In the modern world, formal constitutions are ubiquitous as the legal foundation of the state, standing at the apex of the legal order. As they emerged in a North Atlantic context, constitutional law and the ideal of constitutionalism came to be associated with a liberal model of government in which the state, composed of its leaders and public officials, was limited by law. This model of a constrained government became encapsulated in the ideal of “rule of law”—distinguishing between autocratic systems that were ruled by “men,” on the one hand, and systems in which political leaders were constrained by law, on the other hand. In this model, the courts typically play a critical institutional role in keeping state power within constitutional boundaries. Although this “liberal” model of constitutionalism and the rule of law continue to dominate legal and political thought, the proliferation of postcolonial legal and political regimes, and competing understandings of government and the role of the state, have challenged the dominant liberal understanding of constitutions and the rule of law. Many of these challenges come from Asia, which encompasses a stunning variety of political regimes that shape the environment in which constitutionalism and the ideal of the rule of law acquire meaning. This makes Asia an ideal site from which to explore the contested notions of constitutions, constitutionalism, and the rule of law as powerful explanatory tools and, in some cases, important normative correctives to the liberal model.
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Constitutions and the Rule of Law in Asia
Maartje De Visser, Victor V. Ramraj, and Arun Thiruvengadam
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Land-Related Conflict and Electoral Politics in Africa
Catherine Boone
Land-related disputes and land conflicts are sometimes politicized in elections in African countries, but this is usually not the case. Usually, land-related conflict is highly localized, managed at the micro-political level by neo-customary authorities, and not connected to electoral competition. Why do land conflicts sometimes become entangled in electoral politics, and sometimes “scale up” to become divisive issues in regional and national elections? A key determinant of why and how land disputes become politicized is the nature of the underlying land tenure regime, which varies across space (often by subnational district) within African countries. Under the neo-customary land tenure regimes that prevail in most regions of smallholder agriculture in most African countries, land disputes tend to be “bottled up” in neo-customary land-management processes at the local level. Under the statist land tenure regimes that exist in some districts of many African countries, government agents and officials are directly involved in land allocation and directly implicated in dispute resolution. Under “statist” land tenure institutions, the politicization of land conflict, especially around elections, becomes more likely. Land tenure institutions in African countries define landholders’ relations to each other, the state, and markets. Understanding these institutions, including how they come under pressure and change, goes far in explaining how and where land rights become politicized.
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LGBT and Queer Politics in the Commonwealth
Matthew Waites
The Commonwealth is the international governmental organization of states that emerged from the British empire, and since 2000 it has emerged as a focus for contestation relating to the regulation of same-sex sexualities, gender diversity, and diverse sex characteristics. Following colonial criminalizations focused on same-sex sexual acts, and later formal decolonizations, there have appeared many national movements for decriminalization and human rights in relation to sexuality and gender. The Commonwealth has emerged as a site of politics for some significant actors claiming human rights in relation to sexual orientation, gender identity and expression, and sex characteristics. This has been led by specific organizations of lesbian, gay, bisexual, and transgender (LGBT) people, increasingly with intersex people and allies, but it is also important to consider this in relation to queer people, understood more broadly here as people in all cultures experiencing forms of sexualities, biological sex and genders outside the social structure of heterosexuality, and its associated sex and gender binaries. A range of forms of activist and non-governmental organization (NGO) engagement have occurred, leading to shifts in Commonwealth civil society and among some state governments. This has required researchers to develop analyses across various scales, from local and national to international and transnational, to interpret institutions and movements.
The British Empire criminalized same-sex sexual acts between males, and to a lesser extent between females, across its territories. In certain instances there were also forms of gender regulation, constraining life outside a gender binary. Such criminalization influenced some of those claiming LGBT human rights to engage the Commonwealth. Research shows that a majority of Commonwealth states continue to criminalize some adult consensual same-sex sexual activity. Yet the history of struggles for decriminalization and human rights within states in the Commonwealth has led up to such recent important decriminalizations as in India and Trinidad and Tobago in 2018.
LGBT and queer activist engagements of the Commonwealth itself commenced in 2007 when Sexual Minorities Uganda and African allies demanded entry to the Commonwealth People’s Space during a Heads of Government meeting in Kampala. Activism has often focused on the biannual Heads of Government meetings that are accompanied by civil society forums. A particularly significant phenomenon has been the emergence of a “new London-based transnational politics of LGBT human rights,” evident in the creation from 2011 of new NGOs working internationally from the United Kingdom. Among these organizations was the Kaleidoscope Trust, which shaped the subsequent formation of The Commonwealth Equality Network as an international network of NGOs that became formally recognized by the Commonwealth. Significant developments occurred at the London Commonwealth Heads of Government meeting in April 2018; Prime Minister Theresa May expressed “regret” for past imperial criminalizations while announcing funding for Kaleidoscope Trust and other UK-based groups to use in international law reform work. These developments exemplify a wider problematic for both activists and analysts, concerning how LGBT and queer movements should engage in contexts that are still structured by imperial legacies and power relations associated with colonialism, persisting in the present.
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Revolutions and Constitutional Crisis
Johannes Vüllers
Revolutionary actions and constitutional crises are closely linked. However, research mainly looks at the two phenomena as distinct from each other. While studies on revolutionary actions are interested in the agency and the impact of the actions on the country’s institutions, legal research focuses on the constitution itself. The separation of the two strands leads to a limited understanding of their dynamics and complexity. What do we know about the relationship between revolutionary actions and constitutional crisis, and vice versa? The first question is how revolutionary actions trigger constitutional crisis, defined as a moment in which decision makers are unwilling or unable to manage the societal conflicts within the confinement of the constitutionally provided boundaries. Different types of revolutionary behavior—such as elite-led military coups, civil wars, and nonviolent resistance movements—trigger constitutional crises in many cases. They can lead to a new constitution with diverse implications for the political system. Whether the opposition or the old regime prevails in the constitutional crisis is a question of the power resources of both parties to the conflict. In some cases, the opposition movements succeed in making the political system more democratic. However, there are also cases where the constitutional crisis ultimately leads to more power for the ruling class.
The relationship also works vice versa: a constitutional crisis can trigger revolutionary actions. Constitutional coups, and processes of democratic backsliding and constitutional rot, can trigger violent and nonviolent revolutionary actions. Political elites can try to change constitutional norms for their own benefit, such as extending the presidential term of office. This often leads to a storm of public protest and can become a real threat to the regime’s survival. A constitution can enter a crisis phase for a long time if it no longer serves the needs of parts of society. The injustices that thus arise within society can be a strong motive for revolutions. The combination of agency and constitutional processes is a promising avenue for future research that could help analyze the complex relationship between constitutional crises and revolutionary actions. In addition to innovative theoretical approaches, new empirical data is needed to examine the process of constitutional negotiation in more detail.