to ideas about the state and human rights.
1
We would expect, if “Asian Values”
proponents are to be believed, fewer rights in Asia and greater concentrations of
power in executive branches. One of the fruitful outcomes of this debate was the
reminder that neither classical thought nor modern legal structures are static.
Both are continually transforming, and accommodating to dynamic local, regional,
and global pressures.
Concurrently, all the countries in the region share, more or less, the idea that
constitutional state building was a part of the modernization project. Constitutions
in the region have very rarely resulted from bottom-up political pressure or been
the result of hard-fought struggles for rights on the part of a people. Perhaps only
the Philippines “People Power” constitution of 1986 can be so characterized.
Instead, most constitutions in the region are elite projects that only later, if ever,
became part of the lived experience of the public. Constitutional politics as
a terrain of social struggle is a relatively recent development. Indeed, the top-
down nature of constitution-making to some degree evokes the tradition of state
authority. It is consistent with an approach rooted in the region’s political
traditions.
That constitution-making is part of state building implies a certain amount of
similarity or isomorphism between the constitutions of East Asian states and those
of other regions. This is because top-down efforts will be designed, by their nature,
to communicate partly to outsiders about the capacities of the state to govern
itself and behave as a responsible international actor. One would thus expect
elites to use some of the same language and institutions found in other countries.
Indeed, some scholars talk of greater global convergence in constitutional
documents.^2 On the other hand, if deep local traditions remain relevant in the
minds of constitution-makers, there may belessconvergence, and perhaps even a
distinctive type of Asian constitution.
This chapter proceeds as follows. It first describes the landscape, arguing that
Asian constitutional schemes come in several types: liberal-democratic, Leninist,
and hybrid types, the latter referring to a pattern of non-Leninist authoritarianism
or semi-authoritarianism. The liberal-democratic constitutions reflect certain
common patterns found in liberal democracies in the rest of the world, though
the implementation in Asia may have certain distinct features. The tradition
of Leninist constitutionalism is still quite vital, and is not found anywhere else.
The constitutional systems of Vietnam and China belie simple characterization as
being mere sham constitutions, but instead reflect, at least at the current moment,
(^1) See, e.g., Joanne Bauer and Daniel A. Bell,The East Asian Challenge for Human Rights
(New York: Cambridge University Press, 1999 ); Kishore Mahbubani,The New Asian
Hemisphere: The Irresistible Shift of Global Power to the East(New York: PublicAffairs,
2008 ).
(^2) David S. Law and Mila Versteeg, “The evolution and ideology of global constitutional-
ism” ( 2011 ) 99 ( 5 )California Law Review 1163.