Constitutional politics in Southeast Asia: from contestation to constitutionalism?

• Author: Dressel, Bjorn

Constitutional politics has once again taken centre stage in Southeast Asia. In Thailand, the constitutional reform debates that dominate the political agenda often fuel the divisions in a polity that is not only increasingly polarized but also increasingly violent. In Malaysia, recent court decisions on religious freedom have tested the constitutional boundaries of the multi-ethnic religious state. In the Philippines and Indonesia there is growing tension between the executive and judicial branches as the political role of courts expands. Meanwhile, the Burmese are debating how the traditional military elites can be accommodated in a new constitutional framework--not unlike efforts in Timor-Leste to accommodate diverse elite interests within the constitution. Less visibly, in Vietnam and Laos latent conflict over land as well as ethnic and religious minority rights has led to renewed calls to amend the constitution. In short, in Southeast Asia constitutional politics is generating growing social dissension.

Perhaps this should not be surprising. Over the last twenty-five years, in a worldwide context of liberalization, globalization and democratization, Southeast Asian states have dramatically altered constitutions, amplified human rights provisions, and put in place institutional safeguards for those rights, such as constitutional courts and human rights commissions. (1) Even less-than-democratic regimes have at least to some degree been reinforcing courts and expanding provision for the rule of law. As Albert Chen has noted, "constitutionalism has significantly broadened and deepened its reach in Asia in modern and contemporary times". (2)

Yet constitutional trajectories and realities in Southeast Asia are hardly clear-cut. As one might expect, given the marked diversity within the region in terms of colonial history (British, Spanish, French, Dutch); religion (Christianity, Islam, Buddhism, Hinduism); and, above all, political regimes (democratic, semi-authoritarian, authoritarian), not only do constitutional practices differ substantially but the very notion of liberal Western constitutionalism is regularly and deeply contested. (3) Indeed, the region is deeply engulfed in legacies of what an African commentator has called "constitutions without constitutionalism". (4) Though they may gradually be eroding, the barriers to a more intense constitutional practice in Southeast Asia are still considerable. The military still regularly intervenes in politics; abuses of human rights and liberties continue; and citizens struggle with the extent of the rule of law, judicial review and notions of justice. (5)

Constitutional politics is increasingly the focal point for collective action by both elites and ordinary citizens. This remarkable shift raises serious questions: for instance, who are the actors, and what are the real issues? How do the arguments affect constitutional practice and progress towards more normative constitutionalism? How are states in the region addressing the new constitutional fault lines? Finally, how can developments in Southeast Asia inform the global scholarly debate about constitutions and politics? To clarify we define constitutions as written or unwritten fundamental principles or established precedents according to which a country or state is governed. Constitutionalism is defined here more broadly as adherence to key institutional features of restraint, such as separation of powers, checks and balances, the rule of law, and constitutional judicial review and human rights. The phrase constitutional politics is used to capture the process of debate, contestation and struggles between social actors associated with constitutional rules and processes, and constitutional practice extends the legal and institutional analysis to the realities of constitutional behaviour that can be observed daily. (6)

Current scholarship has analysed such questions predominantly through the lens of legal and socio-legal scholarship, though political scientists have also offered their views. For instance, legal scholars have sought to identify typologies of constitutional patterns derived from previous scholarships (7) while highlighting path dependencies (e.g., wars, revolutions, colonial legacies) that have made it harder for constitutionalism to gain traction in the region. (8) Others have begun to apply standard constitutional theories to the region, contemplating socioeconomic preconditions for constitutionalism and defining trigger points that may enable courts to uphold the constitutional framework. (9) These studies have been complemented by socio-legal work on new courts (constitutional and administrative) throughout Asia, (10) the judicialization of politics in Southeast Asia, (11) and reflections on such individual constitutional issues as emergency powers (12) and rule of law nuances. (13) Meanwhile, political scientists have been talking about aspects of constitutional engineering for more than a decade, and about the consequences of constitutional design choices for such political regimes in terms of stability, political representation and party systems. (14) Most recently, scholars have expanded the discussion to authoritarian regimes; the constitutional nexus is that authoritarian rulers have a vital interest in writing constitutions because they can ensure survival of the regime by helping to control or coordinate the actions of diverse constitutional and administrative bodies. (15)

What is beginning to emerge from all these studies is a comprehensive picture of the constitutional landscape in the region that has both empirical and theoretical dimensions. Yet, seen with these new perspectives, it is difficult to identify the specific dynamics that propel states towards deeper constitutional practice. It may be that commentators have shied away from an explicit focus on the underlying political dynamics, particularly the sometimes confrontational negotiations of social forces arguing over constitutional issues.

We propose here to look at constitutional practice in Southeast Asia through the distinctly political lens of contestation in order to put the politics from which constitutions emerge at centre stage. By drawing attention to four areas where viewpoints regularly differ regarding what constitutions should stand for--constitutional drafting; individual and religious rights; the place of the military; and the rule of law, courts, and justice--we argue that how states in Southeast Asia resolve the related conflicts will be critical to the future of constitutionalism in the region.

What is central to this effort is the dynamics of constitutional contestation itself--the process by which incumbent elites compete, bargain and struggle with oppositional groups (e.g., students, members of civil society organizations, disenfranchised elites etc.) about what state institutions and the broader political order should look like, what rights should be granted, how these should be enforced and particularly by whom. For constitutionalism to take hold, clearly it will take more than institutional change on paper. Instead, elites and regular citizens alike must come to agreement to support such basic features such as the separation of powers, checks and balances, judicial review and specified rights. Such "constitutional settlements", born out of contestation and struggles, are critical to whether constitutional principles are adhered to and enforced. By drawing attention to continuing constitutional flashpoints and how some have been transformed, we seek to provide new insights, both empirical and conceptual, into the potential that constitutionalism will deepen in Southeast Asia.

To illustrate the argument, the article is structured as follows: first, as context for our argument, we briefly discuss some current debates about constitutional practice in Southeast Asia. We then turn attention to the four areas of contestation--constitutional drafting and design; individual and religious rights; the role of the military in constitutional politics; and the rule of law, courts and justice--that we consider to be of critical importance to the future of constitutionalism. The case study chapters in this special issue then explore these areas more fully. The article concludes with reflections on the future of constitutionalism in Southeast Asia and how current developments might inform that future.

Making Sense of Southeast Asia's Constitutional Landscape

In the context of democratization, liberalization and growing integration of world economies, in over the past two decades almost all Southeast Asian states have comprehensively altered their constitutions (see Table 1). For the most part, the new constitutions replaced those drafted as part of the colonial handover, or its revolutionary aftermath. (16) Even where it seems the same constitutions have been in place since independence--as in Malaysia, Singapore and Brunei --they have repeatedly been amended. (17) Despite the diversity of their features, scope, and ambition, constitutions have thus been both central to Southeast Asia's modern state-building and responsive to rapid change.

But has concern for the constitutional document actually deepened constitutional practice? Consider Thailand: its volatile history of eighteen constitutions since 1945 is a vivid reminder that constitutions in Southeast Asia have been used to legitimize a variety of regimes, some of them deeply constitutional and some not at all. The formal document alone cannot constrain, control and regulate the exercise of power, ensure protection of fundamental rights, or prevent arbitrary use of power. Even where the document was very thoughtfully drafted, features generally thought to be central to a modern constitution are not always put into practice and thus may not be able to prevent continuing patterns of executive dominance, military interventions, and human rights...