This special issue features a curated set of contextualized case studies that interrogate how six Asian countries have calibrated global imperatives with domestic desires and concerns during the drafting of their latest constitution. Read together, the accounts demonstrate that the impact of globalization on what has long been thought of as a quintessential exercise of national sovereignty is ubiquitous, yet that the precise combination of the global and the local is unique to each country, determined as it is by the strength of domestic interests and factions. Taking contextualized functionalism as its premise, this introduction sketches the contours of an analytical framework to study constitution-making processes in a globalized environment. By implication, this framework is conceived in a neutral fashion and cast in functional terminology that extrapolates from the circumstances of the countries featured in this Special Issue. This, we hope, will make it a helpful toolbox to make sense of the global-local interplay in constitution-making in any country, whether located in Asia or further afield.
{"title":"Contemporary Constitution Making in Asia-Pacific","authors":"D. Visser, N. Bui","doi":"10.1093/cjcl/cxz015","DOIUrl":"https://doi.org/10.1093/cjcl/cxz015","url":null,"abstract":"\u0000 This special issue features a curated set of contextualized case studies that interrogate how six Asian countries have calibrated global imperatives with domestic desires and concerns during the drafting of their latest constitution. Read together, the accounts demonstrate that the impact of globalization on what has long been thought of as a quintessential exercise of national sovereignty is ubiquitous, yet that the precise combination of the global and the local is unique to each country, determined as it is by the strength of domestic interests and factions. Taking contextualized functionalism as its premise, this introduction sketches the contours of an analytical framework to study constitution-making processes in a globalized environment. By implication, this framework is conceived in a neutral fashion and cast in functional terminology that extrapolates from the circumstances of the countries featured in this Special Issue. This, we hope, will make it a helpful toolbox to make sense of the global-local interplay in constitution-making in any country, whether located in Asia or further afield.","PeriodicalId":42366,"journal":{"name":"Chinese Journal of Comparative Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2019-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/cjcl/cxz015","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43511578","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 tiny Himalayan kingdom of Bhutan, which had remained isolated from the rest of the world until the 1970s, embarked on a series of transformational reforms in the new millennium that included the replacement of the country’s century-old absolute monarchy with a parliamentary democracy and the enactment of a written constitution based on Western principles, such as the separation of powers and the rule of law. The ‘democratization’ process was unique, not least for the fact that the impetus for change came from the monarch, who pressed ahead with his modernization agenda in the face of palpable opposition from his people, arguing that popular democracy was the only viable way forward for Bhutan in the modern age. The process of constitution making involved the striking of a delicate balance between tradition and modernity and ensuring that the monarchy continued to play a meaningful role in the country’s affairs. This article argues that, although the process itself ran smoothly, it is too early to judge the durability and long-term success of Bhutan’s new constitutional arrangements.
{"title":"Constitution-Making in Bhutan: A Complex and Sui Generis Experience","authors":"V. Iyer","doi":"10.1093/cjcl/cxz013","DOIUrl":"https://doi.org/10.1093/cjcl/cxz013","url":null,"abstract":"\u0000 The tiny Himalayan kingdom of Bhutan, which had remained isolated from the rest of the world until the 1970s, embarked on a series of transformational reforms in the new millennium that included the replacement of the country’s century-old absolute monarchy with a parliamentary democracy and the enactment of a written constitution based on Western principles, such as the separation of powers and the rule of law. The ‘democratization’ process was unique, not least for the fact that the impetus for change came from the monarch, who pressed ahead with his modernization agenda in the face of palpable opposition from his people, arguing that popular democracy was the only viable way forward for Bhutan in the modern age. The process of constitution making involved the striking of a delicate balance between tradition and modernity and ensuring that the monarchy continued to play a meaningful role in the country’s affairs. This article argues that, although the process itself ran smoothly, it is too early to judge the durability and long-term success of Bhutan’s new constitutional arrangements.","PeriodicalId":42366,"journal":{"name":"Chinese Journal of Comparative Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2019-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/cjcl/cxz013","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45901826","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 history of Sri Lanka is highly instructive of the dynamics of constitutional evolution in a post-colonial, multi-ethnic, and economically challenged Asian nation. Sri Lanka is one of the few ex-colonies where constitutional change has happened without military involvement. Citizens have changed their government 10 times by generally fair and free elections. In the first three decades after independence, the country’s judiciary enjoyed an enviable reputation for independence, integrity, and competence. The public service, though poorly rewarded and resourced, maintained a praiseworthy standard of administrative impartiality and competence. Sri Lanka had, and still has, one of the highest rates of literacy in the developing world and scores creditably on human development indicators. Despite these impressive achievements, the country has a chequered record of constitutional government since independence. It has been ruled for long periods under emergency rule, and the nation’s two republican constitutions have a poor record of maintaining constitutional democracy and basic rights and freedoms. The nation’s most recent efforts at constitutional reform, despite some notable successes, have stalled as a consequence of hyper-partisanship and opportunistic political strategizing. This article examines the post-independence constitutional history of the nation, prognosticates its prospects of constitutional revival, and draws important lessons from the failure of the current constitutional project.
{"title":"Sri Lanka’s Quest for a Reformed Constitution: Lessons from a Lost Opportunity","authors":"A. I. Pulle, Suri Ratnapala","doi":"10.1093/CJCL/CXZ011","DOIUrl":"https://doi.org/10.1093/CJCL/CXZ011","url":null,"abstract":"\u0000 The history of Sri Lanka is highly instructive of the dynamics of constitutional evolution in a post-colonial, multi-ethnic, and economically challenged Asian nation. Sri Lanka is one of the few ex-colonies where constitutional change has happened without military involvement. Citizens have changed their government 10 times by generally fair and free elections. In the first three decades after independence, the country’s judiciary enjoyed an enviable reputation for independence, integrity, and competence. The public service, though poorly rewarded and resourced, maintained a praiseworthy standard of administrative impartiality and competence. Sri Lanka had, and still has, one of the highest rates of literacy in the developing world and scores creditably on human development indicators. Despite these impressive achievements, the country has a chequered record of constitutional government since independence. It has been ruled for long periods under emergency rule, and the nation’s two republican constitutions have a poor record of maintaining constitutional democracy and basic rights and freedoms. The nation’s most recent efforts at constitutional reform, despite some notable successes, have stalled as a consequence of hyper-partisanship and opportunistic political strategizing. This article examines the post-independence constitutional history of the nation, prognosticates its prospects of constitutional revival, and draws important lessons from the failure of the current constitutional project.","PeriodicalId":42366,"journal":{"name":"Chinese Journal of Comparative Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2019-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/CJCL/CXZ011","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48574324","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}
In the 21st century, the constitutional and political stability that Thailand has sought seems to be harshly convulsed by the occurrence of ‘colour-coded politics’ between the Red and Yellow factions from 2006. The conflict between the two factions resulted in two military coups in 2006 and 2014, which, in turn, led to the revocation of two permanent constitutions (those of 1997 and 2007) and the enactment of two new ones (those of 2007 and 2017) as well as the promulgation of two interim constitutions (those of 2006 and 2014). In this article, we will examine the constitution-making process in 21st-century Thailand based, in particular, on its two contesting sources of legitimization—that is, the conflict between global ideas of constitutionalism and its local alternative: Thai-ness.
{"title":"Constitution-Making in 21st-Century Thailand:The Continuing Search for a Perfect Constitutional Fit","authors":"A. Harding, Rawin Leelapatana","doi":"10.1093/CJCL/CXZ009","DOIUrl":"https://doi.org/10.1093/CJCL/CXZ009","url":null,"abstract":"\u0000 In the 21st century, the constitutional and political stability that Thailand has sought seems to be harshly convulsed by the occurrence of ‘colour-coded politics’ between the Red and Yellow factions from 2006. The conflict between the two factions resulted in two military coups in 2006 and 2014, which, in turn, led to the revocation of two permanent constitutions (those of 1997 and 2007) and the enactment of two new ones (those of 2007 and 2017) as well as the promulgation of two interim constitutions (those of 2006 and 2014). In this article, we will examine the constitution-making process in 21st-century Thailand based, in particular, on its two contesting sources of legitimization—that is, the conflict between global ideas of constitutionalism and its local alternative: Thai-ness.","PeriodicalId":42366,"journal":{"name":"Chinese Journal of Comparative Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2019-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/CJCL/CXZ009","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44135576","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}
When Timor-Leste (re)gained its independence in 2002, it appeared to be a triumph of international state building. In a relatively short period, a massive United Nations (UN)-run mission had purportedly built the institutions of a liberal democratic state. State building took place in a highly globalized context; there was a large UN presence as well as international non-governmental organizations, academics, journalists, and activists. In addition, many exiled Timorese leaders returned to play a role. While constitution making was central to state building, there are questions about the legitimacy, effectiveness, and stability of the Timor-Leste Constitution and the state institutions that it created. This article focuses on three aspects of the interplay between the global and local during the constitution-making process. First, it considers the relationship between the UN and Timorese elites, finding that the UN adopted a hands-off approach that created space for certain elites to dominate and politicize the process. These returning exiles engaged in ‘cut and paste’ constitution making, with much of the Timor-Leste Constitution based on the 1989 version of the Portuguese Constitution (modified to an extent by the 1990 Mozambican Constitution). Second, it analyses whether the constitution-making process was a true exercise of the constituent power of the Timorese people and concludes that the dominance of certain elites contributed to social division. Third, it discusses the significance of public participation, noting that minimal participation has meant that the Constitution does not reflect the views of most Timorese people. This is even though the principle of ‘popular sovereignty’ implies that, at least in states that aspire to be liberal democracies, people should be given the opportunity to participate in making their state’s Constitution. It concludes by arguing that the Timorese people missed the opportunity for their Constitution to define the political bond between them and embed state institutions in the local context.
{"title":"‘Cut and Paste’ Constitution-Making in Timor-Leste","authors":"Joanne Wallis","doi":"10.1093/cjcl/cxz012","DOIUrl":"https://doi.org/10.1093/cjcl/cxz012","url":null,"abstract":"\u0000 When Timor-Leste (re)gained its independence in 2002, it appeared to be a triumph of international state building. In a relatively short period, a massive United Nations (UN)-run mission had purportedly built the institutions of a liberal democratic state. State building took place in a highly globalized context; there was a large UN presence as well as international non-governmental organizations, academics, journalists, and activists. In addition, many exiled Timorese leaders returned to play a role. While constitution making was central to state building, there are questions about the legitimacy, effectiveness, and stability of the Timor-Leste Constitution and the state institutions that it created. This article focuses on three aspects of the interplay between the global and local during the constitution-making process. First, it considers the relationship between the UN and Timorese elites, finding that the UN adopted a hands-off approach that created space for certain elites to dominate and politicize the process. These returning exiles engaged in ‘cut and paste’ constitution making, with much of the Timor-Leste Constitution based on the 1989 version of the Portuguese Constitution (modified to an extent by the 1990 Mozambican Constitution). Second, it analyses whether the constitution-making process was a true exercise of the constituent power of the Timorese people and concludes that the dominance of certain elites contributed to social division. Third, it discusses the significance of public participation, noting that minimal participation has meant that the Constitution does not reflect the views of most Timorese people. This is even though the principle of ‘popular sovereignty’ implies that, at least in states that aspire to be liberal democracies, people should be given the opportunity to participate in making their state’s Constitution. It concludes by arguing that the Timorese people missed the opportunity for their Constitution to define the political bond between them and embed state institutions in the local context.","PeriodicalId":42366,"journal":{"name":"Chinese Journal of Comparative Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2019-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/cjcl/cxz012","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45441351","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}
{"title":"Corrigendum to: Constitution-Making in 21st-Century Thailand: The Continuing Search for a Perfect Constitutional Fit","authors":"A. Harding, Rawin Leelapatana","doi":"10.1093/cjcl/cxz018","DOIUrl":"https://doi.org/10.1093/cjcl/cxz018","url":null,"abstract":"","PeriodicalId":42366,"journal":{"name":"Chinese Journal of Comparative Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2019-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/cjcl/cxz018","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42937097","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 process of making the present Constitution of the Republic of the Union of Myanmar in Burma/Myanmar under the military dictatorship State Law and Order Restoration Council/State Peace and Development Council (SLORC/SPDC) from 1993 through to 2007 is rightly viewed as an undemocratic, repressive process. Both the citizens of Myanmar and the international community generally had no say in the whole process. Thus, the process may be viewed as one of resistance by the SLORC/SPDC against global constitution-making norms and practices, on the one hand, and local democratic politicians and groups, on the other hand. The Constitution that came into operation in January 2011 admittedly has highly undemocratic content. However, it undeniably has some democratic content that started bearing fruit, eventually culminating in the winning, in the November 2015 general election, and the coming to power of, the National League for Democracy party in March 2016. I trace the constitution making in Burma/Myanmar by expanding the time frame of analysis until 2016 and revisit the ‘resistance’ argument. Then I posit that the process is a double-pronged strategy by the SLORC/SPDC to, first, resist global and local pressures with the intention of, later, engaging with them when the time was perceived to be right and conducive to their interests.
{"title":"PuttingTheir Guns on the Scale: Constitution-Making in Burma/Myanmar under Military Command","authors":"Nyi Nyi Kyaw","doi":"10.1093/CJCL/CXZ010","DOIUrl":"https://doi.org/10.1093/CJCL/CXZ010","url":null,"abstract":"\u0000 The process of making the present Constitution of the Republic of the Union of Myanmar in Burma/Myanmar under the military dictatorship State Law and Order Restoration Council/State Peace and Development Council (SLORC/SPDC) from 1993 through to 2007 is rightly viewed as an undemocratic, repressive process. Both the citizens of Myanmar and the international community generally had no say in the whole process. Thus, the process may be viewed as one of resistance by the SLORC/SPDC against global constitution-making norms and practices, on the one hand, and local democratic politicians and groups, on the other hand. The Constitution that came into operation in January 2011 admittedly has highly undemocratic content. However, it undeniably has some democratic content that started bearing fruit, eventually culminating in the winning, in the November 2015 general election, and the coming to power of, the National League for Democracy party in March 2016. I trace the constitution making in Burma/Myanmar by expanding the time frame of analysis until 2016 and revisit the ‘resistance’ argument. Then I posit that the process is a double-pronged strategy by the SLORC/SPDC to, first, resist global and local pressures with the intention of, later, engaging with them when the time was perceived to be right and conducive to their interests.","PeriodicalId":42366,"journal":{"name":"Chinese Journal of Comparative Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2019-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/CJCL/CXZ010","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42321661","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}
{"title":"Doctrine and Discretion in the Law of Contract Revisited","authors":"Ewan Mckendrick","doi":"10.1093/CJCL/CXZ004","DOIUrl":"https://doi.org/10.1093/CJCL/CXZ004","url":null,"abstract":"","PeriodicalId":42366,"journal":{"name":"Chinese Journal of Comparative Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2019-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/CJCL/CXZ004","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49394604","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 rise of the regulatory state, compounded by political polarization, in the Hong Kong Special Administrative Region of the People’s Republic of China has opened up opportunities for its common law courts to substantively review the lawfulness of an array of governmental actions. Through the development of doctrines on reasonableness review and substantive legitimate expectation, the Hong Kong judiciary has sought to assert its relevance by nudging, incentivizing, and, at times, compelling the local government to deliberate and reason carefully before the latter implements decisions that restrict the citizenry’s rights and interests. Nevertheless, the courts have consistently under-enforced these doctrines in actual cases, affirming the lawfulness of administrative acts in the vast majority of substantive review cases that come before them. The hallmark of Hong Kong’s autochthonous administrative law, a legal transplant sourced from England, but indigenized and grown in Chinese soil, is thus characterized by liberal rhetoric paired with limited judicial intervention in practice.
{"title":"Substantive Review of Administrative Discretion in Hong Kong: Divergence between Judicial Rhetoric and Practice","authors":"E. Ip, P. Yap","doi":"10.1093/CJCL/CXZ006","DOIUrl":"https://doi.org/10.1093/CJCL/CXZ006","url":null,"abstract":"The rise of the regulatory state, compounded by political polarization, in the Hong Kong Special Administrative Region of the People’s Republic of China has opened up opportunities for its common law courts to substantively review the lawfulness of an array of governmental actions. Through the development of doctrines on reasonableness review and substantive legitimate expectation, the Hong Kong judiciary has sought to assert its relevance by nudging, incentivizing, and, at times, compelling the local government to deliberate and reason carefully before the latter implements decisions that restrict the citizenry’s rights and interests. Nevertheless, the courts have consistently under-enforced these doctrines in actual cases, affirming the lawfulness of administrative acts in the vast majority of substantive review cases that come before them. The hallmark of Hong Kong’s autochthonous administrative law, a legal transplant sourced from England, but indigenized and grown in Chinese soil, is thus characterized by liberal rhetoric paired with limited judicial intervention in practice.","PeriodicalId":42366,"journal":{"name":"Chinese Journal of Comparative Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2019-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/CJCL/CXZ006","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48990928","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}
{"title":"A Comparative Approach to Margin of Appreciation in International Law","authors":"Nasiruddeen Muhammad","doi":"10.1093/CJCL/CXZ008","DOIUrl":"https://doi.org/10.1093/CJCL/CXZ008","url":null,"abstract":"","PeriodicalId":42366,"journal":{"name":"Chinese Journal of Comparative Law","volume":null,"pages":null},"PeriodicalIF":1.2,"publicationDate":"2019-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/CJCL/CXZ008","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44599206","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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