Models of Constitution-Making in Asia

Constitution-making normally aims to create a foundation for a new legal order. However, constitution-making has multiple functions, which may be not only legal but also political, social and economic.

A. The Imperial Model

The first model of constitution-making in Asia is imperial. In this model, the dominant function of constitution-making is to modernise, not to replace imperial political institutions. Constitution-making is the project of exist­ing imperial elites to cope with the threats of colonialisation from external powers or/and internal pressure of revolution. As imperial elites are the domi­nant actors of constitution-making, the imperial political institutions are not disposed, but modern institutions are integrated within the existing political order. Substantively, the integrated modern institutions are normally drawn from institutions of Western modern constitutions. The underlying belief is that the integration of modern institutions into the existing imperial government can strengthen the government, which is instrumental to its institutional capacity to struggle against external Western powers and to effectively manage the domes­tic society.

The Meiji Constitution was enacted in response to the threats of colonialisa- tion from Western powers and the domestic pressures posted by discontented groups organised into democratic movement which demanded representa­tive institutions.^[1636] Drawing from Western constitutional experiences, the Meiji Constitution adopted modern institutions, including an elected house of the bicameral legislature (article 35) and fundamental rights, such as the right to prop­erty, freedom of religious belief, and the liberty of speech, writing, publication, public meetings and associations (articles 27, 28, 29).^[1637] At the same time, major features of the imperial government are retained. The Constitution confirmed imperial sovereignty, not popular sovereignty. The Constitution declares that the Emperor ‘is sacred and inviolable' (article 3), ‘the head of the Empire, combining in Himself the rights of sovereignty, and exercises them, according to the provisions of the present Constitution' (article 4), enjoys legislative power with the consent of the Imperial Diet (article 5), issues Ordinances to execute laws (article 9), determines the organisation of the different branches of the administration (article 10), determines the organisation and peace standing of the Army and Navy (article 11), the supreme command of the Army and Navy (article 12), declares war, makes peace, and concludes treaties (article 13). Thus, the Meiji Constitution does not replace the existing imperial political order; it retains the powerful impe­rial power and introduced some modern institutions to constrain this power.

Qing's Principles of Constitution in 1908 following the modelling of the Meiji Constitution was enacted in response to the external threat of colonisation and internal pressure of revolution.

B. The Democratic Model

In the democratic model, the dominant function of constitution-making is to lay down the foundation for a new democratic legal-political order. One common function of constitution-making is to create a democracy. Eighteenth century constitution-making in the US and France aimed to create such a democracy. The main function of constitution-making in East and Central Europe, South Africa, and Asia in the late twentieth century was to facilitate the transition of authoritar­ian regimes into democracies.^[1638]

The democratic model of constitution-making is evident in Asia. In some cases (eg, Japan, Cambodia, and East Timor), democratic constitution-making is externally mandated by the international community. In other cases (eg, the Philippines and Mongolia), democratic constitution-making is internally prompted by social movements. In the case of Bhutan, democratic constitution­making is internally mandated by the existing monarch. The creation of a new democratic legal order through democratic constitution-making seeks to resolve many political, social, and economic problems, such as: to promote democracy; to protect human rights; and to facilitate economic development.^[1639] Substantively, the democratic model involves the formal adoption of major political institutions of a democratic constitution, including popular sovereignty, the separation of powers, multi-party elections, constitutional review, and fundamental rights.

One can distinguish two paradigms of democratic constitution-making in Asia. The first is constitution-making for democratic founding. Like the cases of the US and France, constitution-making in this paradigm aims to create a stable framework for the creation of a democracy. The experience of constitution-making in Japan and India illustrates this paradigm. For example, Japan's Constitution was

adopted after ‘Japan accepted the Potsdam Declaration (1945) as a condition of the Japanese surrender, which required demilitarisation, democratisation and liber­alisation of Japan.'^[1640] Although the Constitution was enacted as an amendment to the Meiji Constitution, it presents a constitutional revolution as it creates a funda­mentally new democratic legal order in Japan. The Constitution replaces imperial sovereignty with the people's sovereignty. The emperor remains but mainly plays a symbolic role. Apart from popular sovereignty, the Constitution adopts many other democratic principles and institutions, including fundamental rights, judi­cial review, and a parliamentary model of separation of powers. Particularly, the Constitution includes a unique principle to pacifism, which denounces war.

The second paradigm is constitution-making for democratic transition. In this version, the making of a constitution is to facilitate the transition from authoritarian regimes into democracies. The cases of constitution-making in Mongolia and the Philippines exemplify this paradigm. To illustrate, Mongolia's 1992 Constitution was adopted after social protests overturning the socialist regime. The Constitution creates the foundation for a new legal order to facilitate Mongolia's transition from a socialist single-party regime and the planned economy into a Western-style democracy and market economy.

C. The Nationalist Model

Constitution-making is not always to create institutions for a democracy. Constitution-making is also an activity to promote nationalism.^[1642] In the nationalist model, the main function of constitution-making is to both express self-determination of a nation-state and to create institutions for state-building deriving from national sources and culture.

Nationalist constitution-making is not primarily driven by social pressures. Rather, it is animated as a project of a dominant-party state. The making of several independence constitutions in Asia follows the nationalist path. In such cases, constitution-making is the declaration of national independence. The anti-colonial sentiment incentivises the adoption of nationalist institutions drawing on national resources in contrast to democratic constitutions of the colonisers. At the same time, as mentioned above, colonisers seek to influence independence constitution­making. The consequence is that a nationalist constitution may adopt Western institutions but repurpose them for nationalist concerns. Substantively, national­ist constitution-making involves the adoption of principles expressive of national identity. In addition, nationalist constitutions in Asia adopt institutions for state­building that centralise the government power and prioritise national values and national interests over individual rights. Constitution-making in Malaysia, Singapore, Indonesia, and South Korea exemplifies the nationalist model.

To illustrate, Indonesia’s 1945 Constitution was declared.⁴⁹ The Constitution was adopted one day after the country declared national independence.

D. The Socialist Model

In the socialist model, constitution-making is the project to transform the society into a socialist society. The main function of socialist constitution-making is to

⁴⁹ Hassall and Saunders (n 17) 65.

⁵⁰ See Abdurrachman Satrio, ‘The Making of (Anti-)Colonial Constitution: The Indonesian 1945 Constitution’ in chapter 8 in this volume. project a programme for social-economic development towards socialism led by the party-state (the socialist state under the leadership of a communist party). A range of top-down and bottom-up factors animate socialist constitution­making. The top-down factors include leadership change, the change in reformist programmes for social-economic development, and the impact of constitutional and economic globalisation. In addition, socialist constitution-making is also trig­gered by bottom-up pressures, including social demands and social-economic transition. Substantively, socialist constitutions adopt principles resting on Marxist-Leninist economic-political theory in contrast to liberal political theo­ries underlying democratic constitutions. The common principles of socialist constitutions include instrumentalism (constitutions as an instrument for socialist transformation), vanguardism (the leadership of a communist party), democratic centralism (centralisation of power on the legislature), rights statism (individual rights given and regulated by the state), and economic statism (the domination of state ownership and the economy controlled by the state). In response to the chang­ing context, the socialist states may replace an existing constitution with another one. However, socialist constitutional replacement only modifies, not replaces, the five common socialist constitutional principles. The adaption of socialist constitu­tional principles and institutions through formal constitution-making enables the resilience of socialist regimes. Constitution-making in China, Laos, North Korea and Vietnam exemplifies the socialist model.^[1643]

For example, Vietnam initiated the process of amending its 1992 Constitution, which eventually led to the enactment of a new socialist constitution in late 2013 to replace the 1992 document. The constitutional change process in 2013, therefore, can be considered the practice of constitution-making. Vietnams 2013 constitution­making is externally animated by the need to internalise international human rights treaties Vietnam has signed. Internally, the constitution-making is induced by the social-economic transition after nearly three decades of reform. Substantively, the Constitution includes more human rights and clearly distributes political powers and has new commitment to the encouragement of investment and protection of investors’ capital from nationalisation. Vietnam's socialist constitution-making in 2013, however, retains core features of so cialist constitutions. The 2013 Constitution is an instrument for the party-state in Vietnam to implement socialist policy in the globalising era. The Constitution confirms the leadership of the Communist Party of Vietnam and democratic centralism. It continues to provide for the state’s regulation of fundamental rights. It also confirms the state’s ownership of all lands and the leading role of the state-owned enterprises in the economy.^[1644] The consti­tutional entrenchment of party leadership, centralised power, statist rights, and statist economy seeks to channel social-economic transformation in Vietnam towards socialism. At the same time, these socialist constitutional principles were modified, which facilitates the resilience of the socialist regime in Vietnam.

E. The Military Model

In the military model, the main function of constitution-making is to institutionalise military power. Military constitution-making seeks to provide a stable framework for the creation of institutions of what Melissa Crouch calls ‘the military-state' or a state in which military and civilian institutions co-exist.^[1645] According to Crouch, constitution-making codifies three elements of the military-state: the political lead­ership of the military, military ideology, and a centralised administration.^[1646] Crouch argues that the constitutional model of military-state is attractive because it allows the penetration of the military to all government branches while maintaining its autonomy. In addition, different from direct military rule without a constitution, the constitutionalisation of the military-state facilitates military resilience.^[1647]

Comparatively, the military model of constitution-making is in contrast with the democratic model. Unlike democratic constitution-making, mili­tary constitution-making does not facilitate the creation of or transition into a liberal democracy; rather, military constitution-making seeks to maintain limi­tary hegemony by impeding the transition into democracy and the creation of a full civilian government.^[1648] Military constitution-making shares with socialist constitution-making the feature that constitution-making is used to consolidate political power, and therefore both models lack or limit democratic institutions designed for a limited government. But, different to the social model, mili­tary constitution-making is not a project for social-economic transformation. In addition, unlike the constitutional party-state in the socialist regimes, the constitutional military-states do not pursue socialism. Constitution-making in Myanmar and Thailand exemplifies the military model.

Myanmar's 2008 Constitution was enacted to create a foundation for a military-state. The document institutionalises the political leadership of the military, the Tamadaw, which drafted the document. The Constitution entrenches three principles of the Tamadaw's ideology: non-disintegration of the Union, non­disintegration of the national solidarity, and perpetuation of sovereignty. Finally, the Constitution creates a centralised institutional structure in which three legis­lative, executive, and judicial powers are expected to work together, a mutual check and balance. Particularly, courts are subordinate to the legislature and the executive.^[1649] This centralised constitutional arrangement echoes the principle of democratic centralism in socialist constitutions. Perhaps, the legacy of socialist constitution-making is continued in military constitution-making in Myanmar. To be sure, different from the 1974 socialist Constitution in Myanmar, the 2008 Constitution does not pursue the building of socialism in the country.^[1650]

Thailand has a long history of military constitution-making with many consti­tutions enacted after military coups. The country's 2017 Constitution was enacted after a military coup in 2014. The main function of constitution-making is to institutionalise the rule of the military junta (the National Council for Peace and Order) under royal auspices. The Constitution was drafted and approved in a referendum under military supervision. The Constitution reserves the hegemony of military rule but introduces some democratic institutions (eg, human rights protection, parliament, constitutional court) to legitimise the military rule.^[1651] The Constitution allows the 250 junta-selected senators to play a critical role in Parliament, including by choosing a Prime Minister, reserves Senate seats for its key members, and requires the new Government and Parliament to adhere to the junta's ‘20-year reform plan'.^[1652] The Constitution institutionalises a military-state. It consolidates military power and facilitates the penetration of the military into civilian institutions.

F. The Ethnic Model

In the ethnic model, the main function of constitution-making is to manage linguistic, ethnic, religious, and cultural conflict (or ethnic conflict for short) in a divided society by which to promote peace, social justice, and stability.^[1653] A divided society is marked by the fact that ‘ethnocultural diversity translates into political fragmentation. In a divided society, political claims are refracted through the lens of ethnic identity, and political conflict is synonymous with conflict among ethnocultural groups'.^[1654] Ethnic conflict in divided societies may trigger constitution-making. Ethnic conflicts may shape the process of constitution­making, such as the creation of an inclusive body of constitution-making.^[1655] Furthermore, ethnic conflicts may shape the substantive contents of the constitution. The constitution may include expressive and regulatory provisions to mitigate ethnic conflicts. Descriptively, ethnic constitution-making is not necessarily democratic. Ethnic constitution-making may create authoritarian institutions. Therefore, the ethnic model should be distinguished from the democratic model of constitution-making. The stories of constitution-making in Nepal, and Bangladesh, and Sri Lanka are reflective of the ethnic model.

For example, Sri Lanka has experienced violence in hundred years. The main function of the 1978 Constitution is to manage ethnic conflict by which to promote economic development and social and economic stability. The Constitution adopted presidentialism as an institutional solution for this purpose. The constitutional adoption of presidentialism is based on ‘a perception that since the President would be elected by a “national” electorate consisting of the majority Sinhalese, and the ethnic and religious minorities, he or she would have to cultivate legitimacy with all ethnic and religious groups’.^[1656] Mario Gomez comments that the Constitution ‘strengthened authoritarian tendencies by giving sweeping powers to the president and blanket immunity to presidential acts' although it included democratic elements, such as ‘a Bill of Rights and an elec­toral system based on proportional representation’^[1657] Thus, the main function of the Constitution is not to create a democracy but to manage ethnic conflict to promote social stability and economic development, which led to the constitu­tional consolidation of presidential authoritarianism. However, the presidential system in Sri Lanka failed to mitigate ethnic conflict and to promote social stabil­ity and economic development.

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