Constitutionalism in South-East Asia
OVER the past two and a half decades, South-East Asian states have begun to dramatically alter their constitutions, reinforce human rights provisions and instal institutional safeguards for those rights, such as constitutional courts and human rights commissions.
Although these can be seen as constitutionalism broadening and deepening its reach in Asia, constitutional trajectories and realities in South-East Asia are hardly that clear-cut.
In Thailand, the constitutional reform debates that dominate the political agenda often fuel the divisions in a country that is still polarised.
In March last year, the military unveiled a new constitution draft that calls for an elected senate and allows the possibility for an unelected prime minister. It drew sharp criticism from Thai civil society and critics of the military government.
The Philippines and Indonesia are witnessing growing tensions between the executive and judicial branches of government as the political role of courts widens.
In Malaysia, court decisions on religious freedom have tested the constitutional boundaries of the multi-ethnic state.
Additionally, conflicts over land as well as ethnic and minority rights have renewed calls to amend the constitution in Laos and Vietnam.
Constitutional politics is increasingly the focal point for collective action by both the elites and ordinary citizens.
Contestation is the process by which incumbent elites compete, bargain and struggle with oppositional groups about what state institutions and the broader political order should look like.
For constitutionalism to take hold, both the elites and citizens must agree to support basic features such as separation of powers, checks and balances, judicial review and specific rights.
Constitutional settlements born out of contestation are critical to whether constitutional principles are adhered to and enforced.
There are four arenas of contestation. Since the 1990s, constitution-drafting and design has become one of the most visible arenas for contestation.
For instance, the 1986 Freedom constitution in the Philippines, which was drafted by a commission of 674 drafters, was criticised early on for its elitist, if not conservative, content.
Similarly, Indonesia’s incremental amendment process (1999 to 2002), dominated by members of the parliament, was heavily criticised by civil society actors, who were only minimally consulted. In these cases, amendments have been made to include more voices from below.
The second arena is social contract or compromise between social groups. Only if its members accept the supremacy of elected politicians and their constitutionally enshrined decision-making authority can constitutionalism gain ground.
It is not surprising that these settlements have been difficult to achieve in countries where the military was a major factor in gaining or maintaining independence or where prolonged periods of military rule have left the military far more powerful than civilian institutions, such as in Myanmar, Indonesia, Vietnam and Thailand.
The third arena is human rights – particularly the extent to which individual, collective and religious rights are respected and enforced.
All Asean countries have adopted constitutional rights catalogues – many of which have greatly expanded political, social and economic rights – yet much is to be done in this field.
This can be seen in the failures to protect religious minorities, such as the Ahmadiyya community in Indonesia or the Rohingya in Myanmar.
The last arena is the rule of law. Recent reforms have empowered the judicial branch, such as the creation of the Philippine Supreme Court by the 1986 constitution or the creation of high-profile constitutional courts in Thailand (1997) and Indonesia (2003).
In short, within a dramatically transformed constitutional landscape, judicial actors have become critical to how constitutional practice is evolving in the region. – By Assoc Prof Marco Buente, associate professor of politics and international relations, Monash School of Arts and Social Sciences
Contestation is the process by which incumbent elites compete, bargain and struggle with oppositional groups about what state institutions and the broader political order should look like.
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