Contesting constitutionalism: constitutional politics in Southeast Asia

Abstract

This remarkable shift raises serious questions. For instance, who are the actors, and what are the real issues? How do the arguments affect constitutional practice and progress toward more normative constitutionalism? How are states in the region addressing the new constitutional fault lines? Finally, how can what has been happening in Southeast Asia inform the global scholarly debate about constitutions and politics? Current scholarship has analyzed such questions predominantly through the lens of legal and socio-legal scholarship, though political scientists have also chipped in with some views. For instance, legal scholars have sought to identify typologies of constitutional patterns derived from previous scholarship (Chen 2014) while highlighting path dependencies (e.g., wars, revolutions, colonial legacies) that have made it harder for constitutionalism to gain traction in the region (Tan 2002; Chang et al. 2014: 1-7). Others have begun to apply standard constitutional theories to the region, contemplating socioeconomic preconditions for constitutionalism and defining trigger points that may enable courts to uphold the constitutional framework (Ramraj 2010). These studies have been complemented by socio-legal work on new courts (constitutional and administrative) throughout Asia (see, e.g., Ginsburg and Chen 2009, Harding and Nicholson 2010), the judicialization of politics in Southeast Asia (Dressel 2012), and reflections on such individual constitutional issues as emergency powers (Ramraj and Thiruvengadam 2009) and rule of law nuances (Peerenboom 2004). Meanwhile, political scientists have been talking about aspects of constitutional engineering for more than a decade, and about the consequences of constitutional design choices for such political regime features as stability, political representation, and party systems (Persson and Tabellini 2003). Most recently, scholars have expanded the discussion to authoritarian regimes; the constitutional nexus is that authoritarian rulers have a vital interest in writing constitutions because they can ensure survival of the regime by helping to control or coordinate the actions of diverse constitutional and administrative bodies (Ginsburg and Moustafa 2008; Ginsburg and Simpser 2014). Taking all these studies together, there is beginning to emerge a comprehensive picture of the constitutional landscape in the region that has both empirical and theoretical dimensions. Yet, seen with these new perspectives, it is difficult to identify the specific dynamics that propel states toward deeper constitutional practice. It may be that commentators have shied away from an explicit focus on the underlying political dynamics, particularly the sometimes confrontational negotiations of social forces arguing over constitutional issues. We propose here to look at constitutional practice in Southeast Asia through the distinctly political lens of contestation in order to put the politics from which constitutions emerge at center-stage. By drawing attention to four areas where viewpoints regularly differ about what constitutions should stand for – constitutional drafting; individual and religious rights; where the military fit in; the rule of law, courts, and justice – we argue that how states in Southeast Asia resolve the related conflicts will be critical to the future of constitutionalism in the region. What is central to this effort is the dynamics of constitutionalcontestation itself – the process by which incumbent elites compete, bargain, and struggle with oppositional groups (e.g., students, members of civil society organizations, disenfranchised elites) about what state institutions and the broader political order should look like, what rights should be granted, how these should be enforced, and particularly by whom. For constitutionalism to take hold, it will clearly take more than institutional change on paper. Instead, elites and regular citizens alike must come to agreement to support such basic features as separation of powers, checks and balances, judicial review, and specified rights. Such “constitutional settlements,” born out of contestation and struggles, are critical to whether constitutional principles are adhered to and enforced. By, drawing attention to continuing constitutional flashpoints and how some have been transformed, we seek to provide new insights, both empirical and conceptual, into the potential for deeper notions of constitutionalism in Southeast Asia to emerge. To illustrate the argument, the chapter is structured as follows. First, as context for our argument, we briefly discuss some current debates about constitutional practice in Southeast Asia. We then turn attention to the four areas of contestation – constitutional drafting and design; individual and religious rights; the role of military in constitutional politics; and the rule of law, courts and justice – that we consider to be of critical importance to the future of constitutionalism. The case study chapters in this volume then explore these areas more fully. The chapter concludes with reflections on the future of constitutionalism in Southeast Asia and how current developments might inform that future.