Diffusion of Constitution-Making in Asia

The diffusion of constitution-making in Asia is evident.^[1619] Cheryl Saunders observes that ‘all Asian constitutions have been influenced by constitutional arrangements that developed elsewhere’.^[1620] The very idea of making a modern constitution in an Asian polity is influenced by the experience of constitution-making elsewhere.

Neo-institutionalists identify three mechanisms of institutional isomor­phism: coercive isomorphism animated by external formal and informal pressures on conformity; mimetic isomorphism responding to uncertainty; and normative isomorphism stemming from professionalisation.^[1623] To adapt this theo­retical construction, one can generalise three models of transnational diffusion of constitution-making in Asia.

The first model is coercive diffusion of constitution-making in Asia. In this model, Asian polities adopt constitutions due to the force or threats from external powers. This model takes two forms: explicit and implicit. In the explicit form, constitution-making in Asian polities is imposed by external actors. Constitution­making in post-war Japan illustrates this model.^[1624] The negotiated path of independence constitution-making also provides examples of explicit, coercive model of diffusion of constitution-making in Asia. Departing colonial powers have an interest in ensuring that the independence constitutions will follow their constitutional models.^[1625] The diffusion of their constitutional models is instru­mental to the celebration of the values associated with these models, such as democracy and liberty.^[1626] The affinity between independence constitutions and the master constitutions is also the way to honour the departure of colonial masters.

The constitutions of the former British colonies in Asia were partially written by the British themselves, or at least by British appointees. The independence constitution of Malaysia was drafted by a committee appointed by the British Crown and chaired by the British jurist Lord Reid. There had been no constituent assembly. The independ­ence constitution of India was drafted in part by an Indian Constituent Assembly, and Indian elites attended constitutional conferences in London, but the critical decisions were made by policymakers in England.^[1627]

The coercive model is also evident in post-conflict constitution-making in some Asian countries undertaken under United Nations' peace-building operations. This was the case in the making of Cambodia’s 1993 Constitution and East Timor's 2002 Constitution.^[1628] In both cases, international actors require and provide a general framework for domestic constitution-making. The framework includes the commitment to human rights, which must be reflected in the bill of rights of the constitutions. United Nations Transitional Administration in East Timor’s Regulation 2001/2 requires that the Constitutional Assembly should contribute to ‘protecting] the inalienable human rights of the people of East Timor’.^[1629] The Agreement on a Comprehensive Political Settlement of the Cambodian Conflict sets its own specific human rights that must be included in the constitution.^[1630]

The second form of coercive diffusion of constitution-making in Asia is implicit. In this form, an Asian polity seeks to make a constitution in response to external threats, although there is no external imposition. For example, the Meiji Government in Japan and the Qing dynasty in China were compelled to engage in constitution-making in response to the threats of colonialisation posted by Western powers.

The second model is mimetic diffusion of constitution-making in Asia. Asian countries may engage in constitution-making without explicit imposition and implicit pressures, but as a modelling response to uncertainty. As Kim Lane Scheppele notes,

Constitutions tend to be written at momentous turning points in a country’s history. A war is lost; an empire is vanquished; an old order is overturned; a dictator dies; an authoritarian government is forced to step aside; a mass public seizes the reins of power from the few who guided the state.^[1631]

In response to uncertainty posed by revolution, decolonialism, regime change, and ethnic conflicts, among others, Asian polities learn from the constitution-making experience of other stable and successful polities to achieve similar stability and success.

The third model is normative diffusion of constitution-making in Asia. In this model, an Asian polity adopts a modern constitution due to the normative weight of a modern constitution, which is connected to various values such as human dignity, liberty, and democracy. Normative diffusion of constitution-making in Asia is driven by constitutional professionalisation. Normative constitutional values are promoted by foreign constitutional advisers through their engage­ment in domestic constitution-making in Asia. For example, Englishman and

Law Professor Sir Ivor Jennings advised constitution-making in India, Pakistan, Sri Lanka, Malaysia and Nepal.^[1632] International experts also advised constitution­making in Cambodia and East Timor.^[1633] Columbia professor Frank Goodnow advised the Republic of China on constitution-making. Professor Yash Ghai has been involved in constitution-making in Nepal, Fiji and others.^[1634]

The three models of diffusion of constitution-making in Asia are abstract only. In reality, constitution-making in an Asian polity can be the mixed result of coercive, mimetic and normative influences; however, some influences may be prominent in certain cases. For example, the coercive influence from external actors is particularly salient in the cases of constitution-making in post-war Japan, Cambodia, and East Timor.

IV.