Analysis and conclusion

Our knowledge of the constitutional functioning of local government in Asia is still quite limited. There are few studies comparing the legal structure with its real-life operation.

Local government is a fruitful area for both research and policy development. Asia has much to offer in terms of solutions to the problems of a plural society and the need for local autonomy. In this field, we have seen that expression of local culture is an element of this need. However, the pressures that tug the political system and administration towards decentralisation are in other respects probably little different from those in other parts of the world. The practice of democratic values of elections, accountability, integrity, freedom of information, and public participation needs to be entrenched at the local level as a way of life. To a large extent, this has been provided for. Everyday observance of these principles is not only itself desirable, but it helps to entrench these same principles at the national level.

From this article's brief survey of local government in Asia, the main conclusion is that decentralisation in the form of entrenched local government autonomy has been provided for, and appears to contradict the Asian developmental state's assumption that centralisation of power is the route to successful development. Whether one considers that decentralisation has occurred during and in spite of the ascendancy of the Asian developmental state is largely a question of whether one considers that state to still exist or to be merely a historical description. My own view is that the state has not ceased to be interested in development, but there is an evolution in how it sees and implements development, and how it constitutionally responds to the changed conditions of

Table ι Subnational government in Asia' NB. “Munic” = Municipality

This table somewhat oversimplifies the levels of local government, which can be extremely complex, as, for example, in the Philippines, where the various levels merge into each other; may differ internally, as in Malaysia (East Malaysia has a different structure from West Malaysia); or may be incomplete (as in Myanmar which has, below level 4, levels 5 and 6: wards/village tracts and villages). I have used English terms in this table for ease of comparison, but it is noteworthy that in the various constitutional texts considered here even the English versions use vernacular terms, which are generally historic. This does not necessarily of course imply the survival of traditional modes of local government, but may give expression to local identity in some fashion.

decentralisation.

It is striking that in almost all cases across Asia, decentralisation began in earnest during the 1990s (see Table 1) at the height of globalisation and after the end of the Cold War. That process was by no means limited to a brief moment in history. On the contrary, decentralisation has advanced and found a better balance between centre and local powers. Local self­government in Asia is now not just a useful development strategy but has become a defining, constitutionally entrenched fact of democratic existence.

Notes

1 Asia is defined here as Northeast Asia and Southeast Asia, excluding other parts of Asia and also the one-party states of Vietnam, Laos, and China.

2 In 2018, peace talks in Myanmar and proposals in the Philippines are embracing the possibility of moving towards federalism in both of these states. Some observers already describe Myanmar as a quasi-federation.

3 There has also been extensive study of Indonesia’s decentralisation (see below) and local government finance in China, both of which lie outside the scope of this piece.

4 A study of planning law in Kuala Lumpur revealed that lawyers hardly deal with planning matters at all except for occasional instances of judicial review and planning appeals, relevant work going mainly to architects (Harding and Sharom 2007, 136). So it may be that the neglect of this area is actually to the detriment of the legal profession.

5 The Constitutional Courts of Indonesia, South Korea, and Taiwan have made many important decisions relating to local government. Examples from Taiwan are given below.

6 Although 1990 may be seen as a turning point, it should also be recognised that some states had mounted extensive decentralisation projects during the 1970s and 1980s, and even in some cases the 1960s (Rondinelli 1983).

7 Kuala Lumpur, for example, has expanded far beyond the Federal Territory into the state of Selangor, but the law does not recognise the integrated nature of the conurbation, extending as it does over many local-government areas.

8 In the idea of a ‘galactic state,’ which is much concerned with the geo-body of the state, consciousness lies at the centre and satellites surround it (Tambiah 2013). Gilbert Rozman presents an interesting argument that central-local relations in East Asia (China, Taiwan, Japan, and Korea) can be reformulated on the basis of a localist interpretation of Confucianism. He finds evidence that Confucianism, rather than encouraging centralisation, actually sought to balance the power of the state with institutions lying between the state and the family. The implication is that they have not in fact done so in recent times (Bell and Chaibong 2003, chap. 7).

For an example of Indonesian history, see Benda-Beckmann and Benda-Beckmann (2012, chap. 6).

For example, in Malaya, see Harding and Sidel (2014, 143). Malaysian democracy started with local elections in the early 1950s. Similarly US democratisation in the Philippines under the Taft administration started with local government.

For example, art. ι(a) of Cambodia’s 1993 Constitution states, “The State of Cambodia cannot be divided [...],” while art. 71 states, “The territory of the State of Cambodia is divided into [...].”

Government of the State of Penang and Anor v Government of Malaysia and Anor [2014] 7 Current Law Journal 86i.

2008 Constitution of Myanmar, s.13.

Ibid., s.51.

Ibid., s.74.

Ibid., s.53.

Ward and Village Tract Administration Law 2012, chap. IV.

1987 Constitution, Article X, s.3.

Local Government Code 1991 (Republic Act 7160).

There is a useful comparison here with Germany’s Basic Law, Article 28, which guarantees autonomy to municipalities in terms of both competence and financial resources. Relatively few European constitutions have provisions guaranteeing local government autonomy (Rosenfeld and Sajo 2012, 6i6).

Currently, under military government since 2014, no local or national elections have been held, but it was announced that local elections would precede national elections during 2018 (Vietnam Plus 2017).

2017 Constitution, ss.76, 250.

Ibid., s.252.

Ibid., s.249.

Ibid., ss.43, 50, 57, 76.

Ibid., ss.43, 58.

Constitution of Indonesia, Art.10(3).

Taiwan province was streamlined with the central government, which in effect abolished Taiwan province as a separate government.

See JY Interpretations 550 (national health insurance costs) and 553 (postponement of elections) in Yeh (2014, 51-3).

Regional Government Law 2004, Article 6.

Ibid., Article 29.

Ibid., Article 30.

Ibid., Article 145(2).

Butt and Lindsey (2012, 172-3); See, further, Vel, Zakaria, and Bedner (2017) on the 2014 Village Law.

Law on Fiscal Balance 1999.

Law on the Administrative Courts 1986.

Local Government Code 1991, ss.25, 29, 30.

Ibid., s.25.