By Michael C. Davis, mcdavis@cuhk.edu.hk
In Adamantia Pollis, Peter Schwab, eds., Human Rights: New
Perspectives, New Realities (Lynne-Reiner Publishers, 2001)
Human
rights discourse coming from authoritarian official quarters in East Asia often seeks to
juxtapose human rights in opposition to Asian values, East Asian developmental needs and
state-based claims on behalf of national integrity. But claims that seek to defeat human
rights also confront historical traditions of human rights practice and advocacy in East
Asia. The current East Asian economic crisis presents a further challenge to Asian values
and developmental claims. At the same time the rapid expansion of the inclusive
international order challenges state-based claims to exclusive control over domestic human
rights practices. The present paper addresses the authoritarian-based East Asian attack on
human rights and argues that human rights, when properly secured by appropriate
constitutional practices that take account of local conditions, may better address the
underlying values and developmental concerns implicated by these various human rights
challenges. This discussion will seek to highlight in functional terms the relationship
between human rights and the nature of the state.
A fundamental issue underlying this
discussion will be the choice of regime type, authoritarianism or liberal
constitutionalism, as that issue is presented in the East Asian human rights debate. The
present analysis favors the latter. In this regard constitutional democracy is the regime
type more clearly committed to human rights protection. My primary concern is to highlight
how constitutionalism works to construct an adequate domestic order and its role in
identifying and constituting a community that can operate effectively under contemporary
global conditions.[1]
In this discussion constitutionalism will be understood to include three core components:
democratic elections with multiparty contestation; security of human rights, including
freedom of expression; and the rule of law with firm adherence to principles of legality.
To these core components I add a fourth ingredient, the local institutional embodiment
that connects constitutional government to the local condition, what I call indigenization.
Given the enormous power modern states have
had, theorists have often focused on the constraint constitutionalism imposes on the
state. While appreciating concerns with constraint, I will emphasize, instead, the
positive discourse-engendering role of constitutionalism. Through constitutionalism the
state provides the political and legal architecture of a contemporary commitment to human
rights and the venue for the contemporary discussion of cultural/political values and
development. In relation to human rights, the compelling task is to show how
constitutional institutions with appropriate local extensions can best address various
concerns raised in the Asian values and developmental debates. At the same time, it is
important to consider how constitutionalism offers a venue which can serve the local
community in its interactions with international and global processes.
The
argument in this essay will proceed in three parts, by considering: first, the various
claims on behalf of authoritarianism made in the name of cultural values and development;
second, how constitutionalism, through its core components and its local institutional
embodiment (what I call indigenization), works to construct a venue for an open-ended
conversation about political values and development; and third, how the external dimension
of such constitutionalism empowers the state in the international system.[2] Domestic constitutional systems provide the
primary venue for the human rights debate, while allowing for a degree of diversity in
human rights practice. The last part of this essay connects this domestic venue back up to
the international debate by highlighting its relationship to both the international system
of states and the non-state global space.
The East Asian Human
Rights Debate
This
part of the essay addresses several prominent authoritarian-based arguments made on behalf
of cultural values and economic development, including: first, the specific Asian values
claims on a substantive level; second, a related cultural prerequisites argument which
seeks to disqualify some societies from realization of democracy and human rights; third,
claims made on behalf of community or communitarian values in the East Asian context; and
fourth, the argument that seeks justification for authoritarianism in East Asia’s
historical record of rapid economic development. While the first three of these relate
more directly to cultural values the fourth combines such values with authoritarian
developmentalism. The latter will also consider the implications of the East Asian
economic crisis that began in the 1990s. Taken as a whole, this critique offers a
challenge to claims made on behalf of authoritarian regimes and sets the stage for the
discussion of constitutionalism in the remainder of this essay.
Focusing
on political values and confining this discussion to the Confucian context, the main
substantive claim is that Asian values are anti-democratic and hostile to liberal
protection of human rights. Asian societies are said to favor authority over liberty, the
group over the individual, duties over rights and such values as harmony, cooperation,
order and respect for hierarchy. (Huntington 1993) Emphasizing these characteristics, East
Asian supporters of authoritarianism have argued that their societies are unsuited to
democracy and human rights. That these claims are usually made on behalf of authoritarian
leaders raises suspicion about their honesty. On a substantive level, these claims are
challenged both by the rapid recent development of democracy and human rights in several
East Asian societies and by social activist and scholarly discourses which challenge such
claims directly. The growing consolidation of
democracy in East Asia largely speaks for itself. Former authoritarian systems, including
those in Japan, South Korea, Taiwan, the Philippines and, to some extent, Hong Kong and
Thailand, have all undergone recent democratic reform. While each of these systems
continue to be plagued with vestiges of authoritarianism,[3] the reformist direction is
clearly evident and is indicative of a serious concern about democracy and human rights in
East Asian societies.
Direct
attacks on the intellectual foundations of the Asian values claim have also been launched
by activist and analyst. They have challenged several of its components. Regarding the
association of Confucianism with authoritarianism, Chinese scholars of the Confucian
classics have noted that Confucianism did not embrace unquestioning acceptance of
misguided rule and that it shares with liberalism the commitment to higher norms.
Confucian scholar Chang Wejen especially points out the prominent position of the golden
rule in Confucian ethics. (Chang 1995) Chang notes that the harsh practices of the late
dynastic cycle, sometimes known as neo-Confucianism, were more a product of dynastic rule
and Chinese legalism than they were of traditional Confucian thought. Other scholars have
challenged the motives of those who advance the above noted stereotypes concerning Asian
values. Edward Said long ago noted that Western “orientalism” offered up its
conception of Asia as “the other” in part to justify Western dominance. (Said
1979) More recently, other Asian scholars have noted the tendency of East Asian leaders
and scholars to adopt orientalism as a self-defining discourse. (Chua, 1995) The same
conception that aimed at Western dominance now, in East Asian authoritarian hands, aims at
creating East Asian exceptionalism.
Another
line of reasoning would have us believe that East Asian intellectuals did not understand
Western liberalism and democracy when first confronted with it in the early modern period.
In the Chinese context this was said to produce a perverse reinterpretation which saw
democracy as merely good government or social welfare, in line with the Chinese minben (people as a basis) tradition. There is no
doubt that authoritarian reinterpretations did occur and that Chinese nationalism,
especially following the May 4th Movement, did distort.[4] But recent studies of early
modern Chinese writings witness a great deal of understanding of leading Western liberal
thinkers. (Svensson 1996) Other Asian scholars and specialist have pointed out that much
of what is done in the name of so called authoritarian Asian values can be explained more
often than not by expediency. Frequently this expediency is accompanied by other
ideological constructs, such as Marxism, that have little to do with Asian traditions.
Francis Fukuyama argues that the only neo-Confucian authoritarian system evident in recent
East Asian experience was the government of pre-war Japan. (Fukuyama 1995)
Cultural Prerequisites.
My
second critique relates to the claim that societies which lack certain cultural
prerequisites are not suited for democracy and human rights. This notion has its roots in
studies that sought to examine the characteristics of civic culture that exist in Western
democracies. (Almond and Verba 1963) These studies clearly were not aimed at supporting
cultural relativist arguments. In comparative studies of political development and
democratization this hopeful line of reasoning, however, became burdened with the
pessimistic view that societies that lacked civic culture were not likely to be successful
at democratization. (Perry 1994) It was as if
societies had to pass a test for democracy. This scholarship could lend further support
for authoritarian Asian values reasoning. Societies burdened with authoritarian Asian
values may be judged poor soil for democracy and the concomitant values associated with
human rights and the rule of law.
But
the problems with this reasoning are apparent. The most obvious is its tautological
character. To suggest that a society that lacks democracy could somehow develop democratic
culture is a questionable proposition. The fact of the matter is that many societies in
East Asia proceeded with democratization, with or without the allegedly required civic
culture. With democratic institutions in place, the emphasis has shifted to consolidation
and to creating the institutions to make it work. (Linz and Stepan 1996) Nevertheless,
scholars and politicians in East Asia have sometimes clung tenaciously to this claim
concerning prerequisites. (Perry 1994, pointing out this problem) The tasks of documenting
the presence of civic culture in East Asia still contributes to a mindset that appears to
conceive of a test for democratization. This has spawned a persistent argument by those in
some communities who oppose democratic reform that the local society is not yet ready for
democracy.
Claims About Community.
My
third critique considers a more consciously intended cultural relativist argument, and one
that is to some extent more credible. This is the one made on behalf of community. While
this argument fails to justify the denial of democracy and human rights, it does raise
some concerns that I argue in the next part of this essay must be addressed by societies
hoping to better secure human rights. There are essentially three community-based
arguments addressed here. The first is the romantization of community. The Vietnamese
village has been described as “anchored to the soil at the dawn of History... behind
its bamboo hedge, the anonymous and unseizable retreat where the national spirit is
concentrated.” While the Russian mir was to
“save Russians from the “abhorrent changes being wrought in the West by
individualism and industrialization.” (Popkin 1986) Many have questioned just how
liberating the traditional village was and many escaped when they had the chance. Few in
East Asia’s diverse urban economies have the option of unmolested village life today.
Another
community based claim, one emphasizing republican government and civic virtue, has ancient
roots and is of contemporary interest. In many East Asian societies civic virtue is seen
as the key to good government. The debate over civic virtue, an ancient philosophical
concern, has persisted on a global scale throughout the modern period of democratization.
(Tocqueville 1945) But many democratizers, in practice, have not been confident of the
persistence of civic virtue and have sought to craft a democracy that, in James
Madison’s terms, is safe for the unvirtuous. (Putnum 1993) The debate in the Czech
Republic between Vaclav Havel, the anti-Communist idealist who emphasizes civic virtue,
and Vaclav Clause, the pragmatic post-communist politician who is more concerned with
interest representation, (Smolar 1996) is likely to be rehearsed in post-communist and
post-authoritarian East Asia. As has been true in other parts of the world, civic virtue
alone will not likely be enough; nor will its persistence be reliable.
A
third community based claim, communitarianism, offers the centrality of community as an
alternative to liberal individualism.[5] Communitarianism is the most
challenging contemporary discourse about community. There is, however, a wide gap between
the Western and the more prominent forms of East Asian communitarian perspectives. While
Western communitarians are apt to see community as a venue for democratic discourse and
liberation, the neo-conservative brand of so-called communitarianism evident in Singapore
is hardly a venue for democracy and liberation. (Chua 1995) In this East Asian variant
“communitarianism” has generally meant authoritarianism, as the regime seeks to
implant its value system, emphasizing a conservative version of “Asian values”
and passive acceptance of the regimes dictates. (Chua 1995) Western communitarians have
often felt the need to commit to some liberal values to preserve their discourse and
overcome some less acceptable values associated with traditional communities,[6]
while the Asian neo-conservative variety has also had to deal with increased demands for
liberalization. In both cases, those committed to addressing communitarian concerns are
likely to be left to determining how best to deploy some liberal institutions in ways that
are responsive to these concerns.
Economic Development.
Until
recently the seeming most compelling East Asian argument on behalf of authoritarianism has
been the one in support of the East Asian model of economic development. Authoritarian
leaders in East Asia have argued that authoritarianism, under a developmentally oriented
political elite, can allow for stability and long-term predictability. According to this
East Asian view, export-lead growth (ELG) combined with micro-planning of industrial
development led to the developmental successes sometimes characterized as the East Asian
“economic miracle.” Such East Asian model is said to be typified by the Japanese
developmental model of the 1960s and 1970s and was evident in similar success stories in
South Korea, Taiwan and Singapore.[7] Under such systems, without
the perceived burdens of democracy and rights, excessive public welfare oriented
expenditure, sometimes characterized as rent-seeking, can be avoided.[8]
Under the Japanese model an elite coalition of the leading political party, the
bureaucracy and business is said to allow government institutions charged with industrial
and trade policy to operate effectively; such bureaucratic institutions are said to be
both autonomous and, to a degree, embedded, facilitating a satisfactory process of
developmentally oriented central planning. (Johnson 1982; Evans 1995) Under this system
authoritarian interventions aim to assure high levels of productive investment, reduced
labor cost through select welfare subsidy and labor suppression, fast transfers of
technology, targeting of key industries and substantial international competitiveness.
Until
the 1990s these arguments seemed compelling, as the so-called East Asian tiger economies
grew at unprecedented rates. This high growth rate extended beyond the five leaders to
capitalist economies in Southeast Asia and to economically reforming China. But in the
1990s the economic crisis, first in Japan and then in the late 1990s elsewhere in the
region, has called this into question, as extensive evidence of corruption and cronyism
have emerged. Scholars that have studied the relative capacity of democracies and
authoritarian regimes in dealing with economic crisis or shocks have come out strongly in
favor of democracy. (Rodrik 1998; Emmerson 1998; Koppel 1998; Haggard and Kaufman 1992)
Dani Rodrik notes that economic shocks will generally be worse in societies with deep
latent conflicts and argues that democracy “affords the ultimate institutions of
conflict management.” (Rodrik 1998) In reference to the current East Asian economic
crisis, Donald Emmerson argues that East Asian countries with high levels of political
freedom have been generally more resilient. (Emmerson 1998: 52) Of the three countries hit
first with the initial financial crisis, Indonesia, the least democratic, was hit the
hardest.[9]
Democracies such as Taiwan, at least initially faired better, and even among those
countries hit hard by the crisis the more democratic ones, such as South Korea and
Thailand, have appeared to bounce back more quickly. In the South Korean case, voters
quickly replaced the leadership more closely associated with the former authoritarian
regime, electing Kim Dae-jung to the presidency. Because of a political coalition with
strong labor support Kim has shown a willingness and ability to gain popular support for
the hard restructuring decisions he has had to make.
The importance of democracy in facilitating
development and dealing with economic shock has not, however, been apparent to all.
Hard-line governments such as those in China, Vietnam, Burma, Malaysia and Singapore still
hold out hope for sustaining authoritarian or quasi-authoritarian development and economic
growth. In the 1990s some theorist have continued to laude the achievements of the East
Asian model while recommending adjustments. While some have promoted a kind of liberal
authoritarianism others have promoted illiberal democracy. The notion of liberal
authoritarianism aims to preserve the best qualities of the East Asian model while
assuring the rule of law and thereby reducing corruption and cronyism.[10]
(Li and Lian 1996) But as Jon Elster rightly points out, the problem is that a dictator
“is unable to make himself unable to interfere with the legal system whenever it
becomes expedient.” (Elster 1993: 173) On the other extreme, illiberal democracy
would preserve the East Asian model of consensus and control along with some degree of
democratization. (Bell et al 1995; Zakaria 1997) With democratization such authoritarian
economic models did indeed persist in several leading economies. The persistence of
cronyism and corruption evident in the recent economic crisis has tended to call this into
question. Furthermore, it is doubtful whether democratic leaders, without modern
constitutional institutions to check their power, will remain democratic. In the late
1990s the economic crisis has brought an increasing urgency to this discussion.
At
the present stage a more realistic conclusion is that tinkering with this East Asian model
is not sufficient. In my view, it is not so much that the model was from the start totally
flawed as that it is a victim of its own success. The economic depravation in the East
Asian region at the start of its developmental phase allowed authoritarian governments
that could deliver the goods to survive with little contest. But with success, the level
of diversification of interests in these rapidly developing economies increased
dramatically. Increased social complexity and stratification are likely to over-tax
authoritarian institutions. Tracing causal mechanisms, Rueschmeyer et al argue that the
case for liberal democracy becomes compelling at a certain point in the industrialization
process because industrialization and economic development transform society to empower
subordinate classes.[11]
(Rueschmeyer et al 1992) Under these conditions I believe three causal factors may point
to the need for change: first, higher expectations among middle and subordinate classes
and other social interest groups produce increased demands for participation; second,
rapid economic expansion makes both the likelihood and the costs of corruption
intolerable; and third, economic restructuring and globalization encourage a national
consensus-building process to avoid massive social disruption.
In
East Asia this evolutionary process has been evident in recent years. The basis for change
is increasingly apparent. Without political reform the channels of representation of the
diverse interests in these rapidly developing societies become clogged. In the late 1980s
the increase in reported cases of corruption throughout the region seems to suggest that,
in the absence of reform, corruption had become the channel to get things done. As the
scale of both growth and corruption increases, so may the public dissatisfaction with the
latter. In the most developed countries of the region, it appears that increased wealth
and education lead middle and various subordinate classes to demand greater participation,
openness and accountability. Economic elite also appeared to be less compliant as they
become more globally competitive. These developments were evident in Taiwan, South Korea
and Japan in the late 1980s: labor and student unrest and the mass minjung movement eventually toppled the South
Korean regime, which seemed compelled to accept political reform; in Taiwan, a middle
class push for democracy achieved success with an increasingly compliant regime,
ultimately leading to democratization; in Japan the struggle over corruption produced
increased public scrutiny and pressure for liberalization. A similar stage may be soon
reached in China where the reform of the state enterprise system will certainly increase
pressures from social unrest. With the incentives for economic and political reform in
place, democratization and reform has increasingly been the norm of the most successful
East Asian economies. I argue in the next part of this essay that these developments favor
a form of liberal constitutionalism.
Constitutionalism
Constitutionalism
offers a venue to respond to the various claims underlying the cultural values and
developmental debates and a response to those who advance authoritarianism as a venue for
addressing such concerns. The concept of constitutionalism advanced herein, as noted
above, includes the fundamental elements of democracy, human rights and the rule of law
and elements of local institutional embodiment, what I call indigenization. In the late
twentieth century the discussion of constitutionalism has become a global conversation, a
conversation that is productive of the processes of universalizing human rights.
Constitutionalism serves both as a conduit for shared international and local human rights
and political values and the embodiment of those values. In this regard, the following
sections emphasize two aspects of the constitutional equation: first, the empowering role
of constitutionalism, in contrast to the usual view that emphasizes only constraint; and
second, indigenization of constitutionalism, as an avenue to hook it up to the local
condition, in service of both values and economic development. The final part of this essay will then consider
the relationship between these domestic practices and the international system. All of
these aspects have been implicated in the East Asian debate over political reform and
liberalization.
The Empowering Role of
Constitutionalism
Theorist
have worried that constitutionalist place to much emphasis on the constraints of
constitutionalism, always using language of “checking, restraining or blocking.”
(Holmes 1988: 226) Emphasis on constraint may cause constitutionalist to overlook the
important empowering aspects of constitutionalism. Here it is important to stress that the
idea of constraint through human rights has been important and remains so due to the
enormous power of the state in the modern period. Such power was even further enhanced
under the influence of nineteenth century legal positivism and its ideas of sovereign
exclusivity. But the notion of constraint under constitutional government takes on meaning
and force only through popular empowerment. Under constitutional government the processes
of empowerment extend beyond the institutions of electoral politics to include the
processes of human rights and the rule of law. It is the integration of political and
legal institutions in the processes of constitutional government that allows empowerment
and constraint to work.
It
is therefore important to emphasize the positive empowering role of constitutionalism. The
notion of a self-imposed constraint is a questionable proposition in a world where leaders
frequently ignore constraints. (Elster 1996; Linz & Stepan 1996: 19) This is important
because under this constraint paradigm, newly elected democratic leaders may view it as
part of their mandate to override constraint to “get the job done.” This may
result in what Guillermo O’Donnell calls “a ceasaristic plebiscitarian executive
that once elected sees itself as empowered to govern the country as it deems fit.”
(O’Donnell 1996: 44) East Asia has in recent years experienced the phenomenon of the
powerful state and the hazard of unconstrained government, elected or otherwise. The most
notorious East Asian examples where elected leaders used their mandate to pervert the
constitutional order were some of the early South Korean experiments with democracy and
the Marcos regime in the Philippines. (Choi 1993; Guingona 1989)
In
East Asia, as noted above, theorist have responded with two nearly opposing alternatives,
often applied paradoxically to the same regimes. Some have advocated instituting the rule
of law and rights protection along with authoritarianism.[12] (Li & Lian 1996) The
difficulty with this option is inducing such authoritarian leader to consistently accept
such constraint. There have been some aspirations toward this notion in Singapore,
Malaysia and (until recently) Indonesia. Alternatively, some may advocate instituting
democracy but replacing liberal constraints with alleged East Asian cultural constraints
and communitarian processes of bargaining.[13] Paradoxically this may be
the aspirational basis of the claims to democracy made by the same regimes in Singapore,
Malaysia and Suharto’s Indonesia. But an alleged democracy without core
constitutional constraints, that prohibits or suppresses opposition, does not appear to be
democracy at all. A system that places emphasis on social connections and networking may
lead to particularism and clientelism.[14] This is difficult to
distinguish from authoritarianism when it comes to the potential for abuse of power.
Extra-constitutional
action should more properly be understood as not just overriding constraint but as
overriding democracy itself. Such extra-constitutional action does not just “get the
job done” but, in fact, deprives the people of democratic power. To deprive people of
freedom of speech does not just serve to eliminate meddlesome critics and achieve order
but may, in fact, dis-empower the people.
Constitutionalist should seek to engender discourse and empowerment. The institutions of
constitutional government are enfranchising in nature; they work to engage the citizens in
a political conversation about popular concerns and values. In a modern complex society
this is the contemporary venue for values and development discourse. If constitutionalism
is openly accepted as the venue for political choice, rather than merely constraint, then
the ensuing discourse within this venue may engender respect for its important constraints
and processes. To better understand this claim we must consider the constitutive process.
It
is in the constitutive process that constitutionalism’s discourse engendering and
empowering roles come to fruition. This can be considered at two levels: the constitution-
making process and constitutional implementation. Constitution-making is where the
explicit constitutional conversation usually begins. A constitutional assembly is a
powerful venue for discourse about basic political values; this is especially true due to
the fact that such assemblies usually are called on the heals of a national crisis, which
is inherently engaging. In recent decades the East Asian landscape has been riddled with
constitution-making exercises. In the 1980s and 1990s constitution writing in the
Philippines and Hong Kong have offered prominent seemingly successful examples. (Guingona
1989; Davis 1996) In describing the constitution-making process Jon Elster describes a
venue where passion, interest and reason operate. (Elster 1995: 377-86) There are both
upstream and downstream constraints, as well as processes for consensus building and
broadening bases of support. (Elster 1995: 374) Upstream constraints consider political
settlements and may also protect members of the former regime. For the Hong Kong Basic
Law, as with the post-war Japanese Constitution, the upstream constraints were all but
overwhelming. (Ford 1996; Davis 1996) Downstream constraints look to ratification or
acceptance. In the Philippines, after the people power revolution, downstream acceptance
was the substantial constraint.
After
a constitutional founding, successful implementation of constitutional government depends
on appreciation of the discursive architecture in the ongoing processes of governance.
More commonly appreciated here are the institutions for checks and balances. These
institutions include institutions to control purse strings in regimes ranging from
medieval estates to modern parliaments, and veto and administrative control in the modern
executive. At present, nearly every constitutional government in East Asia manifest some
elements of this.
Less
commonly understood is the positive discursive machinery of constitutional judicial
review, the power whereby courts review laws enacted by the elected branches of government
for conformity to the constitution. In both Asia and the West this judicial role has
sometimes been attacked as an affront to efficient and effective government and sometimes
as an affront to democracy. One should be suspicious of the efficiency motives of such
attacks. Constitutional judicial review has become the premier institution for securing
human rights. (Cappelletti 1980) More importantly, constitutional judicial review also
serves as the engine for the basic constitutional conversation about political values and
commitments. (Bickel 1986) This constitutional conversation proceeds as legislatures pass
laws and courts respond and legislatures pass new laws.[15] While much of East Asia has
adopted Western civil and common law legal systems, only a few countries have fully
functioning systems of constitutional judicial review.[16] At present Japan, the
Philippines and Hong Kong are prominent examples where this power is vested in the
ordinary courts, as is more commonly done in common law systems.[17]
(Ford 1996; Davis 1996; Tate 1994) A civil Law style constitutional court has existed in
Taiwan for decades but has only recently began to function effectively. South Korea has
also instituted such a centralized constitutional court. For the authoritarian regimes of
the region, both historically and at present, no or little judicial constraint is the
norm. Even where the power of constitutional judicial review formally exist, in an
authoritarian environment it is unlikely that judges can be counted on to assertively
carry out such role. Under such circumstances the positive discourse-engendering role
argued for here is out of the question.
Constitutional
theorists recognize, however, that when issues of fundamental constitutional concern arise
in established democratic systems, constitutional judicial review of legislative
enactments is not the sole discursive engine for crafting state-based solutions to broader
societal concerns. At moments of crisis, what Stephen Krasner calls punctuated
equilibrium, (Krasner, 1984) the entire people may be mobilized to civic action or intense
reflection on political value concerns of fundamental importance. In normal times the
people may be content with representation and constitutional judicial review, while they
largely focus on private affairs; while at times of what Bruce Ackerman calls
constitutional politics the level of civic action may become extraordinary. (Ackerman,
1991) Ackerman identifies three republics in American history, before and after the civil
war and in the modern regulatory social welfare state initiated in the 1930s by the New
Deal. (Ackerman 1991: 34-57) There is evidence of such mobilization and fundamental change
in the recent South Korean and Japanese constitutional politics of reform and resistance
to corruption. Considerable civic action and a fundamental change in political attitude
also accompanied the post-1987 constitutional reforms in Taiwan.[18]
The recent overthrow of Suharto in Indonesia may signal a major constitutional change of
this civically engaging variety, and perhaps eventually a new constitution-making process.
Indigenization of
Constitutionalism.
With
a firm commitment to the constitutional fundamentals in place, a premier concern is that
constitutionalism plant its roots firmly in the local soil. Aung Sang Suu Kyi argues that
as long as there is a genuine commitment to modern democratic values there is room for
variation in local institutional embodiment. (Aung Sang 1995: 13) It is through local
institutional embodiment, what I call indigenization, that constitutionalism responds to
the above noted concerns with values and development. Indigenization affords an
appropriate response to cultural relativist and developmentalist concerns. For indigenous
institutions to work, however, the constitutional fundamentals of democracy, human rights
and the rule of law must be in place. Otherwise, under modern authoritarianism, the local
community may be left with an implanted hegemonic discourse constructive of authoritarian
power and destructive of genuine community values. Local institutional embodiment may
include traditional organizations and practices and more contemporary institutions
responsive to developmental concerns. In the following two subsections I consider the ways
in which constitutional structures respond to both the cultural concerns raised in the
Asian values debate and to developmental concerns likely to arise in post-authoritarian
constitutional democracies.
Constitutionalism and Political Culture
If
a fundamental of aim of constitutionalism is to engender political discourse then
constitutionalist should consider the ways in which local culture and traditions may
facilitate such discourse, under the umbrella of the core constitutional commitments
discussed above. It is in local institutional embodiment that substantive communitarian
concerns can be addressed. As with the constitutional fundamentals, the notions of
representation and the rule of law afford useful categories for analysis. Local grass
roots and minority representation may be achieved through contemporary institutions which
secure autonomy or minority rights, or through recognition of traditional ethnic or
religious groups. The aim is for a realistic discourse that is anchored in the community
but responsive to the contemporary urban and industrial or post-industrial conditions
where increasing numbers of us live.
Locally
sensitive representation may include attention to the usual geographic political
institutional options such as federalism or autonomy, as well as consideration of various
electoral models that seem likely to increase representation. Other forms of
representation may include substantive or symbolic recognition of distinct ethnic,
religious or linguistic communities in which traditional leaders assume leadership roles.
This may be achieved in various ways. It may include, for example, a continuing role,
symbolic or substantive, for traditional monarchs, such as is evident in contemporary
Malaysia, Japan and Thailand. (An-Na’im 1990; Higuchi 1990; Keyes 1987) Special
minority group rights may be combined with individual rights; in East Asia there are many
traditional indigenous groups who are afforded varied degrees of recognition in the local
constitutional system. (Barnes 1995)
This
experience of multi-cultural concerns is not unique to East Asia, encouraging
consideration of practices elsewhere. Arend Lijphart has described the effort by elites to
overcome the destabilizing effect of cultural fragmentation in Europe as consociational
democracy. (Lijphart 1968: 62) It is noteworthy that Lijphart employs the term democracy.
A bargain across cleavage lines that only includes the elite strata would be merely
authoritarian oligarchy and would not likely secure a channel for constructing popular
will. The use of various forms of local institutional embodiment, along with core
constitutional commitments, may engender more confidence in the system, encourage local
connectedness to the constitutional order and facilitate genuine values discourse.
Legal
structures may also address important indigenous concerns. This may include, for example,
allowing for the application of religious or tribal laws. Here democratic commitments and
basic rights must be emphasized. Traditional values can be renovated in a public values
discourse that sustains important indigenous concerns while maintaining core
constitutional commitments. Several possibilities may be considered. In societies with
long traditions of citizen petition of leaders, a mechanism for petitioning elected
officials could be employed or, perhaps, a modern version thereof, the ombudsman. Even a
traditional monarch, who may retain symbolic and ceremonial functions, may take on an
ombudsman-like role in a post monarchical democratic society. Such tradition-bound
institutions may open better avenues of communication. Even when contemporary institutions
are employed, in practice they may be expected to take on indigenous characteristics.
Contemporary institutions such as human rights tribunals, elections commissions or
corruption fighting bodies may be employed to address those contemporary problems that
neither the core constitutional nor traditional institutions adequately respond to. The
goal in all cases is orderly processes of discursive engagement or empowerment.
Hegemonic
claims of adherence to Asian values without a commitment to the core constitutional
fundamentals are unlikely to engender a healthy values discourse or contribute to
long-term public trust. In this regard one might contrast the constitutional paths of
modern Japan and China. (Davis 1998) While these countries bare comparison due to similar
traditional values and similar encounters with the modern West, the end result has
produced striking differences, in many ways explainable by their contrasting post-war
constitutional paths. While post-war Japan has taken a liberal constitutional path, there
has been substantial indigenization in practice. Yet, with the fundamentals in place, the
constitution does seem to work to encourage a core discussion on fundamental political
commitments. Indigenization even encompasses its formal practice of constitutional
judicial review; though the courts are noted for taking a conservative posture, often
offering only constitutional guidance, they have still played an active role in key
constitutional issues. (Ford 1996: 25-29, 49-55; Young 1984: 970) This system has afforded
increased rights protection and does seem to take constitutionalism seriously. (Ford 1996:
29-36) Elsewhere in the system, even the processes of reform of the former one-party
dominance proceeded in an orderly fashion and has engendered renewed public concern with
corruption and enforcement of legal norms. (Mitchell 1996: 121-32)
China,
on the other hand, has rejected a commitment to the liberal constitutional fundamentals.
China’s public discourse has tended to advance a hegemonic view concerning the
constitutional fundamentals of democracy, human rights and the rule of law, which people
challenge at their peril. (Fiss 1986: 501) Constitutional judicial review is not provided,
the constitution allowing instead, at least in theory, for a top-down legislative
supervision by people’s congresses (at the center the NPC), which are themselves not
subject to competitive elections and are dominated from the center; if review occurs at
all it is either through informal guidance or through the passage of laws. (PRC
Constitution 1982: Art. 67; Nathan 1986) A collectivist notion of rights subjects the
rights of the individual to the interests of the state. (PRC Constitution 1982: Art. 51;
Edwards 1986) The public order situation is a conflictual one in which the Public Security
Bureau and the military must play a central role. While engaging in economic reform the
regime has engendered increased diversification of interest (implicating both values and
developmental concerns) for which inadequate representation is secured. Commitments to
legality, under the theory of rule by law, is shaky at best, encouraging increased
corruption as the economic reform process goes forward. This has produced a values vacuum
which the society is hard placed to deal with. There is growing evidence of concern to
open up democratic and legal channels for representation of diverse interest. Under the
current authoritarian top-down unitary state such representation is virtually non-existent
and corruption is the only effective channel available. Opening up appropriate legal and
democratic channels will not automatically solve the current problems but such move may
offer hope for crafting orderly solutions in the future.
Local Institutional Embodiment and Economic Development
Many
of the same indigenization arguments addressed in relation to cultural values in the
previous sub-section have obvious connections, as well, to economic developmental
concerns. Recognition of distinct cultural groups clearly has market and developmental
implications, as such groups address their distinct developmental problems and attract
investment in various resources. (Chua 1995: 244-56) Beyond multi-cultural concerns,
however, economic concerns implicate a wide range of local constitutional issues. I find
it useful to group these general issues around three categories where it can be seen that
authoritarian practices fundamentally shape the post-authoritarian order, including:
neutral borrowing, reacting against the authoritarian order, and copying authoritarian
practices. It should be remembered that this concern with economic interest is a very old
component in the constitutional equation, having manifest itself profoundly in the
earliest written constitutional experiments in America in such things as, for example,
federalism and the commerce power. I highlight only a few examples from East Asia where
man as the economic actor has fundamentally shaped the constitutional order in response to
local concerns.
The
category of neutral borrowing refers to the attempt to simply identify or adapt a
constitutional structure from outside the system to complete or fill out the
constitutional order without a severe reactive component. In such context
constitutionalists are essentially looking for the best idea to secure the order required
for the system to operate. The Japanese Constitution includes components that fit this
notion. While the constitution as a whole and certain of its provisions (e.g. the peace
provisions) were put in place by the allied occupation and post-war Japanese people as a
reaction to previous excesses, many of the institutional components that were imposed by
the outside drafters were viewed rather neutrally by the Japanese people who had to
interpret or apply them. From such perspective this constitution was an imported document.
The institution of constitutional judicial review is a case in point. As noted above,
through a very Japanese process of interpretation and implementation this institution
underwent an indigenization process, incorporating a conservative judicial guidance role
akin to the Japanese developmental practice of “administrative guidance.” (Ford
1996:3) In spite of their passive posture the courts have played a pivotal role in
economic issues ranging from pollution to corruption. Over time judicial review has become
a very indigenous instrument for addressing fundamental constitutional concerns.
The
second category is for post-authoritarian democratic forces to react in a negative way
against certain authoritarian practices. The peace provision of the Japanese constitution,
which seek to limit use of military force to defense, is just one prominent example in
East Asia. Political provisions limiting the president to one term in both South Korea and
the Philippines are other obvious examples of reaction to authoritarian excesses of
prolonged dictatorship and corruption. There are more profound ways that authoritarian
order shapes post-authoritarian practices in reactive ways. Jang Jip Choi describes an
authoritarian South Korea which employed a rather harsh form of export lead
developmentalism, with a heavy emphasis on national interest. This produced three
essentially reactive cleavages in the politics of the authoritarian period, over the
issues of democracy versus dictatorship, distribution versus developmentalism, and
reunification. (Choi 1993: 13, 18, 28). The first of these produced the middle class lead
democratic transformation and a firm reaction against indirect election of the president
when this idea was proposed. The second
cleavage imported a strong concern with equality and social justice into transition
politics. Concern with worker protections relating to labor organizing, job security and
welfare have become fundamental concerns shaping post authoritarian South Korea. Choi notes the importance of institutional
mechanisms through which workers can articulate their views. (Choi 1993: 30) In the most recent economic crisis
the political leadership is confronted with the need to move against the authoritarian
cronyism of the large South Korean companies, while not being seen to have been
insensitive to worker interests. The third cleavage of reunification or not has been a
central theme of opposition forces and has imposed a heavy national security component on
the political system. Overall the post-authoritarian system can be seen to have been
fundamentally shaped, in ways with profound implications for the developmental order, by
reaction against authoritarian excesses and the problems of a divided Korean peninsula.
When
it comes to the third category, copying the perceived developmental successes of the
authoritarian period, many of the same examples are illustrative. As the late 1990s
economic crisis reveals, many of the institutional arrangements of authoritarian
developmentalism were left in place by the post-authoritarian democratic regimes. Given
the perceived successes of the East Asian “economic miracles,” this is not a
surprise. Democratic governments throughout the region have felt compelled to leave in
place the systems of bureaucratic control that were pervasive under these seemingly
successful developmental models.[19] The attitude that if it is
not broken do not fix it prevailed. For this reason many of the democratic governments of
the region have continued to be plagued by problems of bureaucratic corruption and
cronyism that were often endemic to the authoritarian developmental model. Especially
after the economic crisis that began in 1997 a shift to a reactive position may now creep
into economic institutions, such as reinforced systems of central bank control and
corruption fighting institutions.[20] But to date the bureaucratic
structures of authoritarian developmentalism have continued to flourish in some
post-authoritarian governments. The South Korean example discussed above, (which is now
the subject of a reactive response due to the economic crisis) is a case in point.
Japanese developmental bureaucracies have until recently likewise remained in place, even
as political reform proceeds.
The
phenomenon of copying the more questionable authoritarian economic practices, noted
immediately above, does not exhaust the possibilities. In Hong Kong the prudent fiscal
policies of the colonial period have been written into the post-authoritarian Basic Law.
The prudence of these policies is yet to be tested. One might expect a lot of the
decentralizing policies of the current authoritarian Chinese government in setting up
autonomous regions and economic zones to shape a federal China in a post-authoritarian
future. If this occured it would constitute a hybrid of reaction against excessive central
control and a copying of liberalizing decentralizing tendencies. In either case, in East
Asia authoritarian practices have had a pervasive effect on post-authoritarian order in
ways that especially address or effect developmental concerns or policies.
Contrary
to the usual emphasis on the formal international human rights regime this essay has
emphasized the importance of local constitutional discourse as a venue for addressing
human rights concerns. This section brings the international aspect back in by emphasizing
the external dimension of the constituted state. International ideas and pressures, while
not necessarily the core of local human rights discourse in a constitutional system, do
make a substantial contribution in an interactive sense to the evolution of human rights
discourse and practice on the ground. Both the formal international system of states and
territories and non-state global space constitute important venues for many of the
transformative processes confronting the modern state. In both venues modern states face
constant changes that profoundly challenge their constitutive and human rights practices
and shape their identities. East Asian states have not been immune from these challenges.
The following subsections will consider the importance of the above noted basic
constitutional commitments to a community’s effectiveness in both the international
territorial and the non-territorial global space.
In
the late twentieth century we may be witnessing a time of nearly epochal change in the
nature of the formal international state system. These changes have profound implications
for the constitutive and human rights practices of the territorial communities of the
world. The modern epoch of the nation state is usually thought traceable to the 1648
Treaty of Westphalia, under which states asserted final authority and independence from
the papacy and empire. While considered independent sovereign actors, the states,
throughout much of the modern epoch, were still considered subject to higher international
norms established under natural law and religious authority. By the nineteenth century,
however, the natural law notion of higher law eroded and the legal positivist idea that
the king was the final authority became ascendant. Under this positivist view, the state
was considered the principal agent and architect of global discourse and obligation and,
as a matter of sovereignty, was to be ceded nearly exclusive control over its own
population and territory. Large areas of political power and social policy were deemed
internal affairs. Sovereignty was said to signify “independence in regard to a
portion of the globe.” (Island of Palmas Case 1928) International law was concerned
with protecting the rights of states and their citizens from encroachment by other states.
In this political/legal environment the power of the state become enormous and the risk of
rights abuse from ones own state substantial.
This
positivist view of the state is of current interest in East Asia because some countries in
the region still emphasize this notion of sovereign exclusivity. In the twentieth century
the age of the modern powerful state clearly arrived in the East Asian region, as did the
age of substantial rights abuse. Pre-war and war-time Japan is a notorious example of the
powerful state which showed little sensitivity to human rights. In the post-war period, up
to the present day, China still promotes a legal positivist view in its emphasis on
sovereignty as the foundational basis for securing human rights and in its frequent
admonition that other states not meddle in its internal affairs. (Human Rights in China
1991) Its foreign policy ideology of peaceful coexistence likewise promotes a broad
exclusive notion of internal affairs. Countries within the Association of Southeast Asian
Nations (ASEAN) have likewise sought to emphasize the principle of not meddling in each
others affairs, making this a tenant of admission of new members. Recently, where the
internal human rights policies of such prospective members, in that case Burma and
Cambodia (the Cambodian case was ultimately held up due to a coup), were facing
considerable world censure, members expressed a willingness to go forward, asserting the
principles of non-interference. This same positivist orientation and emphasis on
sovereignty as a basis for human rights was promoted in the Bangkok Declaration, the 1993
official East Asian regional declaration on human rights. (Bangkok Declaration 1993)
On
a global scale this legal positivist view of the state has increasingly been called into
question. The twentieth century has produced a change in the international nature of the
state and erosion of the exclusive zone of states at the same time it has produced an
expansion of the international inclusive order. (McDougal, Lasswell, Reisman 1981) In this
emerging order participation in international institutions may be more important to states
and other territorial actors than exclusivity. On a practical policy level, even China has
shown signs of succumbing to the emerging twentieth century regime.[21]
While articulating a positivist view of exclusivity, China has in practice frequently
acknowledged a more flexible approach to the prerogatives of statehood. This has included
conducting relations with both sides of the Korean peninsula, conducting substantial
informal relations and indirect trade with its nemesis, the Republic of China on Taiwan,
and establishing the Special Administrative Region (SAR) of Hong Kong as the high water
mark of internationally recognized territorial autonomy. Recently, China has even begun to
acknowledge the importance of the international human rights regime, though its actions
still fall considerably short of the promise of such regime.[22]
The
change in the international state system has been two-fold: at the same time that the
roles of states have changed, hybrid forms of non-state territorial communities designated
by high degrees of autonomy have arisen and have been allowed increased participatory
rights in international forums. Designation as a state, however, is still a coveted prize.
Status as a state affords the political leaders of territorial communities the full right
to represent their populations in international processes of decision. A wide range of
territorial communities, with varied degrees of independence and interdependence, are
accepted into the state system. But when that system seems too exclusive international
venues may be opened to non-state actors. Lesser status as a non-state autonomous
territorial community, while diminishing the right of participation in some international
bodies and agreement processes, will often not be a complete barrier to participation.
Non-state autonomous territorial actors are increasingly welcomed to participate in the
institutions of the international system, especially those institutions concerned with
trade and non-security issues. Even non-territorial actors, usually designated as
Non-Governmental Organizations (NGOs), frequently participate in international
deliberations. In the latter respect, in the human rights area, it is now routine for NGOs
to file responses to official reports filed by territorial actors before human rights
bodies or to organize concurrent conferences at the venues of major international
governmental meetings.
Under
the principal of encouraging participation, non-state or largely non-recognized
territorial communities in East Asia, such as Hong Kong and Taiwan, participate in a
variety of international organizations dealing with trade and commerce.[23]
Hong Kong even participates indirectly in international agreements relating to human
rights.[24]
China formally acknowledged such status for Hong Kong in the 1984 Sino-British Joint
Declaration respecting Hong Kong’s return and has likewise allowed Taiwan to
participate in various international bodies under the designation “Taipei,
China” or similar designations. (Chan 1989)
Although
the system of states remains important, the diminution of exclusivity and increased
emphasis on participation have changed the character of states and the nature of
commitments that are deemed important. The status of a territorial community and its
acceptance for participation in international institutions may especially be influenced by
basic questions of democracy and human rights. While power and security may be overriding
factors, the reception territorial communities receive in exercising participatory rights
may often be related to the adequacy of domestic constitutional structures, in terms of
the core constitutional components of democracy, human rights and the rule of law.
Autonomous communities and newly established regimes that endeavor to respect human rights
protection and afford the rule of law are likely to encounter a more solicitous attitude
in the international systems of recognition and participation. Hard-line regimes that lack
democratic support and suppress their peoples are likely to encounter opposition and
resistance at every step in the international process, whether it be in relation to trade
or social and cultural affairs.
East
Asia has especially struggled with questions of status and recognition in this regard.
Hong Kong and Taiwan are currently not recognized as states (either not at all as to Hong
Kong or by a majority of states as to Taiwan) and yet exercise considerable power
comparable to many state actors. In the post-cold war period, with the diminution of
security concerns, such status is increasingly symbolic of the adequacy of their domestic
institutions and practices. Historically, in East Asia, the division of the Korean
peninsula, the earlier non-recognition of the People’s Republic of China and
non-recognition of various regimes in Southeast Asia have demonstrated the problems of
recognition or non-recognition of territorial actors and insurgent groups. In the past
decade, the granting of an Olympic games sponsorship to South Korea and the denial of such
privilege to China may be representative of how, even in international sports, the
perception of a regimes perceived human rights or reformist attitude may be determinative
of a form of international recognition and participation. Power and security issues aside,
territorial communities that afford basic constitutional structures that protect rights
and adhere to the rule of law are likely to be considered more reliable partners and
accorded greater recognition than those that do not afford such protections.
In
recent decades there has also emerged a zone of global importance beyond state control.
The term globalization is often used to designate increased emphasis on the non-state
global space. John Gerald Ruggie describes the areas beyond exclusive state control as
constituted by the emergence of new territorial collectives such as the European Union and
non-territorial global functional space. (Ruggie 1993) In the former category he describes
Europe as a “multiperspectival polity” that will likely continue to be
multinational, rather than constitutive of a new federal state. (Ruggie 1993: 172) The
potential for development of this kind of community in East Asia does not seem great at
the moment. The two remote possibilities in this regard relate to the ASEAN and China. The
former, if it can get over the problems caused by the current economic crisis, may develop
greater interest in an economic community. China at the moment represents a unitary state.
But recent centrifugal forces embodied in regionalism and attempts to accommodate Taiwan
and Hong Kong may suggest the value of a combination of federalism for the bulk of the
country and a confederal system to incorporate key territorial communities on the
periphery. (Yan 1995; Davis 1999). Constituent parts of the confederal component, such as
Taiwan or Tibet, may demand status akin to that of a state, especially in terms of local
autonomy and participation in international organizations. The one country, two systems
formula for taking back Hong Kong already represents a defacto move substantially in this
direction.
The
non-territorial global order has established a more forceful presence throughout the world
and East Asia. This global order is concerned with a range of issues, including those
relating to economics, the environment, science, human rights, the arts, flows of
information, and human society more generally. NGO activities across the East Asian region
have especially paid attention to issues respecting human rights. With increased
intra-regional communications, authoritarian governments will find it increasingly
difficult to stem the flow of human rights and other political information. The
non-territorial economic sphere, what Ruggie characterizes by “transnational
microeconomic links,” is the most substantial claimant on this non-territorial global
space. As economic powerhouses, East Asian communities are particularly active in this
sphere. Many of the indigenous functions discussed above may externally operate on this
channel. Many powerful enterprises in East Asia have also contributed to economic
globalization.
Ruggie
argues that “any given state is but one constraint in corporate global strategic
calculations.” (Ruggie 1993: 172) Saying the state does not control the global
economic space, however, is not to say that states or other territorial communities are
unimportant. While any state may be but one constraint, it is important to bare in mind
that if the constraints a state or community impose are too severe they may diminish the
attractiveness of local participation in the global economy.[25]
As the reform and restructuring policies of the economically successful states tend to
verify, state policies and practices may be important in affording a venue for the more
profitable global activities. (Davis 1998) The recent economic crisis has tended to bare
out the claim that democracy, human rights and the rule of law are important in attracting
economic activity. Those better established constitutional democracies have handled the
crisis better. In the new global economy information is vital. The receipt and processing
of adequate information depends on educated personnel and a discursive environment that is
open and vigorous. States and other territorial communities which wish to attract the best
human and other resources should preserve freedom and uphold the rule of law. Wide
participation in the processes of local decision is also important to the continuous
project of economic restructuring. Economies with reliable and open legal and political
systems appear to secure the lions share of the global economy and enjoy the highest
standard of living.
It
is important to note that from the perspective of a local community, globalization does
not represent only positive forces and benefits which local communities should seek to
attract. It also reflects an enormous amount of power and sometime deleterious interest
penetrating the community from the outside. Some third world scholars have likened it to
the new colonialism. (Oommen 1998; Rajamoorthy 1998) Many communities in East Asia have
experienced problems with labor rights abuse and massive worker displacement at the same
time that foreign investments have facilitated economic growth. Global intrusion has often
been accompanied by increased problems with unemployment, crime, corruption and
environmental degradation. In this respect, economic and political reform to institute
reliable constitutional and human rights practices may provide reliable process of law and
order to attract investment. At the same time, such institutions may empower the local
community in popularly determined ways to restructure their economies, while regulating
and constraining those aspects that are less desirable. Under authoritarianism, popular
concerns and grass-roots costs may be overlooked. In some extreme cases communities, such
as North Korea, may incur extreme deprivation or famine when they operate without the
early warning system that a democratic and transparent government would afford.[26]
(Dreze and Sen 1989)
In
East Asia this non-state global economic space has been especially important. In the early
stages of economic development in the region, many states were able to use authoritarian
models along with cheap labor to secure a level of reliability sufficient for a degree of
economic developmental success. But, as discussed above, with economic success and the
emerging globalization, the pressure for liberalization has been overwhelming. Territorial
communities which fail to provide level playing fields, free flows of information, a
reliable legal system and avenues for engaging their citizens in the constant processes of
reform and restructuring will, when the advantages of cheap labor wear off, experience
increased economic difficulties. Chronic problems of corruption and cronyism have also
been symptomatic. The economic crises that hit Japan in the early 1990s and the rest of
East Asia in 1997 point to the urgency of reform.
In
the era following on the heals of these economic crises territorial communities that do
not get their institutions right will likely be less attractive to global investors. China
appears to be facing increasing problems of this nature. In this regard, Hong Kong and
Taiwan have been valuable resources to China because of their perceived reliability among
global economic actors. North and South Korea also represent striking contrast. While
South Korea has experienced recent problems resulting from the left over economic
practices from its authoritarian era, as a liberalizing and democratizing society it has
been markedly more successful than the closed regime to the north which has recently
experienced famine. We should not underestimate the importance of a state or territorial
community’s role in securing a reliable environment for global economic activity and
assuring the type of open institutions that can respond in an appropriate fashion to the
varied effects of such activity.
Conclusion.
At
the dawn of the twenty-first century, in a world that is increasingly fragmented and
integrated at the same time, the concept of the state has begun to take on a new meaning.
A certain level of fragmentation has meant that there are more territorial communities
than ever before that claim state status, while other territorial communities have arisen
whose importance matches that of states. This fragmentation has meant that local
institutions of self-rule are very important in the discursive processes of constructing
local values and responding to local developmental needs. In modern urban industrial and
post-industrial societies the institutions of constitutional government and human rights
have become increasingly important in this constructive process. These institutions
construct local order and are constructive of the diverse entities that make up the
international state system.
While territorial fragmentation has occurred,
the international system itself has become increasingly integrated. In this system
participation has become more important than traditional notions of sovereign exclusivity.
While power and security still reign supreme, effective participation is also
substantially colored by the human rights practices of member communities. The
international community has become more attentive to such practices. The territorial
entities that make up the international system, mostly states, also serve as the venue for
the non-state global process. Human rights and the rule of law are both a significant
ingredient in global success and an important component in local satisfaction with the
global experience.
The
form of argument in this presentation has emphasized several specific points: first, that
the Asian values and other cultural arguments do not justify the choice of
authoritarianism; second, that under East Asia’s current condition of substantial
economic development an authoritarian regime can no longer be adequately responsive to
diverse developmental concerns; third, the positive role of constitutionalism in
constructing empowering conversations in modern democratic development and as a venue for
values and developmental discourse; fourth, the importance, especially in cross-cultural
and developmental contexts, of indigenization of constitutionalism through local
institutional embodiment; and fifth, the importance of the domestic constitutional order
in establishing effectiveness as a state or other territorial actor in the international
state system and the emerging global order. It is the linkage of these points that
connects the constitutional regime of a given state or similar territorial community to
the international processes of human rights and establishes the importance of domestic
human rights practices.
REFERENCES
Ackerman, Bruce, We The People (Cambridge: The Belknap
Press, 1991).
Almond, Gabriel A. and Verba, Sidney, The Civic Culture,
Political Attitudes and Democracy in Five Nations, (Newbury Park: Sage Publications,
1989) (first published 1963).
An-Na’im, Abdulahi, “Islam, Islamic Law and the
Dilemma of Cultural Legitimacy for Universal Human Rights, in Welch, Claude E. and Leary,
Virginia A., eds., Asian Perspectives on Human Rights (Boulder: Westview Press,
1991) at 31.
Aung San Suu Kyi, “Transending the Clash of Cultures,
Freedom, Development and Human Worth,” Journal of Democracy, Vol. 6/2, April
1995, at 11-19.
Basic Law of the Hong Kong Special Administrative Region of the
People’s Republic of China, April 1990.
Barnes, Robert H., Gray, Andrew and Kingsbury, Benedict, eds., Indigenous
Peoples of Asia (Ann Arbor: Association of Asian Studies, 1993).
Bell, Daniel A, Brown, David, Jayasuriya, Kanishky and Jones,
David Martin, Towards Illiberal Democracy in Pacific Asia, (London: Macmillan
Press, 1995.)
Bickel, Alexander M., The Least Dangerous Branch, The Supreme
Court at the Bar of Politics (New Haven: Yale University Press, 2nd Ed., 1986).
Cappelletti, Mauro, “The ‘Mighty Problem’ of
Judicial Review and the Contribution of Comparative Analysis,” Southern California
Law Review, Vol. 53, 1980, at 401.
Chan, Gerald, China and International Organizations,
Participation in Non-Governmental Organizations Since 1971 (Hong Kong: Oxford
University Press, 1989).
Chang, Wejen, “The Individual and the Authorities in
Traditional Chinese Legal Thought,” Paper presented for the Constitutionalism and
China Workshop, Columbia University, February 24, 1995.
Choi, Jang Jip, “Political Cleavages in South Korea,”
in Hagen Koo, ed., State and Society in Contemporary Korea (Ithaca: Cornell
University Press, 1993) at 13.
Chua, Amy L., “The Privatization-Nationalization Cycle: The
Link Between Markets and Ethnicity in Developing Countries,” Columbia Law Review,
Vol. 95, March 1995, at 223.
Chua, Beng-Huat, Communitarian Ideology and Democracy in
Singapore, London: Routledge, 1995).
Davis, Michael C., “Human Rights and the Founding of the
Hong Kong Special Administrative Region: A Framework for Analysis,” Columbia Journal of Transnational Law,
Vol. 34/2, 1996, at 301-34.
Davis, Michael C., “Constitutionalism and Political
Culture: The Debate Over Human Rights and Asian Values,” Harvard Human Rights
Journal, Vol. 11, Winter 1998, at 109-47.
Davis, Michael C., “The Price of Rights: Constitutionalism
and East Asian Economic Development,” Human Rights Quarterly, Vol. 20/2, May
1998, at 303-37.
Davis, Michael C., “Reconstructing China: Is It Time for
Federalism?” Journal of Democracy, Vol. 10/2, April 1999, forthcoming.
Delaney, C.F., ed., The Liberalism-Communitarianism Debate
(Lanham, MD: Rowman and Littlefield Publishers, 1994).
Dreze, Jean and Sen Amartya, Hunger and Public Action
(Oxford: Clarendon Press, 1989).
Edwards, R. Randle, “Civil and Social Rights: Theory and
Practice in Chinese Law,” in Edwards, R. Randle, Henkin, Louis, and Nathan, Andrew
J., eds., Human Rights in Contemporary China (New York: Columbia University Press,
1986) at 41.
Elster, Jon, "Forces and Mechanisms in the
Constitution-Making Process," Duke Law Journal, Vol. 45, November 1995, at
364.
Elster, Jon, “Constitution-Making in Eastern Europe:
Rebuilding the Boat in the Open Sea,” Public Administration, Vol. 71/1-2,
Spring 1993, at 169.
Emmerson, Donald, “Americanizing Asia?” Foreign
Affairs, May-June, 1998, at 46-56.
Evans, Peter, Embedded Autonomy, States and Industrial
Transformation (Princeton: Princeton University Press, 1995).
Fiss, Owen M. “Two Constitutions,” Yale Journal of
International Law, Vol. 11, 1986, at 492.
Ford, Christopher A., "The Indigenization of
Constitutionalism in the Japanese Experience," Case Western Reserve Journal of
International Law, Vol. 28, Winter 1996, at 3.
Fukuyama, Francis, "Confucianism and Democracy," Journal
of Democracy, Vol. 6/2, April 1995, at 20-33.
Guingona, S., “The Constitution of the Philipines: An
Overview,” New Zealand Law Journal, December 1989, at 419.
Haggard, Stephan, & Kaufman, Robert R., eds. The Politics
of Economic Adjustment (Princeton:
Princeton University Press, 1992).
Hall, Peter A. & Taylor, Rosemary C.R., “Political
Science and the Four New Institutionalisms,” paper presented at American Political
Science Association Annual Meeting, New York, September 1994.
Higuchi, Y., “The Constitution and the Emperor System: Is
Revisionism Alive?” Law and Contemporary Problems, Vol. 53, 1990, at 51.
Holmes, Stephen, "Precommitment and the Paradox of
Democracy," in Elster, Jon and Slagstad, Rune, eds., Constitutionalism and
Democracy (Cambridge: Cambridge University Press, 1988) at 195-240.
Human Rights in China (Beijing: Information Office of theState
Council, 1991) (A white paper on human rights).
Huntington, Samuel P., “Democracy’s Third Wave,”
in Diamond, Larry, Platner, Marc F., eds., The Global Resurgence of Democracy
(Baltimore: Johns Hopkins University Press, 1993) at 3.
Island of Palmas Case (United States v. Netherlands), United
Nations Reporter of International Arbitral Awards 189 (1928).
Johnson, Chalmers, MITI and the Japanese Miracle: The Growth
of Industrial Policy, 1925-1975 (Stanford University Press, 1982).
Keyes, C.E., Thailand: Buddhist Kingdom as a Modern Nation
State (Boulder: Westview Press, 1987).
Koppel, Bruce, “Fixing the Other Asia,” Foreign
Affairs, Vol. 77/1, January/February 1998, at 98.
Krasner, Stephen D., "Approaches to the State, Alternative
Conceptions and Historical Dynamics," Comparative Politics, Vol. 26/2, January
1984, at 223-245.
Li, Shuhe and Lian, Peng, “On Market Preserving
Authoritarianism: An Institutional Analysis of Growth Miracles,” Conference paper
presented at the Chinese University of Hong Kong, March 8, 1996.
Lijphart, Arend, “Consociational Democracy,” World
Politics, Vol. 21, 1968, at 207.
Linz, Juan J. and Stepan, Alfred, "Toward Consolidated
Democracies," Journal of Democracy, Vol. 7/2, April 1996, at 14-33.
Mcdougal, Myres, Lasswell, Harold D., and Reisman, W. Michael,
“The World Constitutive Process of Authoritative Decision,” in McDougal, Myers,
Lasswell Harold D. and Reisman, W. Michael, eds., International Law Essays,
(Mineola, NY: Foundation Press, 1981) at 191-286.
Mitchell, Richard H., Political Bribery in Japan (Honolulu: University of Hawaii Press, 1996).
Mushkat, Rhoda, One Country, Two International Legal
Personalities, The Case of Hong Kong (Hong Kong: Hong Kong University Press, 1997).
Nathan, Andrew J., “Political Rights in Chinese
Constitutions,” in Edwards, R. Randle, Henkin, Louis, and Nathan, Andrew J., eds., Human
Rights in Contemporary China (New York: Columbia University Press, 1986) at 77.
O'Donnell, Guillermo, "Illusions About Consolidation,"
Journal of Democracy, Vol. 7/2, April 1996, at 34 - 51.
Oommen, M.A., “Globalization and Working Towards
Alternative Development Paradigms,” paper presented at the International Conference
on Globalization and Its Impact on Human Rights, Bangalore, February 1998.
Perry, Elizabeth,
"Introduction: Chinese Political Culture Revisited," in Wasserstrom, Jeffrey and
Perry, Elizabeth, eds., Popular Protest & Political Culture in China (Boulder:
Westview Press, 1994) at 1.
Popkin, Samuel, "The Political Economy of Peasant
Society," in Elster, Jon, Rational Choice, (Oxford: Blackwell, 1986) at 197.
Putnam, Robert D. Making Democracy Work: Civic Traditions in
Modern Italy (Princeton: Princeton University Press, 1993).
Rajamoorthy, T., “Development and Human Rights,” draft
paper presented at the International Conference on Globalization and Its Impact on Human
Rights, Bangalore, February 1998.
Rodrik, Dani, “Democracy and Economic Performance,”
paper prepared for the Conference on Democratization and Economic Reform in South Africa,
January 1998.
Rueschemeyer, Dietrich; Stephens, Evelyne Huber; Stephens, John
D., Capitalist Development and Democracy (Chicago: University of Chicago Press,
1992).
Ruggie, John G., “Territoriality and Beyond: Problematizing
Modernity in International Relations,” International Organizations, Winter
1993, at 139.
Said, Edward, Orientalism (New York: Vintage Books,
1979).
Sartori, Giovanni, “How Far Can Free Government
Travel?” Journal of Democracy, Vol. 6/3, July 1995, at 101-11.
Smolar, Aleksander, "Civil Society After Communism: From
Opposition to Atomization," Journal of Democracy, Vol. 7/1, January 1996, at
24-38.
Svensson, Marina, The Chinese Conception of Human Rights, The
Debate on Human Rights in China, 1898-1949 (Lund: Department of East Asian Languages,
1996).
Tate, C. Neal, “The Judicialization of Politics in the
Philipines and Southeast Asia,” International Political Science Review, Vol.
15/2, April 1994, at 187-97.