February 27, 2010 · 17:57

Judgment Day

I’m back from Southeast Asia and almost caught up with work here. I have a few pictures from the trip here, here, and here.

As you probably heard, there were two exceedingly important court judgments yesterday coming out of Southeast Asia.

The first was the Burmese Supreme Court’s dismissal of Aung San Suu Kyi’s appeal. BBC has a short description of it. I haven’t seen much commentary on it and of course the dismissal was pretty much expected. However, there were interesting constitutional arguments made in the case. I am in the process of tracking down a copy of the decision, which I hope to have (and of course share) soon.

The more dramatic case was the Thai Supreme Court’s decision to seize a large part (around $1.4 billion) of former Prime Minister Thaksin’s assets. There have been several reports on the politics of the decision, which seem quite obvious (please yellow shirts, infuriate red shirts). However, the legal basis for the decision is also quite interesting. Via the New Mandala blog, it seems as if the court rested its decision on the grounds of “policy corruption.” The court’s economic analysis seems superficial (as is often the case with court decisions), but basically the claim is that Thaksin’s policies resulted in “abnormal gains” for companies that he still secretly controlled via his family members. Of course, in a country like Thailand,* where many politicians have links to business, this reasoning seems either hypocritical or untenable. It will be interesting to see whether this emerges as a new subset of administrative law, or simply a onetime tool to attack Thaksin.

* The legal charge of policy corruption could wreck havoc among Southeast Asian elites. One need not have an active imagination to think of how Golkar Chairman Aburizal Bakrie could be indicted on grounds of “policy corruption.”

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February 4, 2010 · 18:41

Rule by Hukum on Leave

I won’t be posting very often for the next few weeks because I’ll be in Asia. First, I will be attending the inaugural East Asian Law and Society Conference in Hong Kong (I will try to blog about it). I will then travel to Burma for a week to visit in-laws, including my adorable niece. Finally, I will spend a week in Chiangmai where I will hopefully meet with the Burma Lawyer’s Council, among others. So, I should have plenty to discuss when I get back. Until then…

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February 3, 2010 · 13:32

How long will Burma’s constitution last?

I’ve published another op-ed in Irrawaddy – this time I discuss prospects for Burma’s 2008 Constitution. There is a small but growing literature assessing how constitutional design and environments influence the longevity of constitutional regimes. I took the most recent book from that literature, Tom Ginsburg and Zachary Elkins’ The Endurance of National Constitutions, and apply it to Burma. You can read the entire article here, but in the short of it is that, despite the fears of many observers, Burma’s constitution won’t last forever – I estimate perhaps just a generation.

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February 3, 2010 · 01:49

Unsettled Constitutionalism in Thailand

New Mandala just posted proceedings from a SOAS conference on Thailand. Peter Leyland discussed the inability of Thailand’s political elite to settle on a constitution. Every few years, some faction of the elite decides that the constitution doesn’t suit them anymore. Leyland argues that Thai democracy would be immeasurably better off if the political elite just adopted one constitution – a definitive “rules of the game” – and stick to it.

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February 2, 2010 · 04:47

The Anwar Sodomy Trial: Part Deux

BBC and Reuters have some updates on the prosecution of Anwar Ibrahim for sodomy. Dubbed “Sodomy 2” by the local media, the case is actually in all likelihood just another attempt by the ruling coalition to dirty Anwar’s reputation. The articles do contain some interesting comments about the state of Malaysia’s judiciary. Here are some highlights from Reuters:

Malaysia has made some progress in cleaning up its commercial courts, dogged by complaints of delays and inefficiency, said the Bar Council’s Lim, who noted that trial disposal rates had shot up to 597 in 2009 from 87 in 2008.


Efforts to reduce trial times drew praise from Malaysian International Chamber of Commerce and Industry Executive President Stewart Forbes whose body represents 1,000 members with over 110 billion ringgit ($32.23 billion) of investments here.

“Certainly, it’s fair to say that over the last 18 to 24 months, there has been a marked improvement in that aspect of the judiciary,” he said.

However, businesses remain concerned by poor perceptions of the overall quality of the judiciary.

“It may not simply be because one or other particular case, but unfortunately at the moment and over the last few years in Malaysia, the judiciary has been pulled into a large number of elements of debate vis-a-vis a whole range of court cases and issues,” Forbes noted.

I do think Said Ibrahim at the end gets it right – UMNO has focused its efforts on keeping the senior judges loyal. Occasionally, lower courts might issue a controversial ruling, but those generally get overturned by the Federal Court. I expect the High Court’s  “Allah decision” will too.

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