (6 percent) minorities. Likewise, an ethnic Malay majority of approximately 62 percent exists alongside significant ethnic Chinese (21 percent) and Indian (6 percent) minorities. The presence of more than one sizable religious minority makes the Malaysian context similar to the Indian one, as do the specific religious communities that are most populous in each country. However, religious identity in Malaysia is melded together with ethnicity in a way that does not easily translate to India. Sometimes this conflation of ethnic and religious identity is encoded into law, as with the constitutional definition of what it means to be Malay,Footnote ³¹ while in other circumstances, as with the assumption that all ethnic Indian Malaysians are Hindu, it is largely social practice.Footnote ³²

Legally, too, Malaysia both shares strong similarities with India and diverges in meaningful ways. Beyond their rootedness in the Common Law, both countries share certain constitutional commitments – and even some constitutional prose. Both constitutions envision a religiously plural, non-theocratic nation: Article 25(1) of the Indian Constitution declares that “all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion,” while Article 3(1) of the Malaysian Constitution ensures that all religions “may be practised in peace and harmony in any part of the Federation.” Going further, Article 26 of the Indian Constitution empowers every religious denomination or section thereof to “establish and maintain institutions for religious and charitable purposes,” to “manage its own affairs in matters of religion,” to “own and acquire movable and immovable property,” and to “administer such property in accordance with law.” Article 11(3) of the Malaysian Constitution, meanwhile, authorizes every religious group to “manage its own religious affairs,” to “establish and maintain institutions for religious or charitable purposes,” and to “acquire and own property and hold and administer it in accordance with law.”

However, there are important differences in the way each document treats religious identity and behavior. The Malaysian Constitution ties Malay ethnicity with Muslim religious identification in a way that the Indian Constitution does not do for any ethnic or language affiliation. Additionally, Article 3(1) of the Malaysian Constitution explicitly envisions a special status for one religion: “Islam is the religion of the Federation.”Footnote ³³ To be sure, there are compelling arguments to be made that the text of India’s Constitution exhibits favorable bias toward Hinduism,Footnote ³⁴ and there are even more reasons to think that the growing saffronization of Indian politics is finding its way into constitutional interpretation. Nevertheless, it remains the case that the Indian Constitution does not formally identify a state religion and affirmatively embraces a secular system of governance.

The ERP Doctrine made its inaugural appearance in Malaysia via the Court of Appeals’ decision in Meor Atiqulrahman bin Ishak v Fatima binti Sihi (henceforth, the “Serban Case”).Footnote ³⁵ There, the principal of a government school had expelled three male primary school students who insisted, in violation of school rules, on wearing a turban (serban) as part of their religious practice. The students won in the initial round of litigation. In the course of overturning that decision, the Court of Appeals explicitly looked to Shirur Mutt and the line of cases it generated – in fact, it even adopted the narrowed post-Devaru articulation of the ERP test. The key question, the Court declared, was “whether the wearing of a serban is an integral part of the religion of Islam” and, unfortunately, “[t]here was not a shred of evidence before the learned [lower court] judge confirming that the wearing of a serban is mandatory in Islam and is therefore an integral part of Islam.”Footnote ³⁶

When the students appealed to Malaysia’s apex court, the Federal Court, it also relied on ERP analysis, albeit under the new nomenclature of integral practice analysis.Footnote ³⁷ However, the Federal Court went much further by stating that the extent of the prohibition (partial versus total) was a relevant consideration in determining its constitutionality. So too was the motivation behind the prohibition: Malaysia, the Federal Court remarked, is “multi-racial, multi-cultural, multi-lingual and multi-religious” and “we cannot ignore the educational system that had helped to mould the minds of Malaysian boys and girls to grow up as Malaysians.” The individuals in charge of that educational system “should be given some respect and credit when they formulate some regulations applicable in their schools for the general good of all the students, the society and later the nation.”

Although the Federal Court’s interpretation of the ERP Doctrine seemingly speaks in the language of secular universalism, commentators have with good reason cautioned against viewing it this way.Footnote ³⁸ Subsequent deployments of the Federal Court’s modified ERP analysis have worked at cross-purposes with the idea of “multi-racial, multi-cultural, multi-lingual and multi-religious” Malaysia articulated in the Serban Case. For instance, in the 2013 “Kalimah Allah” opinion, a Malay-language Catholic newspaper challenged a ministerial order proscribing it from referring to the Christian god using the word “Allah.” The Court of Appeal overturned a lower court ruling favoring the Church partly on the grounds that, despite ample evidence of Malay Christians using “Allah” to refer to their god, doing so was not an integral – that is, mandatory – element of their faith.Footnote ³⁹ Notably, another line of reasoning that seemed particularly persuasive to the Court was the idea that “the purpose and intention … of the words: ‘in peace and harmony’ in art[icle] 3(1) is to protect the sanctity of Islam as the religion of the country and also to insulate against any threat faced or any possible and probable threat to the religion of Islam.”Footnote ⁴⁰

As both the Kalimah Allah and Serban cases suggest, and as previous commentators have noted,Footnote ⁴¹ the ERP Doctrine responds to a different tension in Malaysia than it does in India. In the Indian context, ERP analysis was originally intended to balance competing constitutional impulses regarding the relationship between citizens of any faith and the state. Article 25(1) provided a relatively conventional grant of religious freedom, while Articles 25(2)(a) and 25(2)(b) counterbalanced that freedom by empowering the state to intervene in religious life. The ERP Doctrine mediated between the two by empowering non-state actors to delimit the boundaries of state intervention – subject, of course, to the POMH limitation and other rights. In Malaysia, on the other hand, the ERP Doctrine serves to negotiate the relationship between a religion, Islam, that is granted constitutional primacy, and a state that is directed to respect the existence and contours of other faiths. Consequently, while the language and pattern of Malaysian ERP analysis are easily recognizable as Indian in origin, the purpose of engaging in that analysis is decidedly different: inviting – and resisting – an established religion.

B. ERP in Sri Lanka

The well-known antagonism between Sri Lanka’s Sinhala and Tamil factions has often overshadowed the country’s ethnic and religious diversity. In addition to the ethnic Sinhalese who comprise an overwhelming majority of the population (roughly 75 percent) and Tamils, whether Sri Lankan or Indian, who form the largest minority (15 percent), there is also a sizable Sri Lankan Moor population (9 percent). Religious diversity is even more pronounced, with Buddhists constituting a large majority (70 percent) and Hindus the largest minority (13 percent), but with sizable Christian and Muslim populations as well (around 7 percent and 10 percent, respectively). This means that Sri Lanka, like India and Malaysia, has more than one sizable religious minority. At the same time, and somewhat like the Malaysian case, religion and ethno-linguistic identity overlap in Sri Lanka with respect to the majority Sinhala Buddhist community in a way that does not easily translate to the Indian context.

Like Malaysia, Sri Lanka also shares strong legal connections with India. These include a shared Common Law heritage and, in both of Sri Lanka’s republican constitutions (1972 and 1978), a shared commitment to a religiously plural, non-theocratic nation. Article 10 of the Sri Lankan Constitution resembles Article 25(1) in the Indian context, inasmuch as it guarantees “freedom of thought, conscience and religion, including the freedom to have or to adopt a religion or belief of his choice.” Article 14(1), meanwhile, provides individuals with “the freedom, either by himself or in association with others, and either in public or in private, to manifest his religion or belief in worship, observance, practice and teaching.” However, there are meaningful points of divergence. Article 9, the only article in the “Buddhism Chapter” of the 1978 Constitution, declares that “The Republic of Sri Lanka shall give to Buddhism the foremost place and accordingly it shall be the duty of the State to protect and foster the Buddha Sasana.” Article 10, meanwhile, differs from its Indian counterpart in that it does not explicitly protect the ability to “profess and propagate” one’s religious beliefs, and there is no group right that is comparable to India’s Article 26 or Malaysia’s Article 11(3).

More relevantly, however, Sri Lankan jurisprudence on the Buddhism Chapter is relatively sparse, unlike the voluminous case law engaging with India’s religious freedom provisions that began developing soon after independence. The relative scarcity of Article 9 jurisprudence, which is likely owing to several distinct infrastructural and political factors,Footnote ⁴² means that some of the most frequently discussed cases are not only many decades old, but also involve contestations over the 1972 Constitution rather than the one currently in force. That earlier Constitution also contained a “Buddhism clause” in Article 6, and, with one important exception,Footnote ⁴³ the language of the two constitutions is identical. Consequently, these earlier cases are illustrative of the way ERP analysis has been influential in Sri Lanka: far more subtly than in Malaysia, and without direct citation to Shirur Mutt or other Indian ERP case law, yet unmistakably present just below the surface.

In an early case decided under the 1972 Constitution, Sri Lanka’s apex courtFootnote ⁴⁴ was asked to assess the constitutionality of a statute, the Pirivena Education Bill, that increased government authority over the schools (pirivenas) where most Sri Lankan Buddhist monks were educated. The petitioners included leaders of prominent lay Buddhist organizations as well as senior Buddhist monks and a senior civil servant. They argued that the Pirivena Bill ran afoul of Article 6 because it involved an impermissible intrusion of secular state authority into the administration of Buddhist institutions: The state was not protecting Buddhism, the petitioners maintained, but subordinating it to itself. The Court disagreed, holding that “Buddhist schools were not, in fact, part of Buddhism.”Footnote ⁴⁵

In another decision handed down just weeks before the 1978 Constitution would be ratified, the Supreme Court of Sri Lanka was asked to reject the application of a Buddhist monk who had earned a law degree and wished to enroll as an attorney. The petitioners in Sumana Thero were many of the same lay Buddhist organizations who had approached the Court in the Pirivena Bill Case. They argued, once again, that the state’s constitutional obligation to protect Buddhism required it to remain aloof from the internal workings of Buddhist religious life – but, this time, they were opposed by other actors also claiming to speak on behalf of Buddhism, including the monk’s own monastic superiors. Again, the Court rejected the petitioners’ arguments, declaring that the ultimate arbiters of proper monastic conduct ought to be the prelates of an individual monk’s religious order rather than the state acting through its judicial actors.

The reasoning in Sumana Thero and the Pirivena Bill Case both reflected elements of the ERP Doctrine. In the Pirivena Bill Case, the Court declined to invalidate state action regulating religious institutions on the grounds that the regulation of those institutions neither clashed with Article 6’s directive to protect Buddhism nor with Article 18 of the 1972 Constitution, which granted individuals the “freedom to have or to adopt a religion or belief of his choice, and the freedom … to manifest his religion or belief in worship, observance, practice and teaching.” In the Court’s view, the regulation of Buddhist schools neither worked at cross-purposes with the protection of Buddhism nor was connected closely enough with the freedom to “manifest” one’s religious beliefs via, among other things, teaching. In Sumana Thero, the Court declared that the objections of senior Buddhist prelates, which represented “the only reliable evidence” that a monk could not also be an attorney, could not override the fact that “there is no such rule in the Vinaya [Pitaka]” – namely, the religious code governing monastic life. Put differently, according to the doctrines of the community itself, there was no necessary tension between being an ordained monk and being an attorney.

Although Shirur Mutt and the phrase “essential practices” appear nowhere in either majority opinion, their influence, and the influence of Indian constitutional law more generally, is hard to miss. The dissenting judge in Sumana Thero, Justice Wanasundara, followed what was, by this time, standard practice at the Indian Court, when he decided to “go to the original source and try to ascertain what the Buddha has actually said on these topics.”Footnote ⁴⁶ He concluded, on the basis of this exegetical foray, “[t]hat a monk’s life, as ordained by the Buddha, in its pure form, is incompatible with lay life” – adding that this incompatibility “would be apparent to anyone even having a little acquaintance with the Dhamma.”Footnote ⁴⁷ Meanwhile, the majority in the Pirivena Bill Case engaged at length with Articles 25 and 26 of the Indian Constitution in order to distinguish them from the provisions of the 1972 Constitution. Not only did the Sri Lankan Constitution contain no protection for the propagation of religion, it also contained no equivalent to Article 26’s group rights. Absent such an explicit provision of group rights, the connection between the state’s regulation of pirivena schools and the right that did exist in the Sri Lankan context – to “manifest” one’s religion through “teaching” – was too tenuous to warrant constitutional protection. Other landmark cases involving the Buddhism Chapter of the 1978 Constitution, perhaps most notably In Re Thirteenth Amendment,Footnote ⁴⁸ confirm the extent to which Sri Lankan religious freedom jurisprudence is in conversation – if not in agreement – with Indian analogues.

If essential practices analysis in India was originally meant to navigate conflicting constitutional impulses – to reform citizens’ religious practices and to respect citizens’ religious autonomy – the purpose of broadly similar analysis in Sri Lanka seems quite different. Essentiality, in the Sri Lankan context, has been deployed in contestations between a religion, Buddhism, that is granted special protection, and a state whose constitution recognizes no collective religious freedom rights. And, perhaps unsurprisingly given past relations between India and Sri Lanka, “essentiality” has served to demarcate differences in constitutional priorities where the temptation to assume similarity runs strong.

A. Nepal for India

Earlier I introduced Suchitra, a landmark reproductive rights decision in India. While much has been written about how Suchitra protected reproductive autonomy as a fundamental right,Footnote ³⁹ negligible attention has been paid to how Suchitra also led to the growth of the fetus as a prominent figure within abortion law in India.Footnote ⁴⁰ Here, I document this phenomenon, emphasizing Suchitra’s reliance on Roe in initiating this monumental step.

To deduce whether a “cogent rationale” existed for restricting the abortion right,Footnote ⁴¹ Suchitra promptly turned to Justice Blackmunn in Roe who held:

From this starting point of separateness between women’s rights and fetal interests, Justice Blackmunn easily obscured the interconnectedness between the two. He failed to recognize that protecting fetal interest incurs costs, just like protecting any State interest, whether it be security, welfare, or education, incurs costs. While the distribution of costs is typically accompanied by deliberation – Who should bear it? Who can bear it? – here, the allocation seemed deceptively simple. The costs fell to women, currently pregnant and those with the ability to become pregnant. These costs are tangible:

In artificially severing fetal interests from women’s rights, Roe sidelined questions about the distribution of costs involved in protecting the fetus. Unfortunately, the Suchitra Court followed Roe down the same road. Citing Roe, it concluded that there is a “compelling state interest in protecting the life of the prospective child” allowing the State to reasonably restrict abortion.Footnote ⁴⁴ This observation set in motion a paradigm change within abortion law in India.

Before Suchitra, the fetal figure had been more or less absent within Indian abortion law. In parliamentary debates on the law in 1971 (and later in 2021), only two members voiced the concern that abortion is “virtually murder”Footnote ⁴⁵ and a “crime against humanity.”Footnote ⁴⁶ Others unanimously agreed that “there is no violation of [the right to life] in any manner”.Footnote ⁴⁷ Indian courts too have rejected pleas that India’s law on abortion violates fetal right to life. Courts have repeatedly refused to “enter upon a debate as to when fetus comes to life or the larger question touching upon the ethics of abortion”, instead emphasizing that the abortion law preserves women’s lives and thus is consistent with the right to life.Footnote ⁴⁸ Some courts have even held that “an unborn foetus is not an entity with human rights … A child when born and takes first breath, is a human entity.”Footnote ⁴⁹

Suchitra’s Roe-driven recognition of the State’s compelling interest was thus the big shift that spurred the steady growth of fetal interests in India. Suchitra’s rationale was endorsed time and again by the Supreme CourtFootnote ⁵⁰ and State High Courts.Footnote ⁵¹ Some courts even took forward Suchitra’s framing. While Suchitra was silent on the point at which the State’s compelling interest to protect the fetus gets activated, in R v Haryana the Punjab and Haryana High Court indicated viability, when the fetus is capable of surviving outside the womb of the pregnant woman, as the relevant moment.Footnote ⁵² Once again, Roe’s strong influence is visible here; viability was a standard initially set by Roe as the fetus has the “capability of meaningful life outside the mother’s womb” at viability.Footnote ⁵³ While the US has now moved past viability,Footnote ⁵⁴ and viability has been extensively critiqued as a temporal threshold,Footnote ⁵⁵ it still holds purchase within Indian law. Taking Suchitra even further, some High Courts have veered dangerously close to recognizing a fetal right to life. In Suparna Debanath, the Calcutta High Court observed:

As with Justice Blackmunn in Roe, these shifts have led Indian courts too to ignore that women unilaterally bear the costs of the State’s interest in protecting fetuses. Take the example of cases of abortion sought on ground that there exists a “substantial risk” that the fetus, if born, would be afflicted by a “serious physical or mental abnormality.”Footnote ⁵⁷ Here, the courts’ only criterion of assessment is whether the fetus is capable of surviving outside the womb. If the fetus has “grim chances of survival and limited life span,”Footnote ⁵⁸ abortion is allowed. If the prospective child has some future, abortion is denied, “though it would be traumatic for [the woman].”Footnote ⁵⁹ In fact, a High Court once admitted in 2018: “I have observed over a period of time that the Doctors, while expressing their opinion [on termination], do not consider the trauma and the agony, which the [woman] undergoes.”Footnote ⁶⁰ Yet, it went on to deny her an abortion.

Beyond outright disregard, some courts minimize the costs borne by women, trivializing them as forms of “self-indulgence.”Footnote ⁶¹ They dismiss anxiety about the outcome of the pregnancyFootnote ⁶² or the concern that being pregnant would compel reconciliation with a violent partner and sustain financial dependence on him.Footnote ⁶³ Other courts acknowledge the costs borne:

Yet they require the pregnant woman, who was kidnapped and gang raped, to “bravely” continue with the pregnancy, reminding her that post-abortion, her grief might only “double” as she had “just ended the life of [her] child.”Footnote ⁶⁵ And if a woman refuses to bear the costs, she is publicly shamed, with one court condemning her refusal as “reproductive materialism”!Footnote ⁶⁶

It is here, then, that we must take seriously my call to suspend established epistemic norms and imagine. Let us ask: What if Suchitra had not turned to Roe to seek direction on fetal interests? What if it had, instead, looked to Asia? Would it have allocated the costs of fetal protection differently?

Just a few months before Suchitra, the Nepal Supreme Court decided Lakshmi Dhikta.Footnote ⁶⁷ Unlike Roe, and despite citing Roe,Footnote ⁶⁸ Lakshmi Dhikta began by emphasizing the interconnectedness between the woman and the fetus: “A fetus cannot be recognized as a separate personality from that of the mother as it owes its existence to the mother … the interests of the mother and that of the fetus are not separate. Instead, it is appropriate to view it in an integrated manner.”Footnote ⁶⁹ This crucial recognition functioned as the Court’s inflection point, from which it refused to consider the fetus as an entity bearing the right to life because the costs on women would be too high:

Such “servitude,”Footnote ⁷² the Court acknowledged, would harm women’s physical and mental health, life, dignity, freedom, and participation in society.Footnote ⁷³ She may lose her “opportunity of employment or income generation,” affecting her chances of “professional development” (a cost which the Court did not trivialize).Footnote ⁷⁴ It would also treat women unequally – “while becoming pregnant is not a consequence of women’s act alone; after conception, only women [bear] the direct burden”Footnote ⁷⁵ – and have a heightened adverse impact on vulnerable groups of women, “rural, illiterate, and poor,” causing the “feminization of poverty.”Footnote ⁷⁶

This comprehensive cataloguing of costs and their bearers did not mean that the Court denied any role for fetal interests at all stages of pregnancy. The Court concluded that the right to abortion did not vest “the right to oppose pregnancy at all times, therefore, it is necessary to consider the right to abortion within an appropriate limit.”Footnote ⁷⁷ While the Court was silent on what this “appropriate limit” might be, the Court’s starting point is what is most important: the recognition that the costs incurred by women ought to be central in determining the legal status of the fetus. Lakshmi Dhikta could have gone further and offered a re-imagined distribution of costs for fetal welfare. The Court did acknowledge that the “existence and evolution of the human race … is a matter of common public interest.”Footnote ⁷⁸ Yet, the costs for it are borne by just one group. A reimagined cost structure would not ignore potential life. Rather it would distribute more fairly the costs of protecting it. That is, to protect fetuses, the State would not restrict abortion, compelling women alone to bear the costs of the State’s interest. Rather, it would target the incidence of unwanted pregnancy (through better sex education and improved contraceptive provision) and support parents in providing childcare,Footnote ⁷⁹ therein redistributing the costs of fetal welfare among society as a whole. In fact, a “wealth of evidence” shows that fetal interests are also more “effectively” pursued this way.Footnote ⁸⁰

Lakshmi Dhikta did not go this far. However, it did present the seeds for this radical re-imagination. In taking its cues from Roe and its progeny, this re-imagination is what Suchitra lost out on. Hypothetically, then, a change in frame of reference – from Roe to Lakshmi – could have ushered in this fundamental realignment of India’s abortion law. There is, of course, no guarantee of such an outcome; judicial decisions are rarely a product of applicable doctrine alone. Yet, it certainly serves to illustrate the central thrust of this chapter: imagination as a method to tap into the immense creative potential of IAL.

B. India for Bangladesh

To make my case stronger, I construct a second hypothetical referent: India for Bangladesh. While India is, typically, a “usual suspect” of comparative constitutional study,Footnote ⁸¹ having received significant attention for its approach to access to justice, socioeconomic rights, and transformative constitutionalism, India remains absent from global deliberations on reproductive rights. This is possibly on account of the existing Northern tilt within constitutionalism on reproductive rights and India’s own nascent initial jurisprudence on the theme. However, with time and as shown in the Nepal for India, Indian decision-making on reproductive rights has not only become more robust but also offers innovations demanding to be studied across borders. Here, I focus on two such innovations and their relevance to Bangladesh.

India and Bangladesh have identical criminal prohibitions on abortion, a legacy of colonialism. The Bangladesh Penal Code criminalizes voluntarily causing a woman to miscarry. The only exception is a procedure to save the life of the pregnant woman.Footnote ⁸² Unlike the Indian Medical Termination of Pregnancy Act 1971, Bangladesh, however, does not have a regime of legislative exceptions to criminal law, allowing abortion under a more expansive set of conditions. As a result, abortion law in Bangladesh remains strict and narrow.

During the Liberation War in 1971, many Bangladeshi women were sexually assaulted by members of the Pakistani army. In response, Bangladesh introduced a transitional “waiver” on the criminalization of abortion to preserve national honor.Footnote ⁸³ Over time, the object of safeguarding national identity was replaced with a second nation-building project: controlling population, for which successive Planning Commissions recommended the liberalization of Bangladesh’s abortion laws.Footnote ⁸⁴ To that end, the State crafted a procedure, menstrual regulation (MR), involving vacuum aspiration to regularize the menstrual cycle when it is absent for up to two weeks. MR sat outside the existing criminal framing, proposed as a method of post-contraception (to deal with contraceptive failure) rather than abortion. With the introduction of MR, the State priority of controlling the population was satisfied. Any further attempt at liberalizing Bangladeshi abortion law was abandoned.Footnote ⁸⁵ This is despite clear evidence that the rates of (unsafe and illegal) abortion continue to mirror those of MR,Footnote ⁸⁶ suggesting that the latter alone is not sufficient in meeting women’s reproductive needs.

In May 2020, a writ petition was filed before the Supreme Court of Bangladesh challenging the constitutionality of its criminal prohibition on abortion for forcing pregnancy and violating “individuals’ rights to life, liberty, freedom of choice and privacy.”Footnote ⁸⁷ In foregrounding reproductive self-determination, the petition made strides in an arid constitutional landscape otherwise dominated by concerns about women’s health.Footnote ⁸⁸ Reflecting a by-now-familiar script, the petition drew heavily on Roe’s articulation of privacy.Footnote ⁸⁹ However, Roe’s privacy-based abortion right has been subject to extensive critique. Privacy, it is argued, typically protects private spaces, like families, homes, and marriages, from State intervention. These spaces may be sources of oppression to vulnerable groups, with privacy serving as an “injury got up as a gift” for members of these groups.Footnote ⁹⁰ Even if privacy protected intimate decisions, Roe’s construction of privacy envisages only a negative duty of non-intervention on the State rather than a positive duty to assist in accessing abortion.Footnote ⁹¹ The only beneficiaries of Roe’s right are, then, privileged groups of women, who do not need State assistance, financial or otherwise. The limitations of Roe’s framing spill over into the Bangladeshi writ petition. In understanding privacy as protecting women’s personal decisions on abortion, the petition limited itself to challenging State intervention through criminal law. It did not demand State action to ensure equal access to abortion. The overreliance on Roe within the petition thus detracted Bangladesh from a “gender transformative outcome.”Footnote ⁹²

Now, let us enter the alternate epistemic frame made possible by the act of imagination. Imagine that Bangladesh had looked not to Roe but to India to construct its privacy right. India offers an affirmative conception of privacy which moves far past Roe’s limitations. At the outset, the Indian Supreme Court has rejected privacy’s “spatial” account for serving as a “veneer for patriarchal domination and abuse of women.”Footnote ⁹³ Instead, it understands privacy as “decisional autonomy” to make “intimate decisions … [about] one’s sexual or procreative nature”Footnote ⁹⁴ including “whether to bear a child or abort her pregnancy.”Footnote ⁹⁵ The Court also imposes on the State not just negative duties of non-intervention but also positive duties to “remove obstacles for an autonomous shaping of individual identities,”Footnote ⁹⁶ based on the recognition that it is “meaningless to speak of” negative duties “in the absence of” positive duties. The State is therefore required to take “active steps” to improve access to reproductive healthcare, including abortion.Footnote ⁹⁷ A turn to India instead of Roe would therefore have significantly altered the nature of the privacy right grounding Bangladesh’s right to abortion.

Beyond privacy, a case has also been made for Bangladesh to base the constitutional challenge to its abortion law on the right to sex equality. The argument is that restrictions on abortion reflect and further stereotypical assumptions about women as mothers. They also compel women to do the labor of motherhood, which is undervalued and invisiblized because mothering is seen as natural and inevitable. Further, Bangladesh’s law criminalizes a healthcare procedure only women need without altering the structurally unequal social conditions that often prompt abortions. Overall, “women are disadvantaged, for a reason specific to sex, through state-mandated restrictions on abortion.”Footnote ⁹⁸ In contrast to privacy, the sex equality argument, the claim goes, would recenter the “women’s question,” undoing historical oversight and marginalization, to bring “gender-transformative changes in the abortion discourse.”Footnote ⁹⁹

Locating such an argument within Bangladesh’s constitutional equality clause is, however, difficult, as the provision currently endorses a formal conception of equality.Footnote ¹⁰⁰ Pregnancy falls outside formal equality’s mandate of treating likes alike, as pregnancy renders women unlike, defeating their claim to equality at the threshold.Footnote ¹⁰¹ Looking outward, Bangladesh might first, as is common practice, turn back to the US. Here, too, Bangladesh would stumble, as the US Constitution has arguably not yet recognized pregnancy discrimination as a form of sex discrimination, bound as it is to the notion of formal equality. This is best exemplified by the cursory rejection of the sex equality argument in Dobbs.Footnote ¹⁰²

In contrast, India’s constitutional conception of equality is substantive, aimed not at offering like treatment to likes but rather at redressing the disadvantage experienced by groups of “citizens who [have] suffered historical disadvantage, whether it be of a political, social, or economic nature”.Footnote ¹⁰³ It seeks to eliminate “age-long disabilities and sufferings”Footnote ¹⁰⁴ and abolish “social inequity, the social stigma and the social disabilities in our society”Footnote ¹⁰⁵ to achieve “real equality” among groups.Footnote ¹⁰⁶ In transcending formal equality’s sameness–difference paradigm, substantive equality treats pregnancy discrimination as sex discrimination.Footnote ¹⁰⁷ In denying abortions, restrictive abortion laws thus not only dehumanize individual women but also subordinate women as a group.Footnote ¹⁰⁸

While India, too, has been slow to bring a non-discrimination lens to reproductive rights,Footnote ¹⁰⁹ the first steps have already been taken. In X v NCT, the Indian Supreme Court recognized that reproduction is not just “biological” but also “political,” with the decision to reproduce being bound up within broader social structures: “[a] woman’s role and status in family, and society generally, is often tied to childbearing and ensuring the continuation of successive generations.”Footnote ¹¹⁰ In Devika Biswas, the Court condemned State policies compelling women from marginalized groups to undergo sterilization for mirroring prevailing “systemic discrimination” by denying reproductive freedom to “the most vulnerable groups of society whose economic and social conditions leave them with no meaningful choice in the matter.”Footnote ¹¹¹ In Sambara Sabar, the Orissa High Court recognized that the death of an impoverished, pregnant woman during childbirth violated not only her right to life but was also part of an abiding, historical pattern of disadvantage:

In recognizing the denial of reproductive rights as discrimination, these cases shine light on the full extent of the constitutional wrong at play, going beyond the severe impact on individual women to locating each instance as part of a systemic structure of disadvantage. This shift in emphasis is of immense relevance in a context where the very decision to grant the transitional waiver and craft the MR policy was made to fulfill State priorities, like “flushing out” Pakistani blood and controlling population, rather than to guarantee women’s rights.Footnote ¹¹³ Resting on this shaky foundation, Bangladesh’s MR policy and access to this service are inevitably mediated by gender and class. The policy mandates the consent of husband (or legal guardian) to obtain MR.Footnote ¹¹⁴ Unmarried women are, then, turned away, and sometimes accused of being sex workers. Providers hold negative perceptions even about married women seeking MR, who are pestered to keep the child and accused of infidelity, leaving them guilty and ashamed. Providers also scold and shout at women, especially illiterate and impoverished women, and demand extra fees if they cry in pain. They also blame later miscarriages on women having undergone MR previously.Footnote ¹¹⁵ Within these “structural and social inequalities … shaping decision-making surrounding pregnancy terminations” in Bangladesh,Footnote ¹¹⁶ the criminalization of abortion not only denies women privacy but also entrenches their inequality.

Turning away from Roe, Bangladesh could learn from India by reading its privacy clause affirmatively and equality clause substantively. The strengthened constitutional framework could then be used as a lever to challenge Bangladesh’s criminal abortion laws, in turn reconfiguring its approach to abortion. This possibility is brought to life by the act of imagination, helping us see that the “Asian region is a dynamic field of legal modernization and experiment.”Footnote ¹¹⁷

A. Pandemic Legislation: Lessons from SARS and MERS Experiences

To mitigate the impact of the COVID-19 pandemic, many governments implemented extraordinary measures such as declaring emergency decrees that easily raised concerns about grave human rights violations and government powers aggrandizement. Learning from their experiences of SARS and MERS,Footnote ⁷ the governments of South Korea, Taiwan, and Singapore, however, did not issue any emergency decrees but instead relied on existing laws or enacted new laws to manage the pandemic crisis.

In 2015, South Korea experienced the largest MERS outbreak outside the Middle East.Footnote ⁸ To prevent the previous mistakes of poor risk communication and government secrecy, the National Assembly revised the Infectious Disease Control and Prevention Act (IDCPA),Footnote ⁹ effectively preparing the government to combat COVID-19. Key revisions include providing a wide scope for administrative orders enabling the Minister of Health and Welfare and local governments to take necessary measures.Footnote ¹⁰ For instance, Article 34-2(1) allows public health authorities to disclose information on confirmed cases to the public. Article 40 authorizes the authority to shut down contaminated locations.Footnote ¹¹ Article 76-2(1) authorizes the Minister of Health and Welfare to collect personal data to track confirmed patients without a court warrant during infectious disease emergencies.Footnote ¹² Article 76-2(2) allows public health authorities to require medical institutions to provide information on patients and those feared to be infected.Footnote ¹³

To enhance the government’s response to the COVID-19 crisis, the Korean National Assembly revised the IDCPA, the Quarantine Act, and the Medical Services Act, which the President promulgated on March 4, 2020.Footnote ¹⁴ The revised IDCPA aimed to enhance responses to those exposed, regulate medical supply flows abroad, and strengthen epidemiological investigation capacity. For example, Article 40-3 of the revised IDCPA enables public health authorities to ban exports of drugs and medical supplies, such as face masks and hand sanitizers, when shortages are expected.Footnote ¹⁵ The Act provides a wide-ranging list of measures under provisions stating that public health authorities “shall take all or some of the following measures.” To balance the protection of human rights, Article 34-2 of the IDCPA states that “personal information determined to be irrelevant to the prevention of infectious diseases by Presidential Decree, such as sex, age, and so on, shall be excluded.”Footnote ¹⁶ The revised Quarantine Act clarifies the legal basis for requests not to allow anyone infected or suspected of being infected with COVID-19 to enter or leave South Korea, excluding South Korean nationals.Footnote ¹⁷ Finally, the revised Medical Service Act aims to establish and implement more effective monitoring of infections within healthcare facilities, obligating heads of medical institutions and medical personnel to voluntarily report to the Minister of Health and Welfare if an infection is detected within the institution.Footnote ¹⁸ These revisions formed the legal basis for the Korean government to implement administrative countermeasures against COVID-19.

However, some legal provisions raised concerns regarding privacy and surveillance.Footnote ¹⁹ Article 76-2 of the revised IDCPA allows national public health authorities or local governments to request information from various governmental and non-governmental institutions, potentially enabling infringements of human rights and rendering the protection of personal information ineffective.Footnote ²⁰ Additionally, the ban on gatherings in the IDCPA, among the most commonly used administrative public health measures by the Korean government to restrict viral spread, may infringe constitutional rights. These gathering restrictions have also been used against protests, religious events, and gatherings at certain businesses.Footnote ²¹

Taiwan has learned hard lessons from the 2003 SARS outbreak, which resulted in the loss of medical personnel and individual lives.Footnote ²² In response, the Communicable Disease Control Act (CDC Act) was substantially amended. The CDC Act now serves as the framework for government action on communicable disease control and public health emergencies. It authorizes the creation of a centralized command system with clear power divisions between national and local governments. The Central Epidemic Command Center (CECC) or Central Command represents the central government, setting standards and providing regulatory measures such as inspection, contact tracing, quarantine, isolation, travel restrictions, requisition, expropriation, and compensation.Footnote ²³ For example, Article 20 of the CDC Act requires the government to stock sufficient quantities of pharmaceuticals, devices, and protective equipment for disease control. It also includes provisions against discrimination and human rights infringement in the name of disease control. Local governments are primarily tasked with case-by-case enforcement.

Three key provisions in the CDC Act balance human rights and individual freedoms.Footnote ²⁴ Article 10 prohibits the disclosure of information related to patients or suspected patients with communicable diseases, imposing fines for violations.Footnote ²⁵ Article 11 guarantees the dignity and legal rights of those with communicable diseases, medical personnel, patients under quarantine, and their families, ensuring they are respected and protected without discrimination. Article 12 obliges public and private persons and institutions not to deny patients with communicable diseases their rights to education, employment, nursing care, or housing, nor to provide any unfair treatment.Footnote ²⁶

To supplement the CDC Act, Taiwan’s Legislative Yuan passed the Special Act for Prevention, Relief, and Revitalization Measures for Severe Pneumonia with Novel Pathogens (“Special Covid-19 Act”) on February 25, 2020. This Act authorized a special budget of TWD 60 billion (approximately US$2.15 billion)Footnote ²⁷ and set a term from January 15, 2020, to June 30, 2021, with the possibility of extension by the Legislative Yuan. Since the CDC Act had already equipped the government with significant power against the pandemic, most provisions of the Special COVID-19 Act focused on relief, compensation, and stimulus. However, two provisions of the Special COVID-19 Act caused concern. Article 7 was criticized for granting the Central Command exclusive power to implement necessary measures for pandemic control, potentially violating the principle of proportionality and infringing on freedom of movement.Footnote ²⁸ Additionally, Article 8 gave the Central Command the power to release personal data if an individual violated a quarantine or isolation order, raising concerns about possible violations of privacy protection and proportionality.Footnote ²⁹

Singapore, along with South Korea and Taiwan, utilized the Infectious Diseases Act (IDA) instead of emergency measures to address the COVID-19 crisis.Footnote ³⁰ The Act, reinforced after the 2003 SARS outbreak, involves protocols to identify and isolate infected individuals for two weeks.Footnote ³¹ On April 7, 2020, the Parliament of Singapore passed the COVID-19 (Temporary Measures) Act (CTMA), authorizing the Ministry of Health to implement necessary public health measures if COVID-19 poses a serious threat. The CTMA includes provisions to restrict activities to prevent virus spread, compensate distressed parties, facilitate in-person meetings, maintain court functions through remote technology, and suspend contractual obligations. To enforce the IDA,Footnote ³² the Ministry of Health implemented subsidiary legislation, such as the COVID-19 (Temporary Measures) (Control Order) Regulations 2020, regulating corporate meetings, charities, trade unions, and societies, reducing rent, and providing temporary relief for unfulfilled contracts.Footnote ³³

In May 2020, the Parliament of Singapore revised Article 64 of its Constitution, allowing members to meet remotely if it is difficult or unsafe to assemble in one place.Footnote ³⁴ This revision designates a temporary alternative parliamentary meeting location, valid for six months with a possible six-month extension.Footnote ³⁵ After the July 2020 parliamentary elections, this framework was implemented for the first time during the State Opening of Parliament.Footnote ³⁶

In terms of legal frameworks, as discussed above, each country not only adapted its legislative responses by learning from others’ experiences with SARS and MERS but also demonstrated significant cross-jurisdictional learning and borrowing to manage the pandemic crisis effectively. For example, inspired by South Korea’s amendments to its IDCPA after MERS, Taiwan’s CDC Act empowered the CECC to coordinate with local governments on contact tracing and data collection, establishing a real-time, centralized system.Footnote ³⁷ Another example is Singapore’s IDA, which included public health data management provisions. Drawing inspiration from Taiwan’s CECC, Singapore used digital platforms to gather public policy feedback, enabling local districts to tailor responses to community needs while aligning with central guidelines.Footnote ³⁸

B. Pandemic Central and Local Politics

The global experiences of the COVID-19 pandemic have shown that tensions can easily arise between national and local governments, particularly when there is uncertainty about the division of competences. To address the rapid spread of the pandemic, intergovernmental dialogue and political coordination between national and local governments are crucial.Footnote ³⁹ Different levels of government embody different merits and limits. One advantage of centralized power is that it can provide more consistent policies and mobilize resources on a large scale, yet it may be incapable of dealing with a sudden outbreak. In contrast, local governments are on the frontlines of the crisis and can respond immediately but also require greater discretion in their swift responses.Footnote ⁴⁰ Local delegation may better cope with local variations and mobilize resources, and yet fragmented implementation may result in unequal treatment and inconsistency. In the face of the pandemic, neither central nor local government alone guaranteed the best policy.

To strengthen collaboration within multi-level governance on pandemic management, South Korea and Taiwan restructured and centralized their respective public health approaches and institutions after the SARS outbreak in Taiwan in 2003 and the MERS outbreak in South Korea in 2015. These reforms have enhanced the ability of multiple-level governments to respond effectively. For example, after 2015, South Korea’s reforms placed primary responsibility for epidemics in the hands of the Korean Centers for Disease Control and Prevention.Footnote ⁴¹ In Taiwan, the Central Command, a rapid-response agency, was created within the Ministry of Health and Welfare.Footnote ⁴²

During the pandemic, the relations between national and local governments in both South Korea and Taiwan were often characterized by tension. For instance, when South Korea faced shortages of COVID-19 vaccines, Mayor Kwon Young-jin of Daegu City announced that Daegu would purchase the Pfizer vaccine through a foreign trading company. The city submitted its import proposal to the central government. However, the Ministry of Health and Welfare rejected this action as untrustworthy,Footnote ⁴³ and Pfizer also raised concerns about the foreign trading company, noting that its vaccines are not provided through intermediaries. Consequently, the mayor apologized to the citizens and the entire nation in a news conference and withdrew the proposal.Footnote ⁴⁴

Another dispute between national and local governments in South Korea concerns privacy issues. With the need for real-time tracing, the IDCPA was amended to include provisions for pandemic surveillance.Footnote ⁴⁵ These provisions authorized national health authorities to access information that was previously exclusive to law enforcement authorities. This significantly enhanced their capacity to focus testing and quarantine efforts on individuals at greater risk of infection.Footnote ⁴⁶ Hence, the central government of South Korea employed two apps to trace and isolate those infected or suspected of being infected. One app is used for contact tracing, notifying individuals if they may have crossed paths with a confirmed case. The other app is used to monitor self-quarantine compliance.Footnote ⁴⁷ However, these measures were criticized for infringing on the privacy of infected individuals, who did not consent to them and who faced social stigma. Some local governments also expressed concerns over excessive collection and disclosure of personal data in the process of epidemiological investigation and through the use of contact tracing devices.Footnote ⁴⁸ They were worried that the use of those digital tracing apps might infringe on individuals’ privacy and human rights through excessive collection and release of personal information.Footnote ⁴⁹

In Taiwan, significant executive power has been vested in the Central Command. Under Article 37(3) of the CDC Act, the Command was the ultimate authority in coordinating the anti-pandemic efforts. Some disputes have arisen when the Central Command has opposed the introduction of stricter disease control measures by local governments. For example, in August 2020, Chang Hua County decided to test all outside visitors for COVID-19, regardless of whether they had symptoms. Even if some epidemiologists supported the measure, it raised ethical concerns that the testing was not properly reviewed as part of a government-funded research project and that the proper review process had not been followed.Footnote ⁵⁰ Accordingly, the testing was suspended because it violated the Human Subjects Research Act of 2016. Concerned that false positives might overwhelm the country’s medical system and undermine COVID-19 prevention measures, the CECC overruled the initiative.

Furthermore, local governments expressed their discontent with the Central Command. Some demanded more discretion and resources, while others demanded more precise rules and procedures. The dissenting voices prompted the Central Command to adjust its measures and coordinate with local authorities. Upon the declaration of level 3, the Central Command held a National Epidemic Prevention Meeting with city and county governments to coordinate regulatory measures and distribute testing resources.Footnote ⁵¹ Another example is Kinmen County’s policy of requiring all passengers entering the island to be tested for COVID-19. Citing Article 37 of the CDC Act, the Central Command revoked the order. Due to the limited medical resources of this outlying island, the Central Command then agreed to test all passengers in Taiwan’s main airports before they visited Kinmen.Footnote ⁵²

During the COVID-19 pandemic, multi-level governance frameworks that enhanced coordination between central and local governments in pandemic managementFootnote ⁵³ were not only implemented in Taiwan, South Korea, and Singapore, but also evolved as part of a learning process among these three countries. In South Korea, for instance, amendments to the IDCPA included data-sharing practices that local governments adopted.Footnote ⁵⁴ These centralized data were accessible by local jurisdictions, mirroring Taiwan’s integration model,Footnote ⁵⁵ and facilitated rapid, localized responses while maintaining alignment with national health regulations. Singapore implemented a similar approach by utilizing digital platforms to collect public feedback on pandemic measures, inspired by Taiwan’s responsive CECC model. Local districts used these platforms to address specific community concerns while ensuring consistency with central guidelines.Footnote ⁵⁶ Through shared experiences and mutual adaptations, each country drew insights from the others, refining governance frameworks to manage public health crises more effectively.

C. Elections, Recalls, and Referendum

The COVID-19 pandemic has put democracy and elections at risk across the world. A number of scheduled elections were either postponed or canceled to protect electoral integrity. In addition, despite the ongoing pandemic, a number of countries adopted various voting procedures in their electoral processes. Some countries decided to hold elections in person despite the high infection risks and practical difficulties of holding elections. Other countries opted for remote voting procedures, such as postal voting.Footnote ⁵⁷

In contrast to other countries, South Korea, Taiwan, and Singapore still held their elections as scheduled. On April 15, 2020, South Korea was one of the first countries to hold parliamentary elections following the pandemic outbreak. On March 9, 2022, it also held its presidential election. In addition, new voting procedures were adopted in elections during the pandemic.Footnote ⁵⁸ For example, in February 2022, the lawmakers of South Korea revised their election laws to allow infected voters to vote in the presidential election from quarantine or healthcare centers and to allow early voting in parliamentary and presidential elections.Footnote ⁵⁹ In addition, the National Election Commission of South Korea provided comprehensive plans to regulate elections.Footnote ⁶⁰

In Taiwan, all 2020 elections were held as scheduled despite the pandemic. After the Central Command was established to address the pandemic crisis on January 20, 2020, several elections including the reelection for the mayor of Kaohsiung.Footnote ⁶¹ In addition, Taiwan also held a referendum on December 18, 2021. The election for local officials and councilors was also held on November 26, 2022.Footnote ⁶² The National Election Commission of Taiwan also provided comprehensive plans to regulate elections and referendums.Footnote ⁶³

On May 4, 2020, Singapore’s lawmakers passed the Parliamentary Elections (COVID-19 Special Arrangements) Act, which established a special statutory regulation for holding parliamentary elections during the ongoing pandemic. The Act allows quarantined voters to vote in places of mass isolation, such as hotels or student dormitories,Footnote ⁶⁴ and candidates who are ill to miss the nomination process and to make special arrangements for polling and counting. Following the dissolution of Parliament on June 23, 2020, Singapore, like South Korea and Taiwan, held its 2020 general election despite the high public health risks and economic crisis brought on by the pandemic.Footnote ⁶⁵

D. Judicial Response

A pandemic presents a compelling challenge for courts – strong or weak – to provide oversight when the government fails to meet its legal obligations to protect its citizens. In backsliding democracies, judicial oversight is typically limited, ineffective, or nonexistent due to lack of independence, authority, and/or capacity.Footnote ⁶⁶ In contrast, courts in South Korea, Taiwan, and Singapore continue to operate smoothly during the pandemic. Pandemic-related lawsuits are categorized as follows:

A. Democratic Values Reflecting from Past Experiences

Democracy and the rule of law were tested during the COVID-19 pandemic when governments took the opportunity to expand their powers by enacting emergency laws or undertaking strict administrative measures that violated fundamental legal principles and infringed on human rights. South Korea, Taiwan, and Singapore were no exceptions to this tendency.

Although Taiwan and South Korea have authoritarian histories, they have evolved into strong Asian democracies, holding periodic elections to ensure that the representative governments are accountable to the people.Footnote ¹⁰⁰ In contrast with authoritarian China and other countries, the responses of South Korea and Taiwan governments were based on democratic oversight and accountability. Their political leaders, having learned from their experiences during the SARS and MERS outbreaks in 2003 and 2015, respectively, as well as from one another’s responses, framed the pandemic in democratic terms, showing strong commitment to the democratic values of their societies.Footnote ¹⁰¹ For example, when asked if Taiwan took advantage of emergency measures against COVID-19, President Tsai Ing-wen stressed that democratic institutions and processes could function within existing legal frameworks to ensure transparency, accountability, public participation, and due process.Footnote ¹⁰² Likewise, in South Korea, President Jae-in publicly emphasized that Korea’s response to COVID-19 demonstrated democratic solidarity and cooperation.Footnote ¹⁰³

Recognizing the importance of maintaining public trust and democratic accountability during a pandemic, top health officials in South Korea and Taiwan incorporated openness and transparency as core values in their relevant policies and regulatory measures.Footnote ¹⁰⁴ For example, Taiwan’s Central Command held daily live-broadcast press conferences to update the public regarding the pandemic and government policy for dispelling fake news and misinformation.Footnote ¹⁰⁵ Similarly, in South Korea, the Korean Disease Control and Prevention Agency, led by top scientists and health experts, held daily public briefings since the start of the outbreak.Footnote ¹⁰⁶

Furthermore, to manage the pandemic effectively, the presidents of Taiwan and South Korea allowed public health officials to control the communication of pandemic guidelines and showed high respect for their professional expertise and decision-making. To maintain administrative efficiency, the decisions of Taiwan’s Central Command were substantially followed, with President Tsai Ing-wen and Premier Su Tseng-chang refraining from interference. Similarly, in South Korea, President Moon Jae-in allowed public health officials to take the lead in initiating government responses.Footnote ¹⁰⁷

Further, elections and referendums during the pandemic exemplified democratic resilience in South Korea and Taiwan.Footnote ¹⁰⁸ Democratic values such as openness, accountability, and transparency helped these countries avoid issues commonly found in undemocratic societies. Similarly, Singapore, traditionally regarded as a hybrid authoritarian regime, demonstrated stronger democratic governance during the pandemic. For instance, the government maintained parliamentary functions and held a general election on July 10, 2020, months before the parliament’s term ended. The largest opposition party won ten seats, the highest number in Singapore’s post-independence history.Footnote ¹⁰⁹ Additionally, increased political activity and criticism during the pandemic also led to policy changes in the areas of immigration and asylum.Footnote ¹¹⁰

B. Political Discourse in Vertical and Horizontal Dimensions

As China or other authoritarian countries demonstrate, the pandemic has strengthened a preexisting techno-authoritarian project aimed at maintaining public health and public order, which violates fundamental human rights. Even worse, several weak democracies have also exhibited democratic erosion or pandemic autocracy.Footnote ¹¹¹ Contrary to countries that exhibit authoritarianism or illiberal democracy, the experiences of these three Asian countries show that civil society oversight and institutional checks and balances between central and local governments remain effective in managing and adjusting pandemic responses through a democratic approach.Footnote ¹¹²

For example, unlike NGOs in illiberal democracies that may encounter legal obstacles or political retaliation when opposing government actions, NGOs in these three countries were able to operate as mediating forces to regulate the exercise of government powers during pandemic crises. In addition, people were willing to assert their individual rights and may resort to judicial remedies if they were not satisfied with the government’s decisions. More importantly, even though the governments in the three countries were provided with more leeway and greater deference by the people, the NGOs continued to serve as a counterbalance, questioning government policies and decisions that were not reasonably balanced and diminishing the tendency of power concentration that has been observed in other countries where democratic backsliding or authoritarian governance was gradually revived.Footnote ¹¹³ The dialectical processes between various levels of government offer an alternative approach for establishing accountability and fostering healthy competition for better coordination.Footnote ¹¹⁴ In Taiwan, local governments voiced disagreements with the Central Command, pushing it to coordinate with local authorities and adjust measures for greater effectiveness. This process also prevented local governments from abusing power. For instance, when the Miaoli County government prohibited all migrant workers from leaving their dormitories, the Central Command intervened, urging adherence to level 3 alert rules and facilitating testing to lift the ban.Footnote ¹¹⁵ Additionally, competition among local governments served as a check on each other’s power. The sincere efforts of local governments, such as hotspot testing in New Taipei City, created a feedback loop that encouraged the central government and other local governments to expand testing. This competition for more efficient vaccination also initiated a process of mutual learning among local governments.Footnote ¹¹⁶

C. Responsive Judiciary

In response to the severity of the pandemic, the courts in South Korea, Taiwan, and Singapore used various legal tools and strategies to find a balance between the guarantee of human rights and government actions. These decisions demonstrate that the courts of the three countries generally presented a great deal of deference to the administrative discretion provided that the exercise of their power did not gravely or excessively violate basic rights and fundamental principles.Footnote ¹¹⁷ The lawsuits involving the habeas corpus, vaccination pass programs, elections, and regulating misinformation are obvious examples. However, in some rights-oriented cases, the courts may become less deferential and rule against the government. As the vaccine compensation cases demonstrate, the Korean court recognized victims as eligible for government benefits and compensation if the vaccination and the victims’ illness are directly connected. In conclusion, in the majority of cases, the courts in the three countries deferred discretion to the competent authorities. In the COVID-19 context, this judicial deference is understandable; however, the courts should carefully examine each case and explain their underlying reasoning to the relevant agencies and the general public.