On 30 March 2011 a “new” Burmese government was sworn in. A seven-member Supreme Court and nine-member Constitutional Tribunal are among the new organs of state formed under the 2008 Constitution that “came into operation” with the new government. This chapter addresses the issue of whether, under the new government, there has been some improvement in relation to the Burmese judiciary, or whether the situation is much the same as before (that is, during the period from September 1988 until March 2011).

The term “new” is used for both the Supreme Court and for the Constitutional Tribunal. In Burma there have been various “Supreme Courts”, or apex courts, since independence. To put these “new” developments into perspective, therefore, it is necessary to give a brief history of the apex courts over the period since independence, if only to explain the use of the term “new”. As for the Constitutional Tribunal, it is indeed a new organ of state, since a similar political or legal institution has not previously existed in contemporary Burmese legal history.The first part of this chapter deals with the “new” Supreme Court, the second part with the new Constitutional Tribunal.

The “New” Supreme Court, with Flashbacks to Former Courts

The Supreme Court formed under Burma's 1947 Constitution, which lasted from 4 January 1948 to 31 March 1962, was Burma's first Supreme Court. From April 1962 a new apex court came into operation, initially with the name of “Chief Court” in English, but in the late 1960s its name was changed back to “Supreme Court”. This second apex court lasted from 1 April 1962 to 4 March 1974, when the Council of People's Justices was formed. Soon thereafter the Central Court of Justice (third apex court) was formed. (Both were established under the 1974 Constitution, which had been proclaimed as adopted by the then Revolutionary Council on 3 January 1974.) Like its predecessor, the first Supreme Court, the Central Court of Justice came to an end by military decree, on 18 September 1988 (see Table 14.1).

Jurists debate the meaning of the rule of law, and define it from various points of view, yet for centuries the basic principle has rested in the idea that the law applies to all. In The Republic, written in the first century BC, Cicero condemned the king who does not abide by the law as a despot who is the foulest and most repellant creature imaginable (Tamanaha 2004, pp. 11–12). The Magna Carta reinforced this idea of the ruler bound to the law along with his subjects.

For some scholars today these traditional ideas of the rule of law would be classed as “rule by law”, now that a distinction is being drawn between the two concepts. According to a 2004 report of the UN Secretary-General, rule of law requires measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness, and procedural and legal transparency (United Nations 2004). Similarly, Kleinfeld Belton has argued that the rule of law “is not a single, unified good but is composed of five separate, socially desirable goods, or ends: (1) a government bound by law (2) equality before the law (3) law and order (4) predictable and efficient rulings, and (5) human rights” (Kleinfeld Belton 2005, p. 27). On the other hand, according to Kirsti Samuels:

Political science professor Li Shuguang puts it more bluntly: “The difference … is that, under the rule of law, the law is preeminent and can serve as a check against the abuse of power. Under rule by law, the law is a mere tool for a government, that suppresses in a legalistic fashion” (Tamanaha 2004, p. 3).

In late 2008, Indonesia's parliament passed a law against pornography. The debate was short, because the bill had already been thoroughly discussed and revised in committees and a majority of legislators had agreed to support it. Prior to the vote, however, nearly a hundred legislators opposed to the bill stormed out of parliament in protest. The ratification of the legislation Rancangan Undang-Undang Pornografi, or RUU Pornografi as it is commonly known, marks the end of one of the many bitter public controversies that have preoccupied Indonesians since the collapse of the authoritarian Soeharto regime in 1998.

At a time when Indonesia is still in the process of political and social flux, the recent debates over issues such as pornography entail competing ideas about how Islam should be incorporated into the nation-state. Arguments about the pornography bill, for example, revolved around whether the state should regulate the media to prevent it from disseminating images that offend Islamic norms of modesty. In this way, the debate over the role of the state in regulating images or behaviour was also a debate about the extent to which the state's actions should be guided by religious, in this case Islamic, ideologies. These controversies are moral debates, in that they involve arguments about individual or collective rights vis-à-vis the state, as well as struggles over what constitutes an ideal society, which are often informed by religion.

Gender ideologies are a profound, but often underappreciated aspect of moral debates. The Indonesian debates about pornography not only involve competing ideas about rights and freedoms, but also about how bodies, particularly those of women, should be seen in public. Feminist scholars have argued that moral debates such as the one over pornography reflect attempts to define collective identities and to shape the gender structure of society (Yuval-Davis 1997). And in the case of Indonesia, such debates are also part of a continuing process of struggle over the relationship between religion and public life (Brenner 2011; Rinaldo 2011).

The transformation of land usage in Malaysia has been inextricably linked to a politicizing of Islam and Malay rights. In short, the development of the prime industrial and, hence, subsequent residential heartlands of this nation have taken on an ethno-nationalistic urgency, given the politics of identity within this nation. More specifically, the transformation of key lands in and around Kuala Lumpur, Selangor, and the entire Klang Valley, has not only been crucial for economic reasons, but has also figured large in symbolic intent. For these lands, formerly populated mainly by Tamils and Chinese (Kahn 2006), have become the symbolic heartland of a new and politically unified Malay identity (King 2008; Kahn 2006; Bunnell 2004; Hoffstaedter 2008). The developments of Putrajaya and Shah Alam, in particular, have been focal, not only in creating a large urban (and suburban) Malay populace, a key goal of Malaysian developmentalism spearheaded by former Prime Minister Mahathir Mohamad, but also in crafting the semiotics of a new Malay identity. This new Malay identity, as many scholars have noted, is crafted through an emphasis on Islamic modernism fused with nostalgic imaginings for past Islamic civilizations. On the one hand, we see the intense modernity of the Petronas Towers, and the pride for Islam and Malay identity that Mahathir Mohamad sought in their grandiose erection. On the other hand, we witness the neo-Indo-Saracenic splendour of Putrajaya, the new administrative capital, which also incorporates Mughal, Arab, and Ottoman (King 2008) styles liberally into what is supposed to be a Malay icon of the nation. Musings about the alienating aspects of this architecture notwithstanding,1 the story that is often not told is of the Tamil plantation workers,2 who, in particular, have been dispossessed of their former lands throughout this process.3 In this essay, I focus not on plantation ethnography itself (Nagarajan 2004; Bunnell, Nagarajan and Willford 2010), but on the political and psychological effects of plantation retrenchments and dislocations.

The rising profile of Southeast Asia as a prosperously developing and yet passionately Islamic region necessitates a study of the dynamic interaction between its domestic political imperatives and transnational variables. While transnational factors in themselves may be insufficient to explain the shifting contours of contemporary Islam in Southeast Asia, their presence has arguably been crucial in the continual flourishing and resilience of autonomous Islamism in the face of relentless pressure from the state. Although Islamist movements have over the years become more focused on domestic issues and discourses, none has denied the utility and need to retain transnational dimensions. Notwithstanding the vast diversity of Muslim populations worldwide, as long as the concept of an ummah (global Muslim community) is given credence, the emergence of transnational political entities predicated on relations among the Muslim brethren if not among Islamists, cannot be underestimated.

This chapter seeks to address Sufism as another side of transnational Islamism which has flourished without attracting as much attention as has the modernist-reformist variants of Wahhabi-Salafi doctrinal parentage, some of whose protagonists have expressed aversion to Sufism as a kind of “Islam which is not Islam” (Howell 2001, p. 706). The place of Sufism within the rubric of Islamism and Islamist literature has been made uncertain by the hostility shown to it by Islamist ideologues themselves. For example, Abul A'la Maududi (d. 1979), founder of Jamaat-i-Islami party in the Indo-Pakistan subcontinent, exhorted aspiring Muslim revivalists to “shun the language and terminology of the Sufis; their mystic allusions and metaphoric references, their dress and etiquette, their master-disciple institution and all other things associated with it” (Maududi 1981, p. 113). The present contribution argues that Sufism as an Islamic revivalist movement in Southeast Asia has thrived amidst manifold challenges presented by globalization, lack of sympathy from Islamist quarters, and resentment in the case of Malaysia, from a state wary of the possible threat that Sufi groups pose to its self-acclaimed legitimacy as guardians of Islam in a postcolonial national setting. Our object of investigation is the Aurad Muhammadiah congregation (Jemaah Aurad Muhammadiah), which has spread its wings throughout Southeast Asia through several formal and informal organizations, most notably Darul Arqam, banned in Malaysia since 1994.

The Malay Muslims in the deep south of Thailand have a long history of asserting their identity against the assimilating force of a dominant Buddhist worldview. Buddhist Siam and its successor, Thailand, have had significant success in assimilating the wide variety of ethnic groups within its borders, including the Chinese, Lao, Khmer and others, into a form of national Thai identity. The only group that has successfully withstood the assimilation policies is the Malay community in the country's southernmost provinces of Pattani, Yala and Narathiwat. The greater the pressure that was put on to this community to surrender its explicit Malay identity, the more it has searched for — and found — ways to preserve its identity.

Historically, relations between the old Kingdom of Patani (the past incarnation of the three provinces, parts of Songkhla province and northern Malaysia) and Ayutthaya — later Bangkok — regularly led to conflict. Whenever the Burmese attacked the Siamese capital Ayutthaya, Patani would take advantage of its distraction and wrestle itself free of Siam's yoke. When the Ayutthaya kings (and sometimes queens) finally managed to push back the invading Burmese armies, they would send punitive expeditions to the South to bring the Malay vassal state back under their control. The Anglo-Siamese agreement of 1909 codified this conflict and left the Malay Muslims in Siam, as it were, on the wrong side of the border, separating them from the Malay community in what is now Malaysia, with which they share language, religion and family ties.

For many decades, Malay-Muslims in South Thailand have been discriminated against, and were considered to be khaek (guests or visitors) in Thailand. The height of the application of assimilationist policies towards Malay Muslims is generally agreed to have been during the governments of Prime Minister Phibunsongkhram (1938–44 and 1948–57). This nationalist leader glorified the Thai race, changed the name of the country from Siam to Thailand and left no space for minority identities like the Malay Muslims (and the Chinese). A host of forceful measures were put into effect. Speaking Malay was forbidden and there was strong pressure to change family names into Thai-sounding names (Gilquin 2005, p. 73).

In Malaysia, the contestation over what was to be the correct and authoritative Islam came to an end sometime in the mid-1990s. The United Malays National Organization (UMNO), the ruling Malay party, had battled the Pan-Malaysian Islamic Party (Parti Islam SeMalaysia, PAS), its rival Malay-Muslim party, over the latter's version of Islam and won. The vanquished also included many other competing nonstate Islamic movements. For example, the most powerful Islamic youth movement, the Angkatan Belia Islam Malaysia (ABIM) was inducted into the mainstream with the co-optation of Anwar Ibrahim into UMNO in 1982 (Hussin Mutalib 1993). The Sufi-inspired communal sect, the Darul Arqam, was no less influential than ABIM in attracting scores of followers. But in 1994 it was banned on charges of being a deviant stream of Islam (by the state fatwa councils) and a security threat by the government (Ahmad Fauzi 2003).

When the dust of some of the above episodes had settled, UMNO seemed quite set in having the upper hand in determining the Islamic agenda or at least controlling it from falling into the hands of othE0072 contenders. By the late 1990s the UMNO-led state paved a trail for Islam to be absorbed into lawmaking and policymaking and institutionalized it as a wide-reaching state apparatus (Norhashimah 1996; Hamayotsu 2003). While UMNO as a political party was more concerned that this exercise would continue to give the party its legitimacy over the Malay-Muslim constituency, there were other dynamics which were created as well.

UMNO's calculated and expedient manoeuvre had led it to institutionalize Islam within the legal-bureaucratic sphere, exclusive only to the Muslim citizenry, and did not purportedly touch the affairs of non-Muslims. But rather than reform the party internally to imbibe Islamic values and ideologies, UMNO, as the major party within the ruling coalition, preferred to Islamize state institutions, rather than change the party to reflect this new orientation.

One of the more important ways that accounts of the hajj have been transmitted is through memoirs — the conscious act of people setting down their memories to pen and paper, in order to have these memories preserved as a record of their journeys. Few experiences, in fact, have been deemed more worthy of a written account than those activities involving a spiritual quest of one sort or another, a state of affairs commented upon in some detail by scholars of this genre of writing (Hutch 1997). Yet the memoir as artefact, as nearly everyone would agree, is not a dyed-in-the-wool record of actual events, preserved in complete veracity with “what happened”. It is, rather, a construct, with “truth passing toward art” in the words of one prominent critic (Barrington 1997). Distortion, whether intended or unconscious, is always a part of this morphogenesis, and is in fact part and parcel of translating one's lived experiences into a format ready for the reading of other people (Conway 1998). As such, memoirs can and should be dissected, to see what their writing can tell us about how such stories are generated, and what their very inscription means as an act of intent (Hart 1970, pp. 485–511). Some scholars have noted that memoirs have their own rhythms and patterns as a genre, often following certain themes in their quest to lay out and explain lived experience (Fletcher 1966). These critical dimensions of gauging the worth of memoirs are useful and instructive in thinking through the value of such accounts, and perhaps especially so in the telling of a journey as large (and as diverse) as the hajj, which allows millions of people to undertake a voyage in many of the same ways.

In the pages that follow I set out some of the ways in which hajj memoirs can be read. These memoirs nearly all come from the past fifty or so years (that is to say, the postcolonial period in Southeast Asia), when pilgrims were making hajj from independent nation-states in the region. Nearly all of these narratives have been written in Indonesian or Malay.

The short story in the Philippines has proven to be an exceptionally popular genre. Awards offered by magazines and other literary outlets are sought after and in traditional media, literary magazines, college publications as well as on Internet sites the prospect of publishing a short story continues to hold great appeal for writers and aspiring authors. Although introduced in English in the early part of the twentieth century during the American colonial period, the short story took root on fertile soil: established vernacular narrative traditions in the Philippines and publishing outlets in languages including Spanish, Tagalog and Cebuano paved the way for the short story's acceptance as a new genre in Filipino literature. In 1940, the Filipino literary critic and writer Jose Garcia Villa wrote that the short story was the Philippines’ “most developed art”. By the 1950s and 1960s, the most popular short stories were being written in English: the short story was regarded as indisputably Filipino, a genre in which Filipino artistic expression could flourish.

Muslim Filipinos have their own as yet under-explored relationship to the short story in English. Muslim Filipinos participated in this national literary culture by mastering the same literary rules their Christian counterparts adhered to and by telling stories that resonated with the English-language reading audiences. The writing styles of the Muslim authors are, at times, indistinguishable from other short story writers. But the stories by Muslim writers also conjure the differences they experienced moving within and across different social worlds. Short story writing was a way for Muslim Filipinos to move inside the artistic and literary life of the nation. They represented themselves and their home communities as well as the dominant culture within which they studied, worked, and lived. This chapter looks at Muslim Filipino short story writing in thematic and historical perspectives and argues that their writing and publishing can be read as acts of self-representation and negotiation of individual and collective identities. It considers works written between the 1940s and the early 2000s by men and women, most of whom were born in the Muslim south.

This chapter explains the controversy over the legal status of the Islamic Ahmadiyah sect, put into the larger context of the question over religious freedom and tolerance in today's Indonesia. It covers the disproportional influence of Islamist civil society groups on the Susilo Bambang Yudhoyono government and the government's intervention in religious and social affairs despite Indonesia supposedly being a secular state. It argues that in dealing with the Ahmadiyah issue, the government has been yielding to Islamist pressure because of concern with a backlash from the Muslim electorate. It also suggests that the deeper cause for the problems of the Ahmadis are the inconsistencies within Indonesian law, which is not clearcut and absolute in its protection of religious freedom as is often erroneously claimed. It further highlights that most Muslim leaders from mainstream Muslim organizations tend to be firm in supporting those laws inimical to full religious freedom and legal recognition for Ahmadiyah.

Ahmadiyah (full name: Ahmadiyya Muslim Jama'at [Ahmadiyah Muslim Community], also known as Qadiyaniah) is a religious movement founded by Mirza Ghulam Ahmad (15 February 1835–26 May 1908) in Qadian in Punjab, India, in 1889. Like mainstream Islam, Ahmadiyah teachings are based on the Qur'an and the Hadith (account of the words and deeds of the Prophet Muhammad). Like mainstream Muslims, Ahmadis observe the five pillars of Islam: the belief in a single creator and Muhammad's prophethood, the five daily prayers, alms, fasting and — in theory — the pilgrimage (Ahmadis are banned from visiting Mecca in Saudi Arabia). Ahmadiyah has a central authority in Caliph Mirza Masroor Ahmad. He is based in London and the fifth successor of Mirza Ghulam Ahmad.

The main issue that separates Ahmadis from other Muslims is the question of whether there can be other prophets after Muhammad. Mirza Ghulam Ahmad claimed to have fulfilled the Qur'anic foretelling of the return of Jesus Christ and the world reformer at the end of times (known as the Mahdi, literally “The Guided One”). The Qur'an, verse 61:6, speaks of a successor to Muhammad, whose name is Ahmad. The question of prophethood is the main reason that Islamist conservatives and many mainstream Muslims perceive Ahmadiyah as a distinctive faith outside Islam.