A constitutional touchstone is a document that articulates alternative constitutional proposals and is a symbolic resource in discussions of constitutional reform. Such documents keep alive ...opposition constitutional aspirations. Constitutional touchstones enhance understanding of the influence of constitutional history on contemporary efforts at peace and constitutional reform. Through successive constitutional reform processes, constitutional touchstones articulate future visions for reform and emerge as a reference point for political dialogue on peace and constitutional change. Through the case of Myanmar, I consider the influence of constitutional touchstones on contemporary constitution-making and trace demands for federalism through four stages of peace processes in Myanmar. Constitutional touchstones are important considerations that shape the terms of a peace process and condition, though do not determine the limits of constitutional reform. Presenting an alternative view to the idea that constitution-makers and peace negotiators in a globalized age are primarily focused on best practice or the most suitable comparative models, I draw attention to the ongoing salience and social life of past constitutional debates in contemporary peace processes.
Over the past few decades, peace agreements have become a defining feature of political and legal settlements of internal conflict. The relationship between peace processes and constitution-making is ...complex, and some scholars suggest that it requires a new understanding of constitutionalism. The traditional view of a constitution, as Teitel identifies, presumes that it is a permanent and binding feature of the political future of the country. By extension, this fosters a common view of constitution-making as a one-off, nation-defining event that binds political actors in the future. In contrast to this view, Teitel suggests that a period of political transition brought about by a peace agreement is better understood through the concept of transitional constitutionalism, an idea that holds in tension both the conflict of the past and the future prospects for peace. Transitional constitutionalism is depicted as being flexible and responsive to the constitutional demands of the present in contexts where there is a break with the past.
Abstract
Constitutional courts are now a common part of legal reforms in transitional regimes. This is also the case in Myanmar, where in 2011 the Constitutional Tribunal was formed. Yet the ...operation of the Tribunal flies in the face of assumptions common to global constitutionalism. At present, external factors such as globalized judicial networks or comparative concepts of rights-based review have had little influence in Myanmar. Instead, the operation of the Tribunal can be explained by internal factors and the actions, or inaction, of elite political actors. I demonstrate this by undertaking a sociolegal analysis of the Constitutional Tribunal under President Thein Sein (2011–2012; 2013–2016) and then the National League for Democracy government (2016–2021). I identify the internal factors that have most influenced the operation of the Tribunal. In particular, I consider when and why democratically elected actors (as well as non-elected military) use the Tribunal and engage with the Constitution established by the previous authoritarian regime. As a monumental shift has taken place from direct military rule to military-led constitutionalism in Myanmar, I offer an important and timely reflection on the implications of the role of the Tribunal as a forum for constitutional dialogue between and among military dictators and democratically elected representatives.
Political transitions from authoritarian rule may lead to a process of court reform. Indeed, court reform has been a central pillar of the law and development movement since the 1960s. What ...challenges do court reform efforts face after authoritarian rule in Indonesia and to what extent can specialized courts address these challenges? In this article, I examine court reform and the establishment of specialized courts in Indonesia post-1998. I argue that we need to pay attention to the politics of court reform after authoritarian rule. Specialized courts as a type of institutional reform need to be considered together with judicial culture in order to address fundamental challenges in the courts.
This interdisciplinary volume offers a timely reflection on law, development and economics through empirical and comparative perspectives on contemporary Myanmar. The book explores the business that ...takes place in times of major political change through law and development initiatives and foreign investment. The expert contributors to this volume identify the ways in which law reform creates new markets, embodies hopes of social transformation and is animated by economic gain. This book is an invitation to think carefully and critically about the intersection between law, development and economics in times of political transition. The chapters speak to a range of common issues - land rights, access to finance, economic development, the role of law including its potential and its limits, and the intersection between local actors, globalised ideas and the international community. This interdisciplinary book is for students, scholars and practitioners of law and development, Asian studies, political science and international relations.
Building constitutionalism after authoritarianism is a central concern of our times. Martin Krygier's work addresses the challenges of building the rule of law and the struggle to enhance ...constitutionalism in post-socialist societies in particular. I show how Martin's theoretical concerns with constitutionalism after authoritarianism move from academia to the world through the example of the Australia Myanmar Constitutional Democracy Project. Martin's work affirms the importance of local knowledge and time in fostering and renewing understanding about the use of law and the legitimacy of legal institutions.
There is no doubt of the importance of religion to constitutional life and politics in Asia. The array of articles in this Special Issue indicates the long-standing and often highly contested ...relationship between religion and constitutions in the region. Many of the articles are concerned with disputes over religion that arise in the context of majority-minority claims, as well as intra-religious tensions. The articles address a diverse range of majority-minority religious contexts. By population, there are Buddhist majorities in Thailand and Sri Lanka; a Catholic majority in the Philippines; an Islamic majority in Pakistan, Afghanistan,Malaysia, and Indonesia; and a Hindu majority in India. The reason for comparing these diverse contexts is because, regardless of which religion is the majority or minority, there are patterns and trends in how majorities use law against minorities, and how minorities wield law in defense of their religious and social claims to justice.
Myanmar is the only Buddhism-majority country in the world that has developed and maintained a system of family law for Buddhists enforced by the courts. This article considers the construction of ...Burmese Buddhist law by lawyers, judges, and legislators, and the changes made through legislative intervention in 2015. It begins by addressing the creation and contestation of Burmese Buddhist law to demonstrate that it has largely been defined by men and by its perceived opposites, Hinduism and Islam. Three aspects of Burmese Buddhist law that affect women are then examined more closely. First, Burmese Buddhist law carries no penalties for men who commit adultery, although women may risk divorce and the loss of her property. Second, a man can take more than one wife under Burmese Buddhist law; a woman cannot. Third, restrictions on Buddhist women who marry non-Buddhist men operate to ensure the primacy of Burmese Buddhist law over the potential application of Islamic law. This article deconstructs the popular claim that women are better off under Burmese Buddhist law than under Hindu law or Islamic law by showing how Burmese Buddhist law has been preoccupied with regulating the position of women. The 2015 laws build on this history of Burmese Buddhist law, creating new problems, but also potentially operating as a new source of revenge.
A growing number of religious minorities have been prosecuted for the criminal offence of ‘insulting a religion’, specifically Islam, in Indonesia. Both local and international human rights ...organisations have condemned the perceived misuse of what is widely referred to in Indonesia as the ‘Blasphemy Law’. This article will analyse the application for judicial review of the Blasphemy Law, which was submitted to the Indonesian Constitutional Court in 2009. It will critique the various submissions made to the court and analyse the historic decision of the judiciary, which upheld the validity of the Blasphemy Law. In doing this, it will explore how the relationship between law and religion, particularly Islam, has been debated, negotiated and articulated in democratic Indonesia
Aim
Associations between sleep duration and obesity and between obesity and chronic illness are established. Current rates of obesity for all Australian people are rising. Recent reports indicate ...that high body mass index (BMI) is a leading contributor to overall burden of disease for Indigenous Australians. Understanding the factors that contribute to higher rates of obesity in Indigenous people is critical to developing effective interventions for reducing morbidity and premature mortality in this population. To explore the effect of sleep duration on the relationship between Indigenous status and BMI in Australian children.
Methods
716 non‐Indigenous and 186 Indigenous children aged 5–12 years in the Australian Health Survey 2011–2013. Primary carers were interviewed regarding children's sleep times; BMI was derived from measurement.
Results
Analysis of covariance revealed that regardless of a number of demographic and socio‐economic status markers, sleep duration and Indigenous status were independent predictors of BMI. However when both predictors were considered together, only sleep duration remained predictive of BMI.
Conclusions
Sleep duration plays an important mediating role in the relationship between Indigenous status and BMI in this Australian sample. Modification of sleep duration for Indigenous children may lead to longer‐term positive health outcomes.
PDF
