ABSTRACT
Introduction This chapter presents a comparative analysis of constitution-making across the Southeast Asian region. The particular emphasis is on current episodes of constitution-building undertaken in the region since the late 1980s. The literature on the subject is still small, and while there is an important literature on constitutional systems in individual countries, few contributions discuss the topic from a comparative perspective (Tan 2002). This lacuna is striking since, for a long time, the constitutional design literature has noticed a causal link between the modes of constitution-making, the public acceptance of a constitution, and the democratic quality of a political regime (Elster 1993, 1997; Ginsburg et al. 2009; Samuels 2006). This is neither to say that representative democracy (the only viable organizational form of democracy for contemporary nation-states invented as of yet) is necessarily constitutional democracy; nor does it imply that constitution-making is only a relevant research topic in the context of democracy and democratization. First, representative and constitutional democracy share many common elements but are two distinct concepts. Representative democracy (or polyarchy) is defined as “public contestation and the right to participate” (Dahl 1971: 5); that is, free and open elections, freedom of speech and press, the right to freely form and join civic or political organizations, and the existence of “institutions for making government policies depend on votes and other expressions of preferences” (Dahl 1971: 3). Constitutional democracy requires additional institutional checks on public officials which assure that the democratically elected political institutions and authorities will govern according to the principles laid out in the constitution, and are bound by the constitutional text (Murphy 1993, 2009; Merkel and Croissant 2000; Morlino 2012; Holmes 2013). Second, the “new institutionalism in the study of authoritarian regimes” emphasizes the importance of formal political institutions such as constitutions, courts, elections, legislatures, and multiple political parties for the reproduction of authoritarian rule (Schedler 2009). Hence, authoritarian constitutions should not be dismissed as merely window dressing (Ginsburg and Simpser 2014: 2; Gandhi 2010). Certainly, many authoritarian constitutions serve this purpose. However, as Ginsburg and Simpser argue, dictators bother to create constitutions
because it facilitates their objective of political survival by, among other things, enabling coordination among multiple institutional actors and eliciting cooperation from a dictator’s subjects (Przeworski 2014; Elkins et al. 2014: 142f.). Southeast Asia is particularly suited for drawing inferences from constitutionmaking in different types of political regimes. In the past three decades, the region has experienced a number of regime transformations as autocracies in the Philippines, Thailand, Cambodia, Indonesia, and East Timor have embraced more democratic forms of government. Yet, there is considerable diversity in the outcomes of these regime transitions (see, e.g., Croissant and Bünte 2011; Case 2015). For example, Cambodia’s nascent democracy eroded into a new kind of electoral authoritarianism in the late 1990s, whereas Thai democracy has remained in a state of continued crisis since the mid-2000s. In contrast, democracy in the Philippines, Indonesia, and East Timor is perhaps “illiberal, hollow [and] poorly institutionalized” (Diamond 1999: 49) but has shown resilience despite hard challenges (Chu et al. 2008; Pongsudhirak 2013; Mietzner 2014). Meanwhile, the remaining autocracies in the region have also undergone important changes. Perhaps the most striking example is Myanmar. While the slow and controlled process of political liberalization that has taken place since 2008 “should not be understood simply as an exit strategy by the military to retreat from national politics” (Hung 2013; Croissant and Kamerling 2013; Bünte 2014; see also Egreteau, Chapter 6, this volume) the disbanding of the Burmese junta and the ratification of a new constitution is nevertheless an important development in the transition from military rule toward “something else” (O’Donnell and Schmitter 1986: 1). This raises the questions of what the constitution-making designs in the region have been like since the late 1980s; which actors were involved and how their interests shaped the constitutional texts; and if there is a link between process designs and the legitimacy of the constitutional order. With these questions in mind, the rest of this chapter proceeds as follows. The next section introduces the analytical framework for this study. The following section locates contemporary episodes of constitution-making within the broader context of the region’s constitutional history. The third section compares 12 cases of constitution-making in eight countries (i.e., the Philippines, Thailand, Cambodia, Indonesia, East Timor, Laos, Myanmar, and Vietnam). The fourth section investigates the relationship between process designs, the role of actors, and their interests. The final section provides some tentative conclusions regarding the regional dynamics of constitution-making and issues of constitutional legitimacy.
