Anshul Dalmia*

Source : Wikipedia

Scholars studying constitutionalism tend to categorise constitutional practices in Asia specifically based on the presence of certain Asian values which they deem are common to countries in the East. However, they do so at the risk of generalising and stereotyping both values and the country to which it is associated. Through this blog-post, I argue against this widespread practice and offer two suggestions which could successfully prevent this process. First, I offer character-based constitutionalism as an alternative to values-based constitutionalism. Second, I argue for the adoption of a living constitutionalism since it would allow for some dynamicity and contemporaneous examination of constitutional practices

The question warrants us to assess the contributing forces which enable the classification of ‘Asian constitutionalism’ as ‘Asian’ in nature. It is imperative to note that such a proposition assumes the presence of ‘Asian constitutionalism’ as a unique form of constitutionalism which is not only prevalent but also dominant. I seek to deconstruct this paradigm and challenge this assumption. For the purposes of this blog post, I adopt the thick normative understanding of large-C constitutionalism which has been defined to be a set of teleological and institutional principles which seek to impose legal limits on the actions of the government and act as restrictions on the power they might espouse.

Firstly, I argue against the presence of a practice of constitutionalism which could be termed to be ‘Asian’ in both nature and form. Secondly, I contend that despite the presence of certain values which depict Asian culture and values, there could not be a distinct and unique classification known as ‘Asian constitutionalism’. Lastly, I seek to provide a normative answer as to the gap which needs to be bridged and has conveniently been forgotten by several academics studying Asian constitutional systems. Since the question talks about Asian constitutional practices generally, it would be prudent to discuss a plethora of Asian countries that not only state the similarities but also offer competing imageries to each other, to arrive at a consensus.

1. ASIAN CONSTITUTIONALISM: A MISNOMER?

In this part, I seek to question, first, if there could be a form of Asian constitutionalism which is present and second, if it could be located by bridging the general gap and moving into a realm of specificity.

Firstly, I argue that Asian constitutionalism is a misnomer and cannot be classified to be a logical extension of the type of global constitutionalism which is generally practiced. Chen argues that constitutionalism which are prevalent in Asian countries are nascent forms of constitutionalism which are on track to be Westernised. In essence, constitutionalism practised in Asian countries, are not Asian but rather depict a stage prior to their conversion and whose ultimate goal is being transformed into Western democracy. For instance, Korea’s colonisation by Japan could not indicate a form of Asian constitutionalism; since ultimately it got converted into a democracy after going through periods of changing governments and dynastic successions. Hence, the ‘end’ of adopting a Westernised form of constitutionalism was to be prioritised and given more importance than the ‘means’ of transformation. Moreover, it is stated that Asian constitutionalism is not solely a product of some indigenous growth and realisation but rather is influenced by external Western factors such as colonialism and contemporary international development. Since these countries are guided by such external values as compared to local conditions, it could be argued that these forms of constitutionalism are devoid of any Asian nature. Constitutionalism as a concept became known in countries such as India, Bangladesh, and Sri Lanka since all of them were colonised by the British and the Portuguese, and it became important to embed certain constitutional practices within their legal systems that would oppose both external force and internal domination.

However, it could be counter-argued that first, being on the pathway towards a Western form of constitutionalism did not by implication mean that the indigenous form of constitutionalism is devoid of any Asian characteristics; and second, that a so-called Western form is actually not the panacea that every Asian country strives to achieve. Several countries have distinct forms of constitutional governance practices which do not indicate the achievement of a Western form of constitutionalism. For instance, Pakistan and Myanmar espouse a military form of constitutionalism whereas China and Vietnam showcase a socialist form of nationalism. These two types of constitutional practices are nowhere close to a Western form and kind of constitutional practice. Hence, negating the structure of Asian constitutionalism on the above-mentioned grounds seems erroneous. On the other hand, I aim to take a larger picture and rather state that more than the above-mentioned grounds of criticism, Chen’s account of Asian constitutionalism is incorrect due to the extreme reliance on ‘generalisation’ which leads to unnecessary stereotyping. While Chen merely takes the practices of five countries into account, he concludes by generalising Asian countries as a whole. I attempt to navigate whether such an issue of generalisation would be demystified if we move from a general theory of Asian constitutionalism to a much more specific paradigm of South Asian or East Asian form of constitutionalism.

Secondly, I contend that despite the shift from a general theory of Asian constitutionalism to a much more specific one, the issue of generalisation as highlighted by Saunders does not get resolved. While South Asia and East Asia are better indicators than compared to mere Asia, they too suffer the vice of generalising countries present in these areas. As Saunders identifies, Asia and the Pacific are extremely broad enough and thus, constitutional tendencies to draw similarities must be not prioritised. Additionally, I posit that not only are the forms of constitutionalism present in these two forms of Asian constitutionalism starkly different but also the extent and degree of constitutionalism also significantly varies.

For instance, despite India, Pakistan, Sri Lanka, and Myanmar being in South Asia both have different forms of constitutionalism: India being a hybrid regime due to it having an activist constitutional court but a dominating government party, Pakistan being a military regime wherein the military as compared to a popularly elected government is an imposing constitutional actor, Sri Lanka being influenced by a religious form of constitutionalism especially Buddhist Law which dictates forms of governance, and Myanmar having the Tatmadaw unveiling a semblance of authoritarianism within the country. Thus, we can see that none of the countries present in South Asia could be generalised. Moreover, the extent of socialism as present in China and Vietnam are diametrically opposite due to local influences and external disharmonies. Hence, despite both of the countries being present in East Asia and indicating similarities, are different by a matter of degree. Hence, the vice of generalisation still prevails in indicating a form of Asian constitutionalism. Moreover, this vice extends to Chen’s classification of ‘Western’ constitutional practices and negates its universality since it would be incorrect to categorise all Western countries to be harbingers of liberal democracies and efficient electoral practices supported by effective constitutional courts.

Thus, overall, I have argued that Asian constitutionalism is a misnomer due to the incorrect identification of ‘Western democracy’ being the goal to which every Asian country seemingly strives and it’s the foundation being based on extreme generalisation across the spectrum. It can be seen that authors such as Chen who are unable to find a form of Asian constitutionalism arrive at such a conclusion without comparatively exploring the local conditions prevalent or questioning the presence of distinct Asian values which cause the difference amongst jurisdictions in the first place. I seek to bridge this gap in the following part.

II. ASIAN CONSTITUTIONALISM: UNIQUE AND DISTINCT?

Yeh and Chang argue that there exist certain values that are neither Western nor global and hence by implication are values that are extremely distinct to Asian countries and should dictate the form of Asian constitutionalism. Using the example of the countries of Japan, South Korea, and Taiwan, they argue that certain factors are extremely indigenous and influenced by local conditions such as that the constitution in these countries was built as a part of the modernisation project and not due to any revolutions or breaks from a dictatorial past. South Korea moved into formalising a constitution to impose nationalist ideologies and prevent colonialism whereas Japan too adopted the constitution provided to them in order to embed the peace clause which legalised the prevention of war. Additionally, other values as contended by them are that these countries believed in textual and institutional continuity from previous regimes. Japan to date has not had its constitution amended whereas South Korea and Taiwan have made several changes to their constitutional regime reflecting vibrant regimes. Similarly, values such as reactive judicial review mechanism and the confluence of socio-economic rights were stated to be indicators of Asian factors that were uncommon and hence, were deciphered to indicate a semblance of Asian constitutionalism. 

Firstly, I argue against Yeh and Chang’s conceptualisation of distinct Asian values. These values are not specific to solely Asian countries as several other countries too have similar judicial review mechanisms and socio-economic rights such as Germany and Ireland. Moreover, the selection of countries is doctrinally problematic since Japan as compared to South Korea and Taiwan is much more conservative and thus is unable to provide the jurisdictional support to the comparative exercise which was undertaken. However, it is imperative to highlight that such values too are common and are generalised to indicate Asian values.

Secondly, I argue that while there are certain values which are intrinsic and extremely prevalent in solely Asian countries, they do not indicate the presence of a distinct form of Asian constitutionalism. I posit that factors such as the presence of socialist ideologies, military actors, authoritarian regimes, developmental States, and religious constitutional mechanisms could be termed to be indicative of unique Asian values since they are mainly found in Asian countries. China and Vietnam are countries that state in their respective Preambles an adherence to the socialist ideologies and the leadership of their political parties while simultaneously entrenching their position. Myanmar, Pakistan and Thailand are streaked with the military being present as a constitutional actor comprising of the legislature and other judicial assemblies and administrative agencies. Moreover, countries such as Sri Lanka, Iran, and China are regulated by religious philosophies such as Buddhism, Islam, and Confucianism. I argue that such factors and values merely influence constitutionalism but do not raise them to a distinct pedestal and classification of being Asian. As highlighted in Part I, despite the presence of these intrinsic values, there exists the risk of generalisation. These factors as well cannot create a unique form of Asian constitutionalism due to local political conditions, historical events, indigenous institutional design and the affinity of the public to accept such forms of constitutionalism. Moreover, there could be some collaboration of certain dominant Western values as well leading to a paradigm where the values are Asian but the substance and structure of constitutionalism is Western-like. Thus, I showcase that despite certain values which would be inherently Asian; they do not contribute in the specific creation of an Asian constitutionalist model.

Moreover, it is imperative to note the concerns raised against classifying a form of constitutionalism to be Asian in nature as highlighted by Li-Ann. While she mainly argues that a Western liberal form of constitutionalism is not the panacea to the malady of Asian characteristics; she raised two imperative points in favour of prioritising local conditions and inherent characteristics. First, that the people of the country should have the ultimate choice to be governed by the values they want and second, that there would be a high possibility that the source of laws and their legitimacy would arise itself from such indigenous values. Thus, similarly, I contend that constitutionalism should not be widely contextualised within Asia but rather positioned and tailored as per the country itself.

Hence, while the presence of above mentioned values, forces, factors and influences could contribute in making constitutionalism, Asian; I argue that in order to prevent generalisation and to take into consideration local conditions (displayed through the legislative, judicial, historical, discursive, or populist means), the categorisation of ‘Asian constitutionalism’ is not only erroneous but also deceptive. Thus, since a singular model of Asian constitutionalism cannot be classified, the presence of Asian values and conditions is unable to dictate its composition.

III. ASIAN CONSTITUTIONALISM: A NORMATIVE PARADIGM?

In order to provide a holistic analysis, I believe it is imperative to normatively argue what should make Asian constitutionalism, Asian. I argue that the first step should be to move away from a geographical classification of constitutionalism to a character-led method of categorisation. Rather than identifying similar characteristics and values which is not only an arduous task but also risks the possibility of negating indigenous conditions, steps must be taken to examine the type of constitutionalism by looking at its content and substance. Tushnet and Khosla move towards such a paradigm when they categorise and define the constitutionalism present in South Asian countries to be ‘constitutionally unstable’ rather than  ‘South Asian’ constitutionalism. It would be prudent to develop constitutional models and ideologies based on the character they espouse since differences and intricacies could very well be addressed and inter-woven within these propositions. Davis has also argued that the form of constitutionalism which must prevail should not be either Asian or Western since these terms have some notions attached to them.

Hence, the step must be to move away from wherein a form of constitutionalism is accepted or rejected, favoured or negated, prioritised or ignored, must not be because they are either Asian or Western but because of the goods they inherently promote. Liberal democracies must not be accepted because they are Western or authoritarian regimes must not be criticised because they are Asian; rather the arguments underpinning them must reflect their character and substance, which would ultimately be the measure of success or failure.

I acknowledge that this suggestion raises several unanswered questions: first, what is the method for assessing the character?; second, how do we decide the specific character considering the possibility of multiple intersecting characteristics?; and third, how do we design it to prevent generalisation? However, through this blog-post, I seek to merely offer character-led constitutionalism as an effective alternative to Asian-values based constitutionalism. The modalities and the answers to the above questions warrant deeper-examination.

Additionally, I argue that constitutionalism specifically in Asian countries thus should not be captured and embodied but rather should espouse a living form of constitutionalism. It has been argued by Sunstein that constitutionalism should be a laboratory of democracy where there should not be a fixation of the constitutional constellation based on any single notion. While I understand and acknowledge that constitutionalism needs to be classified in order to academically theorise, most of the practices including doing it geographically lead to scholars overstating the similarities and ignoring the differences. Thus, I propose the adoption of a living constitutionalism within the Asian context which restricts government power since it is able to capture contemporary methods of oppression.

Thus, through this blog-post, I have argued that there is an absence of a form of constitutionalism which could be categorised as Asian. Moreover, even if there are certain values intrinsic to Asian countries, they are not unique enough to give rise to a distinct model of Asian constitutionalism. In the end, I have attempted to normatively propose that what makes Asian constitutionalism, Asian, should not be restricted to factors and conditions found merely locally since they would suffer from the vice of generalisation but rather must be extended to accommodate character, content and substance of the form of constitutionalism. This would allow an evaluation of Asian constitutionalism both holistically and intrinsically. Scholars working on constitutional practices in Asia should from now onwards be categorically aware that the diversity within Asia cannot be captured and generalised through a single prism, it warrants a contemporaneous examination.

*Anshul Dalmia read for the Bachelor of Civil Law at the University of Oxford. He graduated from the WB National University of Juridical Sciences at the top of his cohort. He is primarily interested in Constitutional Law, Constitutionalism and its intersection with allied interdisciplinary studies