Review: Constitutionalism in Asia in the Early Twenty-first Century

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CONSTITUTIONALISM IN ASIA IN THE EARLY TWENTY-FIRST CENTURY is a 400-plus page edited volume of essays exploring constitutional developments in sixteen Asian jurisdictions, including the subnational jurisdiction of Hong Kong and disputed Taiwan. The volume is organized in seventeen chapters—Chapters One, Two, and Seventeen address overall trends in Asian constitutional development. Chapters Three through Sixteen each focus on constitutional developments of the last decade in individual countries—with the exception of Chapter Ten which combines Burma, Cambodia, and Thailand.

While each chapter is distinct in its object of study and approach, the question which binds them together is straightforward and expressed by the editor, Albert H.Y. Chen, early in the first chapter. Essentially, constitutions have been adopted throughout Asia, but to what extent have these forms been truly put into practice? “Although constitutionalism as a theory and practice of government and law first originated in Western Europe and North America,” Chen writes, “there is by now considerable evidence of its positive reception in and successful ‘transplant’ to a significant number of Asian countries” (3). As one might expect, however, “The experience of different Asian countries in this regard provides useful and fascinating case studies of what Grimm calls the ‘achievement of constitutionalism’” (3). Each case study in this volume is indeed fascinating and worth reading altogether or as stand-alone essays.

In Chapter One, Chen observes that written constitutions are ubiquitous in today’s global political landscape: “The possession of a constitution seems to have been accepted by all as a hallmark of the legitimacy of the nation-state and its regime for both domestic and external purposes” (5). This fact alone suggests the reason why constitutions are more common than actual constitutionalism (the latter being loosely defined as the instantiation of limited government and the rule of law). Hence, Chen develops a threefold conceptual framework for assessing the degree to which constitutionalism has truly been achieved in a given political context:

  • Genuine Constitutionalism (GC): constitutionalism in its classical sense, i.e., constraining arbitrary governmental power, etc.
  • Communist/Socialist Constitutionalism (CC): “Leninist-Stalinist forms of rule by a communist party-state legitimized by a written constitution” (14).
  • Hybrid Constitutionalism (HC): “practiced in states in which both elements of liberal constitutionalism and authoritarian elements…exist” (Id.).

Chen places the countries featured in the volume into one of the three types. Japan, India, South Korea, Taiwan, and Indonesia are each classic cases of successful transitions to GC—Japan and India in the Post-WWII period, Taiwan and South Korea since the 1980’s, and Indonesia since the turn of the century. Thailand, Cambodia, and Nepal are each classified as HC—Thailand and Nepal due to recent civil conflicts involving the transfer of power, Cambodia due to “Hun Sen’s strongman rule” (31). North Korea, China, and Vietnam are classified as CC, although the former may be distinguished from the latter two because “the legal reforms and constitutional discourses in contemporary China and Vietnam demonstrate that their constitutions are by no means merely a ‘fake constitution’” (30). The implication, fully elaborated by Dae-Kyu Yoon in Chapter 5, is that North Korea’s constitution “exists essentially as a political manifesto laden with programmatic provisions rather than as a document written to ensure justice for the people” (103).

More interesting is the group of countries which fall into Chen’s classificatory cracks. Malaysia and Singapore, both of which are listed as “Partly Free” in Freedom House’s 2014 report, Chen classifies as “HC or close to GC, depending on how much weight we attach to civil liberties” (31). The Philippines, which Freedom House also lists as “Partly Free” (though ranking ahead of Malaysia and Singapore), Chen classifies as “HC approximating GC” (31). Myanmar—or Burma—is listed as “Not Free” by Freedom House, but is, according to Chen, “now moving in the direction of HC” (31).

Most interesting, Chen omits Hong Kong altogether from his classificatory scheme. This omission might be explained by the fact of Hong Kong’s status as a subnational Special Administrative Region (SAR) of China. On the other hand, subsuming Hong Kong within China seems odd in the context of Chen’s scheme considering Hong Kong’s distinctly Western political culture, the operation of its constitution-like ‘Basic Law’, and the independent treatment it receives in Chapter Eight of this volume. Indeed, as Johannes Chan, the author of Chapter Eight, notes, this ‘one country’ truly does operate as ‘two systems’:

On one side of the border there is a well-established common-law system that rests upon individualism and the doctrine of separation of powers. On the other side of the border there is an emerging legal system that is partly based on socialist ideology, partly based on the civil law system,…subscribes to the supremacy of the soviet and the people’s democratic dictatorship, and operates largely on a central planning system (170).

However, Hong Kong’s recent struggle with the mainland to achieve the election of SAR leadership by universal suffrage reveals that the ‘two systems’ paradigm is not without limits. Chan concedes that “while prepared to tolerate a high degree of autonomy in internal affairs, Beijing, and not Hong Kong, is in control when it comes to democratic development of the political process of Hong Kong” (177), and “to the central government, ‘one country, two systems’ means nothing more than ‘one country, two economic systems’” (192). Hence, where exactly Hong Kong should fit in Chen’s scheme is highly debatable.

Chapter Two, by Tom Ginsburg, addresses the question “Is there a distinctive East Asian constitutionalism?” (32) In so doing, Ginsburg weighs in on the “’Asian Values’ debate of the 1990s” (id.). He uses comparative textual analysis to test whether “Asia [is] fundamentally different with regard to ideas about human rights” (32-33) and finds that “the formal patterns of constitutions in Asia do not reflect the Asian Values argument, at least not in its simplest version” (51). However, as other scholars have observed (See, e.g., North, Summerhill, and Weingast 1999), many constitutional documents have similar key words or boilerplate language which conveys little about the document’s actual operation, a fact demonstrated by the dramatically different experiences of countries studied in this volume despite the coincidence of similar formal constitutional provisions. Key word searches through constitutional texts tell us little. Thus, Chapter Two is interesting but perhaps not essential to the volume.

Overall, this collection of essays on patterns of constitutional development in Asia is a welcome contribution to the comparative constitutional law literature. Its focus on the last decade of Asian constitutional development makes it most helpful as a well-researched and up-to-date guide to current political events unfolding in each of these countries, most dramatically in Hong Kong, North Korea, and Indonesia. This volume, taken as a whole, is a succinct survey of the diverse countries across East, Southeast, and South Asia for busy scholars who sometimes miss the larger political forest for the trees. This volume is also well-organized and well-suited to be assigned to graduate students and advanced undergraduates as select essays in the context of a comparative politics or comparative law course.

A.K.

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