Yvonne Tew ’ s Constitutional Statecraft in Asian Courts is a careful and detailed study of constitutionalism in Malaysia and Singapore. The book combines history, theory, and practice to offer a nuanced account of how judicial power has evolved in both countries and provides a framework for how it can be harnessed further in the service of constitutional democracy. The book begins with a theoretical section that overviews the major literature in this area. 1 Tew is critical – rightly so – of categorical statements about the nature of judicial power and of constitutional rights. She helpfully deconstructs and critiques several dichotomies including the universal versus relativist conceptions of human rights, which was prominent in the ‘ Asian values ’ debate of the 1980s and 1990s, and still has resonances today. 2 This is the idea, advanced by Lee Kuan Yew and Mahathir Mohammad, among others, that Asian cultures place higher value on commu-nity and social order than on ‘ Western ’ notions of individual liberty. 3 In addition to essentialising the values of a large and diverse continent, Tew points out that ‘ Asian values ’ is susceptible to ideo-logical capture, particularly in the context of justifying the policies of authoritarian regimes. 4 Tew is also skeptical of the dichotomy she observes in the existing literature between ‘ herculean ’ and ‘ Sisyphean ’ conceptions of the judicial role. 5 Judges, as Tew shows, are neither all-knowing heroic figures who consistently reach the ‘ correct ’ result, nor are they doomed to perpetual failure. Indeed, by presenting a contextual analysis of judicial strategy in the enterprise of state building in these two postcolonial states, the book charts a middle path for judges that is informed by the political environment. National-level politics in both countries have been dominated by a single party – the Barisan National (BN) coalition in Malaysia and the People ’ s Action Party (PAP) in
{"title":"Constitutional Statecraft in Asian Courts by Yvonne Tew. Oxford: Oxford University Press, 2020. 272 pp. Hardcover: £80.00.","authors":"R. Abeyratne","doi":"10.1017/asjcl.2021.25","DOIUrl":"https://doi.org/10.1017/asjcl.2021.25","url":null,"abstract":"Yvonne Tew ’ s Constitutional Statecraft in Asian Courts is a careful and detailed study of constitutionalism in Malaysia and Singapore. The book combines history, theory, and practice to offer a nuanced account of how judicial power has evolved in both countries and provides a framework for how it can be harnessed further in the service of constitutional democracy. The book begins with a theoretical section that overviews the major literature in this area. 1 Tew is critical – rightly so – of categorical statements about the nature of judicial power and of constitutional rights. She helpfully deconstructs and critiques several dichotomies including the universal versus relativist conceptions of human rights, which was prominent in the ‘ Asian values ’ debate of the 1980s and 1990s, and still has resonances today. 2 This is the idea, advanced by Lee Kuan Yew and Mahathir Mohammad, among others, that Asian cultures place higher value on commu-nity and social order than on ‘ Western ’ notions of individual liberty. 3 In addition to essentialising the values of a large and diverse continent, Tew points out that ‘ Asian values ’ is susceptible to ideo-logical capture, particularly in the context of justifying the policies of authoritarian regimes. 4 Tew is also skeptical of the dichotomy she observes in the existing literature between ‘ herculean ’ and ‘ Sisyphean ’ conceptions of the judicial role. 5 Judges, as Tew shows, are neither all-knowing heroic figures who consistently reach the ‘ correct ’ result, nor are they doomed to perpetual failure. Indeed, by presenting a contextual analysis of judicial strategy in the enterprise of state building in these two postcolonial states, the book charts a middle path for judges that is informed by the political environment. National-level politics in both countries have been dominated by a single party – the Barisan National (BN) coalition in Malaysia and the People ’ s Action Party (PAP) in","PeriodicalId":39405,"journal":{"name":"Asian Journal of Comparative Law","volume":"16 1","pages":"373 - 377"},"PeriodicalIF":0.0,"publicationDate":"2021-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42355728","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}
Abstract The urgency of electoral reforms has long been identified as a key to improving democracy in Malaysia. For decades, electoral manipulation through gerrymandering, malapportionment, and issues with the electoral roll and conduct of elections have undermined democratic quality and competition. The Malaysian Election Commission (EC) has – understandably – come under scrutiny for its role in facilitating and sustaining these problems. However, what requires a greater level of attention is the question of how the EC – despite its position as a constitutional institution that exists independently from the other branches of government – has operated in ways that undermined Malaysia's democracy and maintained a dominant party regime for over six decades. This Article brings this to light by examining the structural, institutional, and political conditions that shape the EC's operation, particularly with regard to re-delineation of constituencies and the conduct of elections. It argues that flaws in constitutional design, along with subsequent constitutional amendments, have rendered the EC vulnerable to partisan capture and thus affected its ability to function as an independent constitutional institution. In addition, this Article demonstrates how changes in political imperatives and judicial restraint in reviewing the EC's decision-making have also contributed to the deficiencies in Malaysia's electoral democracy.
{"title":"The Malaysian Election Commission: Navigating Electoral Authoritarianism and Political Change","authors":"D. Shah","doi":"10.1017/asjcl.2021.31","DOIUrl":"https://doi.org/10.1017/asjcl.2021.31","url":null,"abstract":"Abstract The urgency of electoral reforms has long been identified as a key to improving democracy in Malaysia. For decades, electoral manipulation through gerrymandering, malapportionment, and issues with the electoral roll and conduct of elections have undermined democratic quality and competition. The Malaysian Election Commission (EC) has – understandably – come under scrutiny for its role in facilitating and sustaining these problems. However, what requires a greater level of attention is the question of how the EC – despite its position as a constitutional institution that exists independently from the other branches of government – has operated in ways that undermined Malaysia's democracy and maintained a dominant party regime for over six decades. This Article brings this to light by examining the structural, institutional, and political conditions that shape the EC's operation, particularly with regard to re-delineation of constituencies and the conduct of elections. It argues that flaws in constitutional design, along with subsequent constitutional amendments, have rendered the EC vulnerable to partisan capture and thus affected its ability to function as an independent constitutional institution. In addition, this Article demonstrates how changes in political imperatives and judicial restraint in reviewing the EC's decision-making have also contributed to the deficiencies in Malaysia's electoral democracy.","PeriodicalId":39405,"journal":{"name":"Asian Journal of Comparative Law","volume":"16 1","pages":"S105 - S120"},"PeriodicalIF":0.0,"publicationDate":"2021-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43997122","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}
Abstract Electoral administration in Indonesia is complex. The Electoral Commission (Komisi Pemilihan Umum) is responsible for planning and running five-yearly elections for one national and two regional legislatures, and one additional national regional representative body, as well as direct presidential, gubernatorial, mayoral and regent elections. Because candidates and parties often have significant financial stakes in their outcome, these elections are hotly contested and the results quite commonly disputed, including in Indonesia's Constitutional Court (Mahkamah Konstitusi). Electoral contestants often point to mistakes in administration and vote counting, which appear to be natural consequences of the great logistical challenges these elections present. For example, on 17 April, 2019, well over 150 million citizens attended one of over 800,000 polling stations to vote for candidates to fill 19,817 legislative seats in national and subnational parliaments. Many of these elections are said to be marred by attempts by candidates and their parties to gain illegal advantage, whether through misuse of incumbency or vote buying. There is also said to be much potential for corruption amongst electoral administrators themselves in registering candidates, verifying parties, procuring equipment for polling stations, and counting and tallying votes on election day. Given the potential of mistakes and illegality to jeopardise the legitimacy of election results, lawmakers in Indonesia have created multi-layered oversight mechanisms to oversee the planning and running of the elections by the Electoral Commission, as well as to oversee the Election Supervisory Board (Bawaslu, Badan Pengawas Pemilihan Umum) itself, which is charged with supervising that Commission. This article examines the work and performance of these institutions, and the Electoral Administration Honour Council (DKPP, or Dewan Kehormatan Penyelenggara Pemilu), which hears allegations of breaches by the Commission and the Board.
{"title":"Multilayered Oversight: Electoral Administration in Indonesia","authors":"S. Butt, F. Siregar","doi":"10.1017/asjcl.2021.32","DOIUrl":"https://doi.org/10.1017/asjcl.2021.32","url":null,"abstract":"Abstract Electoral administration in Indonesia is complex. The Electoral Commission (Komisi Pemilihan Umum) is responsible for planning and running five-yearly elections for one national and two regional legislatures, and one additional national regional representative body, as well as direct presidential, gubernatorial, mayoral and regent elections. Because candidates and parties often have significant financial stakes in their outcome, these elections are hotly contested and the results quite commonly disputed, including in Indonesia's Constitutional Court (Mahkamah Konstitusi). Electoral contestants often point to mistakes in administration and vote counting, which appear to be natural consequences of the great logistical challenges these elections present. For example, on 17 April, 2019, well over 150 million citizens attended one of over 800,000 polling stations to vote for candidates to fill 19,817 legislative seats in national and subnational parliaments. Many of these elections are said to be marred by attempts by candidates and their parties to gain illegal advantage, whether through misuse of incumbency or vote buying. There is also said to be much potential for corruption amongst electoral administrators themselves in registering candidates, verifying parties, procuring equipment for polling stations, and counting and tallying votes on election day. Given the potential of mistakes and illegality to jeopardise the legitimacy of election results, lawmakers in Indonesia have created multi-layered oversight mechanisms to oversee the planning and running of the elections by the Electoral Commission, as well as to oversee the Election Supervisory Board (Bawaslu, Badan Pengawas Pemilihan Umum) itself, which is charged with supervising that Commission. This article examines the work and performance of these institutions, and the Electoral Administration Honour Council (DKPP, or Dewan Kehormatan Penyelenggara Pemilu), which hears allegations of breaches by the Commission and the Board.","PeriodicalId":39405,"journal":{"name":"Asian Journal of Comparative Law","volume":"16 1","pages":"S121 - S135"},"PeriodicalIF":0.0,"publicationDate":"2021-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43202208","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}
The undisputed success of Sri Lanka's first Election Commission (2015–2020) was the conduct of free and fair elections, that is to say, electoral management. I argue in this article that, by design and in practice, it was unable to or failed to advance electoral integrity that is urgently required for the health of Sri Lanka's constitutional democracy. At critical points when electoral integrity and constitutional democracy were threatened, it was the Court, the traditional institutional check on the Executive and the Legislature, that prevented its further erosion. The Commission, therefore, was an institutional innovation that addressed symptoms of Sri Lanka's ailing constitutional democracy but not its root causes. The Commission has been a necessary but insufficient fix for the electoral pathologies of Sri Lanka's constitutional democracy. Its ‘guarantor’ function, as I illustrate in this article, is narrowly conceived, perceived and lived out.
{"title":"Sri Lanka's First Election Commission: Strengthening Electoral Management or Advancing Electoral Integrity?","authors":"Dinesha Samararatne","doi":"10.1017/asjcl.2021.34","DOIUrl":"https://doi.org/10.1017/asjcl.2021.34","url":null,"abstract":"The undisputed success of Sri Lanka's first Election Commission (2015–2020) was the conduct of free and fair elections, that is to say, electoral management. I argue in this article that, by design and in practice, it was unable to or failed to advance electoral integrity that is urgently required for the health of Sri Lanka's constitutional democracy. At critical points when electoral integrity and constitutional democracy were threatened, it was the Court, the traditional institutional check on the Executive and the Legislature, that prevented its further erosion. The Commission, therefore, was an institutional innovation that addressed symptoms of Sri Lanka's ailing constitutional democracy but not its root causes. The Commission has been a necessary but insufficient fix for the electoral pathologies of Sri Lanka's constitutional democracy. Its ‘guarantor’ function, as I illustrate in this article, is narrowly conceived, perceived and lived out.","PeriodicalId":39405,"journal":{"name":"Asian Journal of Comparative Law","volume":"16 1","pages":"S156 - S176"},"PeriodicalIF":0.0,"publicationDate":"2021-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49306055","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}
Abstract The 2008 Constitution of the Union of Myanmar establishes the framework for a ‘discipline-flourishing’ constitutional democracy in which the Tatmadaw, the Burmese military, retains a significant degree of power. Under this Constitution, the Union Election Commission (UEC) is vested with significant authority to supervise elections, regulate political parties and electoral campaigns, register voters, suspend elections, and to make conclusive determinations in electoral disputes. Between 2010 and 2020, the UEC oversaw three consecutive general elections and three by-elections. Following a term under the former military leadership, the country's major democratic opposition party, the National League for Democracy (NLD), won a resounding victory in the 2015 elections. In the years that followed, civilian-military relations were a source of tension, as the NLD attempted to reform the executive and legislative roles for the military guaranteed by the Constitution. These tensions became in particular tangible during the 2020 elections, which the NLD again won in a landslide victory. The military alleged the election was marred by fraud while the UEC rejected this allegation. On 1 February 2021, hours before the new parliament was to convene, the Tatmadaw staged a coup d’état. This article reviews the UEC in its constitutional and political context. It identifies its institutional features, significant points in its brief history, and the impact of UEC leadership as a contributing factor in fostering confidence in the electoral process.
{"title":"The Union Election Commission of Myanmar 2010–2020","authors":"Catherine Renshaw, Michael Lidauer","doi":"10.1017/asjcl.2021.33","DOIUrl":"https://doi.org/10.1017/asjcl.2021.33","url":null,"abstract":"Abstract The 2008 Constitution of the Union of Myanmar establishes the framework for a ‘discipline-flourishing’ constitutional democracy in which the Tatmadaw, the Burmese military, retains a significant degree of power. Under this Constitution, the Union Election Commission (UEC) is vested with significant authority to supervise elections, regulate political parties and electoral campaigns, register voters, suspend elections, and to make conclusive determinations in electoral disputes. Between 2010 and 2020, the UEC oversaw three consecutive general elections and three by-elections. Following a term under the former military leadership, the country's major democratic opposition party, the National League for Democracy (NLD), won a resounding victory in the 2015 elections. In the years that followed, civilian-military relations were a source of tension, as the NLD attempted to reform the executive and legislative roles for the military guaranteed by the Constitution. These tensions became in particular tangible during the 2020 elections, which the NLD again won in a landslide victory. The military alleged the election was marred by fraud while the UEC rejected this allegation. On 1 February 2021, hours before the new parliament was to convene, the Tatmadaw staged a coup d’état. This article reviews the UEC in its constitutional and political context. It identifies its institutional features, significant points in its brief history, and the impact of UEC leadership as a contributing factor in fostering confidence in the electoral process.","PeriodicalId":39405,"journal":{"name":"Asian Journal of Comparative Law","volume":"16 1","pages":"S136 - S155"},"PeriodicalIF":0.0,"publicationDate":"2021-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45074649","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}
The Asian Journal of Comparative Law (AsJCL) is the leading forum for research and discussion of the law and legal systems of Asia. It embraces work that is theoretical, empirical, socio-legal, doctrinal, or comparative that relates to one or more Asian legal systems, as well as work that compares one or more Asian legal systems with non-Asian systems. The Journal seeks articles which display an intimate knowledge of Asian legal systems, and thus provide a window into the way they work in practice. The AsJCL is an initiative of the Asian Law Institute (ASLI), an association established by 13 leading law schools in Asia and with a rapidly expanding membership base across Asia and in other regions around the world.
{"title":"ACL volume 16 issue 2 Cover and Front matter","authors":"","doi":"10.1017/asjcl.2022.1","DOIUrl":"https://doi.org/10.1017/asjcl.2022.1","url":null,"abstract":"The Asian Journal of Comparative Law (AsJCL) is the leading forum for research and discussion of the law and legal systems of Asia. It embraces work that is theoretical, empirical, socio-legal, doctrinal, or comparative that relates to one or more Asian legal systems, as well as work that compares one or more Asian legal systems with non-Asian systems. The Journal seeks articles which display an intimate knowledge of Asian legal systems, and thus provide a window into the way they work in practice. The AsJCL is an initiative of the Asian Law Institute (ASLI), an association established by 13 leading law schools in Asia and with a rapidly expanding membership base across Asia and in other regions around the world.","PeriodicalId":39405,"journal":{"name":"Asian Journal of Comparative Law","volume":" ","pages":"f1 - f5"},"PeriodicalIF":0.0,"publicationDate":"2021-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48035921","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}
This symposium explores the role of “fourth branch” institutions, and specifically the role of independent electoral commissions (IECs) in protecting and promoting constitutional democracy. It does so by focusing on the global South, and Asia in particular. It aims to go beyond the “usual suspects” in comparative constitutional law, and put the constitutional experiences of countries such as Indonesia, Kenya, Myanmar, Malaysia, and Sri Lanka at the centre of a decolonized constitutional project and understanding, supplementing them with an examination of more-often-studied systems such as Australia and India.
{"title":"Constitutional Democracy and Electoral Commissions: A Reflection from Asia","authors":"Rosalind Dixon, M. Tushnet","doi":"10.1017/asjcl.2021.26","DOIUrl":"https://doi.org/10.1017/asjcl.2021.26","url":null,"abstract":"This symposium explores the role of “fourth branch” institutions, and specifically the role of independent electoral commissions (IECs) in protecting and promoting constitutional democracy. It does so by focusing on the global South, and Asia in particular. It aims to go beyond the “usual suspects” in comparative constitutional law, and put the constitutional experiences of countries such as Indonesia, Kenya, Myanmar, Malaysia, and Sri Lanka at the centre of a decolonized constitutional project and understanding, supplementing them with an examination of more-often-studied systems such as Australia and India.","PeriodicalId":39405,"journal":{"name":"Asian Journal of Comparative Law","volume":"16 1","pages":"S1 - S9"},"PeriodicalIF":0.0,"publicationDate":"2021-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42224356","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}
Abstract In August 2017, responding to a petition from the losing candidate in the presidential election held days before, the Supreme Court of Kenya declared the results of the election null and void. Dramatic in itself, the decision stands in surprising contrast to the same Court's decision to uphold the 2013 election results following a similar petition. Beyond the different outcomes in 2013 and 2017, the Court's jurisprudential approach to the two petitions was markedly different. The Court showed significant deference to the Independent Elections and Boundaries Commission (IEBC) in 2013, and did not seriously interrogate its conclusion that the election had been free and fair. In 2017, however, the Court scrutinised the IEBC's process and paid close attention to the reasons it gave for declaring the result free and fair. This article considers the difference in the Court's approach in two ways. First, from a prescriptive perspective, it suggests when it is appropriate for courts to closely scrutinise the work of elections management boards and other ‘fourth branch’ institutions protecting democracy (IPDs). The article argues that where an IPD performs a function that is constitutive of rights, courts should be prepared to intervene. By contrast, where an IPD performs a function that is regulative of already constituted rights, courts of review should act with deference. On this basis, the article concludes that the Court should have engaged in a deeper review of the IEBC's 2013 decision. Second, from a descriptive perspective, the article suggests that the difference between the Court's 2013 and 2017 approaches can be explained by waning levels of public trust in the IEBC alongside growing levels of public confidence in the judiciary.
{"title":"Constituting and Regulating Democracy: Kenya's Electoral Commission and the Courts in the 2010s","authors":"Richard Stacey, Victoria Miyandazi","doi":"10.1017/asjcl.2021.36","DOIUrl":"https://doi.org/10.1017/asjcl.2021.36","url":null,"abstract":"Abstract In August 2017, responding to a petition from the losing candidate in the presidential election held days before, the Supreme Court of Kenya declared the results of the election null and void. Dramatic in itself, the decision stands in surprising contrast to the same Court's decision to uphold the 2013 election results following a similar petition. Beyond the different outcomes in 2013 and 2017, the Court's jurisprudential approach to the two petitions was markedly different. The Court showed significant deference to the Independent Elections and Boundaries Commission (IEBC) in 2013, and did not seriously interrogate its conclusion that the election had been free and fair. In 2017, however, the Court scrutinised the IEBC's process and paid close attention to the reasons it gave for declaring the result free and fair. This article considers the difference in the Court's approach in two ways. First, from a prescriptive perspective, it suggests when it is appropriate for courts to closely scrutinise the work of elections management boards and other ‘fourth branch’ institutions protecting democracy (IPDs). The article argues that where an IPD performs a function that is constitutive of rights, courts should be prepared to intervene. By contrast, where an IPD performs a function that is regulative of already constituted rights, courts of review should act with deference. On this basis, the article concludes that the Court should have engaged in a deeper review of the IEBC's 2013 decision. Second, from a descriptive perspective, the article suggests that the difference between the Court's 2013 and 2017 approaches can be explained by waning levels of public trust in the IEBC alongside growing levels of public confidence in the judiciary.","PeriodicalId":39405,"journal":{"name":"Asian Journal of Comparative Law","volume":"16 1","pages":"S193 - S210"},"PeriodicalIF":0.0,"publicationDate":"2021-11-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42517226","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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