Pub Date : 2022-06-27DOI: 10.1177/0067205X221107404
H. P. Wiratraman
Indonesia’s politics has changed dramatically during Jokowi’s administration. Numbers of scholars argued this situation turns to a ‘new model of authoritarianism’ or declining democracy. The situation is generally referred to as the strengthening of authoritarian politics. Meanwhile, in such situation, the role of the judiciary is the key to balancing power in authoritarian politics. However, in reality, efforts to encourage constitutional struggle through the judiciary will easily reverse the situation to lose its independence. The court could play a significant role in authoritarian politics. This phenomenon has been called the ‘judicialisation of authoritarian politics’. This article dissects how the process of authoritarian political institutionalisation through law and the courts has occurred in the two decades after Suharto’s reforms. Then it examines how civil society changes and the democracy movement have made it possible to advance constitutional rights in the context of Indonesia’s cartel politics and the judicialisation of authoritarian politics. The legal argument for such judicial practice is that authoritarianism has been increasingly institutionalised, facilitating oligarchy networks in a cartelised political system, so that law and the judiciary merely work to strengthen the chain of impunity.
{"title":"Constitutional Struggles and the Court in Indonesia’s Turn to Authoritarian Politics","authors":"H. P. Wiratraman","doi":"10.1177/0067205X221107404","DOIUrl":"https://doi.org/10.1177/0067205X221107404","url":null,"abstract":"Indonesia’s politics has changed dramatically during Jokowi’s administration. Numbers of scholars argued this situation turns to a ‘new model of authoritarianism’ or declining democracy. The situation is generally referred to as the strengthening of authoritarian politics. Meanwhile, in such situation, the role of the judiciary is the key to balancing power in authoritarian politics. However, in reality, efforts to encourage constitutional struggle through the judiciary will easily reverse the situation to lose its independence. The court could play a significant role in authoritarian politics. This phenomenon has been called the ‘judicialisation of authoritarian politics’. This article dissects how the process of authoritarian political institutionalisation through law and the courts has occurred in the two decades after Suharto’s reforms. Then it examines how civil society changes and the democracy movement have made it possible to advance constitutional rights in the context of Indonesia’s cartel politics and the judicialisation of authoritarian politics. The legal argument for such judicial practice is that authoritarianism has been increasingly institutionalised, facilitating oligarchy networks in a cartelised political system, so that law and the judiciary merely work to strengthen the chain of impunity.","PeriodicalId":37273,"journal":{"name":"Federal Law Review","volume":"50 1","pages":"314 - 330"},"PeriodicalIF":0.0,"publicationDate":"2022-06-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46070813","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-06-27DOI: 10.1177/0067205X221107410
Surabhi Chopra, E. Pils
In this article, we examine the controversial national security law enacted by the People’s Republic of China for the Hong Kong Special Administrative Region in June 2020 and consider how this law interacts with two constitutional struggles that Hong Kong has experienced since its return to Chinese sovereignty in 1997. The first of these is a struggle over preserving rule of law principles protected in Hong Kong’s regional constitution, the Hong Kong Basic Law and international treaty obligations. The second is a struggle for democratisation, pursuant to constitutional commitments in the Basic Law. We argue that the national security law severely damages Hong Kong’s much-vaunted rule of law, as well as its ability to govern itself as a (relatively) liberal-democratic enclave within China. It muffles contestation over rule of law and democratic principles through facilitating rule by fear as a key modality of governance. The national security law expands the state’s coercive powers, and has the capacity to intimidate well beyond the letter of its provisions by creating rules and mechanisms to suspend legal protections altogether. Its provisions serve to reinscribe political discourse that has long been mainstream in Hong Kong as deviant. But at least as much as the NSL’s actual provisions, it is the loss of judicial scrutiny and the possibility of being transitioned into the Mainland legal system that operationalise rule by fear.
{"title":"The Hong Kong National Security Law and the Struggle over Rule of Law and Democracy in Hong Kong","authors":"Surabhi Chopra, E. Pils","doi":"10.1177/0067205X221107410","DOIUrl":"https://doi.org/10.1177/0067205X221107410","url":null,"abstract":"In this article, we examine the controversial national security law enacted by the People’s Republic of China for the Hong Kong Special Administrative Region in June 2020 and consider how this law interacts with two constitutional struggles that Hong Kong has experienced since its return to Chinese sovereignty in 1997. The first of these is a struggle over preserving rule of law principles protected in Hong Kong’s regional constitution, the Hong Kong Basic Law and international treaty obligations. The second is a struggle for democratisation, pursuant to constitutional commitments in the Basic Law. We argue that the national security law severely damages Hong Kong’s much-vaunted rule of law, as well as its ability to govern itself as a (relatively) liberal-democratic enclave within China. It muffles contestation over rule of law and democratic principles through facilitating rule by fear as a key modality of governance. The national security law expands the state’s coercive powers, and has the capacity to intimidate well beyond the letter of its provisions by creating rules and mechanisms to suspend legal protections altogether. Its provisions serve to reinscribe political discourse that has long been mainstream in Hong Kong as deviant. But at least as much as the NSL’s actual provisions, it is the loss of judicial scrutiny and the possibility of being transitioned into the Mainland legal system that operationalise rule by fear.","PeriodicalId":37273,"journal":{"name":"Federal Law Review","volume":"50 1","pages":"292 - 313"},"PeriodicalIF":0.0,"publicationDate":"2022-06-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42365620","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-06-17DOI: 10.1177/0067205X221107411
Hope Johnson, C. Parker
This paper asks what the regulatory assessment of the novel processed meat analogue products reveals about the nature of food regulation in Australia. We analyse Food Standards Australia and New Zealand’s (‘FSANZ’) assessment of the recent application by Californian technology company Impossible Foods Inc to sell its proprietary burger products which contain a genetically modified protein that is said to make their burger ‘bleed’. We show that FSANZ’s assessment process has little capacity to engage with broader and longer term, social, ecological and public health implications of novel foods and changing food markets. FSANZ’s regulatory pre-approval process focuses almost exclusively on the safety of individual ingredients rather than the impact of novel foods on the food supply as whole and leaves broader issues to the market and consumer choice with limited support from laws addressing misleading labelling and marketing of foods. Extending the capacity of Australia’s regulatory regime for food to deal with more than the safety of individual ingredients will become more urgent as other novel foods, such as cell-based meats, enter the marketplace.
{"title":"An Impossible Task? Australian Food Law and the Challenge of Novel Meat Analogues","authors":"Hope Johnson, C. Parker","doi":"10.1177/0067205X221107411","DOIUrl":"https://doi.org/10.1177/0067205X221107411","url":null,"abstract":"This paper asks what the regulatory assessment of the novel processed meat analogue products reveals about the nature of food regulation in Australia. We analyse Food Standards Australia and New Zealand’s (‘FSANZ’) assessment of the recent application by Californian technology company Impossible Foods Inc to sell its proprietary burger products which contain a genetically modified protein that is said to make their burger ‘bleed’. We show that FSANZ’s assessment process has little capacity to engage with broader and longer term, social, ecological and public health implications of novel foods and changing food markets. FSANZ’s regulatory pre-approval process focuses almost exclusively on the safety of individual ingredients rather than the impact of novel foods on the food supply as whole and leaves broader issues to the market and consumer choice with limited support from laws addressing misleading labelling and marketing of foods. Extending the capacity of Australia’s regulatory regime for food to deal with more than the safety of individual ingredients will become more urgent as other novel foods, such as cell-based meats, enter the marketplace.","PeriodicalId":37273,"journal":{"name":"Federal Law Review","volume":"50 1","pages":"331 - 370"},"PeriodicalIF":0.0,"publicationDate":"2022-06-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47840070","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-06-01DOI: 10.1177/0067205X221087455
Matthew Collins
Defamatory publications may carry any number of related or distinct imputations. Complexities arise where a plaintiff selects one or more imputations for complaint, but ignores other imputations carried by the same publication. In England and Wales, the so-called Polly Peck principle permits defendants to plead and justify an imputation other than one complained of by the plaintiff but bearing a common sting with such an imputation. The Polly Peck principle has not been good law in Australia for more than 20 years. The statutory defence of contextual truth in Australia’s uniform defamation laws, however, permits a defendant to plead and justify imputations that are ‘in addition to’ those complained of by the plaintiff and affords a complete defence where, having regard to the substantial truth of those contextual imputations, the imputations complained of by the plaintiff do not further harm the reputation of the plaintiff. As enacted, the defence was infected with a serious drafting error. This article looks at the implications of the reformulation of the contextual truth defence effected by the recent amendments to Australia’s uniform defamation laws. It posits that those implications are considerably broader than have been recognised to date. It argues that the reformulated defence not only corrects the drafting error in the original defence of contextual truth but also resurrects the Polly Peck principle in Australia and substantially neuters 20 years of confused jurisprudence concerning the extent to which a defendant is or should be constrained by the imputations pleaded by the plaintiff.
{"title":"The Reformulated Contextual Truth Defence: More Radical That First Appears","authors":"Matthew Collins","doi":"10.1177/0067205X221087455","DOIUrl":"https://doi.org/10.1177/0067205X221087455","url":null,"abstract":"Defamatory publications may carry any number of related or distinct imputations. Complexities arise where a plaintiff selects one or more imputations for complaint, but ignores other imputations carried by the same publication. In England and Wales, the so-called Polly Peck principle permits defendants to plead and justify an imputation other than one complained of by the plaintiff but bearing a common sting with such an imputation. The Polly Peck principle has not been good law in Australia for more than 20 years. The statutory defence of contextual truth in Australia’s uniform defamation laws, however, permits a defendant to plead and justify imputations that are ‘in addition to’ those complained of by the plaintiff and affords a complete defence where, having regard to the substantial truth of those contextual imputations, the imputations complained of by the plaintiff do not further harm the reputation of the plaintiff. As enacted, the defence was infected with a serious drafting error. This article looks at the implications of the reformulation of the contextual truth defence effected by the recent amendments to Australia’s uniform defamation laws. It posits that those implications are considerably broader than have been recognised to date. It argues that the reformulated defence not only corrects the drafting error in the original defence of contextual truth but also resurrects the Polly Peck principle in Australia and substantially neuters 20 years of confused jurisprudence concerning the extent to which a defendant is or should be constrained by the imputations pleaded by the plaintiff.","PeriodicalId":37273,"journal":{"name":"Federal Law Review","volume":"50 1","pages":"206 - 220"},"PeriodicalIF":0.0,"publicationDate":"2022-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43052361","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-05-16DOI: 10.1177/0067205X221088037
D. Shah, A. Harding, Jonathan N Liljeblad
This thematic issue of the Federal Law Review engages with constitutional dimensions of commentaries on the authoritarian turn in many Asian states. Such commentaries observe that despite decades of work to promote democratic systems in Asia, multiple regimes have worked through the institutions and processes of those systems to advance increasingly illiberal conditions. The present issue draws attention to constitutional aspects of the authoritarian turn, highlighting the role of constitutional contestation within the systemic shifts occurring in Asia. The articles assembled in this issue illustrate the permutations of constitutional struggles in a range of Asian states, delineating how the respective constitution of each state serves as both a locus and object of contestation between opposed political forces. While they address the contextual specifics of individual countries, the articles collectively facilitate a comparison of the various manifestations of constitutional contestation across the Asia region. In doing so, they inform readers about the features of constitutional discourses in Asia, not as a monolithic region but instead as a varied terrain of nuanced contention. The comparison follows the orientation of scholars such as Rosalind Dixon, Ran Hirschl and Mark Tushnet, who, in an issue of the American Journal of Comparative Law, called for more comparative analyses of constitutions, using holistic approaches with interdisciplinary methods that invite a wider range of voices encompassing underrepresented places in the world. Hirschl sought to go beyond constitutional studies as the review of texts and doctrines, and to look instead for constitutional studies which explore topics of ‘culture, economics, institutional structures, power, and strategy’ in a constitutional universe. Dixon, however, cautioned that such goals require a breadth and depth of knowledge about socio-political factors specific to a jurisdiction, which in turn
{"title":"Thematic Issue Editorial Comment: Constitutional Struggles in Asia","authors":"D. Shah, A. Harding, Jonathan N Liljeblad","doi":"10.1177/0067205X221088037","DOIUrl":"https://doi.org/10.1177/0067205X221088037","url":null,"abstract":"This thematic issue of the Federal Law Review engages with constitutional dimensions of commentaries on the authoritarian turn in many Asian states. Such commentaries observe that despite decades of work to promote democratic systems in Asia, multiple regimes have worked through the institutions and processes of those systems to advance increasingly illiberal conditions. The present issue draws attention to constitutional aspects of the authoritarian turn, highlighting the role of constitutional contestation within the systemic shifts occurring in Asia. The articles assembled in this issue illustrate the permutations of constitutional struggles in a range of Asian states, delineating how the respective constitution of each state serves as both a locus and object of contestation between opposed political forces. While they address the contextual specifics of individual countries, the articles collectively facilitate a comparison of the various manifestations of constitutional contestation across the Asia region. In doing so, they inform readers about the features of constitutional discourses in Asia, not as a monolithic region but instead as a varied terrain of nuanced contention. The comparison follows the orientation of scholars such as Rosalind Dixon, Ran Hirschl and Mark Tushnet, who, in an issue of the American Journal of Comparative Law, called for more comparative analyses of constitutions, using holistic approaches with interdisciplinary methods that invite a wider range of voices encompassing underrepresented places in the world. Hirschl sought to go beyond constitutional studies as the review of texts and doctrines, and to look instead for constitutional studies which explore topics of ‘culture, economics, institutional structures, power, and strategy’ in a constitutional universe. Dixon, however, cautioned that such goals require a breadth and depth of knowledge about socio-political factors specific to a jurisdiction, which in turn","PeriodicalId":37273,"journal":{"name":"Federal Law Review","volume":"50 1","pages":"131 - 136"},"PeriodicalIF":0.0,"publicationDate":"2022-05-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45641436","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-05-16DOI: 10.1177/0067205X221100258
Mario Gomez
Sri Lanka has alternated between authoritarian politics and constitutional democracy over the past 70 years. For 25 years after independence, the country functioned as a constitutional democracy with regular elections and power alternating between the two main political parties. Since 1972, political elites have used constitution-making as a method of consolidating their hold on political power. In 2015, the 19th Amendment to the Constitution trimmed the powers of the President and provided for a balanced form of power-sharing between executive and legislature. It enhanced the independence of the courts and the fourth-branch institutions. However, these gains were reversed by the 20th Amendment, passed in 2020. Against the backdrop of an intense competition for political power and the manipulation of constitutions to retain power, this contribution discusses three recurring sites of constitutional struggle and debate in Sri Lanka: struggles over presidentialism, power-sharing and the place of Buddhism in the constitution. This paper contends that a return to constitutional democracy will require, at a minimum, a revisitation of the first two issues, even if the third — the place of Buddhism — remains untouched. The paper concludes by arguing that while all three constitutional struggles have a different historical trajectory and different dynamics, they are all part of a larger struggle — the struggle to transform Sri Lanka from a Buddhist-majoritarian state into a plural, multi-ethnic and multi-religious society in law and in practice.
{"title":"Constitutional Struggle in Sri Lanka","authors":"Mario Gomez","doi":"10.1177/0067205X221100258","DOIUrl":"https://doi.org/10.1177/0067205X221100258","url":null,"abstract":"Sri Lanka has alternated between authoritarian politics and constitutional democracy over the past 70 years. For 25 years after independence, the country functioned as a constitutional democracy with regular elections and power alternating between the two main political parties. Since 1972, political elites have used constitution-making as a method of consolidating their hold on political power. In 2015, the 19th Amendment to the Constitution trimmed the powers of the President and provided for a balanced form of power-sharing between executive and legislature. It enhanced the independence of the courts and the fourth-branch institutions. However, these gains were reversed by the 20th Amendment, passed in 2020. Against the backdrop of an intense competition for political power and the manipulation of constitutions to retain power, this contribution discusses three recurring sites of constitutional struggle and debate in Sri Lanka: struggles over presidentialism, power-sharing and the place of Buddhism in the constitution. This paper contends that a return to constitutional democracy will require, at a minimum, a revisitation of the first two issues, even if the third — the place of Buddhism — remains untouched. The paper concludes by arguing that while all three constitutional struggles have a different historical trajectory and different dynamics, they are all part of a larger struggle — the struggle to transform Sri Lanka from a Buddhist-majoritarian state into a plural, multi-ethnic and multi-religious society in law and in practice.","PeriodicalId":37273,"journal":{"name":"Federal Law Review","volume":"50 1","pages":"174 - 191"},"PeriodicalIF":0.0,"publicationDate":"2022-05-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44859591","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-05-10DOI: 10.1177/0067205x221087457
A. Harding, Nyi Nyi Kyaw
The rigidity of the 2008 Constitution of the Republic of the Union of Myanmar is rightly notorious, as this rigidity was proven at least three times through failed attempts at reform. Despite these failed attempts, the military disputed the results of the election held in November 2020, and conflict ostensibly over that issue led to a military coup on 1 February 2021. This coup purported to have been undertaken constitutionally as an ‘emergency’ but was the object of popular rejection. In this article, we focus on the struggle over constitutionalism that had its origins in earlier attempts to achieve democracy. In our focus on the current nature and implication of ‘constitutional struggle’ in Myanmar, we make use of analysis based on factual data collected by the second author, located in Mandalay, one of the epicentres of struggle against the military and their actions following the coup. Our argument is that this ‘praetorian constitutionalism’ in Myanmar absent a pre-agreed pact between the military and the civilian defies the basic logic of democratic or liberal constitutionalism and hence is unconstitutional in both spirit and text. This explains how a constitution drafted in order to protect the position and privileges of the military was ultimately in effect rejected by that same military. The article will argue that the praetorian constitutionalism of Myanmar during 2010–21 contains a necessarily built-in struggle between the civilian and the soldier that remains unresolved.
{"title":"The Long Struggle for Constitutional Change in Myanmar","authors":"A. Harding, Nyi Nyi Kyaw","doi":"10.1177/0067205x221087457","DOIUrl":"https://doi.org/10.1177/0067205x221087457","url":null,"abstract":"The rigidity of the 2008 Constitution of the Republic of the Union of Myanmar is rightly notorious, as this rigidity was proven at least three times through failed attempts at reform. Despite these failed attempts, the military disputed the results of the election held in November 2020, and conflict ostensibly over that issue led to a military coup on 1 February 2021. This coup purported to have been undertaken constitutionally as an ‘emergency’ but was the object of popular rejection. In this article, we focus on the struggle over constitutionalism that had its origins in earlier attempts to achieve democracy. In our focus on the current nature and implication of ‘constitutional struggle’ in Myanmar, we make use of analysis based on factual data collected by the second author, located in Mandalay, one of the epicentres of struggle against the military and their actions following the coup. Our argument is that this ‘praetorian constitutionalism’ in Myanmar absent a pre-agreed pact between the military and the civilian defies the basic logic of democratic or liberal constitutionalism and hence is unconstitutional in both spirit and text. This explains how a constitution drafted in order to protect the position and privileges of the military was ultimately in effect rejected by that same military. The article will argue that the praetorian constitutionalism of Myanmar during 2010–21 contains a necessarily built-in struggle between the civilian and the soldier that remains unresolved.","PeriodicalId":37273,"journal":{"name":"Federal Law Review","volume":"50 1","pages":"192 - 205"},"PeriodicalIF":0.0,"publicationDate":"2022-05-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48607152","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-05-03DOI: 10.1177/0067205X221086671
J. Gligorijevic
The ‘chilling effect’ of defamation law has driven legislative action narrowing this tort’s scope and operation. As substantial reforms come into effect across Australia, this article provides a detailed analysis of how defamation law in the United Kingdom has developed since similarly narrowing reforms took effect there almost a decade ago, and the implications this will have for Australia. Two important aspects of reform in both jurisdictions are the serious harm threshold and the public interest defence. Both are targeted at narrowing the tort and taming its ‘chilling effect’. Although both of these two changes have definitively narrowed the tort in the United Kingdom, neither of them has revolutionised this tort nor abolished its core purpose to protect reputation against false imputations. Given the consistency in legislative purpose and framing of the new provisions as between the two jurisdictions, Australian courts should, consistently with their English counterparts, exercise caution when interpreting the new threshold and the new defence, to ensure they do not tread too far from the deeper principles underpinning the tort, even in its narrower, tamer form.
{"title":"Taming the ‘Chilling Effect’ of Defamation Law: English Experience and Implications for Australia","authors":"J. Gligorijevic","doi":"10.1177/0067205X221086671","DOIUrl":"https://doi.org/10.1177/0067205X221086671","url":null,"abstract":"The ‘chilling effect’ of defamation law has driven legislative action narrowing this tort’s scope and operation. As substantial reforms come into effect across Australia, this article provides a detailed analysis of how defamation law in the United Kingdom has developed since similarly narrowing reforms took effect there almost a decade ago, and the implications this will have for Australia. Two important aspects of reform in both jurisdictions are the serious harm threshold and the public interest defence. Both are targeted at narrowing the tort and taming its ‘chilling effect’. Although both of these two changes have definitively narrowed the tort in the United Kingdom, neither of them has revolutionised this tort nor abolished its core purpose to protect reputation against false imputations. Given the consistency in legislative purpose and framing of the new provisions as between the two jurisdictions, Australian courts should, consistently with their English counterparts, exercise caution when interpreting the new threshold and the new defence, to ensure they do not tread too far from the deeper principles underpinning the tort, even in its narrower, tamer form.","PeriodicalId":37273,"journal":{"name":"Federal Law Review","volume":"50 1","pages":"221 - 248"},"PeriodicalIF":0.0,"publicationDate":"2022-05-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41447953","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-04-26DOI: 10.1177/0067205X221087476
Rawin Leelapatana, Suprawee Asanasak
This article interrogates Thailand’s struggle between two conflicting constitutional identities, the identities of Thai-ness and liberal democracies, by examining how the Constitutional court implicitly and explicitly formulates and utilises both identities in its decisions from 2014 to 2020. Our analysis of these decisions shows that, instead of negotiating or synthesising the competing identities as the literature on constitutional identity envisages, the Thai court adapts the generic liberal democratic identity to defend and reassert the incumbent dominant identity of Thai-ness. The court drains liberal constitutionalism of its intrinsic substance while tactfully preserving and then lending its global legitimacy to bolster the local identity of Thai-ness. As a result, the liberal democratic identity is manipulated and pulled to gravitate towards the opposite value of Thai-ness. This unequal co-option between the polarised identities, we argue, depicts the current constitutional struggle in Thailand and marks the unique identity of Thai-style constitutionalism.
{"title":"Constitutional Struggles and Polarised Identities in Thailand: The Constitutional Court and the Gravitational Pull of Thai-Ness upon Liberal Constitutionalism","authors":"Rawin Leelapatana, Suprawee Asanasak","doi":"10.1177/0067205X221087476","DOIUrl":"https://doi.org/10.1177/0067205X221087476","url":null,"abstract":"This article interrogates Thailand’s struggle between two conflicting constitutional identities, the identities of Thai-ness and liberal democracies, by examining how the Constitutional court implicitly and explicitly formulates and utilises both identities in its decisions from 2014 to 2020. Our analysis of these decisions shows that, instead of negotiating or synthesising the competing identities as the literature on constitutional identity envisages, the Thai court adapts the generic liberal democratic identity to defend and reassert the incumbent dominant identity of Thai-ness. The court drains liberal constitutionalism of its intrinsic substance while tactfully preserving and then lending its global legitimacy to bolster the local identity of Thai-ness. As a result, the liberal democratic identity is manipulated and pulled to gravitate towards the opposite value of Thai-ness. This unequal co-option between the polarised identities, we argue, depicts the current constitutional struggle in Thailand and marks the unique identity of Thai-style constitutionalism.","PeriodicalId":37273,"journal":{"name":"Federal Law Review","volume":"50 1","pages":"156 - 173"},"PeriodicalIF":0.0,"publicationDate":"2022-04-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47611355","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-04-24DOI: 10.1177/0067205X221086670
C. Avgoustinos
The High Court applies the ‘text and structure approach’ when deriving constitutional implications. This requires implications to be drawn from the ‘text’ and ‘structure’ of the document. A particular line of criticism has been made by some scholars that frames this approach as a falsehood. According to these scholars, judges claim to be drawing implications solely from the ‘text’ and ‘structure’ but are, in fact, employing ‘external’ sources when carrying out this task. I argue that this criticism is misguided. Judges are using ‘external’ sources to help illuminate the ideas conveyed by, or contained within, the ‘text’ and ‘structure’. This means that their use of ‘external’ sources is not necessarily a circumvention of the text and structure approach but an accompaniment to it. The relevant scholars’ critique seems to be rooted in flawed conceptualisations of the Constitution’s ‘text’ and ‘structure’ and their ideational content. This work examines the problems with the relevant scholars’ critique and offers what I consider to be a more accurate explanation of the operation (and shortcomings) of the text and structure approach.
{"title":"Deriving Constitutional Implications: The Role of ‘External’ Sources in the Text and Structure Approach","authors":"C. Avgoustinos","doi":"10.1177/0067205X221086670","DOIUrl":"https://doi.org/10.1177/0067205X221086670","url":null,"abstract":"The High Court applies the ‘text and structure approach’ when deriving constitutional implications. This requires implications to be drawn from the ‘text’ and ‘structure’ of the document. A particular line of criticism has been made by some scholars that frames this approach as a falsehood. According to these scholars, judges claim to be drawing implications solely from the ‘text’ and ‘structure’ but are, in fact, employing ‘external’ sources when carrying out this task. I argue that this criticism is misguided. Judges are using ‘external’ sources to help illuminate the ideas conveyed by, or contained within, the ‘text’ and ‘structure’. This means that their use of ‘external’ sources is not necessarily a circumvention of the text and structure approach but an accompaniment to it. The relevant scholars’ critique seems to be rooted in flawed conceptualisations of the Constitution’s ‘text’ and ‘structure’ and their ideational content. This work examines the problems with the relevant scholars’ critique and offers what I consider to be a more accurate explanation of the operation (and shortcomings) of the text and structure approach.","PeriodicalId":37273,"journal":{"name":"Federal Law Review","volume":"50 1","pages":"249 - 272"},"PeriodicalIF":0.0,"publicationDate":"2022-04-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47386654","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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