Ways of constitution-making in Southeast Asia: actors, interests, dynamics.

• Author: Croissant, Aurel

This article presents a comparative analysis of constitution-making across Southeast Asia with a particular emphasis on current episodes of constitution-building undertaken in the region since the late 1980s and early 1990s. While there is an important literature on constitutional systems in individual countries, few contributions discuss the topic from a comparative perspective. (1) This lacuna is striking because for a long time the constitutional design literature has noted a causal link between the modes of constitution-making, the public acceptance of a constitution and the democratic quality of a political regime. (2) This is not to say that representative democracy (the only viable organizational form of democracy for contemporary nation-states devised as of yet) is necessarily constitutional democracy, nor does it imply that constitution-making is only a relevant research topic in the context of democracy and democratization.

Regarding the relationship between representative and constitutional democracy many scholars have noted that these two forms of democracy share many common elements but are two distinct concepts: representative democracy (or "polyarchy") is defined as "public contestation and the right to participate", (3) that is free and open elections, freedom of speech and the press, the right to freely form and join civic or political organizations and the existence of "institutions for making government policies depend on votes and other expressions of preferences". (4) Constitutional democracy requires additional institutional checks on public officials which assure that the democratically elected political institutions and authorities will govern according to the principles laid out in the constitution. (5) Furthermore, the "new institutionalism in the study of authoritarian regimes" demonstrates the importance of formal political institutions such as constitutions, courts, elections, legislatures and multiple political parties for the reproduction of authoritarian rule. (6) Hence, authoritarian constitutions should not be dismissed as merely window dressing. (7) Certainly, many authoritarian constitutions serve this purpose. However, as some authors argue, dictators bother to create constitutions because it facilitates their objective of political survival by, among other things, enabling coordination among multiple institutional actors and eliciting cooperation from a dictator's subjects. (8)

Southeast Asia is particularly suited for drawing inferences on constitution-making in different types of political regimes. Over the past twenty-five years, the region has experienced a number of regime transformations as autocracies in the Philippines, Thailand, Cambodia, Indonesia and East Timor (Timor-Leste) embraced more democratic forms of government. Yet, there is considerable diversity in the outcomes of these regime transitions. For example,

Cambodia's nascent democracy devolved into a new kind of electoral authoritarianism in the late 1990s, whereas Thai democracy has remained in a state of continual crisis since the mid-2000s. In contrast, democracy in the Philippines, Indonesia and Timor-Leste --while perhaps "illiberal, hollow [and] poorly institutionalized" --has shown resilience despite difficult challenges. (9)

Meanwhile, the remaining autocracies in the region have also undergone important changes. Perhaps the most striking example is Myanmar. While the slow and controlled process of political liberalization that has taken place since 2008 "should not be understood simply as an exit strategy by the military to retreat from national politics", (10) the disbanding of the Burmese junta and the ratification of a new constitution is nevertheless an important development in the transition from military rule towards "something else". (11)

These developments raise a number of questions: what have the constitution-making designs in the region been like since the late 1980s; which actors were involved and how did their interests shape the constitutional texts; and is there a link between process designs and the legitimacy of the constitutional order? With these questions in mind, the rest of the article proceeds as follows. The next section introduces the analytical framework for this study. Section two locates contemporary episodes of constitution-making within the broader context of the region's constitutional history. Section three compares eleven cases of constitution-making in eight countries (i.e., the Philippines, Thailand, Cambodia, Indonesia, Timor-Leste, Laos, Myanmar and Vietnam). Section four investigates the relationship between process designs, the role of actors and their interests. The final section provides some tentative conclusions regarding the regional dynamics of constitution-making and issues of constitutional legitimacy.

The Framework for Analysis

The analytical framework for this study is based on the differentiation between "constitutional order" and "constitution" and reserves the usage of the word "constitution" to the latter. (12) The difference between the two concepts is as follows: the "constitution" is "the document or documents that supposedly spell out the nation's basic political principles and goals, institutional arrangements, modes of selecting public officials, and rights and duties of private citizens". The constitutional order, however, includes the written text of a constitution, but also "super-statutes", decisions of judges and agencies and even informal institutions. (13)

Furthermore, the article adopts a narrow conceptualization of constitution-making as "state-supported, nationwide formal process of constitution drafting undertaken in the expectation that the resulting document will govern the country in the relative near term". (14) Of course, constitutions can change over time through formal amendments to text as well as informal amendments that result from interpretative changes, and "no constitutional documents long remain coextensive with the constitutional order" as the "original words are soon overwritten by customs, usages, and interpretations". (15) Nevertheless, this analysis is consciously limited to cases in which an existing constitution was replaced by a new one. Episodes of constitution-building through amendment and (re)interpretation are excluded from the analysis (with the exception of Indonesia in 2002, see below).

The following analysis applies and modifies an analytical framework developed by Kirsti Samuels. She examines constitution-building processes along four criteria: (16) first, whether the constitution was imposed from the top (by the incumbent regime, external actors, or a dominant national elite faction or political party) or negotiated between competing elite factions; second, the inclusiveness of the process, i.e. the extent to which the composition of the institutional body that produced the constitutional text is inclusive or exclusive; third, the representativeness of the process, i.e. whether all the major interests in society were represented in the constitution-making process or if the processes was biased towards certain individual, group or institutional interests that shaped the final document; and fourth, the participatory quality of the process, that is the extent of involvement of the broader public in the process, either through direct consultation or dialogue with the public or representative groups at various stages before or during the drafting of the text or afterwards, through ratification of the document by free popular vote. Related to these criteria is the issue of constitutional legitimacy, that is, whether a document produced during the constitution-making process can claim "upstream legitimacy", "process legitimacy" and "downstream legitimacy". (17) As Jon Elster observes, constitutional documents enjoy "upstream legitimacy" if the assembly that writes the document came into being in a legitimate way. Furthermore, constitutions possess "process legitimacy" if the internal decision-making procedures of the constitution-making body are not perceived to be a mere bargain among interest groups or dominated by extra-constitutional forces. Finally, a constitution enjoys "downstream legitimacy" if a constitution produced in a democratic process has been submitted to the people in a referendum.

Constitutional History and Constitution-building in Southeast Asia

As Ginsburg and Simpser note, since the end of the Second World War, "formal written constitutions have become ubiquitous features of modern nation-states". (18) Southeast Asia is no exception to this development. While some countries had begun experiments with written constitutions prior to independence, constitutions became an essential part of proclaiming sovereignty in the 1940s and 1950s. A second rush of constitution-making occurred in the 1970s, when original constitutions were replaced in some countries. Finally, the downfall of the Marcos dictatorship in the Philippines and the passing of the provisional "Freedom Constitution" in 1986 presaged another outburst of constitutional activities in the region which resulted in the drafting of new constitutions or (in the case of Indonesia) a "total revision" (19) of the constitutional text in eight countries (see Table 1).

The constitutional histories of Southeast Asian countries are highly diverse. However, one cross-national trend is the vicissitude of written constitutions. The average life expectancy of a constitution in Southeast Asia is 13 years. Yet, there are important differences between the 45 constitutions that were promulgated under authoritarian governments, which endured for, on average, 13.5 years, and the average lifespan of the five constitutions promulgated under democratic governments (10.1 years). The shorter lifespan of democratic constitutions compared to authoritarian ones reflects the pre-eminence of authoritarianism in the region for most of the...