Jul 5, 2013 - This article analyses eleven cases of constitution-making in eight. Southeast .... Brunei, Malaysia and Singapore continue fo ufilize .... Page 9 ...
Contemporary Southeast Asia Vol. 36. No. 1 (2014), pp. 23-50 DOI: 10.1355/cs36-lb ©2014 ISEAS ISSN 0129-797X print / ISSN 1793-284X electronic
Ways of Constitution-Making in Southeast Asia: Actors, Interests, Dynamics AUREL CROISSANT
This article analyses eleven cases of constitution-making in eight Southeast Asian countries since 1986. It investigates design choices and actors' interests, the link between the form of the political regime and the extent to which process designs matter for the legitimacy of the constitutional orders in the region. In doing so, the article demonstrates that the ¡ink between the form of the political regime and the extent to which constitution-making is inclusive or participatory is less clear-cut. While we would expect better opportunities for public participation and broader inclusion of extraparliamentary actors in constitution-making in democratic environments, the empirical evidence is mixed. If and how this matters for public support for a constitution and the social acceptance for the constitutional order is not clear. In fact, the Southeast Asian experience seems to indicate that procedural legitimacy is less relevant for the acceptance of a constitution than the legitimacy that derives from the "day-to-day plebiscite" by citizens and elites. Kejrwords: Southeast Asia, comparative constitutional politics, authoritarianism, democracy, legitimacy. This article presents a comparafive analysis of consfifufion-making across Southeast Asia wifh a particular emphasis on currenf episodes of consfifufion-building underfaken in fhe region since fhe lafe 1980s and eariy 1990s. While fhere is an imporfanf liferature on
AuREL CROISSANT is Professor of Comparafive Polifics af fhe University of Heidelberg, Germany. 23
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constitutional systems in individual countries, few contributions discuss the topic from a comparative perspective.^ This lacuna is striking because for a long time the constitutional design literature has noted a causal link between the modes of constitutionmaking, the public acceptance of a constitution and the democratic quality of a political regime.^ This is not to say that representative democracy (the only viable organizational form of democracy for contemporary nation-states devised 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. Regarding the relationship between representative and constitutional democracy many scholars have noted that these two forms of democracy share many common elements but are two distinct concepts: representative democracy (or "polyarchy") is defined as "public contestation and the right to participate",^ that is free and open elections, freedom of speech and the 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".* 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.^ Furthermore, the "new institutlonalism in the study of authoritarian regimes" demonstrates the importance of formal political institutions such as constitutions, courts, elections, legislatures and multiple political parties for the reproduction of authoritarian rule." Hence, authoritarian constitutions should not be dismissed as merely window dressing.' Certainly, many authoritarian constitutions serve this purpose. However, as some authors 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.'' Southeast Asia is particularly suited for drawing inferences on constitution-making in different types of political regimes. Over the past twenty-five years, the region has experienced a number of regime transformations as autocracies in the Philippines, Thailand, Cambodia, Indonesia and East Timor (Timor-Leste) embraced more democratic forms of government. Yet, there is considerable diversity in the outcomes of these regime transitions. For example.
Ways of Constitution-Making in Southeast Asia
25
Cambodia's nascent democracy devolved into a new kind of electoral authoritarianism in the late 1990s, whereas Thai democracy has remained in a state of continual crisis since the mid-2000s. In contrast, democracy in the Philippines, Indonesia and Timor-Leste — while perhaps "illiberal, hollow [and] poorly institutionalized" — has shown resilience despite difficult challenges.'' 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",^" the disbanding of the Burmese junta and the ratification of a new constitution is nevertheless an important development in the transition from military rule towards "something else".^' These developments raise a number of questions: what have the constitution-making designs in the region been like since the late 1980s; which actors were involved and how did their interests shape the constitutional texts; and is there a link between process designs and the legitimacy of the constitutional order? With these questions in mind, the rest of the article proceeds as follows. The next section introduces the analytical framework for this study. Section two locates contemporary episodes of constitution-making within the broader context of the region's constitutional history. Section three compares eleven cases of constitution-making in eight countries (i.e., the Philippines, Thailand, Cambodia, Indonesia, Timor-Leste, Laos, Myanmar and Vietnam). Section four 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. The Framework for Analysis The analytical fi-amework for this study is based on the differentiation between "constitutional order" and "constitution" and reserves the usage of the word "constitution" to the latter.^^ The difference between the two concepts is as follows: the "constitution" is "the document or documents that supposedly spell out the nation's basic political principles and goals, institutional arrangements, modes of selecting public officials, and rights and duties of private citizens".
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The consfifufional order, however, includes fhe wriffen fexf of a consfifufion, buf also "super-sfafufes", decisions of judges and agencies and even informal insfifufions.^' Furfhermore, fhe arficle adopts a narrow concepfualizafion of consfifufion-making as "sfafe-supporfed, nafionwide formal process of consfifufion draffing underfaken in fhe expecfafion fhaf fhe resulfing documenf will govern fhe counfry in fhe relafive near ferm"." Of course, consfifufions can change over fime fhrough formal amendmenfs fo fexf as well as informal amendmenfs fhaf resulf from inferprefafive changes, and "no consfifufional documenfs long remain coextensive wifh fhe consfifufional order" as fhe "original words are soon overwriffen by cusfoms, usages, and inferprefafions".'^ Neverfheless, fhis analysis is consciously limifed fo cases in which an exisfing consfifufion was replaced by a new one. Episodes of consfifufion-building fhrough amendmenf and (re)inferprefafion are excluded from fhe analysis (wifh fhe excepfion of Indonesia in 2002, see below). The following analysis applies and modifies an analyfical framework developed by Kirsfi Samuels. She examines consfifufionbuilding processes along four criferia:'** firsf, whefher fhe consfifufion was imposed from fhe fop (by fhe incumbenf regime, exfernal acfors, or a dominanf nafional elife facfion or polifical parfy) or negofiafed befween compefing elife facfions; second, fhe inclusiveness of fhe process, i.e. fhe exfenf fo which fhe composifion of fhe insfifufional body fhaf produced fhe consfifufional fexf is inclusive or exclusive; fhird, fhe represenfafiveness of fhe process, i.e. whefher all fhe major inferesfs in sociefy were represenfed in fhe consfifufion-making process or if fhe processes was biased fowards cerfain individual, group or insfifufional inferesfs fhaf shaped fhe flnal documenf; and fourfh, fhe parficipafory qualify of fhe process, fhaf is fhe exfenf of involvemenf of fhe broader public in fhe process, eifher fhrough direcf consulfafion or dialogue wifh fhe public or represenfafive groups af various stages before or during fhe drafting of fhe fexf or afferwards, fhrough rafificafion of fhe documenf by free popular vofe. Relafed fo fhese criferia is fhe issue of consfifufional legifimacy, fhaf is, whefher a documenf produced during fhe consfifufion-making process can claim "upstream legifimacy", "process legifimacy" and "downsfream legifimacy".^'' As Jon Elsfer observes, consfifufional documenfs enjoy "upsfream legifimacy" if fhe assembly fhaf wrifes fhe documenf came info being in a legifimafe way. Furfhermore, consfifufions possess
Ways of Constitution-Making in Southeast Asia
27
"process legitimacy" if fhe infernal decision-making procedures of fhe consfifution-making body are not perceived fo be a mere bargain among interest groups or dominated by exfra-consfitufional forces. Finally, a constitution enjoys "downstream legitimacy" if a constitufion produced in a democratic process has been submiffed to the people in a referendum. Constitutional History and Constitution-building in Southeast Asia
As Ginsburg and Simpser note, since the end of the Second World War, "formal written constitutions have become ubiquitous features of modern nation-sfafes".^'* Soufheast Asia is no excepfion to this development. While some countries had begun experiments with written constitutions prior to independence, constitutions became an essenfial part of proclaiming sovereignty in the 1940s and 1950s. A second rush of constitution-making occurred in the 1970s, when original constitutions were replaced in some countries. Finally, fhe downfall of the Marcos dictatorship in the Philippines and fhe passing of fhe provisional "Freedom Constitution" in 1986 presaged another outburst of constifufional activities in the region which resulted in the drafting of new constitutions or (in fhe case of Indonesia) a "total revision"^^ of fhe constitutional text in eight countries (see Table 1). The constitutional histories of Soufheast Asian countries are highly diverse. However, one cross-national trend is the vicissitude of written constitutions. The average life expectancy of a constifufion in Southeasf Asia is 13 years. Yef, fhere are important differences between the 45 constitutions that were promulgated under authoritarian governments, which endured for, on average, 13.5 years, and fhe average lifespan of fhe five consfifufions promulgafed under democratic governments (10.1 years). The shorter lifespan of democrafic constitutions compared to authoritarian ones reflects the pre-eminence of authoritarianism in fhe region for mosf of the fwenfiefh century. Nevertheless, this finding deviates from fhe sfafisfical evidence provided in cross-regional sfudies which establishes that authoritarian regimes exhibit a higher probability for consfitutional replacement than do democracies.^" Yet, there are striking differences between individual countries (see Table 2). Brunei, Malaysia and Singapore continue fo ufilize and augment constitutional structures inherited from the former colonial power. Great Britain,^^ whereas fhe life expecfancy of a Thai constitution for the period 1932-2013, on average, was 4.5 years.
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However, whether a country replaces or keeps a constitution reveals little about the extent of constitutional change over time regarding basic constitutional models. For example, constitution-builders in Indonesia in 1999-2002 chose to revise the 1945 Constitution that had been in force from 1945 to 1949, and again from 1959 to 1998, rather than redrafting a new constitution altogether. However, Denny Indrayana observes that in Indonesia 95 per cent of the chapters, 89 per cent of the Articles and 85 per cent of the paragraphs of the constitution "are either new or were alterations of the originals" as a result of constitutional amendments in the period 1999—2002.^* In the Philippines, the Constitutional Commission of 1986 basically revitalized the original constitutional model, invoked in the 1935 Commonwealth Constitution. On the other hand, taking into account the evolution of constitutions in Malaysia and Singapore shows that both documents have been quite open for formal and informal amendments; hence, alterations have been numerous and substantial. In fact, Singapore's constitution had been changed so routinely by the People's Action Party's government through a submissive parliament that overriding the constitution in favour of individual pieces of legislation has become the norm.^' Similarly, in Malaysia there have been over fifty Amendment Acts to the constitution since 1957.^** As a consequence, the current document runs to 64,080 words, the lengthiest constitutional text in the region. In contrast, Thailand's disregard for documentary constitutionalism contrasts with the stability and strength of the informal, i.e. unwritten constitutional rules that emerged gradually from the 1930s and relate primarily to the status of the monarchy and royal political prerogatives.^' Another trend is that constitutional texts have become more similar across countries and regime categories since the 1980s. Similar to developments in other regions,^** constitutional documents have become more comprehensive regarding the topics incorporated into the text, and more detailed in the way they address these topics. Without going into detail, it is evident that in contrast to the brief "legalistic documents emphasizing government organization and structure and guarantees of basic civil liberties to citizens" drafted just prior to or immediately after independence, constitutions from the 1980s onwards manifest concern with, among other things, socioeconomic rights, the environment, human rights, rule of law and the plebiscitarian involvement of citizens in the political process.^' This has contributed to a significant lengthening of constitutional documents (see Table 2).
Ways of Constitution-Making in Southeast Asia Third, fhe convenfional wisdom in comparafive polifics suggesfs fhaf fhe concepf of "region" is associafed wifh a number of fheorefically imporfanf covariafes such as colonial herifage, legal origin, religion, cultural and economic nefworks and linkages fo exfernal acfors.^^ However, fhe cases sfudied in fhis arficle are quife diverse. The sample includes former Brifish, French, Dufch, and HispanicAmerican colonies, predominanfly Chrisfian, Buddhisf and Muslim sociefies, and consfifufions promulgafed by aufhorifarian regimes and by democracies. This diversify explains fhe lack of a single foreign "reference model" in fhe region, in confrasf fo fhe prevalence of fhe "Gallic" consfifufional model in Wesf Africa, and fhe US model of presidenfial consfifufions in mosf of Lafin America." Of course, colonial legacies maffer for consfifufional choices in Soufheasf Asia: fhe consfifufional hisfory of fhe Philippines has been fundamenfally shaped by fhe influence of fhe Unifed Sfafes,^^ whereas consfifufions in Singapore and Malaysia, as well as Burma's 1947 Consfifufion, were inspired by Brifain's Wesfminsfer model. However, consfifufional isomorphism fended fo fake place wifhin fhe boundaries of colonial empires rafher fhan across fhem.^^ Yef, while consfifufional borrowing from fhe Brifish and fhe American, and even fhe "Lusophone" model of semi-presidenfial governmenf in Timor-Lesfe^* remains influenfial unfil foday, French-inspired consfifufions were unceremoniously revoked by aufhorifarian rulers in Soufh Viefnam and Cambodia,-'^ and communisf parfies in Laos, Norfh Viefnam and Cambodia adopfed socialisf consfifufional models fhaf were inspired by Sovief and Chinese experiences. Fourfh, since 90 per cenf of all consfifufions in Soufheasf Asia (45 ouf of 50 so far) were promulgafed by aufhorifarian governmenfs, mosf nafions' consfifufional hisfory is shaped by a long fradifion of whaf H.W.O. Okofh-Ogendo describes as "consfifufions wifhouf consfifufionalism":^** wifh few excepfions, consfifufional documenfs were designed fo legifimafe polifical rulers, and consfifufional documenfs were usually draffed far from public scrufiny, rafified by a hand-picked consfifuenf assembly or by parliamenf and somefimes presenfed fo "rifualisfic plebiscifes".^'^ Only in Indonesia (1955) and in fhe Philippines (1934, 1970) an independenf consfifuenf assembly was popularly elecfed in free and fair elecfions.^^ Insofar as consfifufional referenda were organized in some counfries, if was nof fo involve fhe broader public in fhe process buf fo legifimafe fhe imposifion of consfifufions by aufocrafic rulers. Parficular infamous examples include fhe 1974 referendum in Burma, and fhe 1973 Consfifufion of fhe Philippines fhaf was drafted under marfial law.
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adopted by a Constitutional Convention under duress, and "ratified" by voice vote in village assemblies where security forces were in prominent attendance.^^ Ways of Constitution-making in the Recent Wave of Constitutional Activity In 1986, fhe overthrow of the Marcos regime in the Philippines signalled fhe beginning of a new era of constitution-making in Southeast Asia which includes eleven cases over a period of twenty-two years: the provisional "1986 Freedom Constitution" and the 1987 Constitution in the Philippines; the 1991 Constitution of Laos and Vietnam's 1992 Constitution; the 1993 Constitution of Cambodia; Thailand's 1997 "People's Constifufion", the 2006 Interim Constitution, and fhe 2007 "Post-Coup" Constitution; Timor-Leste's 2002 Independence Constitution; the revision of the 1945 Constitution in Indonesia (1999-2002); and Myanmar's 2008 Constitution. These cases can be distinguished according fo firsf, political context and, second, the type of consfitutional change. With regard fo the political context, Cambodia and TimorLeste are categorized as transition countries from violent conflict to a post-conflict order which, as an explicit peace-negotiation element, included a fransifion fowards representative democracy. Another three constitution-making processes took place during a largely non-violent transition from authoritarianism to democrafic governmenf (Philippines 1986-87; Indonesia). Five constitutions were drafted under the watch of authoritarian governments, either military-dominated as in Thailand (2006-07) and Myanmar (2008), or controlled by a communist party (Laos and Viefnam). Finally, Thailand's 1997 Consfitufion was drafted half a decade after the country had installed a democratic governmenf. Regarding the type of constitutional change, two of the processes led fo the promulgation of an interim constitution (Thailand 2006, Philippines 1986). In eight cases, the existing consfitufion was replaced by a new (permanent) constitution, whereas in Indonesia it was formally amended. These cases of constitution-building took place in an international environment characterized by the global diffusion of certain consfifufional sfandards including written constitutional documents, constitutional review, greater awareness and acceptance of social and economic rights, human rights and environmental concerns and a global trend towards greater interest in constifufional sfrucfures. This confributed fo fhe homogenization of consfifutional
Ways of Constitution-Making in Southeast Asia
33
documenfs and, af fhe same fime, "consfifufional complexificafion and differenfiafion".^° In addifion, fhe end of fhe Cold War and fhe collapse of communisf rule in Easfern Europe and the Sovief Union diminished fhe affracfiveness of fhe Socialisf consfifufional model, and led fo a (femporary) ideological hegemony of capifalisf and democrafic liberalism. Table 3 summarizes fhe feafures of fhe eleven consfifufion-making processes from 1986 fo 2008. As is evidenf from fhe fable, fhere is much variafion in the degree of representativeness, inclusiveness, and parficipafory qualify of fhe process and whefher fhe consfifufion was negofiafed befween compefing polifical sfances and social forces or imposed by a single polifical acfor. Neverfheless, fhree subregional clusfers can be idenfifíed. A firsf clusfer comprises fhe 1987 Consfifufion in fhe Philippines and Thailand's 1997 "People's Consfifufion". Here, fhe draft consfitufion was wriffen by specially convened assemblies. While legislafors (Thailand) and fhe execufive (fhe Philippines) had a cenfral say in calling fhese bodies info being and selecting fhe delegafes, parliamenfs and polifical parfies did nof have a cenfral place in fhe process, alfhough in Thailand fhe draft consfifufion had fo be submiffed fo fhe Nafional Assembly for approval. In addifion, fhe cases fulftU af leasf fwo of Samuel's criferia of an inclusive, represenfafive and parficipafory consfifufion-building process. In Thailand, fhe polifical process fhaf culminafed in fhe promulgafion of fhe 1997 Consfifufion began shorfly after fhe fransifion fo a democrafic governmenf in 1992. If involved, among ofhers, the formation of an extra-parliamentary Democrafic Developmenf Commiffee in 1994, and fhe insfallafion of a parliamenfary Polifical Reform Commiffee in 1995. In 1996, fhe Nafional Assembly amended Arficle 201-1 of fhe 1991 Consfifufion, allowing for fhe esfablishmenf of a Consfifufional Drafting Assembly (CDA), whose members represenfed broad ranges of polifical opinions and social inferesfs and were selecfed from fwo differenf groups: sevenfy-six provincial representatives were selected by fhe Nafional Assembly from lisfs prepared by provincial assemblies. Anofher fwenfy-fhree legal and academic experts were selecfed from nominafion lisfs compiled by various governmenf and privafe universifies.^^ The exclusion of polifical parfies from fhe CDA reflecfed fhe will of fhe consfifufional reform movemenf fhaf had emerged in fhe early 1990s as an ideologically heferogeneous alliance of differenf social forces and polifical groupings. These included conservafives and liberals, academics, democracy acfivisfs, NGOs, and even milifary
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Ways of Constitution-Making in Southeast Asia figures who shared a skeptical view of the existing parliamentary system, its political parties, and Thailand's "political class".'*^ Much of the tension within the CDA resulted from the divergent interests of the provincial representatives and legal experts.''^ The work of the CDA involved participation from various sectors of society and public debates over an eight-month period.'''' As Andrew Harding and Peter Leyland argue, the draft text that the CDA submitted to the National Assembly represented in many ways Thailand's "most imaginative, concerted and inclusive effort to settle its constitutional system".'*^ The parliament only had an up or down vote over the whole draft and against the backdrop of strong public sentiments in favour of the charter, the National Assembly approved the "People's Constitution" in October 1997. In the Philippines, President Corazón Aquino had proclaimed an interim "Freedom Constitution" in March 1986 that gave her sweeping powers and was to remain in effect until a constitutional convention could write a new charter to be ratified by national plebiscite.^"^ In May 1986, a Constitutional Commission was created by presidential proclamation. While the forty-eight members of that commission were selected by the president, they represented a range of different social groups and political stances: some commissioners were leftists and some were ardent nationalists but moderate conservatives held a majority.*' Among others, there were two former Supreme Court justices, three representatives of the Catholic Church of the Philippines, and five seats were reserved for Marcos supporters, defined as members of Marcos's New Society Movement. To reduce the scope for personal interest, the commissioners were banned from running for office for one year after the constitution's ratification. The Commission involved the public in the constitution-making process by country-wide consultations, and coverage of its debates on national radio and television. While many proposals were controversial, a majority of the delegates favoured a return to a US style presidential system similar to the 1935 Constitution, with numerous new clauses pertaining to the demands of the many competing groups that tried to influence it such as farmers, landlords, human rights groups and the Catholic Church. In addition, the new constitution limits the president's ability to assume extraordinary powers which reflects the consensus among delegates to protect the constitution from any autocratic abuses of the Marcos era.*" Aquino intervened only once to influence the commission's deliberations concerning nuclear weapons on US military bases. The commission approved the draft text by a vote
35
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of 44 fo 2 in Ocfober 1986. A consfifufional referendum was held on 2 February 1987 in which 89.3 per cenf of fhe elecforafe vofed, wifh 77.1 per cenf of fhe vofes in favour of fhe documenf.''^ A second clusfer compromises Indonesia, Timor-Lesfe and Cambodia, where compefing polifical parfies dominafed fhe framing and adopfing of fhe consfifufion. The process was represenfafive as far as if concerned fhe represenfafion of polifical parfies in fhe consfifufion drafting body, buf there was liffle parficipafion of fhe broader public in fhe process, and no nafional referendum over fhe final documenf. In Cambodia and Timor-Lesfe, consfifuenf assemblies were elecfed while fhe counfries were under adminisfrafion by fhe Unifed Nafions (UN), which lafer also furned if self info fhe firsf legislafure.^" In Indonesia, fhe People's Consulfafive Assembly (MPR) prepared and adopfed four amendmenfs fo fhe 1945 Consfifufion over fhe course of fhree years. Of fhe 695 members of fhe MPR fhaf carried ouf fhe amendmenfs, 592 delegafes were popularly elecfed members of fhe nafional legislafure (DPR), or chosen by fhe elecfed Regional DPR (DPRD). Anofher 102 (non-elecfed) delegafes came from fhe milifary and fhe police (38 appoinfed members of fhe DPR) or were represenfafives of designafed funcfional groups.^' The decision fo revise fhe exisfing consfifufion was based on a compromise befween fhe polifical parfies who wanfed fo avoid fhe deadlock fhaf arose in fhe 1955 Consfifuenf Assembly over fhe issue of Sharia (Islamic) law." The process was largely elife-driven and elife-negofiafed wifh liffle public parficipafion. This reflecfed fhe concerns of parfy leaders fhaf broader involvemenf of fhe public would have made consfifufional change more difficulf, especially on fhe confenfious issue of fhe inclusion of Sharia law in fhe Consfifufion.^^ In Cambodia, fhe consfifufional process was guided by fhe Unifed Nafions Transifional Aufhorify in Cambodia (UNTAC), buf sovereignfy remained vesfed in fhe Cambodian represenfafives. The 1991 Paris Agreemenfs required fhe elecfion of a Consfifuenf Assembly which was fhen fo wrife a consfifufion. After fhe 1993 elecfion, fhe assembly appoinfed a Draffing Commiffee, wifh six members from fhe Nafional Unifed Fronf for an Independenf, Neufral, Peaceful, and Cooperafive Cambodia (FUNCINPEC), five from fhe Cambodian People's Parfy (CPP) and one from Buddhisf Liberal Democrafic Parfy (BLDP) (roughly equal fo each parfy's share of seafs in fhe assembly).^'' While fhe FUNCIPEC and CPP effecfively confrolled fhe process, efforfs by fhe UN fo engage fhe public in fhe consfifufional process mainly consisfed of providing informafion and
Ways of Constitution-Making in Southeast Asia education. In the end, however, there was little participation either from the NGOs or members of the Assembly in the formulation of the constifufion.^'' Moreover, when fhe committee submiffed its draft, rafher than to present it to Prince Norodom Sihanouk, the titular head of the Supreme National Council (a semi-sovereign powersharing coalition of all four warring parties in Cambodia) for his approval, CPP leader Hun Sen and FUNCINPEC chairman. Prince Ranariddh, presented their own drafts. Sidelining its own drafting commiffee, fhe consfifuenf assembly in which FUNCINPEC held a pluralify of fhe seafs, examined the FUNCINPEG draft, as edited l3y Sihanouk, and finally adopfed the text on 21 September 1993, by a vote of 113 in favour of ratification, five against if, and two absfenfions.^'^ While in Indonesia and Cambodia, no single political party was able to impose its draft and therefore fhe relevanf polifical parfies had to compromise, in Timor-Leste, the Fretilin [Frente Revolucionaria do Timor-Leste Independente] controlled fwofhirds of fhe seats in the Constituent Assembly. There were talks between Fretilin and the United Nations Transitional Administration in East Timor (UNTAET), but Frefilin ignored any efforfs fo render the process more participatory. Instead, fhe party pushed its own draft through the Constituent Assembly." After only fen days of debate, and against a backdrop of objections by the opposition parfies who felt sidelined, fhe assembly adopfed Fretilin's draft by a two-thirds vote.'" Finally, a third cluster comprises Vietnam, Laos, Myanmar, Thailand (2006-07) and fhe Philippines (1986). These cases are typified by governmenf dominance over a process which was mostly non-parficipafory, exclusive and non-represenfative in the sense fhaf dissenting voices were de facto excluded from fhe process. Yet, there were some public consultations with academics, legal officials and parfy cadres that culminated in the release of a draft constitution fo fhe general public in Viefnam in 1991.^^^ In Myanmar (2008) and Thailand (2007) constitutions were presented fo the electorate in a referendum. Nevertheless, in all six cases, the political leaders imposed fhe constifufion from fhe fop, usually by confrolling the creation and workings of the institution that drafted fhe consfifufion. In Thailand and Myanmar, military junfas chose to write constitutions fo facilitate their political objectives and to enhance their influence over post-transition civilian governments. However, if is worth noting that Thailand's 2007 Constitution — though deviating
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in imporfanf respects from fhe 1997 fexf — exhibifs imporfanf elemenfs of confinuify wifh fhe previous documenf.'''' Under fhe provisions of fhe 2006 Consfifufion proclaimed affer fhe milifary coup againsf Prime Minisfer Thaksin Shinawafra in Sepfember 2006, fhe milifary council (Council for Nafional Securify, CNS) appoinfed a provisional Nafional Assembly, which nominafed 200 of ifs own members as candidafes for a CDA. The CNS fhen selecfed 100 of fhese candidafes fo be appoinfed as acfual members of fhe CDA^^ againsf fhe backdrop of widespread crificism from opposifion parfies, polificians allied with exiled former Prime Minister Thaksin and an emerging social movemenf polifically aligned fo him. Many academics and intellecfuals foo perceived fhe whole process as illegifimafe and criticized many of fhe consfifutional clauses as undemocratic and providing foo much influence fo exfra-parliamenfary forces.*'^ Finally, a consfifufional referendum was held on 19 Augusf 2007, in which 57.6 per cenf of fhe elecforafe vofed and only 56.9 per cenf of vofers approved fhe draft. Supporf for fhe consfifufion was quife sfrong in areas such as Bangkok and fhe soufh, but in Thaksin's powerbase in fhe norfheasf, abouf 60 per cenf of fhe vofers rejecfed the documenf."^ In fotal, jusf 32 per cent of fhe overall elecforafe was acfually in favour of fhe new military-endorsed consfifufion. In confrasf, fhe milifary in Myanmar was significanfly less consfrained in wrifing a documenf fhaf reflecfed ifs inferesfs. Affer convening 700 delegafes for a Nafional Convenfion fo draft guidelines for a new consfifufion in 1992, fhe milifary junfa (Sfafe Law and Order Resforafion Council, SLORC) placed severe resfricfions on fhe right of fhe convenfion fo discuss consfifufional issues, prohibifed fhe debate of fhe consfifufion oufside fhe convenfion and imposed a defailed sef of non-debafable "consfifufional principles fhaf any consfifution would be required fo reñecf and fhaf would ensure fhaf fhe milifary refained deferminafive power".''^ Frusfrafed wifh fhe junfa's unwillingness fo compromise, Aung San Suu Kyi's Nafional League for Democracy (NLD) boycoffed fhe convenfion. As a consequence, fhe milifary halfed fhe process in 1996. In 2004, fhe Convenfion was resfarfed wifhouf NLD parficipafion. While fhe regime allowed efhnic ceaseñre groups 10 per cenf of fhe fofal seafs af fhe convenfion, all fheir proposals were rejecfed.'^^ There was a parallel process of deliberafions among opposifion groups and NGOs buf fheir recommendafions were nof reflecfed in fhe official draff.''*' The draff consfifufion complefed in 2007 was "virfually idenfical fo fhaf proposed by SLORC in 1993".'*' In May 2008, fhe junfa held a nafional referendum.
Ways of Constitution-Making in Southeast Asia According to official statistics, the constitution was approved by 93.8 per cent of the votes. However, the NLD and others claimed the referendum took place under threat of force, with numerous allegations of intimidation and pre-marked ballots.''" Actors, Interests and the Question of Constitutional Legitimacy
Building on the foregoing discussion, it is possible to identify different groups of actors and interests who have influenced the constitution-building process in different ways. While the case studies in this special issue provide in-depth analyses, this article takes a cross-national, comparative perspective. Jon Elster differentiates three categories of potential interests:''^ first, the "personal interests" of constitution-makers which refers to the private advantage that an individual expects to derive from particular constitutional institution; second, the "group interests" of political parties, territorial sub-units, economic actors, social forces or extra-constitutional forces such as the military and international actors (e.g., the UN); and third, the self-interest of political institutions, for example, of the executive or ordinary legislatures. Building on Elster's differentiation, Gabriel Negretto notes that institutional interests' impact on constitution-making when a political institution that participates in that process writes an important role for itself into the constitution; for example, the executive normally tries to keep its independence from the legislative body.'" Likewise, legislatures which become constitution-making bodies or constituent assemblies which also serve as ordinary parliaments have incentives to balance the control of the executive or increase the power of the legislative branch. As is evident, the interests of political parties and political institutions played a particular strong role in Indonesia, Timor-Leste and Cambodia. Here, established (or future) legislatures participated in the process of constituting a government; in fact, in Cambodia and Timor-Leste, they formed the constituent body. Partisan interests of political parties had a strong impact on the process that led to the adoption of four constitutional amendments in Indonesia, especially when the representatives of the Regional DPR were forced to join with other political parties' factions. Yet, the two biggest party factions together held only 53 per cent of the total MPR seats and therefore had to compromise with other factions.'^ Regarding the dominant impact of political parties' interests in Cambodia, however, it is important to note that party leaders such as Hun Sen and Prince Ranariddh, together with Prince Norodom Sihanouk, were the
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decisive veto players rather than the political parties as such. Unsurprisingly, the text of the 1993 Constitution reflects the compromise reached between these three actors, resulting in a mixture of elements from the 1947 royalist constitution and the 1989 constitution of the CPP-led State of Cambodia.'^ In all three countries, participation by social organizations was limited. However, interest groups and civil society activists felt shut out from the process particularly in Timor-Leste and Cambodia.'^ International actors such as UN transitional administrations played a role in Cambodia and Timor-Leste. For example. Annex 5 of the 1991 Paris Peace Agreement required the drafting of a new Constitution for a "liberal democracy" in Cambodia, and it was UNTAC's mandate to assist with the implementation of the peace accord.'^ The scope of UNTAET's mandate was significantly broader and gave it full executive, legislative and judicial authority over Timor-Leste. However, concerned that it should not be seen as imposing a result, UNTAET chose to take a "hands off" approach during the constitution-making process.''^ Other interests were a minor issue or did not play a role at all. For example, the interests of the armed forces, state bureaucracy or subnational units were a non-issue in Timor-Leste and Cambodia. In contrast, Indonesians were concerned that the military would utilize its access to the MPR through the thirty-eight members of the combined military-police faction to impose its will onto the delegates. Yet, with the important exception of Article 281(1) that prohibits retrospective prosecution and makes it more difficult to prosecute military personnel responsible for past human rights abuses, there is no strong evidence that the military regularly intervened in the MPR's decision-making process.'*^ In contrast, in the Philippines and Thailand, the interests of political parties played a limited role in the constitution drafting. As previously described, this was mainly a result of the way the constitution-making bodies came into being. Although the "Revolutionary Government" of President Corazón Aquino had a strong vested interest in building constitutional legitimacy for the post-Marcos order,'' there is little evidence that, other than this, its institutional self-interests played an important role. While it is true that congressional powers were strengthened and, at the same time, presidential prerogatives were reduced, this probably reflects the constitutional commissioners' intention to firewall the constitutional order against future attempts to impose presidential autocracy rather than parliament's self-interest. In this regard it is also important to
Ways of Constitution-Making in Southeast Asia menfion fhaf fhe adopfion of fhe 1997 Consfifufion in Thailand was meanf fo regulafe fhe role of polifical parfies, fo curfail fhe power of elecfed parliamenfarians and fo sfrengfhen fhe Prime Minisfer vis-à-vis fhe House of Represenfafives. This also included fhe insfallafion of a direcfly elecfed Senafe, whose members were nof allowed fo join polifical parfies.'" In confrasf, fhe 2006 inferim consfifufion aimed fo legifimize fhe 2006 coup d'éfaf againsf Thaksin. Finally, fhe 2007 consfifufion draffed by a selecfed group of delegafes who owed fheir appoinfmenfs fo fhe milifary-composed CNS reflecfs fhe desire fo prevenf fhe furfher "Thaksinizafion" of Thailand's polifical sysfem by emphasizing fhe guardian role of fhe armed forces, and imposing furfher consfrainfs on fhe execufive branch of governmenf and fhe funcfioning of fhe legislafure.'*' Regarding Myanmar's 2008 consfifufion, if is hard fo deny fhaf fhe consfifufionally guaranfeed presence of milifary officers in nafional and local parliamenfs, fhe granting of complefe legal aufonomy of fhe "Defense Services" (e.g., fhe milifary) over ifs own affairs as well as immunify for ifs pasf and fufure acfions reflecf fhe self-inferesf of fhe milifary. Af fhe same fime, fhe currenf consfifufion gives fhe milifary a non-negofiable vefo on any pofenfial fufure consfifufional amendmenfs. In facf, if is a prime example for a "milifary consfifufion" drafted by an assembly fhaf was creafed and supervised by milifary rulers. This enables a milifary dominafed regime fo demand obedience in fhe name of fhe law, fo win legal recognifion from fhe infernafional communify and fo regulafe access fo power wifhin fhe ruling elife. All of fhese sfrafegies impose severe consfrainfs on fhe funcfioning of fhe fufure polifical regime, "somefhing which milifary rulers fypically intend fo do fo preserve fheir reforms and profecf fheir personal and corporate inferesfs after leaving power".™ A final glance af fhe consfifufion-making processes in Laos and Viefnam supporfs fhe idea fhaf in aufhorifarian regimes, consfifufional change serves mainly fhe inferesfs of ruling elifes fo preserve fheir polifical clouf. For example, when communisf parfies in Easfern Europe and fhe Sovief Union crumbled in 1989-91, fhe Laofian Consfifufion — adopfed in Augusf 1991 — reiferafed fhe dominanf role of fhe Lao People's Revolufionary Parfy as fhe "leading nucleus" of fhe polifical sysfem."^ While Viefnam's 1992 Consfifufion also serves fhe purpose of mainfaining fhe dominanf polifical role of fhe communisf parfy, fhe process of preparing consfifufional change befween 1990 and 1992 shows
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that there also can be intense debates and deliberations among government, parfy officials, and academics in aufhoritarian regimes, albeit this has always to take place within narrow limits. Moreover, as Mark Sidel notes, since the adoption of the 1992 Constitution, "and partly as a result of the decisions taken by fhe party and demands from below, legislative, government and associational actors in Vietnam have a broader role to play now than at any time since fhe 1940s". 82
Conclusions At a firsf glance, the relationship between the ways in which constitutions are made and the type of political regime seems sfraighf forward; democracies and regimes in fransition to democracy employ more representative designs of constitution-building, whereas in authoritarian regimes not under pressure for democratic regime change, the design is utterly unrepresentative. However, at least in Southeast Asia, the link between fhe form of the polifical regime and fhe exfenf to which constitution-making is inclusive or participatory is less clear-cut. While we would expect better opportunities for public participation and broader inclusion of extra-parliamentary actors, especially from civil sociefy, in constitution-making in democrafic environmenfs, fhe empirical evidence is mixed. In fact, as Elster observes, constitution-making in a transitional period comes out in conditions that are likely to work against a participatory and inclusive constitution-making process: the difticult circumstances during a transition period which are characterized by uncertainty and the simultaneity of impending political crises, participatory and inclusive constitution-making through deliberation among many different social and political forces is unlikely fo happen." Here constitution drafters have to carefully choose between the virtues of a democratically exemplary procedure and fhe perils of a long, pofentially volatile interim phase without a legitimate constitution. While elected constituent assemblies do have claim to democrafic legifimacy, and ratification by free popular vofe is an addifional source of legitimacy, in a transitional environment the political actors (not only in Soufheasf Asia) often opf for the complefion of a consfitution in a very short and effective way of constitution-making, accepting procedural and substantive deficiencies.*** But does this maffer for public supporf for a constitufion and fhe social accepfance for fhe constifufional order? Jon Elsfer generalizes
Ways of Constitution-Making in Southeast Asia fhaf consfifufions produced in a more democrafic process (fhaf is, wifh broader public parficipafion and oversighf) will fend fo be more legitimate.**^ Similarly, Samuels concludes from her study of fwelve cases of consfifufion-making in Asia, Africa, Lafin America and posf-communisf Europe fhaf a more represenfafive process of consfifufion-making resulfs in consfitufions free from provisions fhaf undermine fhe qualify of democracy. Moreover, consfifufions fhaf are drafted by represenfafive bodies or emerge in a process fhaf involves consulfafion wifh a broad range of polifical and social forces are generally "perceived as more legifimafe and hence received greafer popular supporf".'''' On fhe ofher hand, Elkins and co-aufhors nofe fhaf broader parficipafion may render consfifufional change more difticulf as if increases fhe number of pofenfial vefo points which have fo be overcome and vefo players who have fo granf concessions before consfifufional revisions can be adopfed; if can also confribufe fo less confexfual coherence of fhe consfifufion.^' An addifional warranf regards fhe legifimizing consequences of referendums: "Approval by referendum may be an increasingly popular mode of public involvemenf, buf if is clearly a limifed one in fhaf if involves only an up or down vofe over a package of provisions."'"' In addifion, fhe exfenf of procedural legifimacy a plebiscife may provide for a consfifufional order also depends on fhe polifical circumsfances under which vofers can cast fheir vofes. In facf, a glance af Elsfer's fhree sources of consfifufional legifimacy discussed in secfion fwo of fhis arficle and fhe consfifufional developmenfs in Soufheasf Asia seems fo indicafe fhaf upsfream, downsfream and procedural legifimacy may be less relevanf for fhe accepfance of a consfifution fhan fhe legifimacy of fhe "day-today plebiscife" (or whaf fhe French hisforian and polifical wrifer Ernesf Renan called fhe "plébiscite de tous les jours"f^ by cifizens and elifes which can furn a consfifufion which lacks all procedural legifimacy info a lasfing and universally accepfed law of fhe land. For example, fhis seems fo be fhe case in Indonesia. Similarly, despife fhe recurring proposals for consfifufional reform ("Charfer Change" or ChaCha) in fhe Philippines, if seems evidenf fhaf the 1987 Consfifufion in fhe Philippines has also been able fo gain legifimacy in fhe eyes of fhe Filipino people and fhe polifical elife. On the ofher hand, alfhough Thailand's 1997 Consfifufion enjoyed sfrong upsfream and process legifimacy, if did nof lasf long. Yef, in Timor-Lesfe, fhe final consfifufion was widely considered fo be a Frefilin consfifufion. Unsurprisingly, "fhe public has grown increasingly crifical of Fretilin's role in drafting if and of fhe flaws
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in the constitution itself" and as Louis Aucoin and Michèle Brandt note, "the failings of the constitution have emerged as a favorite rallying point for whatever political forces are trying to gain favor among the population, and the charter appears to be sorely lacking in legitimacy."^" In Myanmar and Thailand, the fact that the constitution was approved in a referendum did not lend legitimacy to a flawed process of constitution-making in which the opposition did not have equal access or from which it was completely excluded. Rather, the legitimacy of the 2007 referendum was negatively affected by a low approval rate which also laid bare the sharp divisions in Thailand.*'^ Unsurprisingly the question of constitutional change has been a contentious one since 2007. While the Puea Thai party aligned to Thaksin, and the social movement allied with the party, have made clear that they will not stop to aim for changes to the constitution, their opponents have made clear that they are not willing to accept any move to amend the constitution. Even though Myanmar's military has been more successful in creating and manipulating a constitution that grants it sweeping political powers, helps to elicit cooperation by societal groups and to co-opt potential opposition and, hence, diminish the actual challenges they pose to the regime's interests, the 2008 charter grants minimal margins of power and autonomy to political institutions outside the military which contain seeds of subversion. This opens up arenas of contention in which the opposition can test limits of the permissible and challenge the regime.^^ Certainly, the constitution was adopted because it should help the ruling military elite to ease their existential problems of governance and political survival. Yet, it has the potential to undermine autocratic rule. In fact, there are past examples of military regimes in Asia (i.e.. South Korea) and Latin America (i.e., Chile) where authoritarian constitutions supposed to preserve the power of forces associated with the military were inherently unstable and turned into institutional traps for authoritarian leaders. NOTES See, for example Kevin Y.L. Tan, "The Making and Remaking of Constitutions in Southeast Asia: An Overview", Singapore Journal of Internationa! SComparative Law 6, no. 6 (2002): 1-41. Jon Elster, "Constitution-making in Eastern Europe: Rebuilding the boat in the open sea". Public Administration 71 (Spring/Summer 1993): 169-217;
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Jon Elster, "Ways of Constitution-making", in Democracy's Victory and Crisis, edited by Axel Hadenius [New York, NY: Cambridge University Press, 1997), pp. 123-42; Kirsti Samuels, Gonstitution Building Processes and Democratization: A Discussion of Twelve Gase Studies (Geneva: IDEA, 2006); Tom Ginsburg, Zachary Elkins and Justin Blount, "Does the Process of Constitution-Making Matter?", Annual Review of Law and Social Science 5 (2009): 201-23. ^ ' °
^ '
"
^
'"
"
Robert Dahl, Polyarchy. Participation and Opposition (New Haven and London: Yale University Press, 1971), p. 5. Ibid., p. 3. Walter F. Murphy, "Constitutions, Constitutionalism, and Democracy", in Gonstitutionalism and Democracy: Transitions in the Gontemporary World, edited by Douglas Greenberg, Stanley N. Katz, Melanie B. Oliviero and Steven C. Wheatley [New York, NY: Oxford University Press, 1993), pp. 3-23; Walter F. Murphy, "Designing a Constitution: Of Architects and Builders", Texas Law Review 87, no. 7 [June 2009): 1303; Wolfgang Merkel and Aurel Croissant, "Formale und informale Institutionen in defekten Demokratien", Politische Vierteijahresschrifl 41, no. 1 (March 2000): 3-31; Leonardo Morlino, Changes for Democracy, Actors, Structures, Processes (Oxford: Oxford University Press, 2012). Andreas Schedler, "The New Institutionalism in the Study of Authoritarian Regimes", Totaiitarismus &• Demokratie 6, no. 2 (2009): 323-40. Jennifer Gandhi, Political Institutions under Dictatorship [Cambridge: Cambridge University Press, 2008), p. xxi; Tom Ginsburg and Alberto Simpser, "Introduction: Constitutions in Authoritarian Regimes", in Gonstitutions in Authoritarian Regimes, edited by Tom Ginsburg and Alberto Simpser [Cambridge: Cambridge University Press, 2014), p. 2. Adam Przeworski, "Ruling against Rules", pp. 21-36 and Zachary Elkins, James Melton and Tom Ginsburg, "The Content of Authoritarian Constitutions", pp. 142-43 in Ginsburg and Simpser, Gonstitutions in Authoritarian Regimes, op. cit. Yun-han Chu, Larry Diamond and Andrew J. Nathan, "Conclusion: Values, Regime Performance and Democratic Consolidation", in How East Asians View Democracy, edited by Yun-han Ghu, Larry Diamond, Andrew J. Nathan and Doh Chull Shin [New York, NY: Columbia University, 2008), pp. 254-55; Thitinan Pongsudhirak, "Thailand's Uneasy Passage", in Democracy in East Asia: A New Gentury, edited by Larry Diamond, Marc F. Plattner and Yu-han Chu (Baltimore, MD: The Johns Hopkins University Press, 2013), pp. 168-83. R.L. Hung, "Re-thinking Myanmar's Political Regime: Military Rule in Myanmar and Implications for Current Reforms", SEARG Working Paper Series No. 136 (Hong Kong: City University of Hong Kong, 2013), p. 2; see also Aurel Croissant and Jil Kamerling, "Why Do Military Regimes Institutionalize? Constitutionmaking and Elections as Political Survival Strategy in Myanmar", Asian Journai of Political Science 21, no. 2 [2013): 105-25; Marco Buente, "Burma's Transition to Quasi-Military Rule: From Rulers to Guardians?", Armed Forces &• Society, 5 July 2013. Guillermo O'Donnell and Philippe C. Schmitter, Tentative Gonclusions about Uncertain Democracies (Baltimore, MD: Johns Hopkins University Press, 1986), p. 1.
46 " '•'
" '^ '" "
'"
"
™
" ^^
" -* -^
^f" "
^^
Aurel Croissant Murphy, "Designing a Constitution", op. cit., p. 1300. Ibid. See also Zachary Elkins, Tom Ginsburg, and James Melton, The Endurance of National Constitutions (Cambridge: Cambridge University Press, 2009), p. 36. David C. Williams, "Constitutionalism before Constitutions: Burma's Struggle to Build a New Order", Texas Law Review 87 (June 2009): 1657. Murphy, "Designing a Constitution", op. cit., pp. 1307-09; Elkins, Ginsburg and Melton, The Endurance of National Constitutions, op. cit., pp. 55, 74. Samuels, Constitution Ruilding, op. cit., pp. 8-9. Elster, "Constitution-making", op. cit., pp. 178-79; Ernst-Wolfgang Böckenförde, "Die Verfassungsgebende Gewalt des Volkes — Ein Grenzbegriff des Verfassungsrechts", in Zum Begriff der Verfassung. Die Ordnung des Politischen, edited by Ulrich K. Preuß (Frankfurt am Main: Fischer, 1994), pp. 67-69. Ginsburg and Simpser, "Introduction", in Constitutions in Authoritarian Regimes, op. cit., p. 1; see also Julian Goo, "A Globalizing Constitutionalism? Views from the Postcolony, 1945-2000", International Sociology 18, no. 1 (March 2003): 72; Nathan J. Brown, "Regimes Reinventing Themselves: Constitutional Development in Arab World", International Sociology 18, no. 1 (March 2003): 33-52. Denny Indrayana, "Indonesia — In Search for a Democratic Constitution (1945-2008)", in Constitutionalism in Southeast Asia, vol. 2, edited by Clauspeter Hill and Jörg Menzel (Singapore: KAS, 2008), p. 101. Elkins, Melton and Ginsburg, "The Content of Authoritarian Constitutions", in Ginsburg and Simpser, Constitutions in Authoritarian Regimes, op. cit., pp. 145-47; Elkins, Ginsburg, and Melton, in Ginsburg and Simpser, Constitutions in Authoritarian Regimes, op. cit., p. 137. Tan, "The Making and Remaking of Constitutions", op. cit., p. 3. Cf. Clauspeter Hill and Jörg Menzel, Constitutionalism in Southeast Asia, vol. 2 (Singapore: KAS, 2008); Zachary Elkins, Tom Ginsburg, and James Melton, Characteristics of National Constitutions, Version 1.0, Comparative Constitutions Project, 14 May 2010, available at ; and author's compilation. Author's calculations based on information from the same sources as Table 1. Indrayana, "Indonesia", op. cit., p. 101. Li-ann Thio and Kevin Tan, Evolution of a Revolution: 40 Years of the Singapore Constitution (London: Routledge-Curzon, 2009); Michael D. Barr, "Review Essay: Law and Order in a Land of Tough Love", Australian lournal of Asian Law 14, no. 1 (2013): 1-6. Andrew Harding, The Constitution of Malaysia: A Contextual Analysis (Oxford and Portland: Hard Publishing, 2012). For more detail see Tom Ginsburg, "Constitutional Afterlife: The Continuing Impact of Thailand's Postpolitical Constitution", International Journal of Constitutional Law 7, no. 1 (January 2009): 83-105. For more details see Elkins, Melton and Ginsburg, "The Content of Authoritarian Constitutions", in Ginsburg and Simpser, Constitutions in Authoritarian Regimes, op. cit.
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'" '"'
Tan, "The Making and Remaking of Constitutions", op. cit., p. 41. Goo, "A Globalizing Gonstitutionalism?", op. cit.; Kristian Skrede Gleditsch and Michael D. Ward, "Diffusion and the International Context of Democratization", International Organization 60, no. 4 (October 2006); 911-33; Daniel Brinks and Michael Coppedge, "Diffusion is No Illusion; Neighbor Emulation in the Third Wave of Democracy", Comparative Political Studies 39, no. 4 (May 2006): 466; Elkins, Melton and Ginsburg, "The Content of Authoritarian Constitutions", in Ginsburg and Simpser, Constitutions in Authoritarian Regimes, op. cit., pp. 153-54.
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Robert Elgie, "Exogenous Political Institutions? Constitutional Choice in Postindependence Francophone Sub-Saharan Africa", Political Research Quarterly 65, no. 4 (December 2011); 771-83; José Antonio Cheibub, Zachary Elkins and Tom Cinsburg, "Latin American Presidentialism in Comparative and Historical Perspective", Texas Law Review 89 (August 2011); 3-33.
^^
Nikolai G. Wenzel, "Constitutional Culture in Japan and the Philippines; Success and Failure in Post-War Constitutional Choice", Pacific Focus 25, no. 3 (May/ June 2010); 409. See also Coo, "A Globalizing Constitutionalism", op. cit. Octavio Amorim Neto and Marina Costa Lobo, "Semi-presidentialism in Lusophone Countries: Diffusion and Operation", Democratization (December 2012): 1-24. Tan, "The Making and Remaking of Constitutions", op. cit., p. 3. H.W.O. Okoth-Ogendo, "Constitutions without Constitutionalism: Reflections on an African Political Paradox", in Constitutionalism and Democracy: Transitions in the Contemporary World, edited by Douglas Creenberg, Stanley N. Katz, Melanie B. Oliviero and Steven C. Wheatley (Oxford: Oxford University Press, 1993), pp. 65-84. Brown, "Regimes Reinventing Themselves", op. cit., p. 38. Soliman M. Santos Jr., "History of the Debate: Parliamentary versus Presidential in the Philippines", in Shift, edited by Soliman M. Santos Jr., Florencio Abad, Joel Rocamora and Chay Florentino-Hofileña (Quezon City, Manila: Atenao Center for Social Policy and Public Affairs, 1994), p. 25. David Würfel, "Martial Law; The Methods of Regime Survival", Pacific Affairs 50, no. 1 (March 1977): 5-30. Goo, "A Globalizing Constitutionalism", op. cit., p. 71. For more details, see James R. Klein, "The Constitution of the Kingdom of Thailand, 1997; A Blueprint for Participatory Democracy", The Asia Foundation Working Paper no. 8, Bangkok, 1998, pp. 10-12; Andrew Harding and Peter Leyland, The Constitutional System of Thailand: A Contextual Analysis (Oxford and Portland; Hart Publishing, 2011), pp. 22-24; Uwanno Borwornsak and Wayne D. Burns, "The Thai Constitution of 1997; Sources and Process", University of Rritish Columbia Law Review 32, no. 2 (Spring 1998); 227-47.
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Michael Connors, Democracy and National Identity in Thailand, rev. and updated ed. (London and New York; Routledge-Curzon, 2007), pp. 153-62. While the experts proposed an indirectly elected Upper House, the provincial representatives were in favour of a directly elected Senate; see Erik Kuhonta, "The Paradox of Thailand's 1997 'People's Constitution': Be Careful What You Wish For", Asian Survey 48 (May/June 2008): 385-86.
48 •"
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Aurel Croissant Suchitra Punyaratabandhu, "Thailand in 1997; Financial Crisis and Constitutional Reform", Asian Survey 38, no. 2 (February 1998); 165; for a more detailed and critical analysis of the process, see Connors, Democracy, op. cit., pp. 153-82. Harding and Leyland, The Constitutional System of Thailand, op. cit., p. 23. For more detail, see Klein, The Constitution of the Kingdom of Thailand, op. cit.; Frank Munger, "Constitutional Reform, Legal Consciousness, and Citizen Participation", Cornell International Law fournal 40, no. 2 (2007); 464; Ginsburg, "Constitutional Afterlife", op. cit., pp. 83-105; Peter Leyland, "Thailand's Constitutional Watchdogs; Dobermans, Bloodhounds or Lapdogs?", The fournal of Comparative Law 2, no. 2 (January 2007); 151-77. Lourdes G. Genato Rebullida, "The Philippine Executive and Redemocratization", in Philippine Politics and Governance: An Introduction, edited by Noel M. Morada and Teresa S. Encarnation Tadem (Quezon City, Manila; University of Philippines Press), p. 183. Wilfrido V. Villacorta, "The Dynamics and Processes of Writing the 1987 Constitution", Philippine fournal of Public Administration 32, nos. 3-4 (JulyOctober 1988); 299-309. David C. Timberman, A Changeless Land: Continuity and Change in Philippine Politics (Singapore; Institute of Southeast Asian Studies, 1991), pp. 200-4. Dieter Nohlen, Florian Grotz and Christof Hartmann, Elections in Asia and the Pacific: A Data Handbook, vol. 2 (Oxford; Oxford University Press, 2001), p. 209. Aurel Croissant, "The Perils and Promises of Democratization through United Nations Transitional Authority; Lessons from Cambodia and East Timor", Democratization 15, no. 3 (May 2008); 649-68. Denny Indrayana, Indonesian Constitutional Reform 1999-2002: An Evaluation of Constitution-Making in Transition (Jakarta; KOMPAS Book Publishing, 2008), p. 2. Simon Butt and Tim Lindsey, The Constitution of Indonesia: A Contextual Analysis (Oxford and Portland; Hart Publishing, 2012), p. 4. Samuels, Constitution Building, op. cit., p. 27. The 120 seats of the constituent assembly were distributed as follows; Eront Uni National pour un Cambodge Indépendant, Neutre, Pacifique, et Coopératif (FUNCINPEC); 58 seats; Cambodian People's Party (CPP); 51; Buddhist Liberal Democratic Party (BLDP); 10; and, MOLINAKA; 1; see Stephen P. Marks, "The Process of Creating a New Constitution in Cambodia", in Eraming the State in Times of Transition: Case Studies in Constitution-Making, edited by Laurel E. Miller (Washington, D.C.; United States Institute of Peace, 2010), pp. 207-44; Michèle Brandt, Constitutional Assistance in Post-Confiict Countries. The UN Experience: Cambodia, East Timor &• Afghanistan, UNDP Report, 2005, p. 11, available at . Marks, "The Process of Creating a New Constitution", op. cit. The final draft also included some elements of the CPP's draft proposal. Therefore, the party was more willing to accept the compromise. See Trevor Findlay, Cambodia: The Legacy and Lessons of UNTAC (Oxford; Oxford University Press, 1997), p. 9.
Ways of Constitution-Making in Southeast Asia " "" '^ "" "
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49
Michèle Brandt, Constitutional Assistance, op. cit., p. 15; Samuels, Constitution Building, op. cit., p. 19. Brandt, Constitutional Assistance, op. cit., p. 20. Mark Sidel, The Constitution of Vietnam: A Contextual Analysis (Oxford and Portland: Hart Publishing, 2009), p. 7. Ginsburg, "Constitutional Afterlife", op. cit. C. Traimas and J. Hoerth, "Thailand: Another New Constitution as a Way Out of the Vicious Cycle?", in Constitutionalism in Southeast Asia, op. cit., pp. 287-310. Patrick Jory, "Thailand's Constitutional Reform in Changing Times", East Asia Forum, 27 March 2012, available at ; Paul W. Chambers, "U-Turn to the Past? The Resurgence of the Military in Contemporary Thai Politics", in Democracy under Stress: Civil-Military Relations in South and Southeast Asia, edited by Paul W. Chambers and Aurel Croissant (Bangkok: ISIS, 2010), pp. 61-62.
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"National Referendum: Official Results", The Nation, 23 August 2007, available at .
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Janelle M. Diller, "Constitutional Reform in a Repressive State: The Case of Burma", Asian Survey 33, no. 4 (April 1993): 399; Williams, "Constitutionalism", op. cit., pp. 1667-68. Win Min, "Under an Iron Heel: Civil-Military Relations in Burma/Myanmar", in Democracy under Stress, op. cit., pp. 97-99. Williams, "Constitutionalism", op. cit. Lee Jones, "Explaining Myanmar's Regime Transition: The Periphery is Central", Democratization 21, no. 5 (August 2014). Jones, "Explaining Myanmar's Regime Transition", op. cit.; Min, "Under an Iron Heel", op. cit. Elster, "Constitution-making in Eastern Europe", op. cit., pp. 181-85. Cabriel L. Negretto, "Constitution-Making and Institutional Design: The Transformation of Presidentialism in Argentina", European Journal of Sociology 40, no. 2 (1999); 193-232. Indrayana, Indonesian Constitutional Reform, op. cit., pp. 116, 149-51. Marks, "The Process of Creating a New Constitution", op. cit. Brandt, Constitutional Assistance, op. cit., pp. 11-14. Croissant, "Perils and Promises", op. cit. Brandt, Constitutional Assistance, op. cit., p. 24. Indrayana, Indonesian Constitutional Reform, op. cit., pp. 164-65. Joacquin C. Bernas, The Intent of the 1986 Constitution Writers (Manila: Rex Book Store, 1995), pp. 2-4. Allen D. Hickens, "Thailand: Combating Corruption Through Electoral Reform", in Electoral System Design: The New International IDEA Handbook (New York, NY: IDEA, 2005), pp. 105-7; Kuhonta, "The Paradox", op. cit.
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50
Aurel Croissant
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Vichit Muntarbhorn, "Deconstructing the 2007 Constitution", in Divided over Thaksin: Thailand's Goup and Problematic Transition, edited by John Funston (Singapore: Institute of Southeast Asian Studies, 2009), pp. 80-89.
™
See Gabriel L. Negretto, "Authoritarian Constitution-Making: The Role of the Military in Latin America", in Ginsburg and Simpser, Gonstitutions in Authoritarian Regimes, op. cit., p. 83.
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"The Constitution of the Lao People's Democratic Republic", Art. 3, in Gonstitutionalism in Southeast Asia, vol. 1, op. cit., p. 99.
"^
Mark Sidel, The Gonstitution of Vietnam: A Gontextual Analysis (Oxford and Portland: Hart Publishing, 2009), p. 7.
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Elster, "Constitution-making in Eastern Europe", op. cit.
"•'
See, for example, Klaus von Beyme, Systemwechsel in Osteuropa (Frankfurt: Suhrkamp, 1994), p. 236; Andrew Arato, "Forms of Constitution Making and Theories of Democracy", Gardozo Law Review 17 (1995-96): 191-213.
"^
Elster, "Ways of Constitution-making", op. cit., p. 125.
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Samuels, Gonstitution Building, op. cit., p. 4.
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Ginsburg, Elkins and Blount, "Process of Constitution-Making", op. cit., p. 216.
«8
Ibid., pp. 207-8.
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Ernest Renan, "Qu'est-ce qu'une nation?", conférence faite à la Sorbonne, le 11 mars 1882, p. 27. Reprinted in Ernest Renan, Qu'est-ce qu'une Nation? et autres écrits politiques (Paris: IN, 1996), p. 241.
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Louis Aucoin and Michèle Brandt, "East Timor's Constitutional Passage to Independence", in Framing the State in Times of Transition: Gase Studies in Gonstitution Making, edited by Laurel E. Miller (Washington, D.C.: United States Institute of Peace, 2010), p. 271.
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Moreover, as Vichit notes, the constitution introduced after the 2006 coup gave the CNS the authority to issue another constitution if the voters would have rejected the draft text of the 2007 Constitution; see Vichit, "Deconstructing", op. cit., p. 82.
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Schedler, "The New Institutionalism", op. cit., pp. 337-38.
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