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Australian Journal of Asian Law

Abstract from Volume 12 No 1 (2010)

Discipline-Flourishing Constitutional Review: A Legal and Political Analysis of Myanmar’s New Constitutional Tribunal

Dominic J Nardi, Jr is currently a first-year PhD student in the University of Michigan Political Science Department. He received his JD from Georgetown.

Myanmar’s new Constitution is designed to perpetuate military dominance over politics, but it also establishes a Constitutional Tribunal that will be able to exercise constitutional review. This article develops several theories to explain this apparent paradox. First, it summarises the historical context of constitutionalism and courts in Myanmar. It then discusses the 2008 Constitution and key features of the new tribunal. The rest of the article reviews the literature on courts under authoritarian regimes and applies it to Myanmar’s Constitution. Based on this analysis, the Constitutional Tribunal will likely enforce the terms of the Constitution against competing factions within the political elite, as well as political officeholders in local government bodies. It is not likely to enforce fundamental rights or be positioned to achieve a ‘constitutional moment’.

(2010) 12(1) Asian Law 1

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