Academic journal article Contemporary Southeast Asia

Ways of Constitution-Making in Southeast Asia: Actors, Interests, Dynamics

Academic journal article Contemporary Southeast Asia

Ways of Constitution-Making in Southeast Asia: Actors, Interests, Dynamics

Article excerpt

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? …

Search by... Author
Show... All Results Primary Sources Peer-reviewed

Oops!

An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.