Local government regulated by statute
In the first case, local government is either not recognised at all, or is mentioned only as a subject for legislation. Even this limited entrenchment is at least recognition that local government has some kind of quasi-constitutional status.
Cambodia
Cambodia provides an example of this (Muny 2016; Cummins and Leach 2012). Articles 126-7 of the 1993 Constitution provide that Cambodia shall be divided into provinces (khett) and municipalities. It writes that provinces shall be divided into districts (srok), districts will be divided into communes (khum), municipalities shall be divided into districts (khan and sangkat), and that all of these shall be governed in accordance with organic law. These provisions leave the power to delineate local governments (i.e., their powers, governance, and central-local relations) to the central legislation. However, the provisions have not prevented attempts to decentralise power since the 1993 Constitution came into effect, such as the government’s Seila project. The UNDP’s Cambodian Area Rehabilitation and Regeneration 2 project supported the Seila project in 1996 (Biddulph 2004). In sum, such decentralisation is not, precisely, constitutionally mandated. Similarly, Articles 117-18 in South Korea’s Constitution recognise local government and assume there are elected local councils. However, the details are left to organic law.
Malaysia
In Malaysia, local government is a state function and is recognised by the Federal Constitution. The Constitution provides for a National Council on Local Government. It also allows the federation to enact legislation on local government for the sake of uniformity, which it has done (Harding and Sidel 2014, 155). However, there is no right to local democracy. In fact, local government elections were suspended as an emergency measure in 1965 and then abolished on a permanent footing in 1976.
The demand for restoration of local government elections nonetheless persists. In spite of the abolition of elections, a legal framework exists for holding them whenever they are reintroduced, even if it is not currently, legally possible to use this framework (160-1). As matters rest, local authority members are appointed by state governments, while the federal government appoints the Datuk Bandar (Mayor) of the Federal Territory of Kuala Lumpur. Furthermore, courts ruled that it was unlawful to attempt to hold local quasi-elections in the state of Penang by consulting the electorate on local government appointments.12One can at least say that in this case, given the constitutional status of the National Council on Local Government, it would be difficult to proceed on the basis that the continuance of local government (as opposed to its democratic nature) is entirely a matter of parliamentary discretion.
Myanmar
Myanmar's 2008 Constitution provides for elected state and regional assemblies.13 Altogether, Myanmar has no less than six levels of government (see Table 1). The states and regions, of which there are seven in each category, have a similar status to each other as well as to the union territory of Naypyidaw, the five Self-Administered Zones, and the single Self-Administered Division (Harding and Sidel 2014, chap. 6). States are defined by ethnicity, or the ‘national races' in Myanmar discourse, whereas regions comprise the Burman ethnic majority (110). Each state/region is divided into districts, then townships, then wards and village tracts, and finally into villages. The Constitution recognises all of these.14 Townships form the basis of representation in the lower house, while states and regions form the basis of representation in the upper house, rendering Myanmar similar to a federal state.15 Of these local entities, only the states and regions have their own elected governments and assemblies.
The entities at the lower levels are administered from the centre by the powerful General Administration Department (GAD), which falls under the Ministry of Home Affairs. However, the boundaries of a township cannot be altered without the consent of a majority of its electors.16 As part of the 2008 constitutional process, three or more adjoining townships were allowed to join together to form a SelfAdministered Zone, based on their common ethnicity (different from that of the state/region in which the townships are situated) (113ff.). Thisis a form of ethnic-minority-identity management to deal with ethnic enclaves.
In 2012, during the government of President U Thein Sein (2011-16), indirect elections of ward and village tract officials were introduced.17 But there are widespread feelings of the need for local government reform that would make it more democratic and more effective. This is just one of many governance challenges Myanmar faces, which include reform of the GAD itself (Arnold 2016). The future nature of local government is thus currently in doubt.
These examples are typical in delegating to organic law the detailed powers and modes of governance for local government. They also are typical in refraining from establishing a citizen's constitutional right to elected representation in autonomous local governments. This does not mean that such rights do not exist as a matter of ordinary law. However, the examples of Malaysia and Myanmar show that in the absence of a constitutional right to elect local representatives, there is a real danger that such a right will not be granted (or once granted, it may be withdrawn).
We can, however, look at some examples, which indicate the second type of approach in which there is a constitutional right to elected, local self-government.