Routledge Law in Asia, 17. London; New York: Routledge, 2017. xiv, 360 pp. (Tables, figures.) US$170.00, cloth. ISBN 978-1-138-84754-5.
Regional studies are something of an outlier in the field of comparative politics, less so in the newer field of comparative constitutional studies. The mere fact that nations are located in the same geographical area does not provide much ground on which to rest genuine comparisons or generalizations. Sometimes, of course, nations in a region share a common history—of domination by one or two colonial powers, for example. We also know that policy diffuses more readily to near neighbors than to farther off ones, and that appears to be true of matters of constitutional design.
Beyond that, regional studies probably should be understood as, at their best, offering interesting single-nation studies and thought-provoking juxtapositions of policies in nations that happen to be near each other. That is the best way to read the essays in this collection.
The editors divide the collection into four parts. The first deals with designing constitutions and putting them in place. Aurel Croissant draws upon Jon Elster’s and Arendt Lijphart’s ideas about the conditions of and constraints on constitutional design in providing an overview of constitution-making in the region. He offers a classification of constitution-making that leads him to conclude that constitutions in the region gain legitimacy primarily by performance after the fact rather than from the process by which they are adopted. The same sources inform Rui Graça Feijó’s interesting presentation of constitution-making in East Timor. This section also includes a detailed case study of how the voting system in the 2007 Thai constitution was designed.
The second part deals with the military and constitutionalism. Paul Chambers provides three case studies—Thailand, the Philippines, and Myanmar—of how constitutionalization has “mostly camouflaged khaki clout” (93). Eugénie Mérieau gives readers an extremely interesting, though perhaps somewhat overstated account of how the legal-military alliance in Thailand took advantage of what she calls the “post-political” institutions designed to monitor the government—anti-corruption and auditing agencies, for example—to perpetuate elite bureaucratic governance.
The third part, on human rights, has a chapter on religious minorities in Indonesia and Malaysia. Andreas Ufen describes the positions taken by major political parties, arguing that weak executives and what he calls “ungovernable civil societies” (196) left space for rogue or extremist groups to dominate the political arena in connection with religious minorities. Eugene K.B. Tan’s chapter on racial politics in Singapore presents the official ideology of the dominant People’s Action Party (PAP), according to which Singapore must have a multicultural identity to avoid degenerating into civic conflict based on ethnicity. But, he argues, the PAP insists that the nation’s racial groups be understood as having interests rather than rights, an insistence that, according to Tan, gives the PAP’s ideology more purchase than a rights-focused approach would.
The final part deals with courts and the judicialization of politics. Björn Dressel gives an overview of judicialization. He develops a 2-by-2 typology, with the demand for the rule of law crossed with the supply of judicialization to produce what he calls “juristocratic constitutionalism” (of which Thailand provides his example), “liberal-constitutional equilibrium” (Indonesia and the Philippines), “authoritarian constitutionalism” (Singapore and Malaysia), and “reluctant constitutionalism” (Japan). As all typologies do, this one eliminates nuance and reduces complexity, but it does offer some provocative insights.
Authoritarian constitutionalism is the topic of the discussion of “The rule of law in illiberal contexts” by Stephen McCarthy and Kheang Un. With respect to Singapore they make the now familiar argument that the PAP’s commitment to the rule of law was a strategy designed to attract foreign investment, though they do not address the point that investors who understood that the commitment to the rule of law was merely strategic might be worried that the PAP could change its mind—and its strategy—for reasons out of the investors’ control. The discussion of the rule of law in Cambodia is less familiar and for that reason more interesting. The authors stress limits on implementing even a thin version of the rule of law in Cambodia: cultural limits, which conduce to settlement of disputes not with an eye to pre-existing law but rather with an eye to restoring or sustaining relationships; and financial limits, the inability of the Cambodian state to provide enough resources to ensure that judges will attend to the rule of law rather than to their own personal benefit when offered bribes.
Marco Bünte’s chapter on human rights, which contains valuable descriptions of human rights commissions in the region, confirms findings about human rights compliance around the world: commitments to human rights instruments are often merely rhetorical and tactical with articulated standards diverged substantially from actual practice. Discussions focusing on human rights and court-focused constitutionalism in Vietnam (chapters 10 and 13) deal almost exclusively with what Huong Thi Nyugen calls “the contestation of constitutional ideas,” because that nation’s “one-party authoritarian regime” (270) has not begun to institutionalize either constitutionalism or human rights.
It should be noted in conclusion that developments since the essays were written, especially in Malaysia and the Philippines, make some of the descriptions more of historical than contemporary interest.
Mark Tushnet
Harvard Law School, Cambridge, USA