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Asian JLS(2023)Volume 10, Issue 1
2023-08-21 preview:


Asian Journal of Law and Society



The COVID-19 crisis, Herd Immunity, and “Vaccine Apartheid” in the Age of Anthropocene

Hiroshi Fukurai;Robin Gabriel

Abstract: The coronavirus pandemic has led to millions of deaths around the world. In many countries, it has also exposed long-standing inequities and injustices in health care, income distribution, labour market practice, and social protection for the poor, women, indigenous peoples, and other marginalized segments of the population. The disproportionate casualties among vulnerable populations have also exposed predatory corporate practices, such as the refusal to share vaccine patents with low-income countries (LIC) in the Global South. World Health Organization (WHO) Director-General Tedros Adhanom Ghebreyesus has warned that this “vaccine apartheid” could lead to the further spread of more dangerous forms of virus variants, and that global solidarity and collaboration may be the only viable approach to current and future pandemics. Scientists have long warned that the continued destruction of the environment and ecological diversity would lead to future waves of cross-species (zoonotic) viral pandemics, due to the elimination of “natural borders” that once existed between human and non-human species. In the last several decades alone, humanity has suffered from five major zoonotic pandemics: AIDS, SARS, MARS, Ebola, and COVID-19. This Special Issue focuses on a select group of Asian countries in order to critically examine the impact of socio-legal inequities in state-centric policies upon domestic populations, including indigenous peoples, and to explore the possibility of international collaborative strategies for controlling the spread of deadly viruses and their variants in the coming years and decades, in Asia and beyond.

Keywords: COVID-19; World Health Organization (WHO); vaccine apartheid, indigenous peoples; Cuba; vaccine untouchables; vaccine genocide

Vaccine Policy Failure: Explaining Thailand’s Unsuccessful Containment of COVID-19 in the Third Wave

Piya Pangsapa

Abstract: In January 2020, Thailand became the first country outside of China to report a coronavirus infection. In July 2020, Thailand was the number one ranked country (out of 184 countries) for its effective handling of COVID-19. In December 2020, the country was hit by a second wave and the government was once again able to contain the new outbreak. In late March 2021, however, a third wave broke out and as of 1 April 2021, Thailand had seen 2,022,117 new cases and a death toll during the third wave of 20,211. The Thai government has not only been unable to contain the virus this time around, but has also failed in its procurement, allocation, and distribution of COVID-19 vaccines for its 70 million people. This article will look at the government’s mismanagement of the pandemic in the third wave and how the government is dealing with the current crisis.

Keywords: Thailand; COVID-19 outbreak; third wave; pandemic crisis; COVID-19 vaccination; vaccine shortage

Coloniality and Necropolitics in the Age of COVID-19: The Question of Palestine

Robin Gabriel

Abstract: This article interrogates the necropolitical logics of the Israeli settler-state apparatus towards Palestinians in the Occupied Territories during the COVID-19 pandemic. It examines these logics and practices through the prism of coloniality, which conceptualizes manifestations of colonialism (whether material, epistemic, or ontological) as a diffuse set of practices, opening up the conversation to discuss the ways in which international organizations, other states, and the Palestinian Authority continue to inflict the colonial harm through the employment of particular policies. Centering coloniality as an analytic allows a more global perspective and widens the discussion to include the ways in which Palestinians practise decoloniality, building and imagining “otherwise” worlds. This article maps the ways in which the devastation of the pandemic is not a product of the pandemic itself, but larger legacies of material, epistemic, and ontological colonial intervention.

Keywords: Palestinian liberation; international solidarity; Israeli settler colonialism; vaccine apartheid;decoloniality

Trust, Democracy, and Hygiene Theatre: Taiwan’s Evasion of the Pandemic

Robert B Leflar

Abstract: Taiwan’s record of preventing infections and deaths from COVID-19 outshines that of almost every other nation, far outstripping the performance of the US, all European countries, and almost all Asian countries. Yet Taiwan is the nation closest to Wuhan, font of the pandemic. Equally importantly, Taiwan’s public health achievement has occurred without the government dictates such as business and residential lockdowns that have aroused controversy and caused economic and psychological distress around the globe. This essay relates the story of Taiwan’s actions during the crucial early months of 2020 and explores the factors—historical, geographical, legal, institutional, strategic, and cultural—accounting for Taiwan’s remarkable success. Prominent among those factors are the legal and institutional infrastructure of preparedness that Taiwan constructed following its unhappy experience with the 2003 SARS outbreak, and the prompt and decisive measures taken upon discovery of the Wuhan outbreak on 31 December 2019. A dialogue between the judiciary and the legislative and executive branches of government following the SARS episode enabled the infrastructure of preparedness to be created through a process consonant with democratic government, respecting principles of individual liberty and fairness. Risk communication techniques were skillfully employed to build public trust in expert advice about measures for infection prevention. Persuasion, not compulsion, was the norm. Cultural factors including customary acceptance of mask-wearing and authoritative advice, and perhaps a high level of risk-aversity, also played an important part. Taiwan’s pandemic control policies have drawn criticism of government overreach. Some recommendations, such as for outdoor masking, bear little rational relation to infection prevention and are best characterized as mere “hygiene theatre.” Nevertheless, early-2020 government measures received a high level of public approval. Taiwan’s successful response to the pandemic illustrates the nation’s nature: a disciplined democracy.

Keywords: electronic fence; hygiene theatre; Interpretation No. 690; lockdown; masks and masking; quarantine; risk aversion; risk communication; SARS; WHO (World Health Organization); COVID-19

A Comparative Study of Socio-Legal Scenarios in the COVID-19 Pandemic: Focusing on Asian Responses

Kunihiko Yoshida

Abstract: This article first distinguishes three governance scenarios that have been enacted in the COVID-19 pandemic, including identification and control; herd immunity without policy adjustments; and periodic lockdowns and hasty opening. In suggesting how different governments’ strategies were taxonomized into these categories, the paper examines major socio-legal challenges, including variations in social structures and government responsibilities; differences in public health cultures and legal policy options available to governments; unequal distribution of health and social welfare benefits; and public concerns of government overreach in relation to privacy of the infected and the preservation of individual liberty and freedom. Finally, the paper offers critical recommendations in the interest of ensuring a robust social-legal framework for providing adequate medical care to the infected; improving public health for vulnerable groups; ensuring that less privileged countries have access to vaccines; and designing post-disaster reconstruction by seeking global health objectives, rather than state-centric national justice.

Keywords: COVID-19; COVAX; vaccination; WHO; Japan; Asia; global justice

Making Love Legible: Queering Indian Legal Conceptions of “Family”

Hrishika Jain

Abstract: The state has historically played favourites—by incentivizing conventional families and clamping down on alternative families like ascetic maths, it ensured that the heteronormative family flourished. I trace the socio-legal histories of families and establish a constitutional imperative for “family equality” located in the rights to religious freedom, privacy, and equal treatment, and propose that it (not marriage equality) drives the queer movement. “Family” must be reimagined beyond marriage in light of the public ethic of care to encompass a vast range of non-normative families like hijra communes. I consider the Canadian Law Commission’s proposals for recognizing “families” and argue that a similar framework is an unrecognized constitutional mandate in India that, once recognized, would render a wealth of laws interacting with family life unconstitutional. The shared socioconstitutional contexts across jurisdictions and the growing convergence of human rights standards could well mean that this will impact legal systems around the world.

Keywords: family; public ethic of care; queerness and the law; Puttaswamy; marriage equality

A Court as a Means of Legislative Position Avoidance: Evidence from the Same-Sex Marriage Decision in Taiwan

Yu-Hsien Sung

Yi-Ching Hsu

Chin-Shou Wang

Abstract: In 2017, the Taiwanese Constitutional Court handed down Judicial Yuan Interpretation No. 748, which was a ruling in favour of same-sex marriage. The Court also ordered the national legislature to amend the law within two years. Despite a significant backslide in the Taiwanese 2018 referendum, the legislature eventually followed the Court’s order and legalized gay marriage in 2019. This victory made Taiwan the first state to legalize same-sex marriage in Asia. Many legal scholars consider the same-sex marriage ruling a progressive decision in which the Court undertook a countermajoritarian task of protecting a minority group. While we agree with the Court’s role in promoting marriage equality, we contend that most legal scholars overlook an important question in this dynamic: the legislature had had several chances to settle this issue over the past decades, so why did it refuse to draft gay-marriage legislation but later, in 2019, defer to the Court’s decision? In this paper, we explain the political foundations of an activist judiciary by using the case of the first gay-marriage legislation in Asia. We argue that the risk of position-taking on tough issues leads incentive-facing political elites to engage in position avoidance and to see the political value in deferring to a high court’s ruling. Using original data, we present evidence of how Taiwan’s diverse constituency relative to the same-sex marriage issue influenced legislators’ position-avoidance behaviour and led them to dodge political backfire by delegating policy-making authority to the Constitutional Court.

Keywords: judicial policy-making; court; legislative deferral; same-sex marriage

Being One of Us: The Role of Mutual Recognition and Emotion in Shaping Legal Consciousness in a Taiwanese Neighbourhood Dispute

Hsiao-Tan Wang

Abstract: Literature on neighbourhood disputes has explored legal consciousness by focusing on identity, personal relationships, and community norms. However, it still remains unclear how affective factors and one’s sense of identity can influence the social practice of law and how the recursive relationship between law, emotion, and identity can influence life in particular communities. This study explores the dynamics of identity/alterity construction, and the role of emotion in shaping these dynamics during a neighbourhood conflict in Taipei, Taiwan. This dispute highlights how ordinary Taiwanese people’s legal consciousness is constituted through a culturally embedded sense of emotion (qíng) and belonging (zìjǐrén). Analysis of “The Noodle Shop Case” advances our understanding of the social presence and authority of law and the ways in which the role of law changes according to how individuals feel as they seek both mutual recognition and justice.

Keywords: legal consciousnes; identity; alterity; emotion; sense of belonging; interpersonal conflict



Socio-Legal Ethnography of Divorce Litigation in China - Marriage Unbound: State Law, Power, and Inequality in Contemporary China.

By Ke Li. Stanford: Stanford University Press, 2022. 344 pp. Paperback $30.00

Ke Li

The Faces of Modern Chinese Legal Identity - Legal Scholars and Scholarship in the People’s Republic of China: The First Generation, 1949–1992.

By Nongji Zhang. Cambridge, MA and London: Harvard University Asia Center, 2022. 254 pp. Hardcover $39.95

Nongji Zhang

Dynamics and Themes of Fourth World Advocacies and Activisms - Indigenous Identity, Human Rights, and the Environment in Myanmar.

By Jonathan Liljeblad. New York: Routledge, 2022. 140 pp. Hardcover $59.65

Jonathan Liljeblad

“Ground-Up” Legal Mobilization in South Korea - Rights Claiming in South Korea.

Edited by Celeste L. Arrington & Patricia Goedde. Cambridge: Cambridge University Press, 2021, 300 pp. Paperback $33.99

Celeste L. Arrington & Patricia Goedde

History of South Korea’s Courts and Constitutional Transitions - Constitutional Transition and the Travail of Judges: The Courts of South Korea.

By Marie Seong-Hak Kim. Cambridge and New York: Cambridge University Press, 2019. 362 pp. Hardcover $104.00

Marie Seong-Hak Kim