European-Asian Journal of Law and Governance Vol. 6, 2016
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European-Asian Journal of Law and Governance Vol. 6, 2016 Editorial Board † Henning Glaser Jörg Menzel † Executive Editor University of Bonn Thammasat University Michael Nelson Lasse Schuldt CPG, Thammasat University Deputy-Executive Editor Thammasat University Safri Nugraha † University of Indonesia Moritz Bälz Goethe-University Frankfurt am Main Worachet Pakeerut Thammasat University Siegfried Broß Albert-Ludwigs-University Freiburg Kittisak Prokati Thammasat University Björn Dressel Australian National University Seog-Yun Song Seoul National University Dirk Ehlers Westfälische-Wilhelms-University Mark R. Thompson Münster City University of Hong Kong Tom Ginsburg Yueh-Sheng Weng University of Chicago National Taiwan University Chien-Liang Lee Miroslaw Wyrzykowski National Taiwan University Warsaw University Peter Leyland Libin Xie China London Metropolitan University University of Political Science and Law, Beijing Duc Quang Ly CPG, Thammasat University Patrick Ziegenhain Trier University Bartosz Makowicz European University Viadrina Frankfurt/Oder Submissions The European-Asian Journal of Law and Governance (EAJLG) provides a forum for discussions about public law, governance and politics in order to contribute to the inter- and intra-regional discourse of academics and professionals. Contributions are welcome and accepted for consideration provided they are not submitted elsewhere or previously published. Explorative articles submitted to the European-Asian Journal of Law and Governance will be peer-reviewed by one or more independent referees and by the Editorial Board. For correspondence and queries please notice the contact information below: Mailing address: Editors European-Asian Journal for Law and Governance German-Southeast Asian Center of Excellence for Public Policy and Good Governance (CPG) Faculty of Law, Thammasat University 2 Prachan Road Bangkok 10200, Thailand Telephone: 66 2 613 2971 Fax: 66 2 613 2971 Email: [email protected] Website: www.eajlg.org Table of Contents Articles Setting the Course for Thailand? – Content, Structure and Impact of the 2016 Constitution Bill Henning Glaser ………………………………………………………….5 Thoughts on the Publication of the Biography of General Ne Win: Four Quotes and Some Comparative Comments Myint Zan ……………………………………………………………….89 The Rule-of-Law Challenge to Environmental Conservation in Myanmar Jonathan Liljeblad ……………………………………………………..140 Politicization of Constitutional Courts in Asia: Institutional Features, Contexts and Legitimacy Jiunn-rong Yeh …………………………………………………………154 Constitutional Adjudications of the Supreme Court of Japan Yasuo Hasebe …………………………………………………………..171 Searching for the Leak: Press Freedom vs. Criminal Prosecution in the Jurisprudence of the European Court of Human Rights Lasse Schuldt……………………………………………………………189 Commentaries Rethinking Violence in Myanmar: A Confronting Imperative for Domestic and International Actors Jonathan Bogais ……………………………………………………….215 Crisis? What crisis? Mekong water resources management in 2016 and beyond Philipp Magiera ………………………………………………………..220 Table of Contents The Taiwan Question after the 2016 Elections: Significance for Cross-Straits Relations Chin-peng Chu ………………………………………………………....225 The Future Cross-Strait Relations: Challenges and Opportunities of the DPP Government Chin-peng Chu………………………………………………………….234 External Challenges in the Russia-South Korea Defense Relationship Anthony V. Rinna……………………………………………………….240 Beyond the Panama Papers: Leaks Activism and the Struggle for Information Control Arne Hintz ……………………………………………………………...244 Special feature Expert Opinions on Law and Politics: The Constitutional Referendum 7 August 2016 in Thailand ……………………………247 Translation Thai Constitutional Court Ruling No. 18-22/2555 (2012) …………263 Thai Constitutional Court Ruling No. 15/2555 (2012) …………….290 Book release Norms, Interests, and Values: Conflict and Consent in the Basic Constitutional Order, ed. Henning Glaser, Baden-Baden: Nomos, 2015 (CPG Series of Comparative Constitutional Law, Politics and Governance, Vol. 2) ……………..297 Setting the Course for Thailand? – Content, Structure and Impact of the 2016 Constitution Bill Henning Glaser* Thailand is on the way to promulgate its 20th Constitution. This article aims at providing an introduction to the Constitution Bill which is expected to soon replace the currently still ruling Interim Constitution 2014. The latter has been established after the Coup d’état of 2014 that has turned the country into a military dominated (soft) authoritarian regime. In times of a coup-frozen, yet lingering divisional crisis, and facing profound shifts at heart of the socio- political system, the new Constitution is supposed to become the country’s supreme law for the foreseeable future. Technically well expressed in terms of conceptual craft and coherence, the draft’s propositions to shape the political process are highly determined. Providing some significant modifications to established Thai constitutionalism, the draft’s major direction is still conservative and profoundly anti-electoral, while establishing a rigidly preservative constitutional hegemony of the powers-that-be. Introduction By a national referendum of August 7, 2016, the electorate adopted the Bill of the 20th Thai constitution with around 61% of the votes.1 Being currently still under some adjustment, it will soon be presented to the King of Thailand to command its enactment as the new supreme law of the land.2 The present article tries to explore the major structure of the Constitution Bill and its prospective effects on the political process. With respect to the previous 2007 * Henning Glaser, Director, German-Southeast Asian Center of Excellence for Public Policy and Good Governance (CPG), Faculty of Law, Thammasat University. This article is an updated and extended version of a working paper published in issue No. 5, 2016 of COM, the Online Magazine of the German-Southeast Asian Center of Excellence for Public Policy and Good Governance (CPG). 1 In fact, 61.4% of the voter turn-out of 59.4% approved the draft constitution, while 38.6% rejected it. Concerning a second referendum question pertaining to an interim period on the participation of the Senate in the creation of the government during this 5- years transitional period the ratio was 58% “yes” and 42% “no”. See http://www. bangkokpost.com/news/politics/1058026/official-charter-referendum-figures-posted. 2 In this article, reference is made to the unofficial English translation of the Draft Constitution 2016 provided by the Institute for Democracy and Electoral Assistance (IDEA), the Office of the United Nations Resident Coordinator, and the International Commission of Jurists, available at http://www.Constitutionnet org/sites/default/files/thailand-draft-constitution_englishtranslation_ june_2016.pdf. EAJLG 2016 Constitution, some significant pattern of continuity and change of Thai constitutionalism will be taken into account, with regard especially of constitutional identity. Like Thai constitutionalism in general, the present Constitution Bill should indeed not be underestimated as a mere façade, but rather understood as a determined proposition of constitutional governance albeit not one of Western provenance. Expressing the respective decisions of the ruling authoritarian regime, it offers a comprehensive, technically well-conceived, hard- line formula of how to rule the country. Produced by a small circle of carefully selected experts in a highly exclusive way, its nature fully corresponds with the process of its generation. Excluded was not only one of the two contending political camps of the country’s divided polity but the entire political party caste as such. Moreover, in the absence of a free debate before the referendum, the latter appears rather as an act of acclamation in an authoritarian setting than an expression of public participation in a discursive context even if voting itself was largely free and free from allegations of fraud. Accordingly, the Bill matches the hegemonic demands perfectly well and proves the technical ability of Thai drafters once more to create a constitutional frame that is responding neatly to the order of the day. It will shape future constitutional politics profoundly and pave the way for continuity of the current regime against potential challenges by an electorate whose majority has consistently voted for those forces that is sees as challenging the established hegemonic social contract since 2001. Since neither the final bill has been presented to the King nor the organic laws supposed to complement it having being completed yet, only a rough and tentative overview is possible here. Overarching Status: Four Constitutional Regimes The 2016 Constitution Bill which is supposed to replace the 2014 Interim Constitution provides as a special feature in comparison to most other constitutions three subsequent stages of constitutional rule that differ significantly from each other, effectively constituting three distinct constitutional regimes.3 The final, permanent stage of constitutional rule under the future constitution will be anteceded by two subsequent transitional stages. Additionally, there is still the Interim Constitution, which is closely interconnected with the first transitional phase of the future constitution. At present, there are thus effectively four subsequently activated stages of the constitutional process based on two constitutional documents. One link 3 This kind of multi-phase constitutionalism is not new