Abstract
This thematic issue of the Federal Law Review engages with constitutional dimensions of commentaries on the authoritarian turn in many Asian states. Such commentaries observe that despite decades of work to promote democratic systems in Asia, multiple regimes have worked through the institutions and processes of those systems to advance increasingly illiberal conditions. 1 The present issue draws attention to constitutional aspects of the authoritarian turn, highlighting the role of constitutional contestation within the systemic shifts occurring in Asia.
The articles assembled in this issue illustrate the permutations of constitutional struggles in a range of Asian states, delineating how the respective constitution of each state serves as both a locus and object of contestation between opposed political forces. While they address the contextual specifics of individual countries, the articles collectively facilitate a comparison of the various manifestations of constitutional contestation across the Asia region. In doing so, they inform readers about the features of constitutional discourses in Asia, not as a monolithic region but instead as a varied terrain of nuanced contention.
The comparison follows the orientation of scholars such as Rosalind Dixon, Ran Hirschl and Mark Tushnet, who, in an issue of the American Journal of Comparative Law, called for more comparative analyses of constitutions, using holistic approaches with interdisciplinary methods that invite a wider range of voices encompassing underrepresented places in the world. 2 Hirschl sought to go beyond constitutional studies as the review of texts and doctrines, and to look instead for constitutional studies which explore topics of ‘culture, economics, institutional structures, power, and strategy’ in a constitutional universe. 3 Dixon, however, cautioned that such goals require a breadth and depth of knowledge about socio-political factors specific to a jurisdiction, which in turn requires a sustained engagement only possible through extended residence and engagement with life inside a given country. 4 Tushnet, for his part, directed attention to a notion of constitutionalism that views constitutions as associated with actions rather than constitutions as bodies of words. 5
In keeping with these ideas, this ensemble of articles proffers a range of studies, from countries across Asia, that treat constitutional discourses in holistic perspective, with each article delineating the complexities of constitutional struggles in individual countries from the perspective of a scholar native to each jurisdiction. By ‘struggles’, we do not have a single meaning in mind. Indeed, the papers in this collection each bring distinct notions of struggle to bear on their subjects. Each paper, in detailing forms of constitutional struggle in a country, raises socio-legal issues that reflect the scope of Hirschl’s conception of constitutional studies. In representing the work of scholars with extended residence in the Asia region, each paper reflects Dixon’s injunction for the perspectives of authors with long engagement with the legal discourses in their respective countries of focus. And in demonstrating various types of constitutional struggle, the collection of papers illustrate Tushnet’s view of constitutions as subjects of contestation.
The conduct of comparative constitutional studies using socio-legal approaches echoes the interdisciplinary methods of the field of law and society. At its core, the law and society movement looks to law outside the doctrinal boundaries of statutory texts or court decisions, contemplating instead the life of law as a function of context encompassing socio-cultural, economic and political forces that interact with laws and legal institutions in mutually influential relationships. 6 The breadth of interactions involving law incurs a plurality of epistemologies and diverse research methods exploring various notions of law. 7 Law and society approaches observe the entanglement of legal institutions with political controversies, as political actors vie to use them as instruments in pursuit of particular agendas. 8 Examples include courts, whose internal workings and external positioning relative to other components of the state reflect the dynamics of ongoing political contests. 9 Beyond the character of actors and spaces is the substance of law itself, with contestation affecting the framing of issues and social constructions about the meaning of law. 10
Law and society approaches extend to constitutional studies, with the field seeing discourses on the meaning of law as indicative of deliberations over foundational aspects of states and societies that often underlie constitutional discourses. 11 Hence, as much as law is a political practice, constitutions and constitutionalism are also forms of political engagements. 12 States are not monolithic structures, but rather host diverse actors and institutions with diverse agendas and dynamics. 13 As a result, states encompass non-unitary heterogeneous environments for contestation over issues that can include constitutions. In addition, the concerns regarding constitutions arise not just within the spaces of the state but also appear in settings of society, such that multiple conceptions of constitutional order can exist simultaneously with varying degrees of co-existence or contention. 14 The consequence is that the struggles over constitutional issues can reach across both state and society. 15 The connections can work in both directions, with state institutions working to impose state authority while also being targets for attacks against state authority. 16 In addition, constitutionalism can be a function of social movements seeking to foment change, whether incremental or revolutionary, within a state or a society. 17 The implication for constitutional studies is that constitutions and constitutional discourses are spaces for struggle between actors directing issues towards outcomes favouring their preferred agendas, which can serve to escalate illiberal repression just as readily as it can work to promote liberal values.
Such conceptions help to coalesce modes of analysis to a framework of actors, actions and spaces, such that constitutional struggles can be viewed in terms of the actors engaged in contestation, the actions they employ to advance their interests and the spaces within which they operate. Following from the above discussion, the framework encompasses realms of state and society and views constitutional issues as immersed within larger contextual discourses. The framework serves to elucidate the complexities of constitutional struggles by highlighting the interconnected workings of their constituent parts. In particular, they help to address the question posed by Guenther Teubner: ‘in what types of social conflict and with what institutional results do actual constitutionalisation processes take place’? 18
Teubner asked the question in relation to nation-state constitutionalism under transnational forces, but the same question also applies to the domestic arena. In exploring the meaning of constitutional struggles, the articles present different forms of conflict that reflect diverse permutations of actors, actions and spaces. The variations help to delineate the notion of constitutional struggles within Asia, clarifying the common and contrasting features that characterise the constitutional nature of the current authoritarian turn across much of Asia.
The subjects of constitutions, constitutional law and constitutional studies in Asia are domains with rich literatures spanning topics such as constitution-making, constitutional change, rights, jurisprudence, governance and culture. 19 The breadth of studies indicates that there is not a distinctly Asian notion of constitutionalism, and that the complexities of the region manifest themselves in a comparable array of constitutional scholarship. 20 The contributions of such scholarship reflect diverse conceptions of constitutional struggle across different countries. In so doing, they help to inform comparative constitutional law studies in ways that mitigate the reductionist hazards of ‘legal orientalism’ in imaginations of Asian law. 21 Of relevance to the above discussion, a contingent of the scholarship looks to the socio-legal contexts of constitutional discourses, pointing out dynamics encompassing contextual factors of history, sociology, politics, religion, international relations and development. 22 The body of scholarship is extensive but continues a call for greater understanding of the connections between constitutional dynamics and domestic issues. 23
The articles in this thematic issue work to address such a call, complementing the existing constitutional studies literature on Asia with studies illustrating the nature of constitutional struggles displayed by a range of countries in the region. The central research question explores the diversity of constitutional struggles in Asia, with the purpose of improving our understanding of the differences and similarities that comprise the meaning of constitutional struggles as they occur in different jurisdictions.
In keeping with Hirschl’s suggestions to match research questions with analytical aims, 24 the issue seeks to facilitate comparison across the articles: while the authors were empowered to express their unique perspectives towards constitutional problems in their respective countries, the issue’s guest editors also instructed them to organise their thoughts in ways that enabled identification of actors, actions and spaces to aid cross-country comparisons. None of the articles is intended as a comprehensive treatise of constitutional studies for its respective country, but rather as an analysis of current cases exemplifying controversies that illustrate a way of approaching the notion of constitutional struggle. Individually, they present cases illustrating permutations of constitutional struggles. Collectively, they allow the addition of nuances that inform conceptions of current constitutional struggles in Asia.
To begin, Dian Shah asserts in her article that constitutional democracy in Malaysia has been inhibited by the factors of race, religion and royalty. Identifying the actors and interests involved in these issue spaces, Shah observes how they worked through the opportunity structure constituted by the Malaysian Constitution to impact the disposition of checks-and-balances and limits on political power. In their study of Myanmar, Nyi Nyi Kyaw and Andrew Harding find that the military coup of February 2021 represents a shift in constitutional discourse, with the return of military rule only partially reflecting the country’s historical constitutional struggles. They assert that social, economic and political changes since 2011 altered the positions of diverse factions, such that their shared desires for constitutional reform incited events that drew a military response. The aspirations for constitutional reform suggest concerns for constitutional identity. Constitutional identity appears as a central point in Rawin Leelapatana and Suprawee Asanasak’s analysis of Thailand’s Constitutional Court. Leelapatana and Asanasak see the court as directing the contours of struggle over constitutional identity between a nationalist-royalist coalition seeking to maintain monarchical hegemony and a democratic ‘liberal constitutionalism’ movement aspiring for a vision of more limited state authority. Shouvik Guha and Shameek Sen also look to the notion of liberalism constitutionalism in their study of India but focus on the manifestations of autocratic legalism in various cases to highlight how the conduct of the Indian judiciary impacted the country’s constitutional democracy.
The status of constitutional democracy similarly draws the attention of Surabhi Chopra and Eva Pils in their analysis of Hong Kong, with their investigation of the 2020 National Security Law, identifying its impacts upon the activities of various political actors. In doing so, they demarcate how the law altered Hong Kong’s constitutional discourses over the rule of law and democratisation. The notion of democratic regression also drives the work of Mario Gomez on Sri Lanka, with his paper exploring the apparent reversal of democratic politics in Sri Lanka following the 2019 presidential elections. He sees the challenges to democracy as rising from constitutional struggles over the separation of powers between the executive and legislative branches, power-sharing between Tamil and Muslim populations and the place of Buddhism in politics. The concern over democratic regression likewise appears in Herlambang Wiratraman’s study on Indonesia, but he looks to the instrumental use of the judiciary to advance authoritarian power. Despite the efforts of civil society and pro-democracy activists to exercise their constitutional rights, Wiratraman shows how current courts are returning to authoritarian practices of Indonesia’s past regimes.
This ensemble of papers points to the potential for wider comparisons across more cases. The slate of seven articles covers only a fraction of cases posing current constitutional struggles in Asia. A longer-term research agenda would invite contributions in the form of additional studies aligning with the format of actors, actions and spaces, so as to facilitate further comparison. The comparisons would further the goal of detailing contextual nuances and regional trends to help locate Asian constitutional studies within global constitutional studies discourse. The comparison, however, would also enable an additional function of deepening engagement across disciplines, in that the parallels in the analyses of the present papers with law and society approaches suggest that the common analytical framework of comparison provides points of cross-disciplinary engagement. Such interdisciplinary interactions would serve the dual benefit of facilitating enrichment of constitutional studies within the Asian law community and also helping to promote Asia-specific constitutional perspectives within the global fields of constitutional studies and law and society. Hence, the next step is to invite additional scholars to carry forward the approaches and perspectives of the present thematic issue to other cases. The thematic issue’s editors would welcome all collaborations.
