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Courts and Constitutionalism in Contemporary Asia

Next week at the ICON conference we have a panel lined up on "Courts and Constitutionalism in Contemporary Asia". 

This panel seeks to explore the role of courts and how and why they do (or do not) contribute to building constitutionalism in contemporary Asia. The last few decades have seen the creation of a range of new and specialized courts in Asia, including constitutional courts. The role, function and authority of courts and the extent of judicial review powers varies across the region. What is common to these courts is the potential and risk of becoming deeply involved in matters of politics. In some countries, courts have come to play a critical role in building constitutionalism, but more often in Asia courts remain peripheral to the project of building constitutionalism. This panel seeks to explore and explain the role of courts in Myanmar, China, Singapore, Thailand and the Philippines.


Paper 1: Dialogue Among Dictators and the Many Lives of Constitutional Courts: The Constitutional Tribunal of Myanmar
 Abstract: Myanmar is one of the most recent countries in the world to have established a Constitutional Tribunal. Yet the operation of the Tribunal flies in the face of assumptions common to global constitutionalism. Myanmar at present remains outside the influence of globalised judicial networks. Instead, the Tribunal is determined by its role as a forum for dialogue among dictators. The operation of the Tribunal has in many respects been a victim of its design and has left the Tribunal’s role highly dependent on the political powers of the day. I demonstrate this by looking at the different lives of the Constitutional Tribunal: its first (2011-2012), second (2013-2015) and third life (2016-). As a monumental shift has taken place from direct military rule to military-led constitutionalism in Myanmar, this article offers an important reflection on the main role of the Tribunal as a limited forum for dialogue among dictators.
Bio: Dr Melissa Crouch is a Senior Lecturer at the Law Faculty, the University of New South Wales, Sydney. Melissa is the editor of The Business of Transition: Law Reform, Development and Economics in Myanmar (CUP 2017); Islam and the State in Myanmar: Muslim-Buddhist Relations and the Politics of Belonging (OUP 2016), and co-editor of Law, Society and Transition in Myanmar (Hart Publishing 2014). She is the author of Law and Religion in Indonesia: Conflict and the Courts in West Java (Routledge, 2014). She teaches in the areas of public law, comparative law, law and development, and Asian legal systems.


Paper 2: Chinese Constitutionalism: An Oxymoron?
This paper argues that it is a mistake–for both the field of comparative constitutional law and the development of constitutionalism in China–to define the core concepts of “constitution” and “constitutionalism” in a manner that excludes China. Even if such a move is well intentioned, it is likely to have the effect of marginalizing the comparative study of China by constitutional scholars. The marginalization of China as an object of study has deleterious effects not only for the field of comparative constitutional law, but also potentially for the development of constitutionalism in China itself. The goal should be to place China at the core of a genuinely comparative constitutional discourse, rather than relegating it to the domain of China specialists. This can be accomplished, moreover, without lapsing into apologism for either the Communist Party of China (CPC) or the PRC regime. Part II of this paper summarizes the competing views that scholars have taken on the state of constitutionalism in China. Part III develops a typology that highlights the numerous options for defining constitution[alism]. The definition of constitution[alism] can incorporate a combination of normative, practical, and formal standards, each of which in turn can be defined leniently or stringently. The fact that scholars have available to them not just the familiar binary choice between "thick" and "thin" definitional approaches, but rather a rich matrix of definitional possibilities, means that there are numerous options for placing China at the heart of comparative constitutional discourse without appearing even implicitly to endorse its current government. Part IV explores the value to the field of comparative constitutional law of taking China seriously as an appropriate object of study. Even though–or, perhaps, especially because–China lacks judicial review, the study of constitutionalism in China stands to benefit the field in several ways. China is not only an intrinsically important case to study, but also a rich and unique source of comparative data and experience with respect to three phenomena of considerable and increasing importance to comparative constitutional scholars¬–namely, (1) the role of statutes in the constitutional order; (2) the availability and operation of political rather than judicial forms of constitutional implementation and enforcement; and (3) the relationship between domestic constitutional law and international law. Finally, we conclude by theorizing as to the potential long-term impact of the Chinese Constitution on an authoritarian regime that seems at times committed to constitutional noncompliance. To the list of functions that other scholars have imputed to constitutions in authoritarian regimes, we nominate an additional function¬—namely, that of constructive irritant. Thanks to its extreme dissonance with the actual practice of constitutionalism, China’s formal constitution generates a dialectical and critical discourse that is uniquely difficult for the regime to suppress.

Bio: Wen-Chen Chang is Professor at National Taiwan University College of Law. Her areas of research include comparative constitutional law, international human rights law, international environmental law, administrative law, and law and society. She graduated from National Taiwan University with an LL.B. and LL.M. then served as a law clerk to the Chief Justice of the Taiwanese Constitutional Court before earning an LL.M. and J.S.D. from Yale Law School. Professor Chang serves on the editorial boards of the International Journal of Constitutional Law, Asian Journal of Comparative Law, and National Taiwan University Law Review. Her recent publications include Asian Courts in Context (CUP 2015, co-edited with Jiunn-rong Yeh) and Constitutionalism in Asia: Cases and Materials (Hart 2014, with Kevin Tan, Li-ann Thio & Jiunn-rong Yeh)

David Law is the Sir Y.K. Pao Chair of Public Law at the University of Hong Kong and the Charles Nagel Chair of Constitutional Law and Political Science at Washington University in St. Louis. He writes in the areas of public law, comparative law, empirical legal scholarship, legal globalization, judicial politics, and judicial behavior. He holds a Ph.D. in political science from Stanford, a B.C.L. in European and Comparative Law from the University of Oxford, and a J.D. from Harvard Law School. Professor Law served as a law clerk to the Honorable Stephen Reinhardt of the U.S. Court of Appeals for the Ninth Circuit and has previously taught at the UCSD Department of Political Science; National Taiwan University College of Law (as a Fulbright Scholar); Seoul National University School of Law; Georgetown University Law Center; and Princeton University (as the Martin and Kathleen Crane Fellow in Law and Public Affairs). His book on the internal workings of the Japanese Supreme Court, Nihon no saikosai wo kaibou suru [The Japanese Supreme Court and Judicial Review], was published in Japanese by Gendajinbunsha. Professor Law’s current projects include a handbook on research methods in constitutional law (under contract with Edward Elgar).


Paper 3: Cultural Texts as Constitutional Courts: Perceiving Public Power in Singapore
In the context of Singapore’s authoritarian politics, are courts the sites in which constitutional issues most potently and publicly unfold? This paper argues that, rather than the courts, Singapore’s cultural texts – specifically, the theatre of playwright Kuo Pau Kun – offer a rich and revealing record of constitutional contestation. The constitutional jurisprudence of Singapore courts continues (overwhelmingly) to illustrate the acuity of Worthington’s 2001 assessment that the judicial system negotiates a balance between “the need for a reputable judiciary with the requirement by the political executive for the judicial system to assist with the control of political opposition”. Turning therefore away from the courts, this paper delves into the public power of masked constitutional challenges through a discussion of the theatre of Singapore playwright Kuo Pau Kun.
Detained without trial from 1976 to 1980, Kuo’s scripts express the struggle to be a rights-bearing citizen in the face of bureaucratic and securitized accounts of law; accounts that annihilate the emblematic fundamental freedoms guaranteed by the Constitution. At the same time, the arena of theatre enables an engagement with publics, advocacy for rights, and a sub-textual critique of the state that the courts might not facilitate. Tracing the constitutional challenges articulated through cultural texts – from Kuo’s theatre to more contemporary instances – this paper illuminates public power and constitutional discourses situated beyond the walls of Singapore’s courtrooms.

Bio: Jothie Rajah is a research professor at the American Bar Foundation and author of Authoritarian Rule of Law: Legislation, Discourse and Legitimacy in Singapore (Cambridge UP). She has published widely in interdisciplinary publications on transnational law and the rule of law, including in the Annual Review of Law and Social Science, Law & Social Inquiry, and Transnational Legal Theory, as well as in a number of edited volumes. She has been active as a member of the Law and Society Association, serving on its board of trustees, and co-founding and convening a CRN on British Colonial Legalities (15). 

Paper 4: Who Is Doing the Judging?: the Thai Constitutional Court, 1998 - 2016 
AbstractCreated in 1997 as part of a major constitutional reform, Thailand’s Constitutional Court (CC) has since become embroiled in major political controversies. Since the 2006 coup, because a number of high-profile decisions have favoured one political camp, its ability to act as an independent arbiter has been questioned. Observers have attributed this to close and long-standing relations between the judiciary and traditional political elites. Is this view justifiable? To answer this question, we first analyse how the court has behaved across political administrations in 32 high-profile cases since 2001. We then look at the socio-biographic profile of the bench, the political nature of nominations, and changes to its composition, particularly since 2006. Finally, we complement this analysis with network data on participants in classes offered by the Constitutional Court, which make it possible to look more closely at the links between political and judicial networks in Thailand. This study found evidence of a politically biased voting pattern and increasingly partisan nominations to the bench, though formally appointment procedures are apolitical. It thus provides evidence of the politicization of the court and the growing ties between judicial and political elites. It thus raises serious issues about the public legitimacy of the court and prospects for the rule of law in Thailand – issues critical to Thailand’s continuing political transition.
  
Bio: Bjoern Dressel and,
Khemthong Tonsakulrungruang joined the Faculty of Law, Chulalongkorn University, Thailand, in 2009. He lectures various courses in constitutional and administrative laws. His areas of interest include freedom of expression, religious freedom, public accountability, and environmental policy. Khemthong graduated from the Faculty of Law, Chulalongkorn University before earning his LLM at Yale Law School. Currently he is a PhD candidate at University of Bristol School of Law, UK.   

Paper 5: Building constitutionalism? The Role of the Thai Constitutional Court leading up to the 2014 Coup

Abstract: The line dividing actions of courts seen as contributing to building constitutionalism and those seen as undermining constitutionalism is often narrow, and defined not only by factors internal to courts but also factors external to courts, including the way that actions of courts are responded to. The role of the Thai Constitutional Court in the lead up to the 2014 military coup is often seen to have been one that undermined constitutionalism, with some commentators going so far as to suggest that the court in the period was acting in concert with the military and traditional elite and that the military coup in May 2014 only formalized a judicial coup which had already occurred. This paper, by analysing decisions issued by the Constitutional Court in the lead up to the 2014 coup, will challenge this representation. It will show that within decisions of the court in the period there were not only elements which frustrated government objectives but also elements which frustrated elite aims, and that while there were elements of decisions which made it difficult for governance to proceed there was also evident a concern to avoid creating constitutional or political deadlock. It will argue that because of these features court decisions in the period had potential, had events played out differently, to help build and reinforce constitutionalism. It will suggest the fact they did not was, whilst in part attributable to imperfections in court action, largely also attributable to the way commentators and politicians responded and, ultimately, to untimely military intervention. As such it will suggest that the 2014 coup should not be seen simply as the military formalizing what the court had begun or the military stepping in following institutional failure, as the role played by the court leading up to coup was much more ambiguous than such representations suggest.
 Bio: Sarah Bishop (LLB (Hons)/BAsSt (Thai)(Hons)) is a PhD Candidate within the ANU College of Law, Canberra, Australia. Her primary area of research interest is Thai public law. Her doctoral thesis will explore the role of these and other courts in interpreting and applying constitutional rights.  


Paper 6: The Informal Dimension of Constitutional Politics in Asia: Insights from the Philippines and Indonesia
Abstract: As expanded powers of judicial review and constitutional separation of powers have made courts major actors in the political landscape of Asia, their uneven performance has considerably puzzled observers. This article argues that a concern with formal institutional roles alone is not sufficient to explain how judiciaries deal with constitutional matters in countries not as institutionalized as Western democracies. Instead, to understand how courts in Asia actually operate, it is necessary to explore the informal dimensions of judicial politics, building on a growing body of work based on a variety of theoretical and methodological approaches. Supplementing what is already known about the informal dimension of judicial politics with specific evidence from high courts in the Philippines and Indonesia, the chapter assesses how informal ties influence aspects of judicial behaviour, and the consequences. For justices in Asia there is a dynamic tension between professionalism and informality that clarifies inconsistencies in high-profile constitutional matters. The findings illuminate larger issues at the intersection of courts and society throughout the region in ways that advance theoretical understanding.

Bio: Dr. Björn Dressel is a Senior Lecturer at the Crawford School of Public Policy at the Australian National University (ANU), and also currently holds an Australian Research Council Early Career Researcher Award (2013-2016). His research is concerned with issues of comparative constitutionalism, judicial politics and governance and public sector reform in Asia. He has published in a range of international journals, including Governance; Administration & Society; International Political Science Review, and Pacific Review. He is the editor of The Judicialization of Politics in Asia (Routledge, 2012) and co-editor of Politics and Constitutions in Southeast Asia (Routledge, 2016).

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