[Editor’s Note: In light of recent constitutional (or some may say, unconstitutional) developments, I-CONnect is pleased to feature this timely symposium examining constitutional struggles in Asia. This introduction will be followed by five posts exploring and contextualizing constitutional struggles in five countries in Asia.]
The military coup in Myanmar early this month may well serve as a warning of what might unravel in Asia in the months and years to come. Although, to be sure, not all countries face the threat of military coups, there is an unmistakable wave of constitutional strains and struggles that are threatening the very foundation of legal and governance systems in many Asian jurisdictions. By “struggles” we do not mean to refer to mere gaps between constitutional law on the books and constitutional law in practice – it is not just about the day-to-day decisions or actions that test the boundaries of constitutional limits on government power. Rather, they are recurring issues that strike at the heart of the constitutional fundamentals of a particular country. Whether it is the resurgence of authoritarianism, the revival of monarchical authority, or even the recalibrating of majority-minority dynamics in the constitutional arrangements of ethnically divided societies, many countries in Asia are experiencing some degree of volatility and unpredictability in defining the fundamental values and principles that underpin their nation-state. These are not simply disagreements about constitutional practice or interpretation; rather, those involved in the constitutional struggle are seeking to capture and rechart the path of the constitutional order to achieve a range of objectives.
Returning to the case of Myanmar, the military justified the overthrow of an elected government tasked to build a constitutional democracy by using a pretext of electoral fraud that has thus far been unproven. The fact – as Harding noted – that the writings for the coup had already been on the wall, illustrates Myanmar’s persistent struggles for democratic progress in the shadow of military authority and a military-drafted constitution. Myanmar is certainly no stranger to post-election military coups (the military nullified the results of democratic elections that favored Aung San Suu Kyi’s National League of Democracy in 1990 and instituted military dictatorship for the next two decades or so). But what is equally alarming this time is the attempt to (loosely) invoke Sections 417 – 418 of the Myanmar Constitution as a basis for the coup and for putting the country under a year-long “state of emergency”. Of course there are often attempts, as with this coup and in other cases throughout Asia, to clothe unconstitutional actions with constitutional language; but in such cases the struggle takes place outside the normal fora of constitutional discourse in the courts or the legislature. The consequences are severe as power is now concentrated in the hands of the military Commander-in-Chief: he can suspend fundamental rights guarantees; all legislative, executive, and judicial powers are transferred to the Commander-in-Chief; and all executive positions in government are immediately terminated.
Two Key Themes
These considerations form the crux of this Symposium, which features case studies from five countries: Sri Lanka, Indonesia, Thailand, Japan, and Hong Kong. In this respect, a key theme is to identify the key sites of constitutional struggles in various jurisdictions covering South Asia, Southeast Asia, and East Asia. The posts will demonstrate that these key sites may vary across different countries, and this in turn highlights the significance of domestic socio-political contexts and history in understanding the nature and operation of constitutionalism. On Sri Lanka, Mario Gomez sheds light on the issue of power-sharing with the Tamil minority – a highly divisive, politically-charged issue that has animated Sri Lankan constitutional discourse and constitutional reform for decades. The passing of the recent 20th Amendment to the Constitution of Sri Lanka which (re)concentrates power in the Executive Presidency, along with growing Sinhala-Buddhist majoritarianism, have foreclosed any discussions about autonomy, devolution of power, and federalism.
One might find it unsettling (or reassuring, depending on the perspective adopted) that the symptoms of constitutional struggles are not only confined to fragile or emerging democracies in Asia; they seem to feature also in more stable democracies such as Hong Kong and Japan. Eva Pils’ analysis highlights the ways in which the Hong Kong Basic Law continues to grapple with challenges to its liberal-democratic values and authority as a binding regional constitution – most recently, this challenge has come in the form of the Hong Kong National Security Law. In Japan – as Akiko Ejima explains – the struggle to maintain the integrity of its constitutional identity and key constitutional commitments is attributable to certain mechanisms of informal constitutional change invoked by the dominant LDP government. A comprehensive assessment of exactly why this is happening is beyond the scope of this introductory piece. (Indeed, we hope that this will trigger further research on these issues.) But just as consolidated democracies like the United States are not immune to democratic erosion or populist authoritarianism, one might surmise that even stable democracies in Asia are bound to face battles that will shape and re-shape their fundamental constitutional values.
The other key theme in this Symposium is to uncover the drivers and implications of constitutional struggles and in doing so, the posts will shed light on the role of various political actors within and outside the constitutional framework. Here it is worth highlighting the case of Thailand, which has – over the past 15 years – struggled with its constitutional identity embodied in the righteous Buddhist monarchy. In this regard, Rawin Leelapatana and Suprawee Asanasak’s contribution will examine the role of the Thai Constitutional Court in navigating pro-democracy and pro-royalist fault lines. In another contribution, Herlambang Wiratraman will draw our attention to an important (and seemingly persistent) feature of Indonesian politics, the political oligarchy or political cartels, whose tentacles are spread and firmly embedded in various aspects of law and governance. This has rendered the maintaining of judicial and constitutional integrity a monumental task in post-authoritarian (i.e., post-Suharto) Indonesia.
We hope that this online Symposium succeeds in shedding some light on the nature of constitutional struggles across Asia in the sense we have laid out and therefore adds to understanding of such struggles internationally. While the phenomenon addressed comparatively here is becoming distressingly familiar, the interest of such an inquiry is to question how the realities of struggle wrap around particular issues and take particular forms. We also recognize here that the vectors of “struggle” may differ depending on whether social responses use the idea of “democracy” or “constitutional government” to defend an established constitutional order (such as in Japan, Hong Kong, Sri Lanka and Indonesia) or to undermine a constitutional order that does not embody such ideals (such as in Thailand and Myanmar). Some movements that could objectively avail themselves of the term “struggle” are of course devoted to the precisely opposite objective of destroying adherence to these ideals, but these are not our focus and can perhaps be looked at on other occasions.
Finally, the selection of cases is not meant to demarcate a comprehensive overview of sites, socio-political dynamics, or political actors vis-à-vis constitutional struggles. They do, however, serve a purpose of illustrating the various ways differences across such factors relate to the manifestation of constitutional struggles. In doing so, they indicate an area of exploration that can inform understanding of the contextual issues that drive contention over constitutional fundamentals. In addition, by drawing upon the insights of the above cases, it is possible to determine a framework for future comparative studies that can extend their implications to constitutional struggles outside Asia and thereby further the larger literature on constitutionalism.
[Authors’ Note: This Symposium is part of a larger research project in collaboration with the Centre for Asian Legal Studies, National University of Singapore and the College of Law, Australian National University. A series of articles covering a range of jurisdictions will be published later this year in a Special Issue of the Federal Law Review.]
Suggested citation: Dian A H Shah, Andrew Harding, and Jonathan Liljeblad, Symposium on Constitutional Struggles in Asia: Introduction, Int’l J. Const. L. Blog, Feb. 19, 2021, at: http://www.iconnectblog.com/2021/02/symposium-on-constitutional-struggles-in-asia/.