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.