Constitutionalism in Asia in the Early Twenty-First Century

(Greg DeLong) #1

parliamentary sovereignty. To state the point in an extreme way, Asia is the region


of formal parliamentary power, not executive power.


i. surveying the landscape


Constitutional systems come in several varieties. Professor Chen, in a helpful recent


taxonomy, distinguishes three basic types in Asia.^4 First, there is classical, liberal


constitutionalism in which a limited government operates under the rule of law that


protects human rights and democracy. Second, there is communist/Leninist consti-


tutionalism, in which one party uses a constitution to legitimate itself, but is not


actually constrained as in the genuine form of constitutionalism. Third, there is


what Chen characterizes as a hybrid constitutionalism, which has elements of both


liberal and authoritarian constitutionalism. Unlike the communist/Leninist variant,


there is some realm of political, social, or economic life that is not controlled by the


party. This evokes earlier characterizations of Asian politics as varieties of


authoritarian pluralism, or one-and-a-half-party systems.
5
We adopt Chen’s typology,


and note that in Asia there are examples of each of his three types. I describe each in


turn, but would like to distinguish certain subcategories as well.


The liberal-constitutionalism variant has at least two distinct genealogies. First,


there are the stable Northeast Asian liberal democracies of Taiwan, Korea and


Japan. These countries have a number of features in common. First, they each


were subject to the strong influence of the Meiji Japanese variant of authoritarian


constitutionalism in the nineteenth and early twentieth centuries. Each then


experienced top-down constitution-making processes in one form or another,


through occupation imposition in the cases of Japan and Korea^6 or through the


KMT regime, which itself became a kind of occupier of Taiwan. All three countries


are today liberal democracies, in which Yeh and Chang have identified several


features.^7 First, they argue that constitutions in the region have not typically been


demanded from below but “tend to be elite creations designed to modernize


ancient states.” Second, Yeh and Chang note that there are substantial textual


and institutional continuities in the constitutional orders of East Asian states.


Japan’s constitution remains unamended since its adoption in 1946 , the longest


such period for any constitution currently in force anywhere in the world. South


Korea and Taiwan similarly retain, as a formal matter, constitutions adopted in the


(^4) Albert H.Y. Chen, “Introduction: constitutionalism and constitutional change in East and
Southeast Asia – a historical and comparative overview,” in Albert H.Y. Chen and Tom
Ginsburg (eds.),Public Law in Asia(Farnham: Ashgate, 2013 ), p. xv.
(^5) Lucien Pye,Asian Power and Politics(Cambridge, MA: Harvard University Press, 1988 ).
(^6) Chaihark Hahm and Sung Ho Kim, “To make ‘We the People’: constitutional founding in
postwar Japan and South Korea” ( 2010 ) 8 ( 1 )International Journal of Constitutional Law 800.
(^7) Jiunn-rong Yeh and Wen-chen Chang, “The emergence of East Asian constitutionalism:
features in comparison” ( 2011 ) 59 American Journal of Comparative Law 805 at 817.


East Asian constitutionalism in comparative perspective 35

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