Constitutional Politics in Asia

by

Kevin Y.L. Tan, P.Y. Lo, Albert H.Y. Chen

• LAST MODIFIED: 12 January 2023
• DOI: 10.1093/obo/9780199756223-0354

Introduction

The term “constitutional politics” is used far more often than it is defined. Many writers who use the term do not bother defining it, presuming its meaning to be self-evident. Thus, “constitutional politics” is not a term of art and has been used to describe various political or legal phenomena. Broadly speaking, “constitutional politics” may be used to refer to events or developments in which constitutional law interacts with, provides a setting for, or to some extent shapes political processes. In a sense, it deals with that intersection between constitutional law and politics in issues that are neither wholly legal nor political but a mix of both. Plainly, this may manifest when a country drafts its own constitution or undergoes profound changes in its constitutional arrangement. It also arises if political questions are contested in the courts, or where the judiciary takes on a particularly active role in determining constitutional questions of the day, or where a particularly contested constitutional change or amendment takes place. The nature of constitutional law and constitutional adjudication is such that it is impossible to make a clear distinction between law and politics when discussing constitutional law. Key political actions, decisions, and bargains are often enshrined in constitutions and contestations as to their meanings and ambit, lending a heavy air of politics to judicial decision-making. Whether an issue is one that falls within the realm of “constitutional politics” depends on the context in which it arises. Take for example the appointment of judges. In many jurisdictions, this is an uncontroversial matter. However, in some other jurisdictions where the court is highly politicized and where the elected representatives hold power by a tenuous thread, such appointments invariably involve constitutional politics. Asia is the world’s largest continent both in terms of land mass and population. In this bibliography, we will attempt to examine and recommend the relevant literature pertaining primarily to the regions broadly described as Northeast Asia, Central Asia, South Asia, and Southeast Asia. Jurisdictions surveyed include: China, Japan, Hong Kong SAR, Macau SAR, Mongolia, North Korea, South Korea, Taiwan, India, Pakistan, Bangladesh, Sri Lanka, Maldives, Nepal, Afghanistan, Bhutan, Indonesia, Thailand, Malaysia, the Philippines, Singapore, Myanmar, Vietnam, Cambodia, Laos, Brunei, Timor Leste, Afghanistan, Kazakhstan, Tajikistan, and Uzbekistan. We are fortunate that in recent decades, academia and academic publishers have taken a keen interest in constitutional law and politics in Asian countries, as demonstrated by the publication of several series of books such as Routledge Law in Asia (Routledge), Constitutionalism in Asia (Hart Publishing), Comparative Constitutional Law and Policy (Cambridge University Press), and Constitutional Systems of the World (Hart Publishing). It is possible to discuss constitutional politics in Asia in several ways. One possibility is to take a geographical country-by-country or region-by-region approach. Another is to do so on the basis of constitutional regime types such as democracies, socialist states, monarchies, and hybrid regimes. A further way is by grouping countries according to legal traditions. Having considered these possibilities, we felt it most logical to organize the bibliography along thematic or topical lines. This will make it easier for readers to use the bibliography and head straight for the topics that most interest them. We begin by looking at some general works dealing with the subject in the first two sections. The subsequent sections of the bibliography are organized thematically.

Overview of Individual Jurisdictions

The Constitutional Systems of the World series, published by Hart Publishing (Series General Editors: Peter Leyland, Andrew Harding, Benjamin L Berger, Rosalind Dixon, and Heinz Klug), is a series of introductory books featuring monographs of individual jurisdictions with accounts of how the constitutions are developed, interpreted, and utilized in their specific contexts. The studies on Asian jurisdictions deal with the constitution-making processes as well as the most important constitutional and political contests in each of these jurisdictions within their introductory chapters. These books are a good place to start for anyone hoping to know and understand the nature of constitutional politics in these countries. The Asian jurisdictions presented in this series of books include Central Asian States (Newton 2017), China (Zhang 2012), India (Thiruvengadam 2017), Indonesia (Butt and Lindsey 2012), Japan (Matsui 2010), Malaysia (Lee 2017, cited under Separation of Powers, Executive Power, and Inter-Branch Conflicts in Asian Jurisdictions), Myanmar (Crouch 2019), Pakistan (Aziz 2018), Singapore (Tan 2015); Taiwan (Yeh 2016), and Thailand (Harding and Leyland 2011).

• Aziz, Sadaf. The Constitution of Pakistan: A Contextual Analysis. Oxford: Hart, 2018.

  DOI: 10.5040/9781509995424

  A contextual account of constitutional developments in Pakistan, tracing the origins of its constitution to colonial times and the tide of Muslim nationalism that gave rise to the new nation. The book demonstrates both the oscillations between military and civilian rule in Pakistan’s constitutional history and the points of continuity between different regime types in this history. Issues of rights, federalism, and Islam are also examined.

• Butt, Simon, and Tim Lindsey. The Constitution of Indonesia: A Contextual Analysis. Oxford: Hart, 2012.

  DOI: 10.5040/9781509955732

  A study of Indonesia’s remarkable constitutional transition from a military-backed regime operating under a rudimentary constitutional text adopted in 1945 to a liberal constitutional democracy that emerged since the constitutional amendments of 1999–2002. Also featured are the performance of the new Constitutional Court and current debates on human rights, religious freedom and decentralization.

• Crouch, Melissa. The Constitution of Myanmar: A Contextual Analysis. Oxford: Hart, 2019.

  DOI: 10.5040/9781509927388

  A study of Myanmar’s 2008 Constitution in its historical, political and social context. The book posits that the 2008 Constitution is crucial to the establishment and maintenance of the military-state in Myanmar and its centralized form of organization based on the concept of the “Union.” The book covers debates over fundamental ideas such as democracy, federalism, decentralization, executive-legislature relationship, judicial independence, and the role of the military.

• Harding, Andrew. The Constitution of Malaysia: A Contextual Analysis. 2d ed. Oxford: Hart, 2022.

  DOI: 10.5040/9781509927463

  A study of the principal features of Malaysia’s Constitution (including the Westminster model, federalism, and constitutional monarchy) and the challenges faced by it since its adoption in 1957, particularly intercommunal strife and religious tensions. The book also analyzes the transition from the authoritarianism of Mahathir’s “developmental state” to a more democratic system in which constitutionalism has become increasingly relevant.

• Harding, Andrew, and Peter Leyland. The Constitutional System of Thailand: A Contextual Analysis. Oxford: Hart, 2011.

  A critical discussion of the institutional frameworks of Thailand’s constitutional system in the light of its turbulent constitutional history. The book points out that since Thailand became a constitutional monarchy in 1932, eighteen constitutions had come and gone, with rapid and repeated fluctuations between military rule and elected civilian government.

• Matsui, Shigenori. The Constitution of Japan: A Contextual Analysis. Oxford: Hart, 2010.

  This book explains the origins of Japan’s current Constitution of 1946 and the extent of US influence in its making. It discusses the characteristics of Japan’s constitutional system, including the role of the emperor, pacifism, and constitutional controversies regarding national defense, the long dominance of the Liberal Democratic Party, the power of government bureaucrats, and the limited role of the judiciary in resolving constitutional disputes.

• Newton, Scott. The Constitutional Systems of the Independent Central Asian States: A Contextual Analysis. Oxford: Hart, 2017.

  DOI: 10.5040/9781509909483

  A comparative constitutional analysis of five Central Asian states that were formerly constituent states of the Soviet Union. The book probes the regional patterns of “neo-Sovietism,” plebiscitary elections, and political institutions in Central Asia.

• Tan, Kevin Y. L. The Constitution of Singapore: A Contextual Analysis. Oxford: Hart, 2015.

  DOI: 10.5040/9781782258100

  A study of the evolution and operation of Singapore’s Constitution since its secession from the Federation of Malaysia in 1965, with emphasis on constitutional innovations in the context of a pluralistic, multi-ethnic state obsessed with public order and security. The book also examines how the rule of law is perceived by the People’s Action Party that has been in power since 1959.

• Thiruvengadam, Arun. The Constitution of India: A Contextual Analysis. Oxford: Hart, 2017.

  DOI: 10.5040/9781849468718

  An overview of the Indian Constitution as it evolved across seven decades since India’s independence. Departing from conventional scholarship on Indian constitutional law which emphasizes doctrinal developments in case law, this book turns the spotlight on the political bargains and extra-legal developments in India’s constitutional evolution.

• Yeh, Jiunn-rong. The Constitution of Taiwan: A Contextual Analysis. Oxford: Hart, 2016.

  This book seeks to explain the context and driving forces of Taiwan’s “silent revolution”—a constitutional transformation from authoritarianism to democracy. It examines how political reform was achieved by incremental constitutional revisions, with the support of a Constitutional Court that is responsive to social dynamics and an active civil society.

• Zhang, Qianfan. The Constitution of China: A Contextual Analysis. Oxford: Hart, 2012.

  DOI: 10.5040/9781509955701

  A critical account of the institutions of China’s constitutional system. The book discusses the salient features of the 1982 Constitution, including the roles of the Chinese Communist Party, the people’s congress system and the courts, socialist rule of law, and developments in human rights and their deficiencies.