Pluralist Constitutions in Southeast Asia

Jaclyn L Neo, Ngoc Son Bui, Jaclyn L Neo, Ngoc Son Bui

• Publisher: Hart Publishing
• Year: 2019
• ISBN:
  9781509920464
• Edition: 1
• Topic: Law
• Subtopic: Public Law
• Index: Law

This book examines the presence of ethnic, religious, political, and ideational pluralities in Southeast Asian societies and how their respective constitutions respond to these pluralities. Countries covered in this book are Brunei, Cambodia, Indonesia, Laos, Malaysia, Myanmar, the Philippines, Singapore, Thailand, and Vietnam. The chapters examine: first, the range of pluralist constitutional values and ideas embodied in the constitutions; secondly, the pluralist sources of constitutional norms; thirdly, the design of constitutional structures responding to various pluralities; and fourthly, the construction and interpretation of bills of rights in response to existing pluralities. The 'pluralist constitution' is thus one that recognises internal pluralities within society and makes arrangements to accommodate, rather than eliminate, these pluralities.

1

Pluralist Constitutions and the Southeast Asian Context

JACLYN L. NEO AND BUI NGOC SON

I.Introduction: Constitutions and Pluralities in Southeast Asia

Southeast Asia is a region of vast pluralities. An introductory text on Southeast Asia describes the region in these terms: ‘No comparative area of the world has such a range of demographic, ethnic, linguistic, religious diversity as does Southeast Asia.’¹ This diversity has sometimes complicated attempts to properly define Southeast Asia, and indeed Asia in general, beyond a geographical concept. Indeed, the geographical boundaries where Southeast Asia begins and ends have been a fluid one. Nonetheless, regional groupings depend heavily on self-conscious definition. As Asia becomes ‘Asianized’ through a process of self-conscious coming together,² Southeast Asia has become increasingly defined through a voluntary regional grouping under the Association of Southeast Asian Nations (ASEAN). This book therefore adopts the ASEAN grouping as its starting point for defining Southeast Asia. In this regard, its focus is on the exploration of how the constitutions respond to pluralities in this self-conscious grouping of ASEAN.³

ASEAN consists of ten Member States, namely Brunei, Cambodia, Indonesia, Laos, Malaysia, Myanmar, Philippines, Singapore, Thailand, and Vietnam.⁴ It is one of the most religiously diverse regions in the world, being home to the largest population of Muslims globally (Indonesia), the largest population of Roman Catholics outside of Latin America (the Philippines), a population with the largest percentage of Buddhists anywhere in the world (Thailand), and the most religiously diverse country in the world (Singapore).⁵ The spread of religions further follows an intra-regional pattern, where an overwhelming majority of Southeast Asian Muslims live in Indonesia, Malaysia, and Brunei, while Buddhism and Catholicism dominate the Myanmar-Indochina region and the Philippines respectively.

On top of its religious diversity, Southeast Asia is also ethnically diverse. Two types of ethnic diversity have been emphasised in the region: first, indigenous ethnic diversity arising from regional variations of cultural and linguistic groups; and second, diversity arising from immigration – primarily of people from the Chinese and the Indian races.⁶

Furthermore, another distinctive feature within Southeast Asia is that all Southeast Asian countries had been colonised by western countries with the sole exception of Thailand. Colonial history, while a seemingly common trait, actually reveals shades of difference among ASEAN countries as the colonial experience in the region is varied. The British empire ruled over Brunei, Malaysia (Malaya, Sabah, and Sarawak), Myanmar (or Burma), and Singapore; while the US controlled the Philippines. Indochina, comprising Cambodia, Laos, and Vietnam, was colonised primarily by France and Indonesia was colonised by the Dutch.⁷ The legacies of colonialism varied across these countries, not just in reception of colonial legal, political, social and economic systems, but also in terms of their rejection. As Tan highlights, communism and nationalism fuelled opposition to colonial rule in Southeast Asia and revolution featured prominently as a theme among some post-colonial societies.⁸ Thus in apparent attempts to ‘restore’ the mythical glorious pre-colonial past, several Southeast Asian states eventually jettisoned or at least modified colonially-imposed or influenced constitutional orders.

The impact of colonialism on the legal systems in Southeast Asia is obvious. English common law is adopted by Brunei, Malaysia, Myanmar, and Singapore; whereas civil law is practised in the rest of Southeast Asia. The Philippines, having both Spanish and US influence, practice a mixed legal system instead.⁹ Even within each country, there is significant legal pluralism. Thus, systems such as those of Confucian, Islamic, Hindu, Buddhist, and various chthonic or indigenous laws continue to be practised in various Southeast Asian countries. In fact, there is increasing recognition that these underlying traditional legal systems continue to influence law and society.

Consonant with its religious, ethnic and legal plurality and varied colonial histories, Southeast Asia is a kaleidoscopic collection of constitutional experiments. Constitutional dynamism and resistance to it is also driven significantly by state-building, economic development, and globalisation.¹⁰ Thailand enacted 20 constitutions as of 2017 but retains fundamentally the same political structure: a constitutional monarch, a Westminster-style government, and a German-style constitutional court.¹¹ Indonesia’s constitution was adopted in 1945 when it declared independence but substantively revised it in the 2000s to firmly establish a presidential system and introduce a constitutional court, among other things.¹² In the Philippines, the current Constitution, which provides the framework for a presidential system modelled after the American system, was enacted in 1987 without any subsequent amendment despite several attempts of constitutional reform.¹³

The constitutional epochs of the British colonists are varied. Brunei practises an absolute monarchy defined by the Constitution of 1959, which was retained even after the constitution was amended in 1984.¹⁴ In Malaysia, the current constitution, enacted in 1957 and frequently amended afterward, establishes a constitutional monarch alongside its Westminster-style government.¹⁵ Singapore is a constitutional republic with a Westminster-style government within the framework established by the Constitution of 1965 and subsequent amendments.¹⁶ Myanmar enacted three constitutions in 1947, 1974, and 2008 – each of which created different types of government.¹⁷

The former countries of Indochina do not have a single constitutional path either. While Cambodia aspires to implement a liberal constitutional democracy within the 1993 Constitution drafted under the auspices of the United Nations and repeatedly amended afterward,¹⁸ Laos and Vietnam follow a socialist constitutional model which remains in their newly-enacted constitutions of 2015 and 2013 respectively.¹⁹

These varied constitutional histories and developments make Southeast Asia a particularly rich region for empirical and theoretical examination. Much can be said about the common themes and divergences within the region, the international, regional, and local influences on constitution-making, and how constitutional histories and developments in different countries affect others in the region.²⁰ As mentioned, the focus for this book is the presence of pluralities and how the various constitutions respond to the extant range of these within each constitution’s respective jurisdictions. We propose to conceptualise this phenomenon as one of ‘pluralist constitutions’ – a constitution that recognises internal pluralities within society and makes arrangements to accommodate rather than eliminate these pluralities.

This chapter critically reviews relevant scholarship in Part II, and discusses institutional design in these pluralist constitutions in Part III. Part IV contains our proposed conceptual framework of pluralist constitutions, which we then apply to analysing Southeast Asian constitutions in Part V. We conclude with further reflections in Part VI.

II.Constitutions in Pluralist Societies in Southeast Asia: A Gap in Comparative Constitutional Law Scholarship

While comparative and country-based studies on constitutional law in Southeast Asia abound, this is the first study to approach the issue from a pluralist perspective. This study contributes to existing scholarship on the matter in three ways. First, it offers a constitutional framework to analyse constitutional practices in Southeast Asia where societies are marked by significant pluralities. Secondly, it pluralises the field of comparative constitutional law by identifying internal pluralities as a significant site of constitutional practice and meaning. Thirdly and critically, the study bridges the gap between constitutional theory and scholarship on legal pluralism.

A.Constitutional Law in Pluralistic Southeast Asia

Constitutions in Southeast Asia, in general, and their relationship with internal pluralities, in particular, are understudied in existing constitutional law scholarship.²¹ Existing scholarship of Southeast Asian constitutions can be broadly divided into two forms: textualist and contextualist. Textualist approaches focus on the texts of the Southeast Asian constitutions, usually providing doctrinal analysis or cross-text comparisons.²² Textualist accounts do not usually substantively address the questions of how the constitutional texts in Southeast Asia are informed by the realities of plurality.

Contextualist accounts on the other hand do better in accounting for the realities of plurality do not always draw a sufficient connection between these pluralities to constitution-making or design. Furthermore, there is a tendency for some contextualist accounts to focus on single-country study or on a small handful of countries for comparative study. All of these approaches underestimate the relations of the constitution to internal pluralities.

Contextualist accounts can be further divided into macro-historical, political, and social approaches. On the first, macro-historical contextualism situates the Southeast Asian constitutions within their historical surroundings and identify a variety of constitutional models in the regions. Chen, for example, identifies:

1.Marxist-Leninist constitutional systems in Vietnam and Laos;

2.stable hybrid constitutional systems in Singapore and Malaysia which combine both liberal and authoritarian elements;

3.unstable liberal constitutional systems in Philippines, Thailand, and Indonesia;

4.liberal constitutional systems with international intervention in Cambodia and East Timor; and

5.authoritarian constitutional systems in Myanmar and Brunei.²³

Similarly, Neo presents a typology of three models of state-religion relationships in Southeast Asia. These are, namely:

1.formal prioritisation of religion (Brunei, Cambodia, Indonesia, Malaysia, Myanmar, Thailand);

2.statist or communitarian states that tend to regard religion as an aspect of state control (Laos, Vietnam, Singapore); and

3.formalised separation of state and religion (the Philippines).²⁴

These typologies focus the plurality of constitutional experiences among Southeast Asian nations. Our study, however, is instead concerned with pluralist constitutional experiences within individual Southeast Asian nations.

Secondly, political contextualism locates the constitutions and constitutional practice in Southeast Asia within political contestation.²⁵ Domestic pluralities however tend to be viewed as a source of constitutional contestations rather than as a source of constitutional dynamism.

Finally, social contextualism locates the constitutions in South East Asia (and other Asian parts) based on various types of social difference, including religion, ethnicity/race, urban/rural divisions, language, gender, and sexual orientation.²⁶ Social contextualists tend to focus on the functional question of how the constitutions deal with difference but do not substantively address this ontological question: what is the nature (not only function) of a constitution when it engages with plurality?

Pluralist constitutionalism recognises – i...