Band 2, Heft 1

The purpose of this article is to address the relationship between Buddhism, constitutional reform and human rights in Thailand. It poses the questions: To what extent is the Thai state Buddhist in character? How are we to describe the relationship between Buddhism and the state? Can and should human rights be supported or presented as being supported by Buddhism, or interpreted according to Buddhist ideas? The historical relationship between the state and the sangha is examined, in which the state used religion to bolster the state’s legitimacy. The place of Buddhism, human rights and the Human Rights Commission under the 1997 constitutional reforms is then addressed, in the context in particular of the problem of insurgency in the Southern provinces. It is concluded that the constitution-makers rightly refused to make Buddhism the state religion but that attempts to disseminate human rights understanding in Buddhist terms are justified, provided inter-faith dialogue is part of this process.

This is an essay on judicial discourse in Singapore and Malaysia pertaining to the nature and scope of the right of access to justice, including access to justice for the poor. We will examine the statements and pronouncements by the Singapore and Malaysia judiciary in case precedents and extra-judicial statements. Some of the issues explored include the legal status of this right of access to justice (namely, whether it is a right enshrined in the constitution or merely a right derived from the common law and whether it is qualified by economic and other interests) and the associated rights of legal representation, legal aid and contingency fees.

This article identifies the problems and malfunctions of the Chinese apartment ownership regime that necessitates its formalization. The benefits of formalizing the apartment ownership, such as resolution of the social housing problem, and establishment of the mortgage-backed real estate market, are presented. Thereafter, we indicate that the success of formalizing apartment ownership in China depends on one hand on the extent to which the unique property market in China can be reconciled with acknowledged ways of dealing with apartment ownership in various other jurisdictions acting as comparative examples. On the other hand, simply grafting borrowed laws or legal institutions into a new context cannot achieve the desired effects. Legal culture matters and it cannot be downplayed in the formalizing process. Our conclusion is that the booming but immature Chinese apartment ownership market will benefit greatly if the casual link between the market economy and well-defined property rights are confirmed through legal formalization.

The Rule of Law is considered a major aspect of modern governance. For every legal system, it is important whether the Rule of Law is attained and how far it has been attained. Though there are various indicators and indexes of the Rule of Law they all have their limitations. This paper reported a study conducted in Hong Kong in 2005, combining qualitative and quantitative methodologies, to assess the level of attainment of the Rule of Law in Hong Kong. It is found that the level of attainment is high but a downward trend is also discovered. A main objective of developing this new methodology in assessing Rule of Law, is that it could be used for tracking the development of the Rule of Law in a particular legal system and facilitating comparison between legal systems.

China’s access to the World Trade Organisation has led to further opening up of its market to foreign operators. However, the influx of foreign investment has simultaneously increased the chance of conflict between Chinese consumers and foreign enterprises. In the past few years, there was an upsurge amongst consumers in China that their rights had been trampled by foreign manufacturers. Amongst all those consumers' complaints, vigorous protests were found against Toshiba Electronic Corporation. Toshiba was being accused of discriminating against Chinese consumers in payment of compensation. This article aims to evaluate the legal issues arising from Toshiba Notebook case. Those issues in Toshiba Notebook case have been addressed from an Australian legal perspective with particular reference to the major consumer legislation that is the Trade Practices Act 1974. Comments are also made on non-legal implications related to the case in question.

The right to freedom of religion is one of the fundamental rights guaranteed in Islam. This is emphasised in verse 256 of Sura al-Baqara: "Let there be no compulsion in religion". However, the majority of classical Muslim jurists opine that the right to freedom of religion is not applicable to Muslims, that Muslims who intend to leave the Islamic faith or who have apostatised should be condemned to the death penalty. In reality, punishment for apostasy is not prescribed in the Qur'an and had not been practised by the Prophet (S.A.W.). Instead, the Prophet (S.A.W.) had imposed the death penalty upon apostates because their acts were contemptuous of, and hostile towards, Islam. Muslims who merely renounced the Islamic religion were only required to undergo a process of repentance (tawba). The right to freedom of religion is guaranteed in Article 11(1) of the Federal Constitution of Malaysia. However, as Islamic matters belong to the state jurisdictions, most provisions in relation to apostasy are under the exclusive jurisdiction of the Shari'a Courts. Apostates are subject to punishments such as fine, imprisonment and whipping. This article makes an in-depth study of the right to freedom of religion and the issue of apostasy from the Islamic law perspective, and argues that Muslims who intend to leave the Islamic faith are only required to undergo a process of repentance (tawba), and any punishment prescribed for apostasy is contrary to the right to freedom of religion.

Preferential trading exchanges have been a very common phenomenon in today's world. FTAs and RTAs are growing so fast that many academics are arguing that they are creating obstacles towards WTO's multilateral trade liberalization. Although seven nations in the South Asian region have recently executed an FTA, the progress of regional cooperation in this region is rather dismal. The purpose of this paper is to analyze SAFTA and discuss the prospect of more meaningful cooperation within the SAARC.

This paper examines the legal impediments facing the acceptability of intellectual property as collateral in Malaysia. As Malaysia practises a dual banking system, conventional and Islamic, both running parallel to each other, the position of intellectual property under the Islamic banking system will also be analysed. This, in turn, requires a deeper elaboration of principles relating to collateral security or rahn in Shari'ah law. The paper also proceeds to explore the suitability, acceptability and practical risks of allowing intellectual property as a form of security in comparison to "physical assets".

The Yogyakarta Ombudsman was established in 2005 as the first Local Ombudsman in Indonesia. Its introduction forms part of the democratic reforms aimed at tackling the problem of corruption within the bureaucracy. This article examines the Local Ombudsman's first year of operation, and asks whether it is addressing corruption and promoting good governance as hoped.