Constitutionalism and Development in the Global Era—The East Asian Case

 

By Michael C. Davis[1]

Presented at the International Conference on “China and the World in a Globalization Era,” Hebei, China, August 3-4, 2001

 

            In the economic crisis East Asia offered up its second major economic challenge to liberal democracy and its associated constitutional values. The classic East Asian economic challenge centered on the so-called East Asian “economic miracle” and the authoritarian developmental model. This developmental thesis, asserted by some East Asian authoritarian leaders, argues that Western style democracy and human rights are dispensable and may be positively harmful in the development effort.[2] The problems of crime, disorder and lack of social discipline in the West are cited as conditions to be avoided. In spite of this thesis, several East Asian countries had, by the early 1990s, under pressures stimulated by their rapid economic development, moved substantially in a liberal democratic direction. In this context the late 1990s economic crisis offered yet another challenge. Was the crisis evidence of the failure of authoritarian developmentalism or of liberalization? The latter might be asserted on the grounds that liberal markets and currencies were too easy prey for Western speculators. As the economic crisis shows signs of abatement, it appears that the crisis may have intensified attention to economic and political reform, but many of the preexisting political and developmental concerns remain. This paper challenges the authoritarian developmental claim and affirmatively offers constitutionalism as an avenue for East Asia to address the continuing problems exposed by both its rapid development process and the economic crisis.

            Both the economic miracle and the crisis point to the need for fundamental political, as well as economic, reform. In the era of global free markets I believe the model of political reform that demands our attention is liberal constitutionalism. But it is not enough to simply set up liberal institutions; it is important to achieve a deeper understanding of how these institutions work and how they may contribute to the development process. As economic development proceeds, increased social diversification produces continued developmental problems, for which constitutionalism and its human rights content are a proper response. The aim is to consider how such institutions may, in emerging highly developed societies, contribute to the dynamic processes of representation and empowerment essential to orderly development. It is only in this understanding that the continuing struggle to secure and improve these institutions in the local condition can be advanced. The economic crisis encouraged fundamental economic and political change, in many respects altering the expectations of the people of the region towards governance and social welfare. Nevertheless, many nagging issues that preceded the crisis remain. In the political arena one may expect more continuity than disjuncture. Though some governments have changed, official voices favoring an authoritarian East Asian developmental model have not disappeared from the region.[3]

            While the economic crisis of the 1990s may have taken some of the luster out of East Asia's alleged economic miracle, this authoritarian developmental challenge to democratic and human rights reform can be expected to persist. The former Communist regimes of the region especially cling to this avenue of hope, though they are not alone. Even in the societies where a consensus has emerged behind democratic institutions, the processes of understanding and perfecting those institutions remain a daunting task on the horizon. This is not a time to abandon the reform effort or feel reassured about old ways. The need for reform was already evident before the economic crisis ensued. If the economic crisis abates the processes of change and reform that were already in progress can be expected to resume. It is this continuity that demands our attention.

            While authoritarian regimes, under favorable circumstances and with proper institutions, are compatible with and may even produce the conditions necessary for successful economic development, such circumstances are not invariably present. The circumstances of the economic crisis offers evidence that such circumstances are increasingly lacking in East Asia. This appears to be a question of the stage of economic development or the circumstances in which a country finds itself. The circumstances that seem to have been favorable to authoritarian development are more likely to be present in the early stages of development.[4]   At an early stage, proper economic policy in some circumstances may be more important than whether a regime is authoritarian or democratic.[5]

            After countries have experienced a relatively high level of development, as is true of much of the East Asian region, authoritarianism is less likely to be a viable regime option. This perception may be enhanced when such relatively developed societies face the added demands of the kind of economic crisis East Asia confronted in the 1990s. In this respect, economically successful authoritarianism may be its own grave digger.[6] Ultimately, the success of a regime may depend on its ability to generate the conditions favorable to economic development in its reform effort. The state institutions that are favorable to economic development in a free market system are generally believed to be those that afford a degree of order, reliability, and participation sufficient to inspire confidence and thereby encourage entrepreneurial activity.[7] It is generally argued that state institutions which have a degree of autonomy and yet are embedded in their social condition are able not only to resist rent-seeking demands, but also to afford the degree of order and reliability necessary to unleash economic activity.[8]

            This paper consists of two main parts. Immediately below, Part I addresses the core claims about authoritarianism and development in East Asia. The thrust of the argument is to stress the likely ascendancy of liberal democracy over authoritarianism in the long-term developmental process and the economic developmental importance, even in an era of globalization, of the state and its institutions. Part II argues that, under democracy, constitutionalism offers the foundational institutional components to confront the economic and social challenges East Asian countries now face.[9] Constitutionalism allows a relatively successful economically developing society with increasingly diverse interests to ensure adequate representation of those interests while constraining unwanted rent-seeking. At the same time, constitutionalism encourages order and reliability, ultimately supporting economic development. Under the circumstances of rapid development, if formal channels for interest representation are not available and fully functional, cronyism, corruption, and social disorder are likely to occur.

            The notion of constitutionalism employed here looks beyond the mere structure of formal institutions to consider the dynamic processes of representation and empowerment. In this regard, the analysis considers both the constitutional fundamentals and indigenization of constitutional practices to better connect with the unique local condition. The fundamentals of constitutionalism are taken to include three core institutional components: democratic elections with free and fair multiparty contestation; human rights and freedom of expression; and the rule of law, including adherence to principles of legality.[10] In addition to these core components, this paper argues that constitutionalism must take on indigenous institutional elements that attach it to local social conditions and concerns. This dualistic structure supports the notion of universal human rights and, at the same time, allows for a degree of diversity in constitutional practices.

 

I. East Asian Economic Development

            This part addresses the relationship between economic development and each of the two competing regime types: authoritarianism and democracy. While authoritarianism sometimes may foster a rapid developmental takeoff, it is inadequate to produce a mature and fully developed economy. Economically successful authoritarian regimes are ultimately likely to face conditions that insist on democratization and insist on being opened up both to satisfy complex social demands and to provide continued order and reliability. The capacity of countries to deal with the economic crisis in East Asia may be evidence that such conditions had been exceeded. Dealing with the crisis has challenged the capacities of such authoritarian regimes. After laying the foundation in this part, the final part of this essay, Part II, contends that constitutionalism offers the best conditions under democracy to satisfy these various challenges.

 

A. The East Asian Challenge: Authoritarianism and Development

            No one seriously questions the existence in the 1970s, 1980s and early 1990s of the fast-paced East Asian economic development chronicled in a 1992 World Bank report as the Asian miracle.[11] Whether one accepts the characterization of East Asia's rapid economic growth rate at that time as a miracle or not, the developmental achievement that the term connotes was fairly evident in the economic growth of the preceeding couple decades.[12] It is important to assess the claims made about the causes of East Asia's economic success and consider the avenues to restore or sustain it.

            There is a rich political and academic discourse seeking to explain East Asia's dramatic economic growth rates prior to the onset of the 1990s crisis. A political view, with strong support in the academy, credits a combination of export-led growth (ELG) and authoritarian governance. Malaysia's Prime Minister Mahathir captured the essence of this view in his 1992 speech to the Europe-East Asia Economic Forum:

 

In the former Soviet Union and the East European countries, democracy was introduced along with the free market. The result is chaos and increased misery. Not only have the countries broken up, mainly through bloody civil wars, but there is actual recession and more hardship for the people than when the Communists ruled. One may ask whether democracy is the means or the end. Democracy at all costs is not much different from Communist authoritarianism from the barrel of a gun. . . . In a number of East Asian countries, while democracy is still eschewed, the free market has been accepted and has brought prosperity. Perhaps it is the authoritarian stability which enabled this to happen. Should we enforce democracy on people who may not be able to handle it and destroy stability?[13]

 

After the onslaught of the economic crisis Mahathir backed up his concerns by, for a time, closing off his countries financial system from global intrusion. His argument focuses attention on the question of political liberalization and economic development. That the prosperity premise of this argument was challenged by the economic crisis is self-evident. As discussed below, academic accounts often agreed with Dr. Mahathir's view, at least as regards the early stages of the East Asian success stories.

            Arguments for authoritarianism have been a dominant theme in economic development literature. As a prelude to any assessment of the relative merits of the competing authoritarian and liberal democratic paradigms, it is important to convey an image of what the basic East Asian developmental model is thought to encompass. The earlier Japanese developmental model, which allegedly combined political authoritarianism with economic liberalization in a planned capitalist economy, offers the prototype. Under this model, economic development guidance is offered by a rather autonomous, yet embedded, bureaucracy led by the Japanese Ministry of International Trade and Industry (MITI).[14] In his 1982 book Chalmers Johnson emphasizes the importance, in Japan's post-war years, of a tripartite coalition, composed of the Liberal Democratic Party, the bureaucracy, and big business, that worked together to insure the coherent targeting of certain industries for production of exports under a system of Export Led Growth (ELG).[15] In conjunction with this elite coalition, a system of enterprise labor unions and lifetime employment aimed to insure a compliant labor force. Micro-level planning distinguished the Japanese model.[16] Johnson differentiates between a "market-rational" (regulatory) and a "plan-rational" (developmental state) capitalist system.[17] This earlier Japanese development experience challenged the theory that governmental intervention in the economy is inevitably inefficient.[18] These institutional arrangements are tied to authoritarianism or "soft authoritarianism" in Johnson's model.[19] Authoritarianism is said to allow for stability and long-term predictability under "a developmentally oriented political elite for whom economic growth is a fundamental goal."[20]

            The Japanese model, with varied modifications, has been seized upon as the paradigm of the Asian economic miracle to explain economic success across the region, and has sometimes in one variant or another been used as a justification for authoritarian practices by second generation developmental aspirants in the region.[21] There has been little regard for the fact that, notwithstanding Johnson's soft authoritarianism characterizations, Japan is and has been for decades a democracy with a functioning electoral process, a relatively free press, and independent courts. The Japanese economic crisis of the 1990s has of course given much more cause to question some aspects of its developmental model.

            The consistent pattern of all the East Asian newly industrialized countries (NICs) was primary reliance on ELG, rather than the import substitution industrialization (ISI) model common in Latin America.[22] The interventions (through various incentives and controls) of the authoritarian "governed market" were lauded because they assure high levels of productive investment, reduce labor costs, elicit fast transfers of new techniques in actual production, target key industries for development, and yet allow exposure to international competition.[23] These interventionist policies have been linked to authoritarianism by the regime's ability to achieve efficient compliance.

            Nevertheless, with economic success, the developmental state may become its own grave digger.[24] Several tendencies may operate at once. For example, as the economic elite become more successful and compete on a global scale, they may become less compliant to bureaucratic control; when the economic stakes increase, officialdom may engage in more rent-seeking or predatory behavior as the economic elite seek official assistance in insuring a compliant labor force and in other matters; with increased wealth and education, the subordinate classes may demand greater participation and accountability. Increased rent-seeking may produce more public disgust, along with demands for greater openness and other political reforms. Because of these developments, the trend of the 1990s, long before the full force of the economic crisis set in, was toward political reform, deregulation, and integration into world markets.

            Unfortunately, as the crisis has served to illustrate, even with democratization or economic reform, many of the practices associated with the developmental model persisted: Singapore, at a nearly fully developed stage, has notably persisted in the authoritarian model; political and economic reformers, such as Japan and South Korea, clung to authoritarian economic policies of interference in market decisions, even while pursuing reform; China, at an arguably second stage of development, has pursued policies of economic liberalization without fundamental political reform; recent Chinese policies on Hong Kong (a developed economy) likewise may aim to reinstitute such a model;[25] and those Southeast Asian countries in the first stage of economic development will likely cling to authoritarian strategies.

            Under these conditions some scholars in the past decade sought out a middle ground--authoritarian developmentalism with law. In an argument that is representative and which seemingly targets China, Shuhe Li and Peng Lian advocated what they call market-preserving authoritarianism (MPA), reasserting much of the above Japanese model with a coalition comprised of a leading party, the state bureaucracy, and the business elite to achieve efficient economic development.[26] Drawing sustenance from Mancur Olson's ideas of an "encompassing interest,"[27] Li and Lian ultimately argue for a form of liberal authoritarianism or liberal oligarchy. Under such model, the state would be strong enough to enforce property and contract rights, yet weak enough not to confiscate.[28] This type of state would be heavily engaged in planning to "check and coordinate" (rather than in a liberal state's checking and balancing).[29] The difficulty with arguments for authoritarianism with law or other liberal guarantees is that maintenance of such guarantees ultimately may require the security of a liberal democratic regime that fosters public expectations of accountability.[30]

            It may be that such arguments for authoritarianism and law only state the obvious, that a liberal oligarchy is better than strongman authoritarian rule. While acknowledging that dictatorship is better than anarchy, Mancur Olson argues that the conditions necessary for a "lasting democracy" are the same as those necessary for maximum economic development and the security of property and contract rights.[31] These conditions embody the elements of constitutionalism. Olson acknowledges that good dictators may have the skill to bring about encompassing coalitions and inspire sufficient confidence to attract investment, but he doubts that such confidence can be sustained through the terms of more than one or two leaders.[32] The pro-authoritarian thesis rests on the proposition that dictators have greater political capacity and better insulation from particularistic demands, while new democracies are thought to be vulnerable to demands for immediate consumption.[33] The pro-authoritarian thesis thus seems to presume an enlightened dictator with good information.[34] This is, over the long haul, a rather shaky proposition.

            Development economists who favor liberal and legal components, but not democracy, bear a twofold burden: they need to establish how human rights and the rule of law can be sustained without democracy, and how democracy can be avoided when people are free and make increasing demands. In the now developed or nearly developed regions of East Asia, the burden these economists carry appears to be insurmountable for two reasons: dictators usually find it expedient to ignore legal constraints, and successful economic development has most often been accompanied by increased demands for democracy.

           

B. Democracy and Development

            Constitutional democracy, now practiced in most developed countries and being instituted in a growing number of East Asian NICs, offers a better path to continued development. In societies where economic development has caused increased social complexity and stratification, constitutional democracy may supply a sufficient degree of order, reliability, and participation. It may also better enable a society, faced with complex processes of economic restructuring, in the face of economic crisis, to better navigate the many conflicts faced. It is arguable that this path also may prove to be more effective for late developers in the Asian region who are experiencing rapid integration into the regional economy and are more quickly confronted with many of the same developmental challenges.

            To stress the importance of democracy in the developmental process, theorists commonly use two approaches: one focuses on the statistical correlation between democracy and development; the other traces the causal mechanisms in the development context that lead to increased demands for democratic representation, rights, and legality. The first approach may address both the survivability of democracy under various economic circumstances and the role of democracy in encouraging economic development or dealing with economic crisis or shocks. The latter approach is concerned with the causal mechanisms by which economic development contributes to democratization, highlighting the ways in which such democratization may be responsive to developmental needs.

            In regard to the former approach, Adam Przeworski and others ("Przeworski et al.") used worldwide statistics to attempt to gauge the survivability of democracies from 1950 to 1990.[35] These statistics show a strong correlation between affluence and the survivability of democracy, but give no support for using dictatorships to achieve the dual goals of development and democracy.[36] The poorer the country, the more fragile is democracy; the more affluent the country, the more secure the position of democracy. International climate is even more important--the more democracy in the region or the world, the better the survivability of democracy.[37] However, Przeworski et al. do not assert that economic development leads to democracy, but rather that, given the choice of democracy, economic development allows democracy better to survive.[38]

            Reversing tact and considering the effect of democratic institutions on the economy, Gerald Scully, who surveyed 115 countries from 1960 to 1980, argues that human rights and the rule of law improved the growth rate of economies.[39] Scully argued that open societies with rights, the rule of law, private property, and market allocation grew at three times the rate and were two and one-half times as efficient as societies in which these rights were largely proscribed. When it comes to special circumstances of dealing with economic crisis or shock, Dani Rodrik finds further that democracy offers more favorable results. Rodrik argues that shock will tend to be worse in societies with deep latent conflicts and argues that democracy “affords the ultimate institutions of conflict management.”[40] In the context of the East Asian economic crisis, Donald Emmerson argues that East Asian countries with high levels of political freedom have been generally more resilient.[41] A democracy such as Taiwan faired better and democracies caught by the crisis, such as South Korea and Thailand, bounced back more quickly.

            In considering the effects of economic development on democratization, Dietrich Rueschemeyer and others ("Rueschemeyer et al.") argue that these quantitative correlative studies reach the right conclusion, but fail to offer a reason.[42] Focusing on causal mechanisms, they urge that the case for liberal democracy becomes compelling at a certain stage in the industrialization process because industrialization transforms society in a fashion that empowers subordinate classes and makes it difficult to exclude them politically.[43] Rueschemeyer et al. contest the view of both Marxists and liberals that it is the bourgeoisie that push for democracy.[44] Unless deflected by a charismatic leader, the subordinate classes, especially the working class, have the greatest interest in democracy; the bourgeoisie have every incentive to roll back or restrict democracy.[45]

            The industrialization process and economic development creates diverse groups that will seek representation and related empowerment. In this sense, one can conclude democracy is responsive to needs created in the development process to afford institutions that can deal with diverse interests and the resultant conflicts that emerge. The same East Asian examples of South Korea and Taiwan, used by promoters of authoritarian development, appear to illustrate this democratizing phenomenon well. Rueschemeyer et al. generally accept the view that liberal democracy is capable of achieving representation for such diverse subordinate groups.[46] In a way that seems to highlight constitutionalism, they argue that democracy will succeed at its task only if it achieves a rather strong institutional separation from the overall system of inequality in society.[47]

            In summary, as economic development proceeds to a higher stage, the causal mechanisms that bring about a developmental authoritarian regime's demise through democratization appear prominently to include three sources of pressure for which democratization renders the cure:  (1) higher expectations among subordinate classes produce increased demands for participation; (2) rapid economic expansion makes both the likelihood and costs of corruption intolerable; and (3) economic restructuring and globalization encourage a national consensus-building process to avoid or deal with economic difficulties of the type reflected in the Asian economic crisis and the resultant massive social and economic disruption.[48]

            The following subsections trace these causal mechanisms in South Korea and Taiwan (two of East Asia's leading developmental examples), as well as the emerging potential problems in China. This exercise tends to effectuate Rueschemeyer et al.'s prediction and raise the political reform issue with respect to emergent developers in the region who may hope to persist in authoritarian policies to which they may attribute past success. On the basis of evidence from these three cases, it is difficult to justify continued application of authoritarian development models in the face of either East Asia's dramatic growth or its subsequent need to deal with the economic crisis. East Asia has long been at the stage where the demands of subordinate classes for democracy and rights begin. An important contextual factor in this regard is the degree to which the need to deal with the economic crisis and to sustain competitiveness in the global economy may impose the need for structural reform on successful developers.[49] The urge of various interests to participate in restructuring may intensify demands for broad participation, exacerbating the problems of the regime.

 

1. South Korea

            The path to the demise of Chun's South Korean dictatorship bears a striking resemblance to Rueschemeyer et al.'s predictions.[50] The authoritarian leadership in South Korea was built on the collusion between the military, the political leadership, and the large chaebol (local multinational corporations (MNCs)) the regime created.[51] The very success of development policies based on a narrow coalition brought out a new class force in the 1980s under the banner of minjung (the masses)--a textbook example of a push by subordinate classes to achieve political representation.[52] As one employing Rueschemeyer et al.'s analysis of the prospects of authoritarianism might predict, the very success of the Chun regime's economic (though not political) liberalization policies in the early 1980s brought on the demise of the regime.[53] The political forces unleashed by these developments had a continued impact on the post-authoritarian democratic regime in the 1990s, as various political forces sought to resist residual authoritarian policies.

            The subordinate classes in South Korea showed continual resistance to heavy-handed non-democratic acts. In early 1997, this was demonstrated by the extreme response (so extreme it ultimately brought down the government) to an oppressive attempt by the ruling party to ram through a worker-opposed labor law without adequate public consultation.[54] At the end of 1997, after South Korea's financial collapse, the ruling party, rooted in the past authoritarian regime, failed substantially, as opposition leader Kim Dae-jung won the presidential election.[55] It appears that backroom deals within an elite ruling coalition, which are likely responsible for South Korea's financial problems, will no longer assure confidence, reliability, and order.[56] Given the polarization of society and the latent effects thereof, it is difficult to confirm that the long persistence of authoritarian economic practices, even under early democratization, was the best path to development in South Korea.

 

2. Taiwan

            On an industrial strategic level, Taiwan looks like a textbook case of the Asian economic miracle. The country spent the 1950s under the harsh authoritarian rule of the displaced mainland Nationalist (Kuomintang or KMT) regime, which was supported by huge amounts of US aid and ISI strategy.[57] In the 1960s and early 1970s, the regime remained authoritarian, but with cutbacks in US aid, the development strategy gave way to ELG, with a hugely dependent economy producing low-level industrial goods (especially textiles and electronics).[58] From the mid-1970s into the 1980s, the same combined ISI-ELG strategies evident in the other East Asian NICs emerged, aiming for high levels of technological development with MNC participation.[59]

            Following the Japanese pattern, the Council for Economic Planning and Development targeted certain industries for development and even provided substantial state funding.[60] Taiwan's development pattern generally favored the emergence of many small entrepreneurs from among the workers; therefore, the country did not experience the worker polarization and militancy that South Korea saw.[61] Even in the absence of such polarization, however, with economic success in the 1980s came calls for democratization. In such a highly educated society, the paternalistic authoritarian governance no longer was deemed sustainable for such a diverse, sophisticated, and economically developed polity.[62] Taiwan faired much better than most East Asian countries in the face of the economic crisis, though in the new century there are some signs of economic weakness associated with continued tension with the mainland. The democratization process has continued apace, ultimately resulting in the election of the current president from the opposition DPP party.

 

3. China

            China's recent policies of economic reform bear some resemblance to the earlier South Korean policies, though the outcome is as yet undetermined.[63] The ever-increasing liberalization of China's economy (especially as a result of competition and further pressures in its seemingly successful drive to join the World Trade Organization) has brought the huge Chinese state-owned-enterprise system increasingly into direct competition with the global economy, resulting in numerous bankruptcies and pressures to close failing state enterprises. These enterprises, including China's heavy industries, employ 100 million workers.[64] If one considers that a key component of the constituency that sustains the regime is these SOE workers, then it is not difficult to imagine that massive layoffs may deprive political leaders of this critical sector of support. Yet, the regime's economic reform course may leave it no choice but to lay off these state workers. Privatization in the rural sector has already rendered the state's role more burdensome than beneficial.[65] In the absence of democratic political representation, national and regional government policies which impose such burdens will increasingly be questioned. It remains to be seen whether the private business sector will be able to take up the economic slack of the state sector in providing employment. As this seems unlikely, in the face of the ongoing economic weakness in the region, intense political pressure on the regime is likely. It is doubtful that those foreign enterprises that may be allowed in under WTO will be able to carry this burden. If anything, a government facing such pressure is likely to resist foreign incursion that may compete with SOEs.

            A degree of political reform sufficient to secure representation of diverse, emerging private interests, and thus create a new basis of state legitimacy, seems essential. In the absence of such reform, cronyism and corruption have been a serious problem. This has especially been manifest in the huge numbers of unreliable loans. This tends to satisfy the proposition that for a rapidly developing society, blocking or failing to develop sufficiently democratic channels for representation of critical interests may produce corruption, as the various interests created by economic reforms seek effective avenues to obtain economic advantages and address other concerns. This calls into question the long-term sustainability of authoritarian practices.

 

4. Variations in Developmental Patterns

            At the same time that a degree of consistency across the region is recognized, it is important to note variations. These variations, caused by significant differences in developmental strategies, will certainly effect the institutional outcomes in the democratization process. Singapore's development was accomplished by attracting MNCs to take advantage of favorable costs in the world labor market. Korea's rapid development was built on development policies that favored the creation of Korean MNCs which were supported by foreign lending, the US military, and ruthless exploitation of Korean labor. In Taiwan, the KMT regime, which began with extensive US aid and offering incentives for targeted industries, shifted strategy from ISI in the 1950s, to ELG in the 1960-70s, and then to ELG-ISI in the 1980s, ultimately losing control over investment strategy in the 1990s because of expanded investment in the mainland. Hong Kong employed a laissez-faire investment system, but with substantial public welfare in the forms of public housing (housing 45 percent of the population at its peak), education, and health care, leaving room for private entrepreneurial initiative, but with reduced labor costs.[66] Because of these variations, the arguments for constitutional reforms that follow take serious account of the need for institutional variations in response to local conditions.[67]

 

II. The Processes of Constitutionalism and Development

            It is important to emphasize the role of the state and its institutions in securing the degree of order, reliability, and participation conducive to continued development. Among political economists' important insights of the 1980s and 1990s was the recognition that the state is an important ingredient in structuring development.[68] Without the state and predictable rules, markets cannot function, and personal ties become the only source of cohesion.[69] As discussed above, in present-day East Asia, reliance on arguably autonomous authoritarian regimes to get the developmental job done, without some degree of public accountability, may eventually lead to serious problems of corruption and public dissatisfaction. The contemporary approach is to focus on the development of state institutions that can both sustain a degree of autonomy and engender participation.[70] This focus is increasingly likely to embody both liberalization and democratization; in essence, constitutionalism.

            Constitutionalism, properly conceived, may not only be constructive of a stable domestic political order but, in the economic sphere, may also be constructive of the processes of reliability that investors depend upon. In this sense the state is still important in the global age. A reliable state can both attract desired global activity and credibly regulate it.[71] In the East Asian economic crisis the out-flow of capital from the region was in part due to a lack of such confidence. Thomas Carothers laments “the failure of the region’s various rule-of-law reforms to bring transparency and accountability to the dealings of the ingrown circles of privileged bankers, businessmen, and politicians.”[72] Stephen Haggard notes that in the aftermath of the economic crisis East Asian governments face the need to generate a new social contract.[73] As they set about the reform process, governments and citizens, I believe should come to appreciate the complex and interrelated elements of constitutional government. Constitutionalism attempts to combine “electoral accountability with rights and freedoms under the rule of law.”[74] But, as discussed in this part, it does much more than that. At the same time it is not a quick fix, but rather a complex process with a range of interrelated commitments that need to be better understood.

            The previous section offered the image of emerging East Asian societies that have developed diverse and complex interests, ranging from entrepreneurs to labor unions, students, and bureaucrats. It also argued that the diverse interests in a modern, complex society must be allowed to participate in political and economic decisions if these interests are to be satisfied in an orderly and acceptable fashion. These problems of interests representation become even more urgent under the conditions of the Asian financial crisis and its aftermath. During such a crisis displacement, poverty and resultant social conflict can be expected to elevate the demands for restructuring.[75] As argued above, even before the onslaught of the crisis the authoritarian developmental state appeared to have been its own grave digger. As the state becomes more successful and creates more interests, it eventually cannot satisfy the needs of these various interests to participate without reforming itself politically. Without political reform corrupt avenues of influence predominate. There is a need to create open institutional channels. These emerging, rapidly developing societies might be better served by the kind of governance that in Tocqueville's words "produces . . . an all-pervading and restless activity, a superabundant force, and an energy which is inseparable from it."[76] Such is the wellspring of creativity and entrepreneurship in a modern developed society.

            Constitutionalism is the modern response to the need for open and fair institutions. This part of the paper discusses the premier institutions of democratic governance embodied in constitutionalism. It argues that these constitutional institutions ultimately may afford the degree of reliability and participation necessary for continued development in East Asia. In the discussion that follows, the paper considers how constitutionalism, in a liberalizing context, may contribute to order, reliability, and participation, thus affording the required opportunities for various interests to achieve their goals through accepted channels. Specifically, this section will consider the following issues:  (1) the empowering role of constitutionalism in the developmental context; (2) the processes of constitution making and execution; and (3) the avenues for securing constitutionalism in the local condition.

 

A. The Empowering Aspect of Constitutionalism

            Any consideration of constitutionalism, whether focused on the dynamics of development or transition politics, should begin with an appreciation of its affirmative, empowering side. Constitutionalism empowers diverse forces through the securing of representation and reliability; it thus may ensure that democracy's sense of vitality and rich discourse (so admired by Tocqueville) is brought into play in regard to society's numerous concerns, including especially the economic ones. This is not a utopian vision, but rather, in a world where troubles are certain and transitions are difficult, one that seeks to secure a venue where such troubles are openly addressed.[77] The enfranchising discursive element of constitutionalism affords the foundation for engendering the public confidence needed to secure robust economic activity in a modern, complex democratic society. This is especially of concern in societies seeking to institute dramatic economic restructuring, such as was evidently required as a consequence of East Asia’s economic crisis.

            The image of a fortress constitution, the claim that constitutions only offer constraint, is a false one.[78] Stephen Holmes laments that the metaphors of checking, blocking, and restraining have given constitutionalism a bad name; he urges that instead, the role of constitutionalism in generating new practices and possibilities, in enabling the electorate to have a coherent will, be considered.[79] In this vision, a constitution becomes a framework for orderly decision with rational consent and dissent, and at the same time, the constitution suggests reliable boundaries of constraint. Concern with both empowerment and constraint runs through recent scholarship on constitutionalism at a time when constitutional principles seek roots in new soil around the globe, soil where concerns with order and stability in the face of dramatic social and economic change are often of paramount importance.[80]

            In a rapidly developing or economically restructuring society, constitutionalism may be important in constructing a reliable venue both for enabling economic reform to ultimately achieve its full potential and for consolidating the democratic institutions that engage the diverse sectors of society. Joan Nelson notes that the launch phase of economic reform "is often accompanied by a 'negative consensus' that old economic strategies and institutions have failed," but that the success of "[l]ater stages of reform depend[s] on the building of a 'positive consensus' regarding the principles" for a new economy, "a 'vision' of the ultimate goals of reform."[81] This task is better facilitated by a constitutional venue for consensus building.

            If societies are to tolerate the pains and displacements of reform and restructuring, constitutionalism must be structured to insure that various interests in these increasingly sophisticated developing societies are pulled into the decision making process. The institutions of constitutional government may provide a venue for cultivating support and crafting solutions.[82] This goes a long way towards explaining why scholars have noticed a positive correlation between democracy and development.[83] Constitutional government may at once expand access to information and secure the avenues of communication while insuring accountability.

            For the types of civil society and political society democracy requires, constitutionalism, with its human rights and rule of law components, appears indispensable.[84] For Juan Linz and Alfred Stepan, such constitutionalism must be distinguished from mere majoritarianism in its "commitment to 'self-binding' procedures of governance that can be altered only by exceptional majorities" and its requirement of "a clear hierarchy of laws, interpreted by an independent judicial system and supported by a strong legal culture in civil society."[85] In this conception, constitutionalism does not just constrain but also enables democracy.[86]

            One must remember that the populist alternative to constitutional democracy is often a type of plebiscitarian democracy, where the leader may feel empowered to get the job done without regard to the constitutional niceties.[87] A leader who sets out to command in this way is not just ignoring constraints, but is actually disempowering the people from truly exercising their democratic citizenship and also disabling the constructive process of democratic institution building. While leaders sometimes must make critical and firm decisions, decision making ought to include due regard for democratic procedures, negotiations, and constitutional processes.[88] Indeed, an important task of governance is the development and preservations of institutions that allow for this process to continue. This certainly has implications for the processes involved in deepening economic reforms, as well as consolidating democracy. Riding roughshod over the constitutional niceties may in the end undermine economic development, depriving the economic order of its vitality, processes of orderly representation, and reliable constraints. Such deprivation may deprive the leadership of the kind of support it needs to actually carry out its restructuring plans.

 

B. Mechanisms of the Constitutive Process

            Once constitutional democracy is accepted as the desired objective, a big challenge is to get it in place. Ultimately, the task of consolidating democracy should focus on the constitutional process. This requires an understanding of such process as a dynamic venue for confronting important social concerns at all stages, both during moments of crisis and periods of ordinary politics. It may be useful to divide the constitutive processes into three stages or types of activity, on a continuum from the extraordinary to the ordinary:  (1) the founding or constitution drafting process, usually following on the heels of revolution; (2) those moments of extraordinary constitutional politics under the existing constitutional regime, usually involving substantial civic engagement; and (3) those periods of ordinary politics when the level of civic engagement is at its lowest, and when constitutional changes are evolutionary in nature and largely guided by formal and established institutions. The first of these is usually associated with the constitution making stage, while the latter two are conceived as part of constitutional implementation.

            Both the constitution making and implementation processes offer occasions and venues for empowerment and engaging public support. In developing communities, these processes may encompass a range of societal and economic interests. As well, they may afford orderly avenues for resolving the inevitable distributional disputes that arise as economic interests diversify and governmental control recedes. Constitutionalism may be understood as a discursive process where both ideals and interests are at play as a cacophony of voices are heard. The engaging aspect of this process is its virtue. This is what ultimately embeds state-connected decision processes in their social condition, engendering the coalition building and support necessary for the successful execution of economic reform and other policy decisions.

 

1. Constitution Making

            At the constitution making or drafting stage, the processes of social engagement are apparent. Constitution making is distinguished by a substantial break from the past. It often involves a substantial constitutional assembly (a legislative or conventional meeting) and takes place in an air of crisis, a circumstance that is civically engaging by nature. For example, the East Asian economic crisis may ultimately spawn at least one constitution making process, as Indonesia sets about resolving the contradictions of its transition to democracy. Such constitution making processes become a venue for initiating choices about the emerging political order.[89]

            In a rare general work on this subject, Jon Elster describes an atmosphere with both "upstream" and "downstream" constraints, where interests, passions, and reason are at work.[90] Where hard-line regimes have been in place, upstream constraints may seek to protect their members, a proposition that may be accepted because it is often a costly path to extract revenge.[91] This was certainly the goal of some of the earlier meetings of Indonesia’s constitutional assembly, when members of the old regime were still in substantial control. With the election of an opposition president this commitment appeared somewhat sidetracked, though the leadership crisis of late 2001 may encourage it to get back on course. Downstream constraints look to ratification, a process that may go beyond the assembly to the population at large. In the recent cases of the East Asian NICs, where capitalism has already been firmly established, various capitalist and labor elements are usually actively involved in the constitution drafting process. As a result, a debate over the future shape of the continuing economic development model (more or less welfare, labor and union protection, investment and monetary structures, corruption controls, equal protection, etc.) often ensues.[92]

 

2. Constitutional Implementation--Judicial Review

            Though less obvious, the constitutional implementation stage is also a venue for discourse and empowerment. During periods of ordinary politics, this is arguably more institutional in character than the crisis politics of the constitution making process. During such periods, in addition to the electoral process, the institutional architecture of constitutional judicial review generally has been a critical ingredient of democratic constitutional government. This provides an orderly somewhat politically isolated venue to address what are often difficult political issues. In federal systems such judicial role in the federal courts may also serve to integrate legal and human rights institutions across the subunits of the system.

            The constitutional world tends to be divided in this respect between common law systems with a decentralized system of review in all courts and civil law systems with a central constitutional court exercising constitutional review as a principal issue.[93] Mauro Cappelletti argues that in the post-war period, constitutional judicial review has become a central component of a commitment to human rights.[94] It would appear that the centrality of this component is greater under the common law model. Though South Korea and Taiwan have emerged as conforming civil law countries with constitutional courts, there is otherwise a great deal of variance in East Asia. Japan and Hong Kong reflect opposites: Hong Kong has review on some matters (respecting central authority and local/central relations) from the Standing Committee of China's National People's Congress (NPC), along with decentralized common law review on other matters (of autonomy), whereas Japan is a civil law country with a structurally decentralized system. The Philippines has long been a hybrid both in constitutional and legal system terms. For the rest of East Asia, a system of constitutional review is either lacking or seriously undermined.[95]

            There is considerable theoretical writing on constitutional judicial review, but for present purposes, a positive engendering conceptualization will be used. While some theorists argue that judicial review, as a constraint, is in conflict with majoritarian processes, it may be more accurately characterized as operating in aid of majoritarian processes. In worrying about plebiscitarian democracies, this paper suggests that constraining elements are essential to sustaining and developing the institutions of democracy, and ultimately to insuring representation. The case for judicial review is especially strong in this regard. Alexander Bickel sees the court as equipped for a complex dialogue with the elected branches: the court can react to legislative enactments with approval, disapproval, or neither, engaging in a complex dialogue about fundamental commitments to which the people are constitutionally bound.[96] The enactments of the legislative branch (sometimes representing commercial or labor special interests) are thereby subject to an ostensibly majoritarian check. This interinstitutional dialogue may be conceived as an orderly constitutional conversation during ordinary times. It may produce some institutional change, but it will do so slowly.

 

3. Implimentation--Constitutional Politics

            Judicial review clearly does not explain all implementation activity. The constitutional process is at times subject to something akin to what Stephen Krasner calls "punctuated equilibrium," where there is a much higher degree of civic engagement relating to important public concerns.[97] Such occasions are generally characterized by crisis.

            Because politics are interest oriented, these more intensely engaging concerns often, though not always, have a distinctly economic character. The following events are noteworthy examples:  Reagan and Thatcher's rebellion in the 1980s against excessive welfare spending; the Japanese polity's engagement in the 1980s and 1990s over excessive corruption, resulting in the temporary demise of the ruling party and the age of party coalition politics; and similar corruption crises in South Korea in the 1990s. The economic crisis in the late 1990s propelled societies in the region toward intense reflection on fundamental change.

            In the US context, Bruce Ackerman characterizes these moments of heightened civic engagement as moments of constitutional, as opposed to ordinary, politics.[98] According to this view, the incrementalist vision of change under judicial review may obtain during periods of ordinary politics; however, at extraordinary times or in moments of crisis, an elevated level of civic engagement may move the process up to the higher plane of constitutional politics and fundamental constitutional change. In arenas where questions of order and stability are often of paramount concern, such as in economic development, understanding the dynamics of the constitutional process both in ordinary times and moments of crisis is important to constitutional and developmental success.

 

C. Constitutional Indigenization and Economic Development

            Once the constitutional fundamentals identified above are in place, an important, though often neglected, component of constitutionalism is the project of "bringing it home." As Aung San Suu Kyi points out, as long as there are genuine commitments to modern democratic values, there is room for variation in local institutional embodiment.[99] If the East Asian experience shows anything, it is that local variation is not only a permitted feature, but also an essential one. Such local institutional embodiments may be understood best as extensions or elaborations of the fundamental constitutional commitments, ones that better secure representation of diverse interests, the security of persons, social justice, and accountability. These extensions become expressions of the basic constitutional commitments and themselves become fundamental.

            To say that culture or development does not provide an excuse for authoritarianism is not to say that there are no effects from these contextual factors. It is important to consider how constitutionalism, in practice, might connect up to and engage the society for which it is intended. At the very beginning of the process, constitutionalists in East Asia are invariably confronted by the claim on behalf of the authoritarian regime that constitutional democracy is a Western concept unsuited to Asian soil and inconsistent with the more cohesive and disciplined economic practices of East Asia.[100] This raises a preliminary traveling issue, as concern with bringing constitutionalism into a new environment develops.[101] That revolutionary constitutionalist movements are by definition populated by indigenous activists insures that such movements will and should take on indigenous character. As long as these movements preserve the constitutional fundamentals that animate constitutionalism, they are to be expected and applauded. It is the substitution of alleged authoritarian values as indigenous that is objected to.

            Development economists argue the need "to renovate the state so that it can perform well such crucial functions as providing essential public goods, improving human capital, and facilitating the efficient and fair functioning of the market."[102] A large number of institutions and concerns may be brought into play, including "skilled bureaucrats, capable states, effective legal orders, autonomous central banks, stable policies, transparent governance, equitable taxation, investment in human capital, relief of poverty."[103] The economic constitutional concerns may shape the forms of property ownership, economic accountability, complaints structures, social welfare commitments, taxes, equal protection, indigenous communities and their powers of economic control and ownership, autonomy structures, and dispersal of power in federal structures and state bureaucracies. These institutions reflect the extensions and elaborations of the local constitutional structure and ultimately produce the politics of constitutionalism.[104]

            The remainder of this section focuses on how these economic developmental issues arise and organizes discussion of the indigenization of post-authoritarian constitutionalism in East Asia around three contextual themes, any or all of which may be present in a given instance:  (1) where fundamental elements in constitutions go through a more or less neutral process of borrowing and adaptation; (2) where authoritarian practices produce a negative reaction in the democratizing forces and thus in the post-authoritarian constitutional system;[105] and (3) where authoritarian developmental successes represent positive forces to be retained or replicated in the post-authoritarian order. It is evident, especially in the latter two cases, that the authoritarian economic developmental practices may fundamentally shape the post-authoritarian constitutional values and commitments and thereby shape the nature of the constitutional extensions noted above.

 

1. Neutral Borrowing

            In regard to the first situation, constitutionalism in Japan provides one of the best examples of how constitutionalism has traveled successfully while also undergoing a degree of indigenization. Japan reflects a case where an imported constitution, drafted by the United States, has taken on a substantial body of local theory and engendered a degree of public discourse. With an essentially US structure of judicial review, the Japanese Supreme Court has undertaken to circumscribe governmental limitations on public demonstrations, the right to strike, and equality of electoral apportionment, among others.[106]

            Though taking a very passive approach that often embodies suggestion rather than command, judicial action has been an essential part of public discourse in areas ranging from the environment to corruption and text books. Characterizing the Japanese rights cases as an indigenous take on US ideas, Christopher Ford notes that the Japanese Supreme Court has extended a continental, civilian idea of abuse of rights into its constitutional rights doctrine, along with a conciliatory approach to constitutional adjudication akin to its developmental practice of "administrative guidance."[107] While conservative, this seems to have brought home and rendered effective what was an alien constitution.[108] The continuing Japanese economic crisis, in what may be a constitutional moment, seems set to shift things to a more reactive mode to test this conservative Japanese approach to the rule of law. The administrative agencies and their economic might, upon which the Japanese have historically relied, have become largely discredited. In a reactive move (against past abuses) this may shift more responsibility to the political process.

 

2. Production of Negative Reaction

            Illustrating a second possibility of a reactive constitutive component, South Korea's transitional developments reveal many ways in which historic struggles with the authoritarian regime have, in a negative sense, shaped the cleavages in Korean society and are leaving their mark on the post-authoritarian structure of democracy. In terms suggested by the theory of Rueschemeyer et al., the disaffection of the subordinate classes initiated around the minjung movement ultimately brought down the authoritarian regime.[109] Jang Jip Choi describes South Korea, with its historical institutional channeling problems, as an "[o]verdeveloped" state that promoted a form of authoritarian developmentalism with a defined "national interest" of "national security and economic prosperity through export-oriented industrialization."[110]

            In a constitutive sense, Choi argues that three distinct cleavages (which appear essentially reactive) historically characterized Korean society under the authoritarian regime: democracy versus dictatorship, distribution versus developmentalism, and reunification.[111] He sees the role of subordinate classes as crucial to Korean transformation and unresolved economic concerns of workers over the second cleavage as central to the success of the transition to democracy.[112] While noting that the first cleavage gave voice to middleclass concerns over the procedural norms of liberal democracy, he argues that the democratic concept articulated by students and workers "gave centrality to the concepts of equality, social justice, . . . and deauthoritarianization."[113] Given the heavy industrialization and the militancy of workers, he notes the importance of institutional mechanisms through which workers can articulate their views.[114] In the context of suppression of information and discourse regarding the North, the third cleavage, reunification, has taken on a distorted image, as part of South Korea's internal polemics. Both the recent famine in the North and the financial crisis in the South are shaping the resolution of this cleavage, as the two national leaders have made sporadic attempts to cross the divide that separates them.

            A reactive force was especially important in the economic crisis, with Koreans responding by electing a pro-labor President. Worker acceptance of the pains of restructuring has depended on their sense of inclusion and their confidence in the justice of various solutions. As a consequence they were much less resistant to President Kim Dae-jung’s reform proposals, in comparison to similar proposals previously made by President Kim Young Sam, because of confidence in his pro-labor stance and representation. Workers have been concerned with avoiding bureaucratic interference in the market on behalf of the corporate elite, symptomatic of the cronyism and corruption evident in past economic decisions. In Joan Nelson's terms, over the scope of Korea’s transformation a negative consensus overthrew the regime, and a positive consensus is still being formed in the post-authoritarian constitutional order.[115] It seems apparent that the creation of fundamental structures (eg. term limits, locus of regulatory power, central banks, institutional and political transparency, etc.) to cope with the cronyism and corruption of the past are being sought. This places the shaping of South Korea’s future economic order and its contextual constitutional order in a position quite similar to that of Japan.

 

3. Replication of Pre-democratic Positive Forces

            There is also abundant evidence of the third possibility, where the successes of the developmental state have produced a positive image to emulate under democratic governance. Stephan Haggard emphasizes the importance of the institutional characteristics of the state and regime type in inducing development. These operate within the constraints of state-society relations and international political and economic limiting factors.[116] Under authoritarian development in East Asia, developmental institutions included positive components such as "efficient, meritocratic bureaucracies, centralized decision-making structures, and control over a large repertoire of policy instruments."[117] There is evidence that post-authoritarian developments in East Asia, rightly or wrongly, have attempted to build on many of the tried and tested characteristics, while liberalizing the economic and political systems. As evidenced by the current East Asian economic crisis, the success of reforming countries in sustaining the good elements and dispelling the bad ones, such as cronyism and corruption, remains in question.  After the crisis a reactive element has come to dominate the countries reaction to these old developmental practices.

 

4. Hybrid Possibilities

            A speculative example of emerging pressures toward federalism in China reflects an important case involving both reaction and positive adaptation. Authoritarian and totalitarian practices in China have been known for a high degree of central control. This, in turn, has inspired a degree of centrifugal force as local regions have been allowed autonomy to pursue their own economic courses under China's economic reform policies. At the same time, China has pursued a formal process of designating a wide range of autonomous regions, including minority autonomous regions, Special Economic Zones, and Special Administrative Regions. The latter two were especially designed to enable more highly developed economic regions to evolve or persist. Some political economists have argued that the centrifugal forces of reforms allowing greater local economic control have produced a kind of economic federalism in China.[118] One could project that any post-authoritarian regime in China would have to acknowledge these divisions. Indeed, Chinese scholars and political figures abroad have already begun to envision a combined confederal and federal China. Their design would carve up China roughly along the lines of divisions already in place: the bulk of existing provinces and autonomous cities on the mainland would constitute the federal component, while the confederal components would include the Special Administrative Regions in the coastal areas and larger minority autonomous regions in Central Asia.[119] In this instance, both centrifugal forces and regional policies under authoritarian rule, which were primarily a product of economic concerns and policies, may ultimately be constructive of a post-authoritarian order, both copying the emerging structure and reacting against it.

 

III. Conclusion

            This paper has sought to illustrate how constitutionalism and its various human rights components can be critical ingredients of the continuing economic development of East Asia. The analysis has sought to demonstrate the following four points: first, that authoritarianism, as a regime type, represents a poor solution in plans for restructuring and continued development in East Asia;[120] second, that state-society embeddedness and institutional components that broadly engage the public (which are characteristics incident to democracy) are central to continued security of economic gains and to resolving the conflicts that arise both from development and the economic crisis; third, given that East Asia is democratizing, that constitutionalism affords the fundamental institutional components for a developed or rapidly developing society—in this sense it serves as a template; and finally, that constitutionalism, properly conceived in its enabling function, supplies a venue for securing both the general requirements of order, reliability, and participation important for further development as well as the specific constitutional extensions important to engendering specific local discourses.

            While the paper argues that the fundamental elements of constitutionalism are vital, it stresses that indigenization, through local institutional embodiment, affords an important avenue to respond to specific local circumstances. The societies of East Asia have become in recent years the loci of complex and diverse public concerns produced both by the rapid pace of development and by the restructuring difficulties of the economic crisis. The diversity and intensity of the resultant discourse may provide the entrepreneurial energy for fully resolving the issues highlighted by the economic crisis and for insuring continued economic success. Constitutionalism is crucial to the maintenance of continued stability and prosperity for highly complex and mobilized free market societies. Further study of the dynamics of constitutionalism in practice can contribute greatly to an understanding of economic development in the context of rapid social and political changes.