Over the past two and a half decades, the constitutional landscape of Southeast Asian states has seen some tremendous changes. As liberalization, globalization and democratization were advancing throughout the world, states in Southeast Asia began to dramatically alter their constitutions, reinforce human rights provisions and install institutional safeguards for those rights, such as constitutional courts and human rights commissions. The Philippine “Freedom Constitution” of 1986, the Cambodian Constitution of 1993 or Thailand’s “People’s Constitution are striking examples of this growing trend. Observers have interpreted these developments as a growing sign that constitutionalism has significantly broadened and deepened its reach in Asia in contemporary times. 

But constitutional trajectories and realities in Southeast Asia are hardly that clear-cut. As one might expect, given the marked diversity within the region in terms of colonial history (British, Spanish, French, Dutch), religion (Christianity, Islam, Buddhism, Hinduism) and above all political regimes (military, socialist, one-party), constitutional trajectories differ tremendously. Moreover, the barriers to a more intense constitutional practice in Southeast Asia are still immense. What we are observing in Southeast Asia is that constitutional politics is generating social conflicts. 

In Thailand, the constitutional reform debates that dominate the political agenda often fuel the divisions in a country that is still extremely polarized. In March, the military unveiled a new constitution draft to the public that calls for an elected senate and allows the possibility for an unelected prime minister. It drew immediate and sharp criticism from Thai civil society and critics of the military government. In the Philippines and in Indonesia, we are witnessing growing tensions between the executive and judicial branches of government as the political role of courts widens. In Malaysia, recent court decisions on religious freedom have tested the constitutional boundaries of the multi-ethnic religious state. Meanwhile in Myanmar, we are seeing a debate that revolves around the question of how the overtly powerful military can be sidelined in a constitutional order that gives them a number of prerogatives in certain fields. In Vietnam, the constitutional debates surrounding the 2013 constitution pitted civil society against the communist state. A petition by 72 public intellectuals calling for sweeping liberal reforms, such as a constitutional court and human rights, was rejected by the Communist Party. Additionally, conflicts over land as well as ethnic and minority rights has renewed calls to amend the constitution in Laos and Vietnam. 

We see that constitutional politics is increasingly the focal point for collective action for both elites and ordinary citizen. Constitutional politics is becoming increasingly contested as the social contract between the state and its citizens is challenged. 

4 crucial arenas of contestation

Björn Dressel, a scholar from the Australian National University, and I have highlighted four crucial arenas, in which contestation takes place these days. In our forthcoming book Politics and Constitutions in Southeast Asia (London: Routledge 2017), we argue that constitutional struggles take place in the areas of constitution drafting, individual and religious rights; where the military fits in and the rule of law, courts and justice. Dressel and I argue that how states in Southeast Asia resolve the related conflicts will be critical to the future of constitutionalism in the region. Contestation is understood as the process by which incumbent elites compete, bargain and struggle with oppositional groups about what state institutions and the broader political order should look like. For constitutionalism to take hold, it will clearly take more than institutional change on paper. Instead, both elites and citizens alike must come to agreement to support such basic features as separation of powers, checks and balances, judicial review and specific rights. Such constitutional settlements born out of contestation, are critical to whether constitutional principles are adhered to and enforced. 

Let us briefly look into the four arenas: 

First, constitution-drafting and design: Since the 1990s constitution-making has become one of the most visible arenas for contestation. For instance, the 1986 Freedom constitution in the Philippines, which was drafted by a commission of 674 drafters appointed the president, was criticized early on for its elitist, if not conservative, content. Similarly, Indonesia’s incremental amendment process (1999-2002) dominated by Members of Parliament, was heavily criticized by civil society actors, who were only minimally consulted. Even in Thailand, where the 1997 constitutional reform was undertaken by a group of 99 drafters and incorporated considerable debate and discussion with the public, questions were raised about the composition of the drafting groups, the sincerity of the public outreach and the behind-the-scenes influence of monarchical networks. In all cases, amendments have been made to include more voices from below. Thailand is a particularly vivid illustration of the rapidly changing constitutional environment in Southeast Asia, where new social actors question previous elite consensus and demand inclusion. The fact that Thailand has seen nearly as many constitutions as military coups demonstrates the imminent struggle between civilian and military forces. 

The question how to deal with the military brings us to the second area. When we see constitutions as a social contract or compromise between social groups, it is important to get the military on board. As the traditional political veto player in the region, the military is of critical importance for an emerging constitutionalism, because only if its members accept the supremacy of elected politicians and their constitutionally enshrined decision-making authority can constitutionalism gain ground. It is surely not surprising that these settlements have been difficult to achieve in countries where the military was a major factor in gaining or maintaining independence or where prolonged periods of military rule have left the military far more powerful than civilian institutions such as in Burma, Indonesia, Vietnam and Thailand. 

The third arena is human rights – particularly the extent to which individual, collective and religious rights are respected and enforced. All ASEAN countries have adopted constitutional rights catalogs, many of which have greatly expanded political, social and economic rights – yet much is to do in this field, since most of the state’s commitments are largely rhetorical. This can be seen in the failures to protect religious minorities, such as the Ahmadiyya community in Indonesia or the Rohingya in Burma. The last arena is the rule of law. Recent reforms have empowered the judicial branch, such as the creation of the Philippine Supreme Court by the 1986 constitution or the creation of high-profile constitutional courts in Thailand (1997) and Indonesia (2003) or the related Constitutional Council in Cambodia (1998). In short, within a dramatically transformed constitutional landscape, judicial actors have become critical to how constitutional practice is evolving in the region. 

 

By Dr Marco Buente, Associate Professor, School of Arts and Social
Sciences, Monash University Malaysia