Waves of Constitution-Making in Asia
Constitution-making in Asia is a part of the global picture of constitutionmaking. Scholars indicate that constitution-making tends to occur in waves.[1601] In an essay published in 1995, Jon Elster identities seven waves of constitutionmaking in Europe and North America since the late eighteenth century.[1602] Constitution-making in Asia also happened in waves resonating with waves of constitution-making in other parts of the world.
One can also identify at least seven waves of constitution-making in Asia from the late nineteenth century to the early twenty-first century, some of which echo the waves of Western constitution-making identified by Elster.The first wave of constitution-making in Asia happened in the early process of modernisation in late ninetieth and early twentieth centuries. Some Asian monarchs engaged in constitution-making to modernise imperial political institutions. The Empire of Japan adopted the Meiji Constitution in 1868. Inspired by Meiji constitution-making, the Qing dynasty of China adopted several constitutional documents (the Principles of Constitution of 1908 and the Nineteen Articles of 1911).[1603]
The second wave of constitution-making in Asia took place after social revolutions in the first half of the twentieth century. Constitutions were adopted in China, Korea, and Thailand following revolutions ending absolute monarchy. The Republic of China adopted several constitutional documents after the Xinhai Revolution of 1911, which overturned the Qing dynasty, the last imperial dynasty in China. The Republican Government enacted a provisional constitution in 1912, a constitutional pact in 1914, a constitution in 1923, and another constitution in 1931. The 1931 charter includes provisions on fundamental rights similar to most of Western democratic constitutions.[1604] The Provisional Government of the Republic of Korea (in exile in Shanghai, China) adopted a Constitution in 1919 after the March 1st Movement, a social movement struggling for Korea's independence from Japan.
The movement is described by Jeong-In Yun as a ‘revolution' and ‘a constitutional moment signifying the end of the era of a monarchical state and the start of a (democratic) republic for the first time in Korean history'.[1605] Yun argues that the 1919 Constitution includes ‘core elements of modern constitutionalism such as popular sovereignty, separation of powers and constitutional protection of rights and equality’.[1606] Thailand adopted a constitution in 1923 after a revolution ending the absolute monarchy. The Constitution was inspired by the British constitutional monarchy. It requires the King to exercise power according to the Constitution, creates a government following the Westminster pattern, and provides for fundamental rights and freedom, including religious freedom.[1607]The third wave of constitution-making in Asia occurred after World War II. Post-war constitutions were promulgated in Japan (1947), Taiwan (Republic of China, 1947), and South Korea (1948).[1608] This echoes the wave of post-war constitution-making elsewhere. Like Japan, other defeated nations, Germany and Italy, ‘adopted new constitutions under the more or less strict tutelage of the Allied Powers’.[1609]
The fourth wave of constitution-making in Asia emerged following the decolonialisation in the twentieth century. The breaking down of colonialism in Asia led to the enactment of new constitutions of independent states. New constitutions were enacted in former British colonies in South Asia (India, Pakistan, Sri Lanka, and Nepal), Southeast Asia (Singapore, Malaysia, and Myanmar), and East Asia (Hong Kong, the Basic Law). The end of French Indochina resulted in the enactment of constitutions in Vietnam, Cambodia, and Laos. Indonesia enacted a constitution in 1945 in the aftermath of Dutch colonialism.[1610] Graham Hassall and Cheryl Saunders identify two paths of independence constitutionmaking in Asia following the decolonialisation process: negotiated and declared.[1611] The former model of independence constitution-making involved the negotiation with former colonial powers.
Independence constitution-making in former British colonies such as India, Malaysia and Singapore followed the negotiated path.[1612] ‘In some places, colonial powers sought to resist the forces of nationalism and were not prepared to transfer sovereignty or to negotiate the terms of independence constitutions, so these documents were “declared”’.[1613]The fifth wave of constitution-making in Asia arose during the Cold War. Soviet-style socialist constitutions were adopted in East Asia (China, Mongolia, and North Korea), and Southeast Asia (Cambodia, Myanmar, and Vietnam).[1614] Apart from Asia, socialist constitutions were also adopted in Central and Eastern Europe.[1615]
The sixth wave of constitution-making in Asia occurred after the collapse of the Soviet Union in the late twentieth century. Mongolia and former Soviet republics in Central Asia adopted new constitutions to facilitate the transition to free market and democracy. The Asian experience echoed elsewhere. After the fall of communism in 1989, many former Communist countries in Eastern and Central Europe enacted new constitutions to facilitate the transition to free market and democracy.[1616] The fall of the Berlin Wall triggered constitution-making not only in transitional democracies but also the remaining socialist countries. Laos enacted the first socialist constitution in 1991, which departed from a standard socialist constitution, including the provisions for private economy and private ownership. Vietnam adopted the third socialist constitution in 1992 to create a foundation for a socialist market economy and to adjust political institutions.[1617]
Finally, the seventh wave of constitution-making in Asia emerged in the early twenty-first century. Various forms of conflicts resulted in the making of new constitutions in Myanmar (2008), and Thailand (2017), and Nepal (2016). Globalisation compelled Vietnam and Laos to adopt new socialist constitutions in 2013 and 2015 respectively.
Timor East made a constitution in 2002 following its segregation from Indonesia. Democratisation induced the enactment of the first constitution in Bhutan in 2008.[1618]Waves of constitution-making in Asia are generated by both global and domestic triggers. On the one hand, waves of Asian constitution-making are connected to the global waves of constitution-making. Some global political-geographic events (such as World War II, the Cold War, the decolonialisation movement, and the democratisation movement) triggered constitution-making around the world, and Asia is no exception. On the other hand, waves of constitution-making in Asia are animated by varieties of domestic factors in particular Asian polities, such as social revolutions, regime change, economic difficulty, and ethnic conflicts. These factors are not idiosyncratic to constitution-making in Asia; rather, they are common factors of constitution-making manifested in Asia.
III.